Strict Liability Under the Animals Act: a Resume - David Wicks, Pump Court Chambers

22/03/12. In Goldsmith v Patchcott, the Court of Appeal (Longmore, Rimer and Jackson LJJ) considered once again the provisions of the Animals Act 1971.  The claimant suffered severe facial injuries when the horse she was riding bucked and reared, throwing her to the ground.  She brought a claim against the keeper under the 1971 Act.  The trial judge held that, although the requirements of section 2(2) of the Act had been made out on the evidence, the keeper was entitled to rely on the statutory defence under section 5(2) of the Act.  That decision was upheld on appeal.  

The case establishes no new principle.  However, the case is worth reading nonetheless, if only for the helpful and comprehensive review by Jackson LJ, in giving the leading judgment, the relevant cases.   

There is a certain irony in the fact that the Act, which was intended to clarify and simplify the common law on liability for animals, has generated considerable judicial attention and analysis, not to mention headaches for practitioners and judges alike as they attempt to navigate their way round statutory language  which is brief to the point of obscurity (or “oracular and opaque” as Jackson LJ put it in Goldsmith).

So what is the position now?  In what circumstances will the keeper of an animal be strictly liable under the Act for damage caused by that animal?

First, a reminder of the relevant provisions.  Section 2 provides that...

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Kevan and Ellis on Credit Hire, 4th Edition: Chapter One - Rates

21/03/12. “the major protection for the defendant and his insurers is that the claimant can only recover the ‘spot’ or market rate of hire”. So spoke the Court of Appeal in Copley v Lawn in considering the proper scope of mitigation of loss in credit hire cases. It remains open to argument whether the Court of Appeal was correct to regard the protection of the spot or market rates as limiting the scope for traditional mitigation arguments. But far less contentious was the Court’s identification of spot rates as the major issue in current credit hire cases. With the reduction in the number of cases challenging the enforceability of hire agreements (at least under the Consumer Credit Acts), and the unpredictability of mitigation arguments, the focus has definitely shifted to arguments about the applicable daily rate of hire. It is no exaggeration to say that in recent years credit hire cases have been fought in the County Courts every day, often in circumstances where the applicable daily rate is the only real point of contention.

This reflects a key area of dispute between the insurance and credit hire industries. Insurers have long complained that credit hire rates are substantially more than equivalent “spot” or “basic” hire rates. This has usually been justified by the credit hire companies on the basis that they are providing a different service from spot hire companies.

The present position, frequently restated in the leading cases, is that an ordinary claimant is not entitled to recover the credit hire rate but only the equivalent spot or basic hire rate. We will consider the exception which arises in relation to impecunious claimants in the next chapter. In this chapter, we will consider the authorities for this general principle and the reasoning behind it.

In practice evidential issues frequently arise. Often, the defendant relies on...

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Kevan and Ellis on Credit Hire, 4th Edition: Contents

Introduction
The death of credit hire litigation has been predicted rather often. After each new higher court case, there is a tendency to imagine that all issues have been conclusively resolved, facilitating the negotiated settlement of the majority of cases. And yet credit hire litigation continues. Indeed it prospers, to the concern of many County Court Judges. It is no exaggeration to say that credit hire cases, often on similar issues in low value cases, come before the courts every day. Partly, this is due to the relentless tide of new statutory instruments affecting consumer credit. Partly, it is simply because many of the issues that arise turn on the facts of individual cases.

Chapter One - Rates
“the major protection for the defendant and his insurers is that the claimant can only recover the ‘spot’ or market rate of hire”. So spoke the Court of Appeal in Copley v Lawn in considering the proper scope of mitigation of loss in credit hire cases. It remains open to argument whether the Court of Appeal was correct to regard the protection of the spot or market rates as limiting the scope for traditional mitigation arguments. But far less contentious was the Court’s identification of spot rates as the major issue in current credit hire cases. With the reduction in the number of cases challenging the enforceability of hire agreements (at least under the Consumer Credit Acts), and the unpredictability of mitigation arguments, the focus has definitely shifted to arguments about the applicable daily rate of hire. It is no exaggeration to say that in recent years credit hire cases have been fought in the County Courts every day, often in circumstances where the applicable daily rate is the only real point of contention.

Chapter Two - Impecuniosity
In this chapter, we will consider the analysis of impecuniosity in the leading case of Lagden v O’Connor, with particular emphasis on the definition of impecuniosity and the practical implications of this issue.

Chapter Three - Mitigation of Loss
A further way for Defendant Insurers to attack credit hire charges is to argue that the Claimant has failed to mitigate his loss. In short, that the Claimant has acted unreasonably. In assessing the strength of arguments based on mitigation of loss it is important to start with a firm grip on the general principles of mitigation. We will summarise them first.

Chapter Four - Introduction to Enforceability
The next chapters are devoted to the vexed question of whether a particular credit hire agreement is enforceable in the light of various statutory and common law issues, which in particular dictate the form of consumer credit agreements.

Chapter Five - Enforceability Issues: The Consumer Credit Acts
The purpose of this chapter is to discuss the enforceability of credit hire agreements under the Consumer Credit Act 1974 as amended by the Consumer Credit Act 2006.

Chapter Six - Cancellation of Contracts Made at a Consumer’s Home or Place of Work Regulations 2008
The Cancellation of Contracts made in a Consumer's Home or Place of Work Regulations 2008 ("the Cancellation Regulations") came into force on 1 October 2008. They give further effect to the Doorstep Selling Directive, and were enabled by the Consumers, Estate Agents and Redress Act 2007. In short they provide that, where the Regulations apply, the trader must give to the consumer a notice of their right to cancel the agreement. If this cancellation notice is not given, the Regulations provide that the agreement "shall not enforceable against the consumer".

Chapter Seven - Other Enforceability Issues
In this chapter, we address other issues related to enforceability which may arise in relation to credit hire agreements whether by statute or at common law. These are: the Distance Selling Regulations; the concept of Unfair Relationships; the Unfair Terms in Consumer Contracts Regulations 1999; issues arising from signature of...

Chapter Eight - Miscellaneous
The purpose of this chapter is to address additional heads of claim which the practitioner will frequently encounter in dealing with credit hire claims, including claims for interest on credit hire charges and claims for engineer’s fees. Further, the chapter concludes with a section summarising the law on champerty, which was the Insurers’ first big challenge to the credit hire industry but which is now only of historical interest.

Kevan and Ellis on Credit Hire, 4th Edition: Introduction

21/03/12. The death of credit hire litigation has been predicted rather often. After each new higher court case, there is a tendency to imagine that all issues have been conclusively resolved, facilitating the negotiated settlement of the majority of cases. And yet credit hire litigation continues. Indeed it prospers, to the concern of many County Court Judges. It is no exaggeration to say that credit hire cases, often on similar issues in low value cases, come before the courts every day. Partly, this is due to the relentless tide of new statutory instruments affecting consumer credit. Partly, it is simply because many of the issues that arise turn on the facts of individual cases.

Many credit hire cases originate in very similar facts. The Defendant negligently causes a road traffic accident in which the Claimant’s vehicle is damaged. Whilst the Claimant’s own vehicle is off the road being repaired (or replaced), the Claimant may want to be able to use an alternative vehicle. One option for the Claimant is to obtain a replacement vehicle from a credit hire company.

It is easy to see why...

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Kevan and Ellis on Credit Hire, 4th Edition: Contents

Introduction
The death of credit hire litigation has been predicted rather often. After each new higher court case, there is a tendency to imagine that all issues have been conclusively resolved, facilitating the negotiated settlement of the majority of cases. And yet credit hire litigation continues. Indeed it prospers, to the concern of many County Court Judges. It is no exaggeration to say that credit hire cases, often on similar issues in low value cases, come before the courts every day. Partly, this is due to the relentless tide of new statutory instruments affecting consumer credit. Partly, it is simply because many of the issues that arise turn on the facts of individual cases.

Chapter One - Rates
“the major protection for the defendant and his insurers is that the claimant can only recover the ‘spot’ or market rate of hire”. So spoke the Court of Appeal in Copley v Lawn in considering the proper scope of mitigation of loss in credit hire cases. It remains open to argument whether the Court of Appeal was correct to regard the protection of the spot or market rates as limiting the scope for traditional mitigation arguments. But far less contentious was the Court’s identification of spot rates as the major issue in current credit hire cases. With the reduction in the number of cases challenging the enforceability of hire agreements (at least under the Consumer Credit Acts), and the unpredictability of mitigation arguments, the focus has definitely shifted to arguments about the applicable daily rate of hire. It is no exaggeration to say that in recent years credit hire cases have been fought in the County Courts every day, often in circumstances where the applicable daily rate is the only real point of contention.

Chapter Two - Impecuniosity
In this chapter, we will consider the analysis of impecuniosity in the leading case of Lagden v O’Connor, with particular emphasis on the definition of impecuniosity and the practical implications of this issue.

Chapter Three - Mitigation of Loss
A further way for Defendant Insurers to attack credit hire charges is to argue that the Claimant has failed to mitigate his loss. In short, that the Claimant has acted unreasonably. In assessing the strength of arguments based on mitigation of loss it is important to start with a firm grip on the general principles of mitigation. We will summarise them first.

Chapter Four - Introduction to Enforceability
The next chapters are devoted to the vexed question of whether a particular credit hire agreement is enforceable in the light of various statutory and common law issues, which in particular dictate the form of consumer credit agreements.

Chapter Five - Enforceability Issues: The Consumer Credit Acts
The purpose of this chapter is to discuss the enforceability of credit hire agreements under the Consumer Credit Act 1974 as amended by the Consumer Credit Act 2006.

Chapter Six - Cancellation of Contracts Made at a Consumer’s Home or Place of Work Regulations 2008
The Cancellation of Contracts made in a Consumer's Home or Place of Work Regulations 2008 ("the Cancellation Regulations") came into force on 1 October 2008. They give further effect to the Doorstep Selling Directive, and were enabled by the Consumers, Estate Agents and Redress Act 2007. In short they provide that, where the Regulations apply, the trader must give to the consumer a notice of their right to cancel the agreement. If this cancellation notice is not given, the Regulations provide that the agreement "shall not enforceable against the consumer".

Chapter Seven - Other Enforceability Issues
In this chapter, we address other issues related to enforceability which may arise in relation to credit hire agreements whether by statute or at common law. These are: the Distance Selling Regulations; the concept of Unfair Relationships; the Unfair Terms in Consumer Contracts Regulations 1999; issues arising from signature of...

Chapter Eight - Miscellaneous
The purpose of this chapter is to address additional heads of claim which the practitioner will frequently encounter in dealing with credit hire claims, including claims for interest on credit hire charges and claims for engineer’s fees. Further, the chapter concludes with a section summarising the law on champerty, which was the Insurers’ first big challenge to the credit hire industry but which is now only of historical interest.