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In Credit Hire circles, what goes around comes around (again…): Irving v Morgan Sindall PLC considered - Jason Prosser, Leeper Prosser Solicitors

30/07/18. In Credit hire arguments go in circles, at least that is the experience of the writer (who has now been engaged in conducting credit hire claims for nearly 15 years), with issues which one thought had been decided being raised again and again. This applies particularly to the issue, broadly described, as that of the enforceability of credit hire contracts.

Credit hire contracts invariably provide that the hirer must pay the credit hire charges albeit that they also provide that the charges may be deferred for a limited time whilst they are recovered from the third party at fault. In practice this clause is seldom enforced, and it is not uncommon for claimants to give evidence that they were given an assurance that they would not have to meet the cost of the hire vehicle personally [1]. This sometimes leads to a submission that the hire agreement is, in some way, unenforceable.

The issue was considered in Giles v Thomson [1994] 1 AC 142 where the defence was, effectively, that the claimant had had the use of the hire vehicle “free of charge” and had suffered no loss. (page 166 b – 167 A). Lord Mustill found that the liability was real even if it was suspended as regards enforcement. Likewise, Dimond v Lovell [2002] 1AC 384 also recognised that ultimate personal liability to pay the hire charges was not essential to recovery with Lord Hoffman accepting (page 392, paragraph H) that the agreement was one without risk to the hirer...

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