No Nit-picking! DAC Beachcroft Success at the High Court, gives Clarity to ‘Imperfect’ BHR Evidence

Published 15 May 2020

On 13^th May 2020, DAC Beachcroft together with Steven Turner of Parklane Plowden, successfully defended an appeal held in the High Court on the matter of Bunting v Zurich Insurance Plc [2020].

The Background

The Claim arose out of a road traffic accident in June 2015. As a result of the accident, the Claimant hired a replacement vehicle from Helphire (now Auxillis) totalling charges at £28,551.84, at a daily rate of £338.76.

The Claim proceeded to trial on 1^st November 2018 before Recorder Le Poidevin (QC) where the rate of hire was the main issue in dispute.

The Claimant had not obtained their own basic hire rate evidence, but instead summonsed the author of the Defendant’s report to Trial and sought permission to call him as a witness for the Claimant.

Accepting the evidence of the basic hire rate author the Recorder awarded the lowest rate in the report (a 7 day rate from Thrifty) with a ‘rough and ready adjustment’ of an uplift of £10 per week to reflect the issues raised by the Claimant that there was no detail as to deposit payable, the mileage was limited to 500 miles per week and there was a 30 day maximum hire limit.

The Recorder therefore awarded the Claimant £3,989.14 for the hire.

The Appeal

The appeal was heard at the High Court Centre in Birmingham, however due to Covid-19, it was heard via video link before Pepperall J.

The Claimant’s lengthy grounds of appeal (more details can be found at para.17 of Steven Turners full note of the Appeal) argued that the Recorder should have disregarded the Defendant’s basic hire rate evidence on the basis of admissibility, that the Recorder shouldn’t have awarded the Thrifty rate and that they had been wrong to use the 1/7 of the 7 day rate for the 78^th day of hire.

The Decision on Appeal

Pepperall J dismissed the Claimants Appeal, confirming he found the Claimants arguments to be a ‘nit-picking challenge’ that came nowhere near the threshold for demonstrating that the Recorder’s decision had been perverse.

Peperall J confirmed:

• A County Court Judge would be wrong to require evidence from precisely the time of the accident
• The Recorder had been entitled to rely on the basic hire rate providers evidence that the Thrifty rate was indicative of the likely hire costs for a 78 day period, even though there was a 30 day contractual limit
• The Recorder was entitled to infer that a car would have been available at the time of hire
• The Recorder was also entitled to use 1/7 of the 7 day rate to make up the 78^th day of hire

In considering the £10 uplift made to the Thrifty weekly rate, Pepperall J stated:

• Questions of deposit are irrelevant in a case where there is no evidence of impecuniosity
• The mileage restriction was irrelevant because the Thrifty rate allowed more than double the Claimant’s average weekly mileage
• The charge per week for the full period was unlikely to be at a higher rate than the charge per week for the initial 30 day period, therefore the 30 day limit point didn’t justify any uplift.

Ultimately the Court held that the Recorder’s ‘rough and ready’ additional allowance is precisely the sort of thing that is open to a first instance Judge.

What does this mean for Credit Hire practitioners?

This judgment both re-confirms & adds to the case law we already have in this area;

1. Deposits on the basic hire charges are not relevant to pecunious Claimants.
2. There is no requirement for a Defendant to demonstrate availability of a particular vehicle on a particular date.
3. The ‘sanguine’ approach to BHR issues was endorsed. The Courts are entitled to rely on sometimes imperfect basic hire rate evidence to strip out the irrecoverable benefits from the Credit Hire rate claimed to get to the market rate.
4. Trial judge’s may use their experience and common sense, when looking at perceived limitations of BHR evidence and apply adjustments where applicable.

Our vehicle hire and damage team deal with cases like this on a regular basis. For more information or advice, please contact one of our experts.

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