MOTORING NEWS Summer 2009

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1 MOTORING NEWS Summer 2009 Welcome... Welcome to the Summer 2009 Dolmans Motoring News update. In this edition we focus on:- Case Summaries Articles Carol Walton -v- Joanne Kirk Cycle Helmets the Effect on Contributory Negligence Michael James Stewart (by his Litigation Friend, Christopher Ramwell) -v- David William Glaze Anita Shah -v- Wasim Ul Haq (1) Samara Khatoon (2) Zahida Parveen (3) Jewel Ahmed Toropdar -v- D (A Minor by the Official Solicitor as his Litigation Friend) Hire claims and the Replacement Vehicle An Update on Fees Under the RTC Claim Process Reforms Jackson LJ s Costs Review Simon Powell -v- Neil Michael Auden Hamilton -v- O Kane and Anr Fitzpatrick Contractors Limited -v- Tyco Fire & Integrated Solutions (UK) Limited (formerly Wormaid Ansul (UK) (Limited) (No.3) Roach -v- Home Office : Matthews -v- Home Office Hosking -v- Smallshaw 1

2 Carol Walton -v- Joanne Kirk The first hearing of this case was reported in the Autumn 2008 Motor News Letter. The case relates to a road traffic accident in which liability was admitted. The Claimant allegedly sustained injury to her shoulders and, thereafter, was diagnosed with fibromyalgia, which was alleged to have been brought on by the accident. The Claimant was, therefore, claiming in the region of 800,000, including past and future losses, on the basis that she was significantly disabled as a result of the road traffic accident. The Defendant obtained video surveillance evidence as they had contended that the Claimant s exaggeration amounted to contempt. doubts as to the veracity of the Claimant s claim. The video evidence clearly showed discrepancies between the Claimant s stated case and her actual ability to manage her daily life. The Defendant, therefore, paid in 25,000.00, which was accepted by the Claimant after having been shown the surveillance evidence. The Defendant was granted permission to bring contempt of Court proceedings at the previous hearing. This most recent hearing related to the allegations of contempt of court. The majority of the allegations of contempt of court were not made out. The Court made it clear that the Applicant/Defendant was required to prove all three elements of contempt to the criminal standard, beyond reasonable doubt. Discrepancies between Statements of Case, even where those are verified by a Statement of Truth and video surveillance evidence, will not automatically give rise to a contempt of court. The Court must look at the level of exaggeration and the circumstances of such exaggeration. This was a case where it was clear that the Claimant had given some credible evidence that she had sustained some injury and, therefore, was entitled to bring her personal injury action. The only allegation of contempt that was made out was in relation to the fraudulently completed state benefit forms. It was held that the Claimant could not have held an honest belief in the truth of those statements and, therefore, the contempt was made out. The basis of the numerous allegations of contempt were that the Claimant had verified with a Statement of Truth a number of documents setting out that she was suffering from a significant long term disability. The Claimant had also sought to rely upon state benefit forms regarding incapacity for work and an application for a blue disabled badge as evidence in the case. The surveillance evidence obtained by the Defendant painted a very different picture of the Claimant s ability to manage her daily life and, therefore, the Defendant 2

3 Michael James Stewart (by his Litigation Friend, Christopher Ramwell) -v- David William Glaze The Claimant was injured when he walked into the path of the Defendant s oncoming vehicle. The Claimant was hit by the Defendant s car and suffered catastrophic head injuries. There was evidence before the Court that the Claimant had been drinking prior to the accident. There was also evidence that the bus stop was visible to drivers on that road from a distance of about 95 metres and remained visible for all but about 10 metres when it was blocked by a tree. The speed limit in the area was 30 miles per hour. The Defendant gave evidence that he had been driving at approximately 30 miles per hour and knew the road well. He had seen the Claimant at the bus stop and assumed that he was waiting for the bus. One of the matters considered by the Court was the function and parameters of the accident reconstruction expert evidence. It was held that whilst such evidence can often be useful, its purpose is to give the necessary scientific criteria to allow the Judge to interpret the factual evidence before him. The case of Liddell -v- Middleton [1996] applied, in which the Judge had made criticism of the use of expert evidence where the expert sought to do more than simply provide the scientific evidence, but to interpret the same on the facts. In that case, it was held that it is for Judges to consider the expert evidence and interpret the facts as they see fit, that is their function. In the instant case, the Judge agreed with this position and considered that expert evidence should not become a rigid formula against which the Defendant driver is judged. The appropriate test is that the Defendant driver should be judged against the standard of a reasonable driver. It was held that whilst expert evidence can be useful, the primary factual evidence is always the most important in cases of this nature. Anita Shah -v- Wasim Ul Haq (1) Samara Khatoon (2) Zahida Parveen (3) This case featured in the article about fraud in the autumn 2008 Motor News Letter. The case has now come before the Court of Appeal and whilst the earlier decision was upheld, it was for very different reasons. This claim arose out of a rear end shunt road traffic accident. It was accepted that the First and Third Claimants were in the vehicle, along with their two children. A claim was also brought on behalf of the First Claimant s mother as Second Claimant. The Court found that the Second Claimant was not in the vehicle and that the First and Third Defendants had colluded with her to support her fraudulent claim. The matter to be decided by the Court of Appeal was whether there was, in fact, discretion under CPR rule 3.4 (2). However, Smith LJ considered that it was more appropriate to consider common law principles in the first instance. It is a well established principle of common law that in cases relating to contracts of insurance where there has been exaggeration of a genuine claim, the Claimant is not entitled to damages, even in respect of the genuine part of the claim. The reason for this principle is that contracts of insurance are contracts of utmost faith. It was, therefore, the view of Smith LJ that it could not be that this was a principle in common law that applied to claims in tort, as otherwise there would be no need to make the distinction between contracts of insurance and other types of claims. In relation to claims generally, where there is dishonest exaggeration of a genuine claim, Smith LJ stated that it is an invariable rule that limited damages will be awarded in relation to the part of the claim found to be genuine. Smith LJ, therefore, saw no reason to treat these Claimants more harshly simply because their dishonesty related to an entirely separate dishonest claim rather than an exaggeration of their own claims. Smith LJ then went on to consider the issue of whether there was discretion under CPR rule 3.4 (2). It was her view that the Lower Courts had relied upon the decision in Arrow Nominees, in which it was held that the case should have been struck out during the Trial when it emerged that, 3

4 through the dishonesty of the Claimant; there could no longer be a fair Trial. This, however, was not the case here as there was no suggestion that upon the evidence before him, the Recorder had not been able to come to reliable conclusions about the Claimants injuries. There had, therefore, been no prejudice to there being a fair Trial. It was also the view of Smith LJ that the term strike out was intended for either before the Trial or at the start of it so that the Court could deal summarily with bad claims either under the Court s case management powers in CPR part 3 or by way of Summary Judgment under CPR part 24 and thereby avoid the need for a costly Trial. It was therefore not appropriate to use the term strike out at the end of the claim. Finally, Smith LJ did comment that she could sympathise with the Insurance Companies who had to deal with fraudulent claims on a ever increasing basis. It was her view that the law on the issue of exaggeration of otherwise genuine claims was well established and it was therefore not for judicial intervention, but rather is a matter that would need to be considered by Parliament. Jewel Ahmed Toropdar -v- D (A Minor by the Official Solicitor as his Litigation Friend) The Claimant was driving along an inner city road, in a residential area, upon which an Education Centre was situated. In front of the Education Centre was a bus stop and, at the material time, there was a stationary bus present. The Claimant s intention was to visit his Aunt s house just beyond the Education Centre, and he was therefore looking out for a parking space. It was agreed, as between the experts, that the Claimant was driving below the 30mph speed limit, at 27.5 mph. The Defendant and three of his friends were playing outside the said Education Centre. Without looking, the Defendant ran across the street, in front of the bus, the front nearside of the Claimant s vehicle struck the Defendant causing serious brain injury. The Claimant sought a declaration that he was not liable to the Defendant. It was held that the Claimant s speed was, in all of the circumstances, too fast for the particular street at the time in question. The Judge was of the view that to drive at a speed so close to the speed limit, at such a location, on a summer s Saturday afternoon, fell short of the standard of a careful driver, who needed to drive with the safety of children in mind, and at a speed suitable for the conditions, particularly when driving past bus stops. It was further held that in his approach to the gap behind the bus, the Claimant should have been proceeding slower, and should have carried out precautionary braking, regardless as to whether the playing boys were in his line of sight or not. On the basis of the foregoing, it was held that the Claimant s failure to adjust his speed, and carry out precautionary braking, was causative of the Defendant s injury. Consequently the Court was not persuaded that the Claimant should be entitled to a declaration that he was not liable to the Defendant. Albeit obiter, the Judge concluded that, had he found there to be no liability on the part of the Claimant he would have granted the declaration sought. He did not, however, wish to suggest to insurers that negative declarations should be seen as an entitlement in PI claims. He emphasised that such action is and should be unusual. 4

5 Simon Powell -v- Neil Michael Auden This case involved a road traffic collision between two motorcycles, when negotiating a bend from opposite directions. Both riders sustained head injuries and were consequently unable to recall the accident. Each one blamed the other relying on expert reconstruction evidence and the Police investigations. There were no witnesses to the accident itself, however, another motorcyclist riding ahead of the Defendant had noticed the Claimant. This witness recalled noticing that the Claimant was riding close to the centre white line, but that his riding gave no cause for concern, and the impression was that the Claimant was riding quite properly. The Claimant s case was that he was at all times on the correct side of the road, and it was the Defendant who had crossed the centre white line and collided with him. On that basis the Claimant submitted that the Defendant was prima facie guilty of negligence and that the burden then shifted to the Defendant to explain how, without negligence, he could have ended up in the Claimant s carriageway. The Defendant s case was that he was caused to engage in emergency braking as the Claimant s handlebars, or part of his body, had encroached into his carriageway, whilst the Claimant was negotiating the right-hand bend. The Judge was not impressed by either party s expert evidence. Nevertheless, it was held that upon seeing the Claimant, the Defendant had the opportunity to move further to his left, and still negotiate the left-hand bend, at the speed he was travelling, safely. There was therefore no reason for the Defendant to have carried out emergency braking due to the Claimant being towards the centre of the road, where a motorcycle would be expected to be. It was further held that there was no reason for the Defendant to suppose that the Claimant would encroach onto his side of the carriageway as, at all times, the wheels of the Claimant s motorcycle were in the correct lane. In the circumstances, it was held that the reasonable inference to be drawn was that the Defendant s failure (upon seeing the Claimant), to move over to his nearside was due to a combination of inadequate lookout and/or inexperience of the bend to be able to take it at 40 mph. The Defendant s braking, skidding and going onto the wrong side of the road was caused by his own negligence and not by that of the Claimant. The Judge was not satisfied that the Claimant at any time encroached on the Defendant s side of the road and held that, as such, there could be no negligence on the part of the Claimant. Even had there been some overhang by the Claimant, this would not have altered the Judgment. The Claimant succeeded in full and the Defendant s Counterclaim was dismissed. Hamilton -v- O Kane and Anr This was an appeal in relation to the apportionment of liability for a road traffic collision between a motorcyclist and a car. The appeal was brought by the motorcyclist, Mr O Kane. Mr O Kane had been riding his motorcycle on a major road, carrying a pillion passenger (Hamilton), whilst over the drink drive limit. A vehicle emerged from a minor road without stopping, a collision ensued and the pillion passenger was seriously injured. At the Trial, the pillion passenger gave evidence that they had been riding in the middle of the road and that the car had emerged from the side road without stopping. An independent witness, however, said that she had seen Mr O Kane swerve to avoid a parked car and that had caused the collision. It was held at first instance that Mr O Kane should not have been riding at all, he should certainly not have been riding at the speed limit (in light of the parked cars along the road), and he was not entitled to ride in the middle of the road. It was further held that the car had not looked before emerging from the side road and that consequently liability should be apportioned 80/20 against Mr O Kane. 5

6 On appeal it was held that Mr O Kane s speed was of no causative value, as there was no evidence that the same contributed to the accident. Further, there had been no evidence to suggest that Mr O Kane s driving was impaired by the alcohol. Whilst a swerve could be linked to the effects of alcohol, it was described by the Judge at first instance as an error of judgment rather than due to the alcohol. It was clear from the evidence that the car driver had failed to keep a proper lookout when approaching the junction and had not seen Mr O Kane. Equally, if Mr O Kane had remained on his side of the road, the accident would not have happened. On appeal it was held that both Mr O Kane and the car driver were to blame for the accident, but that the apportionment had been incorrectly adjudicated upon, as the Judge had failed to take into account his own finding that the car driver had emerged onto the major road without looking. Consequently, the Court of Appeal found that both Mr O Kane and the car driver were equally to blame for the accident. Fitzpatrick Contractors Limited -v- Tyco Fire & Integrated Solutions (UK) Limited (formerly Wormald Ansul (UK) Limited) (No.3) On 24 January 2008, the Claimant made an offer to the Defendant in accordance with CPR Part 36 to settle the litigation between them for the sum of million. The 21 day acceptance period expired on 14 February There was subsequently a Trial of contractual preliminary issues in March 2008, on which the Claimant was substantially successful. At the end of July 2008, the Claimant s Application to adjourn the Trial from November 2008 to April 2009 was successful. On 14 January 2009, the Defendant accepted the Claimant s Part 36 Offer out of time. The Claimant sought costs from 14 February 2008 on the indemnity basis. The Defendant argued that the costs should be assessed on the standard basis. The Claimant also sought interest on its costs post 14 February 2008 pursuant to CPR 44.3 (6) (g). The Claimant contended that it should be entitled to costs on an indemnity basis by analogy with CPR The Claimant submitted that if there had been a Trial and the Claimant had recovered damages in the sum of million, the Claimant would have been entitled to indemnity costs, unless the Court concluded that it would have been unjust so to order, because of the express words of CPR The Claimant submitted that there should be no difference between a Claimant who has recovered a sum equivalent to his offer after a Trial and a Claimant who has recovered a sum equivalent to his offer before Trial because, well outside the relevant acceptance period, the offer was accepted by the Defendant. The Judge noted that there is no reference within CPR (4) and (5), which deals with late acceptance of a Part 36 Offer, to a presumption that unless it is unjust to do so, the Court will order a late accepting Defendant to pay the Claimant s 6

7 costs on an indemnity basis. The usual basis for the assessment of costs is the standard basis. If there is an entitlement to seek indemnity costs, then it is expressly spelt out in the CPR, either as a possible presumption, as in CPR 36.14, or by way of conduct, (CPR 44.3). The Judge concluded, for policy reasons, that an indemnity costs presumption should not be imported into CPR Such a presumption would be likely to hinder, rather than promote, early settlement. Furthermore, there is already a right to claim recovery of indemnity costs pursuant to CPR 44.3 by reference to conduct. Accordingly, the Judge rejected the Claimant s primary argument that, by analogy with CPR 36.14, there was a presumption that the Claimant was entitled to indemnity costs pursuant to CPR The Claimant contended, in the alternative, that whilst it could not establish a case for indemnity costs under the ordinary test in CPR 44.3 on grounds of the Defendant s conduct, as a matter of principle, if there was no presumption in favour of indemnity costs, the Court could order indemnity costs in its discretion where it was just and/or where the Defendant gave grounds for reasonable criticism that it had not applied its mind to an appropriate valuation of the offer. The Judge rejected this submission also. A Party can seek indemnity costs in one of two ways. Either because there is a presumption that such costs will apply, such as under CPR 36.14, or because it can demonstrate the necessary evidence of conduct pursuant to CPR There is no basis under the CPR or any authority which would allow the Court to order indemnity costs for any other reason or on any other basis. As regards the Defendant s conduct, the Judge commented that although this was a complex case, the Parties approach to it was generally reasonable on both sides. A settlement 3 months before Trial at a figure that represented about half of the Claimant s claim was an unexceptional result. Accordingly, it was impossible to say on that analysis that there was any basis upon which the Claimant could be entitled to have its costs assessed on an indemnity basis under CPR As regards the Claimant s claim for interest, CPR 44 (6) (g) gives the Court power to order interest on costs from or until a separate date, including a date before Judgment. The Judge considered it particularly relevant that the Defendant took almost a year to conclude that the Claimant s offer should be taken. During that period, the Claimant was incurring considerable further costs. Although the factual background was not sufficient to warrant an Order for indemnity costs under CPR 44.3, the Defendant s delay in taking the Part 36 Offer had undoubtedly caused the Claimant to be out of pocket. The Claimant had suffered a real cost because it had been deprived of the use of its money pending Judgment. Accordingly, in all the circumstances, the Judge concluded that it was appropriate to order interest on the Claimant s costs after 14 February 2008 at base rate, plus 1%. Roach -v- Home Office : Matthews -v- Home Office The Respondents, R and M, both had children who had died in Police custody. They both obtained exceptional funding from the Legal Services Commission for Solicitors and Counsel to attend the Inquests. Following the Inquest proceedings, civil proceedings for damages were issued asserting negligence as a result of the Inquest findings. Both claims were settled and the Home Office agreed to pay reasonable costs, to be assessed if not agreed. The Home Office objected to a significant proportion of the costs claimed, which related to the attendance of Counsel and Solicitors at the Inquests. In R s case, the Costs Judge found that R was entitled to half of the Inquest costs on the basis that involvement in the Inquest proceedings had been for two purposes helping the Coroner and gathering evidence. In M s case, the Costs Judge allowed the Inquest costs in full in principle, although reduced the fees on the grounds of reasonableness. The Home Office appealed, submitting that the costs of one set of proceedings, ie the Inquests, were never recoverable as costs of and incidental 7

8 to another set of proceedings. The Home Office further argued that there were no costs in Coroners proceedings and, therefore, such costs were not subsequently recoverable. The Court held that the costs of attendance at an Inquest were, in principle, recoverable as costs of and incidental to civil proceedings, pursuant to the Supreme Court Act 1981, section 51. Issues of reasonableness, proportionality and relevance would, however, apply. The Court in M s case had adopted the right approach. The Court held that it was not appropriate to divide the costs of an Inquest by the dual role or purpose of the legal representative at the hearing as the Costs Judge had done in R s case. Whilst purpose would no doubt be a relevant consideration, it was not decisive. Accordingly, the Home Office s Appeals were dismissed and R s Cross Appeal against the Costs Judge s decision to reduce the fees by 50% was allowed. R s case was remitted to the Costs Judge for further consideration. Hosking -v- Smallshaw This case concerned a road traffic accident to which the fixed success fee regime applied. The case was listed for Trial to commence on 28 January By the morning of the Trial, the Parties had agreed a settlement. An Order was made by consent setting out the terms of settlement and providing that the Parties would use their best endeavours to agree the wording of the final Order and Schedule dealing with periodical payments and provisional damages by a set date. The Parties were unable to agree whether periodical payments were to be made annually or monthly. Accordingly, the Claimant s Solicitors issued an Application asking the Court to determine the frequency at which periodical payments should be paid. The Application was heard on 15 May 2008, when it was held that the payments should be made annually as submitted on behalf of the Claimant. A final Order was thereafter drawn up. The Claimant s Solicitors claimed a success fee of 100% on the basis that the hearing on 15 May 2008 was a contested hearing and, therefore, constituted a Trial pursuant to CPR (6) (b). Accordingly, it was submitted, the Claimant s Solicitors and Counsel were entitled to a 100% success fee as the claim had concluded at Trial. The Defendant submitted that the case had settled prior to the hearing on 28 January 2008 and the success fee should, therefore, be limited to 12.5%. The Judge found that the claim concluded prior to the hearing on 28 January The Claimant s Application heard on 15 May 2008 dealt with the fine tuning of the settlement agreed between the Parties. Accordingly the success fee was limited to 12.5%. Articles Cycle Helmets - the Effect on Contributory Negligence There has been outcry in the media about a recent High Court decision in the case of Robert Smith (by his wife and litigation friend Pauline Smith) -v- Michael Finch [2009] EWHC 53 (reported upon in the spring 2009 edition of this newsletter). The reason for this public outcry is not the outcome of the case, but, rather, the Judge s ruling that the cyclist who does not wear a helmet runs the risk of contributing to his/her own injuries. The case arose out of a collision between the Claimant cyclist and the Defendant motorcyclist. As a result of the accident, the Claimant sustained severe head injuries. The Court had no difficulty in concluding that the accident was the fault of the Defendant and that the Claimant had not contributed to the circumstances of the accident by his manner of cycling. The more difficult question for the Court was whether or not the Claimant had contributed to the fact or severity of his injuries by failing to wear a cycle helmet. Mr Justice Griffiths-Williams was referred by the Defendant to the case of Froom & Others -v- Butcher [1976], which considered whether a failure to wear a seatbelt whilst in a car amounted to 8

9 contributory negligence. At the time of that case, it was not compulsory to wear a seatbelt, although it was Parliament s intention at that time to make it compulsory. In the Froom case, Lord Denning MR observed that whilst it was not compulsory to wear a seatbelt, it was sensible. A person was, at that time, free to choose whether or not to wear a seatbelt, but if it could be shown that the failure to wear one caused the injuries sustained or made them more serious, that person must share some of the blame. In the instant case, the Claimant s Solicitors contended that Froom should not apply on the basis that the law does not make the wearing of cycle helmets compulsory and there is currently no Parliamentary intention to do so. There had, in fact, been a Government survey in 2004 as to the use of cycle helmets, after which Parliament decided not to make the wearing of cycle helmets compulsory. The Judge rejected the Claimant s argument and accepted Lord Denning s principles set out in Froom that whilst not compulsory to wear a helmet, it is sensible and a failure to wear one, if found to be causative of the injuries, will give rise to contributory negligence. In the event, the Claimant, in fact, recovered 100% of the damages as the Judge found that the Defendant had failed to prove that the injury would have been prevented, or would have been less severe, if a helmet had been worn. The major evidential failing on the Defendant s part in proving causation was the lack of medical evidence dealing with what effect the lack of helmet might have had on the nature and extent of the injuries. suggest that as helmet use has increased, cycling injuries have become more serious. In article in the Telegraph in June 2008, Boris Johnson raised the issue of protecting our safety verses our own liberty to choose in relation to the wearing of cycle helmets. In some sense, this view seems to support the Judge s ruling in the Smith case. If a person chooses not to wear a cycle helmet, as he is entitled to do, he runs the risk of sustaining injury that may, or may not, be more severe than it would have been if he had worn a helmet. In the context of a personal injury claim, this consequently means, on the basis of the ruling in Smith, that person also runs the risk of having his damages reduced for contributory negligence if the Defendant can satisfy the test in Froom that the failure to wear a helmet was causative of the injury or of the severity of the injury. That too is his choice. The Claimant in Smith is unlikely to appeal the ruling as, ultimately, it had no adverse effect on his claim and, therefore, there would be no benefit to him. However, CTC, the UK s national cyclists organisation, is considering legal action to overturn this ruling and, therefore, whilst it would appear that the case of Smith has set a precedent for the use of cycle helmets, as Lord Denning MR did for the use of seatbelts in the Froom case, it is likely that there will be further debate about this point either in the context of the Smith case if CTC take any action or, alternatively, in later cases where Smith is followed and damages are actually reduced for contributory negligence. The public outcry about the Judge s comments is borne of the fact that the merits of wearing a cycling helmet are still very much in doubt, even to the extent that some experts say that cycle helmets not only fail to protect, but, in fact, can make injuries more severe. The statistics on the use of cycling helmets do not make the picture any clearer as they tend to 9

10 Hire claims and the Replacement Vehicle Whilst many issues arising out of hire claims have now been resolved by the House of Lords, the question of payment of hire charges where a replacement vehicle has been offered by the Defendant s insurers has not. This question has, however, been dealt with on a number occasions, with differing results, in the lower courts. Whilst the House of Lords has yet to address this issue, the Court of Appeal has had to on more than one occasion, and most recently in the case of Julie Copley v. Kenneth Lawn; Iain Maden v. D Haller (2009). Before the current position on this topic is discussed, it is interesting to note the previous case law, and the different approaches taken by the Courts. In the case of Rose v. The Co-Operative Group (2005) the Claimant, in the event of an accident, was entitled to a courtesy car under his own motor insurance policy. Nevertheless, he obtained a hire car on credit. At first instance, the Claimant s claim for hire charges was dismissed. However, it was held on appeal that the availability of a courtesy car under his own policy should not have been taken into account, and he had not therefore failed to mitigate his loss. Consequently, the costs of hire were recoverable. Contrary to the case of Rose is that of Whitworths Ltd v. Crenoon Ltd (2006), which, whilst only a County Court decision, is persuasive authority nevertheless. In the case of Whitworths the Claimant claimed for credit hire charges after one of its drivers was involved in a road traffic collision, which was not his fault. However, the Claimant s vehicle was on a long term lease, which entitled the Claimant to a relief vehicle where an accident had occurred. No relief vehicle was requested by the Claimant. Further, the Claimant could also have made use of pool cars. In the circumstances, the claim for hire charges was dismissed. The same result was reached in the case of Evans v. TNT (2006), but this time, by the Court of Appeal. In this case, the Defendant s insurers offered the Claimant a hire vehicle at a significantly lower rate than that offered to him by a company associated with his insurers. The Judge at first instance found that the Claimant had acted reasonably in refusing the Defendant s insurer s offer and was therefore entitled to be fully reimbursed for the hire charges paid. On appeal, the Defendant submitted that the whole of the Claimant s claim for hire charges should have been disallowed due to his failure to mitigate, and that the Judge had erred in law in concluding that the Claimant had acted reasonably in refusing the Defendant s offer. It was held that the Judge at first instance had erred in his approach on the question of the Claimant s reasonableness. It was unfair for the Defendant to have to pay hire charges that exceeded the amount the Claimant would have had to pay had he accepted the Defendant s offer. However, the Claimant s failure to accept that offer did not negate his claim for hire charges completely. It was held on appeal that it should be treated as a refusal of an offer of cash, and that therefore the damages recoverable should be limited to that which he would have recovered had he acted reasonably. Last year, in the case of Angela Steadman v. TNT Express Ltd (2008), the Court also found against the Claimant, but went one step further than in Evans. The Claimant, whose own car was a write off, turned down the Defendant s offer of another vehicle until she was compensated for the value of her damaged vehicle. The Claimant instead chose to self fund the use of a hire car. The Judge dismissed the Claimant s claim to recover those hire charges on the basis that the Claimant had failed to mitigate her loss in its entirety. The Claimant attempted to argue that she should be entitled to at least the sum that the Defendant would have expended had she accepted the offer of a replacement vehicle. On appeal, it was held that if the offering of restitution in relation to a destroyed chattel extinguished a Claimant s loss at the time that offer was made, then the Claimant had no right, let alone an absolute right, to sue for damages. The Defendant s outlay was entirely immaterial to the 10

11 issue of the Claimant s damages and the Claimant had failed to mitigate her losses by accepting the offer of a rental vehicle that, if accepted, would have reduced her claim in damages to nil. The Claimant s appeal was therefore dismissed. In the more recent cases of Julie Copley v Kenneth lawn and Iain Maden v Mr D Haller, which were dealt with simultaneously, the Claimants had also been offered replacement vehicles by their respective Defendant s insurers, but did not accept, instead turning to the services of Helphire for replacement vehicles. The judge at first instance dismissed Mr Maden s claim in its entirety, and substantially reduced that of Ms Copley. In Ms Copley s case, after she had signed the Helphire agreement she received a telephone call from the Defendant s insurers, offering her a replacement vehicle. She also received a letter to the same effect. She immediately telephoned her solicitors who advised her to forward the letter on to them and not to respond to anything herself. The terms and conditions of the hire agreement clearly stated that she had 14 days in which to cancel the same. insurers to provide a replacement car. Incidentally, Lord Justice Longmore criticised the letter sent by the Defendant s insurer, as having a threatening undertone, containing no information as to the insurer s outlay in providing the hire vehicle, and with no advice to pass the letter to the Claimant s insurer or solicitor. It was further held that, if the Claimant did unreasonably reject or ignore a Defendant s offer of a replacement car, the Claimant was still entitled to recover at least the cost which the Defendant s insurers could show they would reasonably have incurred. Damages were not forfeited altogether. It is noteworthy that Lord Justice Longmore stated in his judgement that the general rule that the Claimant can recover the spot or market rate of hire for his loss of use claim is upheld, unless and to the extent that a Defendant can show that, on the facts of a particular case, a car could have been provided even more cheaply than that spot or market rate. Mr Maden also received a written offer of a replacement vehicle from the Defendant s insurers, but completely ignored this letter. In Ms Copley s case, the District Judge allowed her to recover damages in respect of 7 days car hire on the premise that at the end of that period she should have cancelled the hire agreement and accepted the Defendant s insurers offer. In Mr Maden s case, his hire charges claim was dismissed in its entirety on the basis that he had ignored the Defendant s insurers offer. On the first appeal, the Judge in the Mercantile Court held that both parties rejections of the insurers offers had been unreasonable and that the hire costs incurred were therefore irrecoverable. The Claimants appealed arguing that, on the facts, they had not acted unreasonably and, even if they had, they should be able to recover the amount that the Defendant s insurers would have had to have paid in any event. In the cases of Copley and Maden Lord Justice Longmore found that as the Defendants had not adduced evidence to show that the Helphire rates were more expensive that the spot hire or market rates, the sums claimed were awarded in full. It seems, therefore, that the current position is that the Claimant who refuses a replacement vehicle from the Defendant s insurer will not see his/her claim for hire in negated in its entirety, if at all. The Claimant will simply be limited to recovering the cost that the Defendant s insurers would have incurred in providing the replacement vehicle. That said, the situation may well alter again soon. It was held by the Court of Appeal that there had been an undoubted loss to the Claimants, because their cars had to be repaired and they needed replacements. That loss, it was said, could not be eliminated by an offer from the Defendants 11

12 An Update on Fees Under the RTC Claim Process Reforms Following the announcement of the changes in the RTC Personal Injury Claims Process for claims with a value between 1,000 and 10,000 there remained a number of obstacles particularly in respect of costs. Readers will recall that the Government had concluded that claims falling within the new process would be the subject of fixed costs, however no detail was given and that issue was being passed over to the Advisory Committee on Civil Costs. As expected, the costs have proved to be a very contentious issue with negotiations having dragged on for some time. With a view to trying to resolve the deadlock the Civil Justice Council was called in by the MOJ to run a 3 day mediation. It is understood that that mediation was successful, however the terms of the agreement are embargoed pending approval by Jack Straw. The Forum of Insurance Lawyers (FOIL) has stated that they are pleased with the agreement the same having been reached via a commercial approach. It is believed that the Government has successfully remained resolute in allowing Claimants to take out ATE policies at the start of a case despite protestations from insurers that there is no risk to the insured until a claim is denied. It will therefore be interesting to see what the level of fees are, as agreed by the insurers, to compensate for ATE policy charges. This is especially so bearing in mind Claimant s solicitors have long complained that the costs allowed under the existing predictable regime are too low and outdated having been drawn from 2002 research and never reviewed or increased in line with inflation. We will also have to wait and see whether or not the existing predictable costs scheme will survive in respect of those claims that fall outside the new RTC claim process. The MOJ s stated implementation date of October 2009 has now been put back to April Readers will recall we highlighted that Jackson LJ had been undertaking a wide ranging review of civil legal costs in the spring edition of this publication. The initial consultation report was published on the 8 May 2009 and is very wide ranging, detailed and amounts to almost 700 pages. Not only can an article such as this not do justice to such a lengthy report and cover all its issues but in addition it is dangerous to draw any firm conclusions taking into account Jackson LJ s comment: Jackson LJ s Costs Review Whatever I recommend at the end of this year (and at this stage I still have an open mind) one thing is inevitable. My final report will generate protests from at least some directions and quite possibly all directions This report does not reach any firm conclusions. It is therefore a preliminary report and intended to do no more than set the background and identify the issues that need to be determined. That said it does also contain some very interesting comments not least The personal injury litigation industry is populated by numerous interest groups and middle men, all of whom have to meet their overheads and make a profit on top. If any layer of activity can be removed from the process (and insurance against adverse costs liabilities is one layer of activity) it may be thought that this will serve the public interest. It is clear from the report that Jackson LJ recognises that ATE premiums have significantly increased the costs of litigation. He does, however, also recognise that following the withdrawal of Legal Aid either CFAs or some other system of payment by results must exist in order to facilitate access to justice. 12

13 Perhaps one of the most radical ways in which this could be achieved would be by way of cost shifting, i.e. a successful Defendant would not be able to recover his costs of the Defence thereby obviating the need for ATE insurance. There are clearly pros and cons to such an approach and any form of costs shifting must be dependent on the type of case. It is also noticeable that the removal of ATE would be in direct contrast to the MOJ s express view in relation to the RTC Claim Process Reform. There is also the suggestion that fixed costs should be extended to all fast track cases with such fees being reviewed on an annual basis to avoid the type of argument that is raised on RCT predictable fees. This idea is, of course, not new as it was proposed by the MOJ in its consultation paper on the Claims Process for Personal Injury Claims albeit that consultation did not produce any results other than an increase in the fast track limit. Perhaps this review will finally kill off that process? If fixed fees are introduced for all fast track cases it is likely to have a very significant effect as the vast majority of claims fall within that bracket. It could well result in the closure of legal practices who predominantly specialise in such low value work and also significantly reduce the amount of available work to Costs Draftsmen and those involved in the costs industry. We will, of course, have to see how matter progress over coming months and what views are expressed during the current consultation period that concludes on the 31 July During this time a number of road shows are taking place around the Country. Copies of Jackson LJ s report can be accessed at preliminary-report.htm. If there are any topics you would like us to examine, or if you would like to comment on anything in this update, please the editor: Simon Evans at This briefing note is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Dolmans Solicitors Windsor Place Cardiff CF10 3DS

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