FREE BOOK SAMPLE: Rates (From 'Ellis and Kevan on Credit Hire - 5th Edition' by Aidan Ellis & Tim Kevan)
01/12/16. “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 Lawn1 in considering the proper scope of arguments relating to mitigation of loss in credit hire cases. As set out below, subsequent cases suggest a greater role for mitigation in credit hire cases than the Court of Appeal allowed in Copley. But far less contentious was the Court’s identification of the market rate of hire as the ‘major protection’ for the defendant in current credit hire cases. It is no exaggeration to say that the County Courts are still grappling with credit hire cases in which the daily rate is the main issue on a daily basis. The determination of the market rate of hire remains highly contentious and deserves its place in the first chapter of this revised edition.
Disputes over the rate of hire reflect a fundamental dispute between the insurance and credit hire industries. Insurers have long complained that credit hire rates cost substantially more than the equivalent market rates. But the method of determining the ‘equivalent’ market rate has always been controversial. Moreover, credit hire companies argue that they provide a different service – for example, providing hire vehicles on favourable insurance terms – which is not matched by ordinary hire companies or which, if ordinary hire companies could match it, would cost no less than the credit hire rate.
The present position, frequently restated in the leading cases, is that an ordinary claimant is not entitled to recover the full credit hire rate because it is said to incorporate irrecoverable benefits additional to the provision of a vehicle. As a result, only the equivalent market hire rate is recoverable. 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. We will then go on to consider how the Court should determine the equivalent market hire rate by considering the leading authorities and the evidential issues which commonly arise.
As explained below, the additional benefits issue is separate from arguments about reasonableness and mitigation. The distinct arguments that may arise about reasonableness in relation to rates are addressed in Chapter Three.
CREDIT HIRE RATE OR BASIC HIRE RATE?
It is perhaps helpful to start by stating the general rule again. In Dimond v Lovell,2 after emerging from the thicket of consumer credit issues to address the issue of rates, Lord Hoffmann (with whom Lord Browne-Wilkinson agreed) stated that:-
“in the case of a hiring from an accident hire company, the equivalent spot rate will ordinarily be the net loss after allowance has been made for the additional benefits which the accident hire company has provided.”
It should be acknowledged at the outset that this part of the speech was obiter dicta. The ratio of Dimond v Lovell related to the enforceability of the hire agreement under the Consumer Credit Act 1974. This led Lord Saville to abstain from deciding the issue on the basis that it:-
“does not arise for decision in the present case. This is a question of great importance and difficulty, the answer to which may well have widespread ramifications. It is accordingly a question that I would prefer to consider in a case where it does arise for decision.”
Although the other four Judges did address the issue, Lord Nicholls dissented on the basis that the full credit hire rate should be recoverable and Lord Hobhouse agreed that the credit hire rate should not be recoverable, but proposed a different way of ascertaining the recoverable damages. Only Lord Browne-Wilkinson agreed entirely with Lord Hoffmann.
Nevertheless it would, in practice, be very difficult to argue that lower courts should not follow Lord Hoffmann’s approach. As the Court of Appeal explained in Sayce v TNT:
“There are circumstances in which, although not technically bound by a decision of a higher court, a lower court should follow and apply that decision, even though it may disagree with it. There may be room for legitimate disagreement between judges of co-ordinate jurisdiction and in those circumstances reasoned difference of opinion may provide a useful springboard for an appeal. That is not the case, however, where a higher court has decided a question of principle, albeit obiter, for the purpose of clarifying the law for the profession at large. It would not be right, for example, for this court to disregard those parts of their Lordships’ speeches in Dimond v Lovell that deal with the recovery of that part of the credit hire costs that relate to additional benefits on the grounds that they are obiter”3
Moreover, many subsequent cases confirm that Lord Hoffmann’s dicta have become firmly entrenched in the jurisprudence. They have been repeatedly confirmed in subsequent cases. Thus in Burdis v Livsey, the Court of Appeal endeavoured to follow the House of Lords’ “guidance as to the principles to be applied in arriving at the correct measure of damages for loss of use”.4
In a similar vein in Bee v Jenson, the Court of Appeal noted that “the House held, secondly, that even if the claimant could have recovered he could have recovered no more than the spot charge and not the charges made for an agreement that entitled the claimant to more benefit than the cost of hire itself”.5
In Copley v Lawn, the Court of Appeal “regarded it as well settled that, although a claimant can recover the cost of hiring a replacement car, he can only recover the reasonable rate of such hire; that has been held in Dimond v Lovell to be the market or spot rate”.6
In Bent v (1) Highways and Utilities Construction Ltd (2) Allianz Insurance7 (“Bent no1”), the Court of Appeal summarised the authorities thus “The authorities establish that in the case of “pecunious” (as the Judge described Mr Bent) claimants, the damages to be awarded are normally to be assessed at “spot hire” rates – the rate at which a broadly similar car could be had on the market.”
In Bent v (1) Highways and Utilities Construction Ltd (2) Allianz Insurance no2 (“Bent no2”), the Court of Appeal repeated “If the claimant could afford to hire a replacement car in the normal way, ie. without credit terms and by paying in advance,8 then the damages recoverable for loss of use of the damaged car will be that sum which is attributable to the basic hire rate of the replacement car”.9
The result is that, although it was strictly obiter, the general rule established by Lord Hoffmann in Dimond is now deeply entrenched in the jurisprudence. Unless the issue returns to the Supreme Court (and unless the claimant is impecunious) the general rule is therefore that the claimant is restricted to recovering “the equivalent spot hire rate”.
The Reason for the General Rule
Before going on to consider how the Court should determine the basic hire rate, it is necessary to explain the reason for this general rule. Understanding the reason for the rule, should guide the application of the rule to the evidence.
In Dimond, Lord Hoffmann, with whom Lord Browne Wilkinson agreed, stated:
“My Lords, I would accept the judge's finding that Mrs. Dimond acted reasonably in going to 1st Automotive and availing herself of its services . . . She cannot therefore be said not to have taken reasonable steps to mitigate her damage.
But that does not necessarily mean that she can recover the full amount charged by 1st Automotive. By virtue of her contract, she obtained not only the use of the car but additional benefits as well.”
This finding is significant because by accepting that Mrs Dimond acted reasonably in going to the credit hire company, as the Court of Appeal and the trial Judge had already held below, Lord Hoffmann made it clear that the reason for not allowing the claimant to recover the credit hire rate is nothing to do with mitigation or reasonableness. Rather it is a matter of betterment.
The point is that a credit hire company typically provides a range of accident management services to a claimant, which go beyond the simple provision of a replacement vehicle. Lord Hoffmann identified the additional benefits inherent in the credit hire contract at page 401 as:
i. the credit charge itself
“She was relieved of the necessity of laying out the money to pay for the car.”
ii. the costs of the action
“She was relieved of the risk of having to bear the irrecoverable costs of successful litigation and the risk, small though it might be, of having to bear the expense of unsuccessful litigation”. Lord Hoffmann also referred to other associated costs: “Paying commission to brokers”; “checking that the accident was not the hirer’s fault.”
iii. possibly avoiding a residual liability
“Depending upon the view one takes of the terms of agreement, she may have been relieved of the possibility of having to pay for the car at all.”
iv. relieving the anxiety of the claim
“She was relieved of the trouble and anxiety of pursuing a claim against Mr. Lovell or the C.I.S.”
Lord Hoffmann continued:-
“My Lords, English law does not regard the need for any of these additional services as compensatable loss. As Sir Richard Scott V.-C. said (at  3 W.L.R. 561, 580) "damages for worry and for the nuisance caused by having to deal with the consequences of an accident are not recoverable." If Mrs. Dimond had borrowed the hire money, paid someone else to conduct the claim on her behalf and insured herself against the risk of losing and any irrecoverable costs, her expenses would not have been recoverable. But the effect of the award of damages is that Mrs. Dimond has obtained compensation for them indirectly because they were offered as part of a package by 1st Automotive. There is in my opinion something wrong with this conclusion.”
He then referred to the cases of British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd  A.C. 673 and Bellingham v. Dhillon  Q.B. 304 which emphasised that only compensatory damages were recoverable. In other words, additional benefits received whilst mitigating loss should not be taken into account in quantifying the claim. But how does this impact on the assessment of damages? Lord Hoffmann explained:-
“How does one calculate the additional benefits that Mrs. Dimond received by choosing the 1st Automotive package to mitigate the loss caused by the accident to her car? . . . I do not think that a court can ignore the fact that, one way or another, the other benefits have to be paid for . . . How does one estimate the value of these additional benefits that Mrs. Dimond obtains? It seems to me that prima facie their value is represented by the difference between what she was willing to pay 1st Automotive and what she would have been willing to pay an ordinary car hire company for the use of a car . . . I quite accept that a determination of the value of the benefits which must be brought into account will depend upon the facts of each case. But the principle to be applied is that in the British Westinghouse case  A.C. 673 and this seems to me to lead to the conclusion that in the case of hiring from an accident hire company the equivalent spot rate will ordinarily be the net loss...”
Thus, the only way to strip out the additional and irrecoverable benefits from the credit hire charges is by reference to the “equivalent spot rate”.
On the face of it, Lord Hobhouse adopted a similar analysis. He expressly said that he agreed with Lord Hoffmann that the judge and the majority of the Court of Appeal had approached the issue in the wrong way. He also decided that Mrs Dimond had acted reasonably and went on to emphasise the additional benefits contained in the credit hire contract. He described these at pages 406 - 407 as:
the credit charge itself
“It is financing the transaction until the expected recovery is made from the other party”.
the costs of the action
“it is bearing the cost of handling the claim and effecting that recovery”; “something in respect of costs”.
possibly avoiding a residual liability
“it is bearing a commercial (though not normally the legal) risk that there may be a failure to make that recovery”.
Thus aside from one (removing the anxiety of litigation), Lord Hobhouse identified the same additional benefits as Lord Hoffmann.
However, his analysis of how the recoverable damages should be calculated differed from that of Lord Hoffmann. Lord Hobhouse favoured “the approach of making a commercial apportionment between the cost of hiring a car and the cost of the other benefits included in the scheme.”
He explained that Mrs Dimond would not have been able to recover the whole cost of the credit hire charges “as the cost of mitigating the loss of use of her car”. He said later, “The elements to which the uplift in the charges of the accident hire company was attributable were (and inevitably must be) elements which were not properly included in the claim for damages for loss of use.”
In other words, the claim for the uplift was not recoverable in the claim for loss of use. This may have left open the possibility that it may be recoverable in other ways. Indeed, this is supported by his further statement that “As appears from what I have said, some might be recovered from the wrongdoer in another form”. In practice, however, it is difficult to see how the Claimant could recover for these additional benefits via any other route. First, the Claimant would not be able to recover for the same thing twice:
“The necessity to make some apportionment or other reduction in the claim is demonstrated by the need to avoid double counting. Prima facie, the court should award statutory interest on the claim; but here the claim already included some element of interest. Similarly the claim included something in respect of costs; to award costs as well would involve some duplication.”
Second, Lord Hobhouse stated that, “it is unlikely that any scheme could be devised which would enable the insurance element to be recovered”. This appears to refer to the additional benefit which comprised the possibility of avoiding a residual liability.
The heart of the difference between Lord Hoffmann and Lord Hobhouse is this: Lord Hoffmann thought that the measure of the Claimant’s recoverable loss could safely be approximated by looking to the equivalent spot hire rate while Lord Hobhouse seemed to prefer an approach based on stripping out the unrecoverable additional benefits from the credit hire charges.
As the caselaw set out above and below illustrates, it is Lord Hoffmann’s approach – searching for the basic hire rate - which is most often adopted in practice. However, that does not mean that the Courts have not expressed certain reservations. From time to time, the Court of Appeal has flirted with the idea that the credit hire company could disclose details of its charging structure in order to allow the charge for credit to be stripped out in a manner reminiscent of Lord Hobhouse’s approach. Most recently, in Stevens v Equity Syndicate Management Ltd the Court of Appeal canvassed “whether credit hire companies could, as a matter of course, disclose their estimate of the BHR alongside every quoted credit hire rate”.10 It later suggested that the selection of the lowest reasonable rate was justified because “the credit hire company is in the best position to elaborate upon and give disclosure relating to its charging structures”.11
On the whole, however, the Courts have retreated from the disclosure and costs implications of any attempt to strip out the elements of the credit rate.12 Nevertheless, it remains open to credit hire companies to seek to avoid the analysis of basic hire rates altogether by providing appropriate disclosure of their charging structures and an analysis breaking down the credit hire charges into their constituent elements.
For completeness, in dissent in Dimond Lord Nicholls accepted that the credit hire contract incorporated additional benefits but argued that the uplift should be recoverable. He identified the same “additional services” as Lord Hobhouse:
the credit charge itself
“The hirer does not have to produce any money . . . at the time of the hiring”.
the costs of the action
“The hire company pursues the allegedly negligent driver's insurers”; “The hire company is not deterred by having to bring court proceedings should this become necessary”.
possibly avoiding a residual liability
“The hirer does not have to produce any money, either at the time of the hiring or at all”; “If the claim is unsuccessful, in practice the hire company does not pursue the hirer”.
Lord Nicholls then went on to explain why these additional benefits ought, in his view, to be recoverable:-
“The additional services . . . redress the imbalance between the individual car owner and the insurance companies. They enable car owners to shift from themselves to the insurance companies a loss which properly belongs to the insurers but which, in practice, owners of cars often have to bear themselves. So long as the charge for the additional services is reasonable, this charge should be part of the recoverable damages.
A measure of damages which does not achieve this result would be sadly deficient. The law on the measure of damages should reflect the practicalities of the situation in which a wronged person finds himself. Otherwise it would mean that the law's response to a wrong is a right to damages which will often be illusory in practice. I do not believe this can be the present state of the law in a situation which affects thousands of people every year.”
However, Lord Nicholls’ was a lone voice in dissent. As set out above, the majority approach in Dimond is now firmly entrenched in the jurisprudence. His dissent is now mainly interesting from a historical perspective.
DETERMINING THE BASIC HIRE RATE
Identifying that the equivalent spot hire rate will ordinarily be the amount of recoverable damages, as the House of Lords did in Dimond, is helpful as a general principle. But it does not guide the County Courts in determining what the equivalent spot hire rate is in specific cases. This issue has been addressed by the Court of Appeal on no fewer than four occasions. Each decision favours a different approach. We will set out each decision in detail before attempting to draw some conclusions.
Burdis v Livsey
In the first case, Burdis v Livsey, the Court of Appeal began by identifying the difficulty of the task. They pointed out that hire rates are “in constant flux”. This is no doubt correct: they vary depending on the season and depending on the availability of particular vehicles. Furthermore the rates charged by different companies may vary considerably. Thus there is no single market rate as such.
At first instance in Burdis, the Judge had considered a number of ways of arriving at the right measure of damages:-
Analysing the charges made by the credit hire company to uncover which charges related to irrecoverable additional benefits and which simply related to hiring the car. Note that this appears to be the approach that Lord Hobhouse in Dimond had preferred. But both the Judge and the Court of Appeal considered that this approach was too “cumbersome” to apply. It would lead to disproportionate costs and lengthy disclosure exercises.
Applying an arbitrary “reasonable discount” to the credit hire charges. The Court of Appeal also dismissed this approach, “we do not believe it appropriate in the absence of agreement between the parties or without cogent evidence as to what the discount should be. Further, as the judge pointed out, once the courts start applying a particular discount the total charge may be increased.”
Considering the actual hire rates locally. This creates its own difficulties such as what companies to survey and whether to take the highest or the lowest rate. With some modifications as to the detail, this was the route which was eventually approved.
The approach that the Judge in fact adopted was based on expert evidence given by Mr Mainz on behalf of the Insurers. Mr Mainz had carried out a survey of car hire rates including those charged by the best known national hire companies and a random selection of smaller companies. His figures thus provided a band of rates, which were a snapshot of the hire market as at January 2001.13 The Judge decided to award an average based on the Mainz report. He then applied a 10% uplift to the average of these rates, to take account of the fact that the survey was carried out in January whereas the actual hire was in peak season.
The Court of Appeal rejected this approach. They held:
“146 …That cannot be right. A person who needs to hire a car because of the negligence of another must, subject to mitigating his loss, be entitled to recover the actual cost of hire not an average derived from the Mainz report. If the principle adopted by the judge is correct then it would seem appropriate also to apply that principle to the cost of car repair, namely a claimant may only recover the average of the charges of garages. But a person whose car is damaged should in appropriate circumstances recover the cost to him of repair and loss of use. His recovery should not be restricted to an average of car repair or hire rates nor should he be able to recover that average cost if the actual cost is less. We believe that the solution is to apply normal legal principles.
The Court of Appeal also expressly accepted the criticisms advanced by the claimant that (1) the claimant should be entitled to recover the true cost of hire not simply an average (2) the uplift of 10% was arbitrary and (3) the adoption of the Mainz report was not a “cheap and workable” solution since the Mainz report would not be admissible or applicable in the mass of other cases which were pending.
The Court of Appeal then set out the correct approach to take. This section of the judgment is crucial and so is set out in full below.
147. The fundamental principle is that a person whose car has been damaged is entitled to compensation for the loss caused. In a case where such loss includes loss of use and he establishes a need for a replacement, he is entitled to the cost of hiring a replacement car. He can go round to the nearest car hire company and is prima facie entitled to recover the amount charged whether or not the charge is at the top of the range of car hire rates. However the basic principle is qualified by the duty to take reasonable steps to mitigate the loss. What is reasonable will depend on the particular circumstances.
148. We do not anticipate that the application of the correct legal principles will lead to disproportionate costs in small cases. The claim will be based on evidence as to the rate charged by a car hire company in the relevant area. Perhaps the rate will be at the top end of the range of company rates. Thereafter the evidential burden passes to the insurers to show that it would not have been reasonable to use that particular car hire company and that the reasonable course would be to use another company which charged a lower rate. What is reasonable and whether a loss is avoidable are questions of fact, not law, which District and County Court judges regularly decide. It can arise in many different types of cases, ranging from damage to chattels to a failure to take action. We do not believe that a decision on such issues in respect of car hire charges will be any more difficult than in respect of car repair charges.”
We will return to try to reconcile this passage with the later Court of Appeal decisions. But it is worth making one observation on terminology at this stage. In its decision, the Court of Appeal consistently refers to credit hire companies as “accident hire companies”. The reference in paragraph 148 to a “car hire company” must therefore be to a spot hire company. But if this is correct, then the Defendant might argue that the Court of Appeal was placing the burden of proof on the Claimant, at least initially, to provide evidence of spot hire rates. This is supported by the Court of Appeal continuing that “thereafter the evidential burden passes to the insurers”. In order for the burden to pass to the insurers “thereafter”, it must have been on the Claimant initially. As set out below, however, subsequent cases make it clear that the burden of proof rests on the Defendant to show that the equivalent spot hire rate was lower than the credit hire rate.
In the first appeal in the Bent case, the trial Judge had rejected the evidence of spot hire rates tendered by the Defendant primarily on the basis that it was evidence of comparable rates in 2009 when the hire actually occurred in 2007. The trial Judge was also concerned that the rates related to different vehicles and that given that the Claimant was only 23 it was not clear that ordinary hire companies would hire any vehicle, let alone a powerful vehicle, to him. As a result, at first instance the credit hire rates were awarded in full.
The Court of Appeal disagreed. In relation to the timing point, Jacob LJ giving the leading judgment held that:
“Working with comparables and making adjustments is the daily diet of judges concerned with valuation in all sorts of fields. Clearly evidence of the spot rate a year or so later than the relevant date is likely to throw considerable light on what the spot rate would have been at the time.”14
In relation to whether the Defendant needed to provide rates evidence for an identical vehicle, Jacob LJ continued that:
“one must not be hypnotised by any supposed need to find an exact spot rate for an almost exactly comparable car. Normally, the replacement need be no more than in the same broad range of quality and nature as the damaged car. There may be a bracket of spot rates for cars rather “better” and rather “worse”. A Judge who considered that bracket and aimed for some sort of reasonable average would not be going wrong.”15
Perhaps the unusual features of this decision will be immediately apparent. It certainly has the merit of brevity. The Court of Appeal judgment is barely more than two pages long. It makes very little reference to earlier jurisprudence and no reference at all to Burdis v Livsey. This might be thought surprising given that the suggestion that Judges could adopt “some sort of reasonable average” apparently contradicts the express rejection of averages in Burdis.
The result was that the issue of spot hire rates was then referred back to the County Court for determination at a fresh hearing at which the Claimant was allowed the opportunity to enter his own rates evidence. This sets the scene for the second Bent case in which the resulting assessment of the equivalent spot hire rate was appealed again, this time by the Claimant.
In order to explain this decision, it is necessary to start by setting out the facts in more detail. The Claimant, Darren Bent, was a well-known Premier League footballer. He was not impecunious. He was 23 at the time of the accident. He hired an Aston Martin DB9 as a replacement for his Mercedes-Benz CLS 63 AMG Coupe. It is perhaps unfortunate that a leading case on the calculation of spot hire rates should concern two such specialised and prestigious vehicles, when the vast majority of cases before the courts concern rather more standard vehicles.
The Claimant relied on written and oral evidence from the Chief Executive of the credit hire company, which attached tables of spot rates for vehicles in category SP9 in Spring 2009 and also further evidence about 2007 figures from smaller specialist hirers. The Defendant relied on a rates survey carried out on the internet and by telephone to gain the hire rates from five ordinary car hire companies.
The Court of Appeal began by setting out the legal background. As set out above, it confirmed that “the damages recoverable for loss of use of the damaged car will be that sum which is attributable to the basic hire rate of the replacement car.”16
Thus far in this chapter, we have adopted the phrase ‘spot hire rate’ to reflect the market cost of hiring a replacement vehicle. This was the phrase used by Lord Hoffmann. However Bent no2 states that “Spot hire rates” is a misnomer and that “it would be better if, in the context of credit hire cases, the term “spot rate” were not used in future and the term “basic hire rate” or BHR were used instead”.17 We will follow the Court of Appeal’s guidance and refer to basic hire rates from this point forwards.
The Court of Appeal continued that “it is for a defendant to demonstrate, by evidence, that there is a difference between the credit hire charge agreed between the claimant and the credit hire company and the BHR”.18 The Court of Appeal supported this proposition in a footnote by saying that it is well established that it is for the Defendant to prove that the Claimant has benefitted from betterment so that the damages recovered must be reduced.
The Court then considered how the basic hire rate might be established. It held that a court could consider two types of evidence: direct evidence and indirect evidence. Direct evidence would consist of “published rates, from the actual credit hire company that hired the replacement car which demonstrates either that the credit hire rate and the BHR for that type of car is the same or it is different and what the difference is”. According to the Court, “if there is such direct evidence it might be the best evidence of any difference between the credit hire rate charged and the BHR for that type of car in that area at the time the replacement car was hired”.19 The second type of evidence, termed “indirect evidence”, is “evidence of the BHR charged by other car hire companies in the area for the type of car actually hired”.20
The reference to direct evidence might encourage credit hire companies to consider whether it would be in their interests to publish a basic hire rate tariff. They might argue that a credible tariff is all that is required to demonstrate the BHR, after all the Court of Appeal recognised that this might represent the “best evidence” on the point. Insurers might respond that this would be misleading because many credit hire organisations purely specialise in credit hire. Their rates are not available to ordinary customers, or not attractive to them. Practical issues would likely arise in relation to the extent of disclosure which is proportionate and necessary to support any such tariff.
In returning to the case at hand, in a section headed discussion and conclusion, the Court restated the test: “the aim of the judge’s fact finding exercise is to ascertain the BHR for the model of car that the claimant actually hired and to do so on an objective basis”.21 This was later confirmed by saying that on the facts the question was “what was the BHR for the Aston Martin DB9 that was actually hired”.22
In considering the discussion of rates in Burdis v Livsey, the Court interpreted the earlier decision as meaning that “the court has to calculate the BHR on the basis that the claimant notionally went round to an equivalent non-credit hire company. If there is a difference between the two rates [ie between credit hire and BHR], the claimant will recover the BHR that the non-credit car hire company would have charged, even if the BHR that the car hire company charged was at the top end of the range, provided that the claimant acted reasonably.”23
The logic of this passage may well be sound. But it...