This site uses cookies.


Telematics - Peter Wilson, Park Square Barristers

09/09/15. Many vehicles are now fitted with tracking devices. Such devices allow the owner to locate the vehicle if it goes missing.  In the past tracking devices were most often fitted to high value vehicles. Increasingly, however, tracking devices are being fitted to other vehicles such as fleet cars and hire cars.  Some people agree to allow their motor insurer to fit a tracking device to their car so that their driving performance can be monitored. This is done in the hope the insurer will reduce their insurance premiums over time. Tracking devices are sophisticated in terms of the information they record. The science associated with tracking devices is called telematics.  This article explains how telematics works and the forensic value of the data to drivers, insurers, lawyers and the courts.

How it works

A tracking device records and stores information. It then sends that information to a remote server where the same is permanently stored. Satellite communications and mobile telephone technology is used by the device to both receive information (in particular information regarding the vehicle’s position) and to send information to the remote server.

The device is set to record the location of the vehicle at routine intervals. This can be every 3, 4 or 5 minutes etc. The device will record the latitudinal and longitudinal co-ordinates of the vehicle at the time in question. In turn that location can be identified with real precision. Any given set of co-ordinates should pinpoint the location of the vehicle within a radius of between 5 metres and 25 metres. Good satellite coverage is required to achieve precise co-ordinates. The device needs to be communicating with at least 3 satellites at any given time in order to achieve a good co-ordinate location reading. The more satellites the device is communicating with, the more precise the co-ordinate location reading. When a routine location record is created the same includes a host of other information including the time, the vehicle’s speed and the vehicle’s direction of travel.

The device is also set to make an immediate and non-routine record of certain unusual changes in the g-forces being experienced by the vehicle. It does not take much change in the g-forces experienced by a vehicle to trigger a non-routine record. If the vehicle strikes a kerb that is likely to be recorded as a non-routine incident. A collision with another vehicle is very likely to trigger a non-routine record. The device records that there has been an unusual change in the g-forces experienced by the vehicle. At the same time it records the standard information associated with a routine record such as location but also records the extent to which the vehicle experienced unusual g-forces, whether the vehicle was moving or stationary and, if it was moving, whether or not it came to a halt shortly thereafter or simply kept on moving.

Those wishing to stage a road traffic accident often choose to do so by hiring a vehicle from a reputable hire firm in order to use that vehicle in a staged collision. In this way the fraudster is provided with a fully insured vehicle at modest cost which can be damaged with abandon. Numerous claims can then be brought against the hire firm’s insurer.


If such a vehicle is fitted with a tracking device the same can be an invaluable tool in identifying the fraud and defending the claims. As more vehicles are fitted with tracking devices it should become increasingly difficult for fraudsters to stage accidents. Any attempt at staging will have to be planned meticulously so that the tracking device records what appears to be a genuine accident which conforms with all the accounts later relied upon by the fraudsters in relation to location, time, vehicle speed and sequence of events. That will not be easy.

Peter Wilson
Park Square Barristers

Image ©

Future Loss of Earnings at £1,446.431: A High Court Case Examined - Gordon Exall, Zenith Chambers

07/09/15. Continuing with the practice of looking at judicial decisions in relation to loss of earnings we look at  Siegel -v- Pummell [2014] EWHC 4309 (QB)  where Mr Justice Wilkie considered a claim for loss of earnings where a high achieving IT Consultant.


The claimant was an IT Consultant and suffered injuries in his accident. There was a major dispute as to the extent of the injuries. The claimant put his loss of earnings claim in excess of £2 million.

viii) My assessment of the employment experts

  1. There is a significant degree of agreement between Mr Evans and Mr Burden. Both agree that the Claimant demonstrated disinhibited behaviour throughout their respective meetings and that this is highly likely to inhibit his ability to perform the role of a senior manager in the UK. However, both agree that he has strong communication skills for the technology sector which set him apart from most individuals at his level. They agree that it is highly probable that these skills had a very positive influence in helping him rise to a senior management position within that industry. Those communication skills are sought after and provide excellent employment prospects, with quick progress to prominent positions.

  2. Both agree that a prolonged career break for convalescence would be likely to make it more difficult for the Claimant to return to a position in senior management. Any future employer is likely to want to understand the details behind a career break and would be concerned about employing someone who had suffered the prolonged symptoms experienced by the Claimant.

  3. Both agree that the income the Claimant received in his employment with T-Systems and HomeServe represent realistic figures of the minimum earning expectations for the period during which Mr Siegel would have remained in full time employment. They also agree that, at the age of 38, he was unlikely to have already reached his peak earning potential. That is likely to have been achieved between the age of 45 and 50. They both agree that he is a very capable practitioner in his chosen field and, if his career were uninterrupted, could have risen to a senior management position within a large and prominent organisation, though not destined to rise to the most senior post in the largest of organisations.

  4. The most significant areas of disagreement are as follows:

1. Mr Evans saw no evidence at the interview that the Claimant should not be able to work at his current level, or that which he enjoyed prior to the accident.Mr Burden considered the evidence overwhelmingly supports the conclusion that the Claimant is currently not able to sustain a career at the level he had reached prior to the accident. Mr Burden relies on his employment record with T-Systems and HomeServe, in which he was unable successfully to fulfil his duties. He also relies on evidence of his behaviour at interview. Furthermore, the failures with T-Systems and HomeServe have damaged his future employment prospects as they would be likely referees.2. They disagree on future earnings potential.Mr Burden’s report was based on a career unaffected by the accident. He accepted that the Claimant may have made choices which would have reduced his total earnings in future, for example, becoming a part-time consultant working on a day rate which many professionals do.Mr Evans offered a wide range of potential earning levels from £65,000 – £140,000 basic salary plus benefits, due to the unknown level of role the Claimant would be able to secure in the future.3. On employment longevity, Mr Evans thought it unlikely the Claimant would have remained in a post of real seniority beyond 55 and may then have chosen to pursue a career, such as consultant or contractor.Mr Burden contends that, in the future, it will be reasonable to expect a person to have a full time career in IT through to statutory retirement age. Most organisations of any size now employ IT professionals and almost every employer relies on technology. Employment prospects, even for older employees, will be good. There is a significant market place for IT consultancy which would allow the Claimant to prolong his career for many years beyond fulltime employment should he wish to do so.

  1. Mr Evans was subjected to criticisms in respect of his methodology and the contents of his report. It is apparent, comparing his report with a covert recording of the interview that, in certain detailed respects, the statements in the report are inaccurate as a reflection of the interview. It was further suggested that Mr Evans’ approach was unstructured and lacking in professional rigour, as compared with that of Mr Burden.

  2. In my judgment, as witnesses, Mr Burden was the more impressive of the two. However, in considering which of them is more likely to be correct in the conclusions they have drawn, where they differ, I am more influenced by the content of their arguments rather than the way in which they gave evidence or particular passages in lengthy reports.

  3. I have no reason to doubt that each of them was giving an honest appraisal of the Claimant and his prospects had the accident not occurred and, to a limited extent, his employment prospects given that the accident had occurred.

ix) My conclusion on his employment prospects

  1. The Defendant contends that there is no continuing loss caused by the injuries sustained in the accident. It is said that there was no good reason for him to have left his employment in HP in May 2011. HP did not want to make him redundant and, according to Mr Waterfield, he was performing satisfactorily on the AON contract, producing proposals of satisfactory quality. He left, the Defendant contends, to go to an equally good job with T-Systems where he remained, performing successfully, until August 2013 when his employment was terminated in circumstances arising out of his prolonged period of absence undergoing treatment and his prevarication in providing T-Systems with evidence about his injuries. The Defendant contends that the short period spent with HomeServe, which was unsuccessful, was a reflection of his difficult personality when required to work alongside colleagues and that this had been manifested prior to the accident, in 2007 and he was required to be mentored after his disruptive behaviour at an HP course and in 2009 involving Mr McCormack.

  2. The Defendant relies on the agreed view of the employment experts that, even post-accident, he demonstrated qualities which are exceptional and single him out as attractive for employment, in his chosen field, at his previous level. The Defendant contends that, throughout his career, he has not stayed for lengthy periods of time in a single employment but has tended to get bored and move on. His talents and personal qualities are suited to him undertaking work as a contractor where he could earn well.

  3. The Defendant contends that it is common ground that, had the accident not occurred, he would, nonetheless, not have advanced to a very senior level because of his personal attributes and that it is highly likely he would, in due course, have become a contractor rather than scale the managerial heights in a company the size of HP.

  4. The Claimant invites me to accept the assessment made by Mr Burden of his likely level of earning, but for the accident, which, it is said, is appropriately structured, rigorous and realistic. The Claimant also invites me to accept Mr Burden’s assessment of longevity of career through to 67 rather than 55.

  5. On residual earning capacity, the Claimant relies on the consensus that brain injury carries significant stigma in the field of IT enterprise architecture. He invites me to accept Mr Burden’s oral evidence that recruitment consultants would have serious reservations about recommending him to a client even on a contracting basis and that his poor track record over the last 3-4 years has seriously damaged his prospects of returning to the sector.

  6. The Claimant also relies on Mr Burden’s evidence that, as a contractor, there would be less scope for delegating work, a coping strategy which he used at T-Systems, and that the work as a contractor is harder because of pressure to deliver results.

  7. The Claimant invites me to conclude that, by reason of his cluster of symptoms, which need careful managing using the cognitive rehabilitation techniques that Ms Levett has taught him, he would not be able to cope in the world of IT. I am also invited to conclude that he has few transferable skills, save that he is a competent mechanic, and that I should accept that his likely future level of earnings now is going to be limited to the profits from the business, upon which he is embarking, of refurbishing motorcycles, having failed to obtain employment as a mechanic.

  8. I accept as realistic and properly structured the conclusions of Mr Burden on the likely level of earnings the Claimant would have achieved had he not sustained the injuries in the accident. It is implicit in Mr Burden’s calculations that he is not assuming that the Claimant would have had lifelong employment with HP. There is nothing in his previous employment records to suggest that he would have remained there for the rest of his career, but I do accept as realistic the suggestion that he would have continued to advance in his career until about the age of 50 and, thereafter, would have remained in employment, or earning equivalently as a consultant, until the age of 67. Mr Burden’s assessment of the likely future prospects for employees/consultants of that age is a realistic one. The Claimant is a man who is driven by his need to work and provide for his family and so would, in my judgment, have wanted to work until the age of 67.

  9. I reject as unrealistic the Defendant’s contention that his future employment prospects since the accident have been unaffected. It is clear from the evidence that the cluster of symptoms from which he now suffers, and did suffer, adversely affected his ability to perform at the level, and with the intensity and stamina, he had previously achieved at HP. The evidence of Mr Guile and Mr Ress, as well as the Claimant’s evidence of his ability to mask his under performance from his managers at T-Systems, in my judgment, issufficient for me to conclude that the cluster of symptoms has significantly inhibited his ability to earn, through employment or as a consultant/contractor at the pre accident level. His experience at HomeServe underlines that point.

  10. On the other hand, it is, in my judgment, unrealistic for the Claimant to contend that his future earning capacity is limited to the severe extent for which he contends. There is no dispute that the Claimant is a highly intelligent, driven and work-oriented person. Furthermore, he is capable of a level of clear communication in his area of expertise which impressed both Mr Evans and Mr Burden in their interviews with him. He is in receipt of excellent advice from Ms Levett on the strategies he might adopt to ameliorate the impact of the symptoms from which he suffers and it is clear that he has been, and would be, conscientious in carrying these management techniques into practice. Accordingly, in my judgment, there is no good reason why he should not be able, with some level of success, to apply his professional expertise in the role of a contractor/consultant in a manner and to an extent consistent with him managing his present and continuing disabilities. The evidence of his time with T-Systems is that he was able to perform at a high level, albeit, given his symptoms, it would not be realistic to assume that he would, on any long-term basis, be able to hold down full time employment at such a level.

  11. Doing the best I can, in the light of the limited assistance I have received from the parties and their witnesses on this issue, in my judgment the Claimant could reasonably be expected, if he chose to do so, to achieve some measure of success hiring out his services as a consultant/contactor over the long-term. However, the inhibitions upon him, as well as the difficulties in the marketplace for someone who is only able to offer himself on a part-time and/or short-term basis, are such that, in my judgment, he could only realistically be expected to earn at a level of, at most, one-third of that which he would but for the accident have earned as a full time employee or fulltime consultant. Accordingly, my calculation of this element of the award will be informed by that assessment.

Past loss of earning capacity

  1. The Claimant claims £21,688 under this heading.

  2. In mid-April 2014 his employment with HomeServe was terminated. He was paid 6 months basic salary in lieu of notice but nothing in respect of loss of benefits. The notice period ran out on the 15th October 2014. The Claimant claims net loss of benefits for the 6 months between mid-April and mid-October 2014, which is calculated as £15,150, and loss of his remuneration package for the period between 15th October 2014 and 9thNovember 2014 which is net £6,537. Those two sums equal £21,688.

  3. The employment experts were agreed that his level of earnings at HomeServe represented the minimum he could have expected to have earned but for the accident during that period. Accordingly, I can see no good reason, nor has any been argued, why the Claimant should not be entitled to this sum under this particular head. I award £21,688 under this head

Retraining/set-up costs

  1. £25,000 is claimed under this heading to reflect the Claimant’s estimate of retraining and obtaining tools and equipment to set up his motorcycle repair business, as well as £5,000 for career counselling and financial investment advice.

  2. I have received virtually no direct evidence in respect of this head of claim.Ihave found that it is unrealistic to suggest that the Claimant would be able to earn a living as a full time employee working in IT at the level he was doing before the accident. I have concluded that his future could, realistically, lie in work as a part time consultant. It is, in my judgment, reasonable to expect the Claimant to have some significant expenditure in terms of set up costs and/or retraining in order to give him the best prospect of earning a living, albeit at a reduced level. In my judgment the claim for £25,000 is reasonable and should be allowed.

Future loss of earning capacity

  1. I have indicated above the approach I am taking to this head of damages.

  2. I see no reason to dissent from the calculation undertaken at paragraphs 51 to 52 of the final schedule of loss dated 9th November 2014 which reflects the Ogden tables to which I have been referred. This quantifies his future notional earning capacity, in the absence of the accident, as being £2,169,646.

  3. As I have indicated above, I do not accept the Claimant’s contention that his post-accident ability to earn would be as limited as he argues for: limited to his anticipated remuneration running his own motorcycle refurbishment business, generating a gross income in the region of £20,000 per annum.

  4. In my judgment, the Claimant can reasonably be expected to earn at a level no greater than one-third of that which he would have earned but for the accident by exercising his talent working part-time as a consultant in the IT industry. Accordingly, in my judgment, the appropriate level of award under this heading is one of £1,446,431.”

Gordon Exall
Zenith Chambers

Image ©

Cooper v Royal Berkshire Hospital NHS Foundation Trust: Brain Injury From Post-Natal Seizure & Claimant’s Part 36 Offers - John De Bono QC, Serjeants’ Inn Chambers

14/05/15. On 13th March 2015 Jeremy Baker J. gave judgment for Christian Cooper, the claimant, in this complex brain injury case. The case is of interest to practitioners with cases where a mother has suffered a seizure or brain injury in the post-partum period.

The case is also an example of the benefits to a claimant of beating her own part 36 offer. The claimant had made a part 36 offer for 75% of the full value of the claim. The offer was beaten and the court ordered, by consent, that in addition to penalty interest at 10% above base rate on the claimant’s liability costs from 21 days after the offer was made the defendant should also pay the claimant the sum of £50,000 as the claimant had beaten her own part 36 offer. This was a trial of liability only and damages will be assessed at a future date.

Factual background

Christian Cooper was 36 years of old when she gave birth to her third child. Her first pregnancy had ended with a traumatic removal of the placenta after a vaginal birth. In her second pregnancy she had elected for caesarean delivery. In the index, third, pregnancy she had elected a trial of vaginal birth after caesarean section (VBAC). It was alleged that she had not been adequately advised of the risk of this (about a 1 in 250 risk of uterine rupture leading to significant risk to the baby) and would not have consented to VBAC with adequate antenatal advice.

On 14th July 2005 Christian was in labour when she suffered uterine rupture. She underwent emergency Caesarean section and suffered significant blood loss, later requiring a transfusion. Her baby, Gene, was profoundly injury by hypoxia and died just under two years later. His claim was compromised some time ago.

On 19th July 2005, five days post partum, Christian was found face down on the floor in her hospital side room. Her heart was not beating (asystole following cardiac arrest). After emergency treatment her heart started beating but she did not regain consciousness. Since then she has remained in a minimally responsive state. The claim was brought on her behalf by her former partner, claiming damages on Christian’s behalf for psla, care costs, lost earnings and the costs of replacing the care that Christian would have provided to her two surviving children.

The claimant’s case was that the cardiac arrest which had led to her massive brain injury was the result of a cerebral vein thrombosis (CVT). A CVT is a clot in the small veins in the brain which leads to an area of infarction (a lack of blood). This in turn had caused a focal seizure which propagated into a generalised seizure. As in epilepsy, a generalised seizure can cause a cardiac arrest. The claimant argued that the CVT was materially contributed to by the uterine rupture and by the admitted failure of the defendant to administer the heparin (for anti-coagulation) which had been prescribed post-partum.

The defendant accepted that the cardiac arrest was probably the result of a seizure but contended that given the rarity of CVT it was more probable that Christian’s seizure was a case of eclampsia. Eclampsia would not have been contributed to by either the uterine rupture or the failure to administer heparin.

At the start of the trial the parties agreed that the case would be determined by the court’s finding as to the cause of the seizure. If the claimant proved that she had suffered CVT she would win – given the admission that CVT would have been materially contributed to by a failure to give heparin (per Bailey v. MoD) there was no need to determine the additional issue of whether or not appropriate ante-natal advice had been given or whether had she been properly counselled the claimant would have avoided uterine rupture by opting for an elective caesarean section.

CVT v. eclampsia

Key to the claimant’s success was the evidence of Dr David Williams. Dr Williams is one of only five consultant obstetric physicians in the UK. An obstetric physician does not deliver babies but instead specialises in managing maternal complications of pregnancy including eclampsia and clotting disorders. He practices from University College Hospital, London and was described by the judge as being “an expert of the first calibre in his field.” I would strongly recommend him for any case involving a maternal, medical (rather than surgical) complication of pregnancy.

Dr Williams told the court that whilst CVT was extremely rare it was responsible for between 5 and 10 maternal deaths associated with pregnancy every three years. Its incidence has fallen as thromboprophylaxis has improved. CVT (along with the better known Deep Vein Thrombosis/ DVT) is precisely why mothers are given heparin post-partum. CVT is a condition associated with hypercoagulability of the blood. In Christian’s case it was contributed to by her immobility post Caesarean, by dehydration, vomiting, possibly infection and by the failure to provide heparin.

It was possible that Christian had suffered eclampsia but Dr Williams identified a number of significant reasons against this thesis. Eclampsia is poorly understood and by definition involves a seizure. It is commonly associated with pre-eclampsia which is a description of the mother’s condition either before, during or after labour (think Lady Sybil, Downton Abbey). Pre-eclampsia is associated with proteinurea and significant increases in blood pressure although eclampsia can occur without these features. Eclampsia is much more common than CVT but is very rare more than 24/48 hours after delivery.

The court rejected the opinion of the defendant’s obstetric expert, Dr Pirie, that Christian had probably suffered eclampsia. Dr Pirie had based his opinion on the greater prevalence of eclampsia compared to CVT without making allowance for the rarity of eclampsia at five days post-partum.

The Claimant’s case was assisted, as so often, by evidence from the late Dr Brian Kendall who gave evidence by video link. The undisputed expert of choice in neuroradiology for so many years, his passing at the beginning of this month will be a cause of great sadness to many who have had the privilege of working with him.

The claimant having won the case the defendant conceded her entitlement to an ‘additional payment’ under the post April 2013 amendments to CPR 36. The agreed amount was £50,000 on the basis that the claim was worth not less than £500,000. Under the rules an additional amount can be awarded on the basis of 10% of the first £500,000 and up to 5% of any amount above that figure subject to a maximum £75,000.

Since judgment was given in this case there has been a further amendment to CPR 36. The new 37.17(4)(d) provides that such an additional amount cannot be awarded until the case has been decided i.e. ‘all issues in the case have been determined, whether at one or more trials’. From 6th April 2015, beating a liability offer in a split trial still entitles the successful claimant to an additional amount but not until the end of the case.

John De Bono QC
Serjeants’ Inn Chambers
Instructed for the Claimant, by Susan Brown, Boyes Turner LLP

Image ©

A New Approach to Basic Hire Rates: Karl Stevens v Equity Syndicate Management Ltd [2015] EWCA Civ 93 - Isaac Hogarth, 12 King's Bench Walk

02/03/15. In arguably the most important decision on the calculation of the basic hire rate (BHR) in credit hire litigation since Bent v Highways and Utilities Construction (No. 2) [2011] EWCA Civ 1384, the Court of Appeal has provided a new, simple and Defendant-friendly method for the calculation of BHR. The decision is likely to change fundamentally the way in which credit hire claims are fought.

The Facts

On 10 February 2011, the Claimant’s Audi A4 S Line Tdi 140 was struck by the Defendant’s insured. Liability was admitted. The Claimant entered into a credit hire agreement with Accident Exchange Ltd (‘AEL’) for a period of 28 days. The rate was £140 per day in addition to an excess waiver fee of £22.50 per day and windscreen cover of £3.00 per day. The total rate was therefore £162.50, exclusive of VAT.

At first instance, the Recorder awarded a hire rate based on an average of the rates quoted by four mainstream hire companies for vehicles in the relevant group.

The First Appeal

The First Appeal in this case was heard by Burnett J (as he then was), and was reported as [2014] EWHC 689 (QB), [2014] RTR 34.

Much of the Judge’s reasoning was based upon the following passage from Lord Hoffman’s speech in Dimond v Lovell [2002] 1 AC 384 at 403G:

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. As the judge said, 1st Automotive charged more because they offered more. The difference represents the value of the additional services which they provided.”

Referring to that test, Burnett J provided practical advice on identifying the BHR(at [29]):

“… the search must be for the figure which the claimant was willing to pay [to use Lord Hoffmann's formulation] on the basis that he had in fact gone into the ordinary car hire market to find a temporary replacement for his vehicle. In doing that the evidence of a claimant that he would be disinclined to spend more than necessary on a car would be relevant. There might be evidence of how the claimant has sourced hire cars in different contexts. Some might be fortunate to have access to discounted rates through membership of motoring or professional bodies. As was recognised in Burdis a claimant hiring a vehicle to replace one damaged by a tortfeasor would be under a duty to take reasonable steps to mitigate his loss. That does not mean that a claimant would be expected to telephone every last car hire provider in the locality to seek details of various deals that might be available. But the reality today is that almost anybody seeking to hire a vehicle in any particular locality would be likely to investigate the market by doing a simple comparative search on the internet. The full panoply of different hire rates available to the credit hire industry through specialist websites (and regularly produced in credit hire litigation) would not be available to an ordinary driver, but one way or another it is not difficult for anyone wishing to hire a car to discover the rates offered by the major hire companies. Cheapest is not necessarily best and for all sorts of reasons anyone may reasonably choose to hire from a company that is not the cheapest available.” (emphasis added)

The test was based on an assessment of what a particular claimant would have been willing to pay. In practice, this required counsel to ask hypothetical questions to a usually mystified Claimant on what he would have done had he gone into the ordinary hire market. The Court of Appeal’s new approach indicates a shift from a subjective to an objective approach, and will remove the need for such counterfactual questioning by Counsel.

The Second Appeal

The Claimant appealed the judgment of Burnett J, raising the following arguments:

  1. The exercise of finding a basic hire rate is an objective one and cannot depend on what a particular claimant would have been willing to pay;

  1. The law has moved on since Lord Hoffman’s speech in Dimond v Lovell, and Burnett J paid too little attention to Burdis v Livsey [2002] EWCA Civ 510,and Bent (No. 2);

  1. As the burden of proving a difference between the credit hire rate and BHR rests on the defendant, and as some of the basic rates in evidence were higher than the credit hire rate, the Judge was incorrect to find that the credit hire company charged an additional amount in respect of irrecoverable benefits.

Giving the only reasoned judgment (with which Floyd and Jackson LJJ agreed), Kitchen LJ set out the legal background in detail and gave the following judgment:

[34] … I do not understand Lord Hoffman to have been saying that it was necessary to consider what Mrs Dimond would herself have been prepared to pay. The attitude of the driver who is not at fault must be irrelevant to the analysis. For example, it may be that, as in the present case, the person would never have hired at all. The analysis it, as Aikens LJ said in Pattni, an objective one and it is to determine what the BHR would have been for a reasonable person in the position of the claimant to hire a car of the kind actually hired on credit.

[35] Here I think one finds the answer to the questions I have posed. The rates quoted by companies for the basic hire of a vehicle of the kind actually hired by the claimant on credit hire terms may vary. No doubt some are offered on very favourable terms. So also those at the top of the range may reflect particular market conditions which allow some companies to charge more than others. But it seems to me reasonable to suppose that the lowest reasonable rate quoted by a mainstream supplier for the hire of such a vehicle to a person such as the claimant is a reasonable approximation to the BHR. This is likely to be a fair market rate for the basic hire of a vehicle of that kind without any of the additional services provided to the claimant under the terms of the credit hire agreement.

[36] It follows that a judge faced with a range of hire rates should try to identify the rate or rates for the hire, in the claimant’s geographical area, of the type of car actually hired by the claimant on credit hire terms. If that exercise yields a single rate then that rate is likely to be a reasonable approximation for the BHR. If, on the other hand, it yields a range of rates then a reasonable estimate of the BHR may be obtained by identifying the lowest reasonable rate quoted by a mainstream supplier or, if there is no mainstream supplier, by a local reputable supplier.(emphasis added)

Therefore, the Court of Appeal found that although Burnett J erred in his reasoning (by failing to apply an objective approach), the result on the facts of the case was sound. The appeal was dismissed.


The approach set out by Kitchen LJ is new and highly favourable for defendants. It provides sensible and straightforward guidance on the issue of the determination of the BHR. It appears that all defendants need do is survey evidence from mainstream suppliers (or if there are none, local reputable suppliers) for the type of care hired and in the claimant’s geographical area. The applicable rate will then automatically be the lowest reasonable rate.

What this means for defendants is that so long as they source well-prepared rates reports, containing all the relevant terms and conditions, excess waiver cover, and where appropriate, daily rates from major hire companies for cars of the appropriate type, then such evidence is likely to ensure that the Court awards only the lowest reasonable rate. Likewise, in cases such as Equity, where AEL attempts to rely on a report generated by a large database of rates, the evidence may well prove to be extremely helpful to defendants.

Isaac Hogarth
12 King's Bench Walk

Image ©

Clause 56? Fundamentally Incompatible, I Say (and By The Way, the Supreme Court Agrees) - Steven Akerman, Brian Barr Solicitors

Sorry this article is temporarily unavailable.

All information on this site was believed to be correct by the relevant authors at the time of writing. All content is for information purposes only and is not intended as legal advice. No liability is accepted by either the publisher or the author(s) for any errors or omissions (whether negligent or not) that it may contain. 

The opinions expressed in the articles are the authors' own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand. 

Professional advice should always be obtained before applying any information to particular circumstances.

Excerpts from judgments and statutes are Crown copyright. Any Crown Copyright material is reproduced with the permission of the Controller of OPSI and the Queen’s Printer for Scotland under the Open Government Licence.