News Article
Credit Hire: Intervention and Mitigation
Credit Hire: Intervention and MitigationJames Sullivan recently appeared for the successful Defendants in the conjoined appeals of Copley v Lawn and Madden v Haller (Leeds County Court - 7th November 2008). Both cases concerned prompt offers of replacement vehicles by Defendant insurers (in both cases KG Motor Policies at Lloyds ‘KGM’) following road traffic accidents where the Claimants had not taken up the offers and then proceeded to hire on credit.
In Madden the offer from KGM arrived before the Claimant had entered into a credit hire agreement. In Copley the offer from KGM came a few days after the Claimant had entered into the hire agreement. In both cases the Claimants did not take up the offers from KGM. At first instance it was held that the Claimants in both cases had failed to mitigate by not accepting the KGM offers and accordingly that the credit hire charges fell to be dismissed (Madden) or reduced so that the Claimant only recovered in respect of the period before which the Claimant should have accepted the KGM offer (Copley).
The questions raised on appeal were (1) whether, given, in particular the fact that neither Claimant had not known what the cost of supplying the alternative vehicles was going to be to KGM, the Claimants could be said to have failed to mitigate and (2) what the correct measure of damages was - and more particularly whether, even if the Claimants had failed to mitigate, whether the Claimants were entitled to recover a sum equivalent to what it would have cost KGM to supply the alternative vehicles.
HHJ Langan Q.C. dismissed both appeals. In respect of the first question HHJ Langan Q.C. upheld the findings that the Claimants had failed to mitigate – noting that the cost to KGM of supplying the vehicles was of no concern of the Claimants and irrelevant to the issue of mitigation. In respect of the second question, HHJ Langan Q.C. again upheld the first instance decisions - the credit hire charges fell to be dismissed in Madden and reduced in Copley. In reaching his conclusion in respect of the second issue HHJ Langan Q.C. preferred the reasoning of HHJ Oliver Jones Q.C. in the case of Steadman v TNT over the reasoning of HHJ Wyn Rees in Evans v TNT.
James Sullivan was instructed by Rollingsons Solicitors on behalf of both Defendants.