News Category 2
Editorial: New Edition of Ellis and Kevan on Credit Hire - Aidan Ellis, Temple Garden Chambers
27/10/16. This month I have been putting the finishing touches to an updated edition of Ellis and Kevan on Credit Hire. When I completed the previous edition, I remember thinking that credit hire had been around for so long and credit hire cases argued so often, that surely most of the legal issues had been resolved. It turns out, however, that once one issue is resolved another soon rises to take its place.
It is true, of course, that over the last three years there have been a decreasing number of enforceability arguments, as the Cancellation Regulations of 2008 drifted towards repeal and irrelevance. Over the same period, new life has been breathed into mitigation arguments, with the Court of Appeal decisions in Umerji and Opoku v Tintas at the forefront. We are likely to see more developments in this area in the future, perhaps with an insurer finally taking issues around the availability of a courtesy car from the Claimant’s own insurer to the higher courts.
No discussion of developments in credit hire would be complete without some mention of rates. It is remarkable that with Stevens v Equity Syndicate Management, the Court of Appeal has had a fourth attempt at clarifying the approach to evidence of Basic Hire Rates. Not only does that decision still leave various arguments open to the parties on the facts, but it is also unlikely to be the last word on the matter, with issues arising from excess waivers warranting resolution at Court of Appeal level in the near future.
While credit hire charges continue to make up a substantial proportion of contested claims following road traffic accidents, new legal challenges will continue to be mounted. Perhaps the latest will be procedural and may revolve around how best to accommodate credit hire within the pre-action protocol process or penalise non-compliance with that process. This time, I have no doubt that in another four years there will be another raft of new decisions and new issues to incorporate into the next edition.
Aidan Ellis
Temple Garden Chambers
Image ©iStockphoto.com/thesuperph
North of the Border: The New Simple Procedure in Scotland: How Will It Affect Credit Hire Claims? - John Wilson, Brodies LLP
26/10/16. On 28th November 2016, Simple Procedure will be introduced to Scotland’s Sheriff Courts. This procedure will apply to non-injury claims worth £5,000 or less. In this article, John Wilson looks at how, following Peter Chatterton v AXA Corporate Solutions (2016 WL04772382), Scottish credit hire claims may now be addressed under this new procedure.
Background
2.1 Chatterton, an English county court judgement, was a timely reminder of the standard arguments advanced in credit hire claims.
2.2 The ultimate judgement was balanced and clear, setting out where the burdens of proof lie. For example, per Bent ([2011] EWCA Civ 1384), it was for the defendant, AXA, to prove there was a difference between the credit hire rate and the basic hire rate.
2.3 It was argued by the credit hire organisation (CHO) that AXA’s evidence was lacking. The CHO argued that the rates evidence should be ignored because: (i) the terms and conditions were not provided; (ii) it was based on pricelists rather than firm quotes; and (iii) it was obtained three and a half years after the hire had begun. These submissions were all rejected...
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Zane Gbangbola Inquest: Coroner Delivers Findings - Nicola Atkins, 1 Chancery Lane
23/10/16.The Senior Coroner for Surrey, Richard Travers, has delivered his Findings and Conclusions in the Inquest touching the death of Zane Gbangbola, who died at his home in Chertsey, Surrey, during the night of 7th February 2014.
At the time of his death Zane lived with his parents, Nicole Lawler and Kye Gbangbola at no.243 Thameside, a property located adjacent to the River Thames and immediately below a disused landfill site. During the winter of 2013/2014 Chertsey was badly affected by flooding, and in the days prior to Zane’s death his parents hired a petrol driven pump to remove water from their flood basement. The pump was set up in the downstairs utility room, and used by Nicole Lawler at some point on 7thFebruary 2014 (although the extent of use was a heavily disputed issue at the Inquest). During that night both Zane and his father suffered acute illness after exposure to toxic gases, in Zane’s case fatally. Upon investigation by the emergency services all members of the family displayed elevated levels of Carboxyhaemoglobin in their blood, signifying exposure to Carbon Monoxide (CO). However, gas testing carried out by the Fire Brigade at no.243 in the early hours of 8th February 2014 detected a reading for Hydrogen Cyanide (HCN), but not CO.
The Inquest heard from over 70 witnesses in respect of two “competing” theories as to the identity of the toxin that killed Zane.
The first theory, supported by the Family, was that the toxin (most likely HCN) had migrated into no.243 via contaminated floodwater from the ex-landfill site. It was on this basis that the landowner (Brett Aggregates), Spelthorne Borough Council, and the Environment Agency were joined as Interested Persons to the Inquest (the latter two having had a degree of regulatory responsibility for the landfill site since the 1950’s).
The second theory, supported by the remainder of Interested Persons, was that Zane’s death had been caused by exposure to CO gas emitted from the petrol pump whilst it was in use on 7th February 2014. This possibility was strongly denied by the Family, who gave evidence that the petrol pump had never been used other than for several minutes to test that it worked.
In his Findings and Conclusions the Coroner determined that, on balance, Zane had died at approximately 10.30pm as a result of inhaling CO fumes emitted by the petrol pump situated downstairs at no.243. He rejected the evidence of Zane’s parents as to the extent of their use of the pump, which he deemed “improbable”, and found that the pump had been on for 6 hours on 7th February 2014 in an inadequately ventilated location. The Coroner further found that HCN had never in fact been present at no.243, and the sole reading detected by the Fire Brigade was caused as a result of cross-detection from Oxides of Nitrogen.
The Coroner was, however, critical of the company that had hired the pump to Nicole Lawler, as he accepted her evidence that representatives of Surrey Hire and Sales (also an Interested Person at the Inquest) told her it was safe to use indoors. Criticism was also levelled against the HSE and Hire Association Europe; the latter organisation having produced safety instructions (endorsed by the HSE) indicating that the pump could be used indoors if in a ventilated area. This was in direct contradiction to safety instructions issued by the manufacturer of the pump, Honda, and the expert evidence of an HSE representative. A Regulation 28 Report to prevent future deaths has been issued by the Coroner requesting that HAS/HSE review the content of the relevant safety instructions.
Ivor Collet and Nicola Atkins from 1 Chancery Lane appeared at the Inquest on behalf of Spelthorne Borough Council.
Image cc en.wikipedia.org/wiki/File:Coroners_Court_Entrance.jpg
QOCS and Discontinuance - James Bentley, Guildhall Chambers
21/10/16. As it stands, there is no authority on how QOCS fits with discontinuance. However, there have been multiple county court decisions on the issue. Magon v Royal Sun Alliance (Unreported, 26th February 2016, Central London County Court) is the latest of those cases and makes interesting reading for those worried about the effect of discontinuance and QOCS in claims where fundamental dishonesty is not alleged.
The Facts
The facts of the case were fairly straightforward. The claimant was in a road traffic accident and pursued a claim for personal injuries. However, when it came to issuing the claim she issued not on the insurer of the defendant driver (as would have been her right to) but on the claims handler instead. In light of the error, the defendant claims handler invited the claimant to discontinue and to pay their costs.
At around the same time, the defendant also entered into settlement negotiations with the claimant on behalf of their principal, leading the matter to be settled for a relatively modest sum. After the matter had settled the claimant subsequently discontinued against the claims handler and accepted that although they were entitled to an order for costs, the order would not be enforceable since the claimant was protected by QOCS...
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Assistive Technology Claims - Andrew Williams, Exchange Chambers & Donna Cowan, Colin Clayton Assistive Technology Ltd
20/10/16. It’s hardly surprising that a severely injured claimant may require specialist IT equipment for leisure, education, communication or to counter specific disabilities. But Assistive Technology (“AT”) is a head of claim that can strike uncertainty into even the most bullish of lawyers.
Last year a few cases considered this head of claim, at least a couple of which can help focus our minds. Before we consider them, let’s remind ourselves that when it comes to compensation for future loss, a claimant is entitled to damages sufficient to meet her reasonable needs arising from her injuries. But the court must have regard to all the relevant circumstances.
Proportionality between the cost and benefit of a particular piece of equipment is relevant in determining whether a claimant’s reasonable needs extend to the expenditure in question. In the often-cited first instance decision Whiten v. St George’s Healthcare NHS Trust [2011] EWHC 2066 Swift J explained that when considering these issues, the court has to consider whether a substantially similar result could be achieved by less expensive means.
What can make this head of claim a little daunting is the increasing range of mind-boggling, impressive technology … often with a price tag to match...
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![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
