Motor Credit Hire Guide

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1 Motor Credit Hire Guide

2 Introduction Since the early 1990s the battle between defendants and the credit hire industry has waxed and waned. The subject is as relevant today as it was 20 years ago. Credit hire claims handling is often believed to be a dark art, but it need not be. Kennedys has a long history of helping insurers, policyholders and self-insured businesses through the credit hire maze. We published our first credit hire guide in This latest guide brings together the knowledge and tactical thinking that has developed within our national credit hire team since that time. As with everything we do at Kennedys, we have set this guide out simply, in black and white. Also, as our clients have come to expect from us, we have provided a pragmatic and commercial set of solutions. This will result in reduced claims costs and an enhanced ability to select those cases that need to be fought. A credit hire flowchart is included at page 26. My thanks to Kerry Hawthorne-White and Dylan Magnay for their assistance with compiling this guide. Richard West Partner Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership registered in England and Wales (with registered number OC353214)

3 Contents Topic Page Number 1. Defined terms 2 2. What is a credit hire agreement? 3 3. What does the third party have to prove? Registered keeper and/or registered driver, coverage and insurance issues Need 4 4. Is the agreement enforceable? The Cancellation of Contracts made in a Consumer s Home or Place of Work etc. Regulations 2008 (Doorstep Regulations) Electronic signature of agreements Public policy Subrogated claims and insurance 9 5. ABI General Terms of Agreement (GTA) Offer of an alternative vehicle Third party intervention Period of hire Like for like vehicle Impecuniosity Failure to mitigate Basic hire rate Additional extras Engineer s fee Interest Tactics Flowchart Case index 27 1

4 1. Defined terms We have, where appropriate, used defined terms. In addition, please note that our reference to insurer includes the claims handling agent, and third party includes a third party representative. 2

5 2. What is a credit hire agreement? A credit hire agreement is an agreement entered into between a third party and a credit hire provider. The credit hire provider provides a replacement vehicle when the third party s own vehicle is damaged in an incident. The period of hire should commence from when the damaged vehicle is being repaired and/or waiting to be declared a total loss. The vehicle will be provided to the third party on a credit basis. This reflects the fact that after the third party has paid the credit hire charges to the credit hire provider once the hire period has ended, the credit hire provider will seek to recover these costs from the at fault party or his insurer. In reality, whilst the third party is technically liable for the costs of the hire, these charges are never actually paid by him but rather, will be paid by the at fault party directly to the credit hire provider. A credit hire agreement is not a regulated agreement pursuant to the Consumer Credit Act 1974 (1974 Act). Instead, the normal contractual principles such as offer and acceptance apply. The decisive factor is whether the third party has read and understood the terms and conditions of hire. The 1974 Act does, however, apply to issues of enforceability discussed at section 4 below. 3

6 3. What does the third party have to prove? 3.1 REGISTERED KEEPER AND/OR REGISTERED DRIVER, COVERAGE AND INSURANCE Insurers should be satisfied that the third party is the registered keeper and/or a registered driver of the damaged vehicle. For example, if a husband was the registered keeper of the vehicle which was being driven by his wife at the time of the collision, as long as the wife was a registered driver she may bring a claim for the recovery of credit hire charges. In order to establish who the registered keeper is you should request a copy of the V5 from the third party. If the V5 is not produced it can be obtained directly from the DVLA using Form V888/2 at a current cost of In order for the third party to bring a claim for recovery, the damaged vehicle should be on the road legally. This can be proved by seeking from the third party a copy of a valid: MOT certificate Certificate of insurance (which can be verified by completing a Motor Insurance Database search) Driving license 3.2 NEED Need is not conclusive. Rather, the third party must prove their need to hire a replacement vehicle (Giles v Thompson [1993]). In reality, the burden of proof is easily satisfied. A mitigation questionnaire should be attached to the payment pack or requested separately in order to confirm the third party s need for a hire vehicle by reference to: Occupation Mileage Family/personal circumstances Social commitments Other available vehicles When dealing with claims by taxi drivers you should request a copy of the licence granted by the local authority authorising carriage of passengers. If the third party does not produce the licence, enquiries of the relevant local authority should be made. 4

7 Also relevant to the question of need is whether the third party has access to any other vehicles, such as family vehicles or vehicles within a fleet/pool (Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2010]). The relevant consideration is whether such an arrangement would cause unreasonable inconvenience to the party who permits use of a vehicle to the third party. In the case of a business, specific evidence of the actual use of the vehicle for business purposes will be required, as need is not self-proving (Singh v Yaqubi [2013]). For example, take a wife whose vehicle is damaged and requires repair. The only other family car is her husband s which he uses to drive to work, and in the absence of which, would require him to make alternative travel arrangements. It is unlikely to be considered a reasonable sacrifice for him to make to allow his wife to use the vehicle. 5

8 4. Is the agreement enforceable? In order for a credit hire agreement to be enforceable the third party must be made aware of the terms and conditions before he enters into the agreement. 4.1 THE CANCELLATION OF CONTRACTS MADE IN A CONSUMER S HOME OR PLACE OF WORK ETC. REGULATIONS 2008 (DOORSTEP REGULATIONS) The Doorstep Regulations came into force on 1 October 2008, apply to all contracts with a total payment of more than 35 and set the cooling off period to a minimum of seven calendar days. The location where the credit hire agreement is entered into is, therefore, relevant to determine whether the Doorstep Regulations apply. The Regulations are aimed at traders who enter into a contract with a consumer at their home or workplace. However, they also cover contracts made at another individual s home or on an excursion organised by the trader away from their business premises. The Regulations will not apply if the third party is not a consumer e.g. use of vehicle during course of employment. The Regulations also require cancellation rights to be clearly and prominently displayed in any written contract or provided in writing if there is no written contract. Failure to do so is a criminal offence (Regulation 7). The notice must: Be dated Indicate the right of the consumer to cancel the contract within the cancellation period Be easily legible Contain the information set out in Schedule 4, Part I and a cancellation form in the form set out in Schedule 4, Part II provided as a detachable slip and completed by or on behalf of the trader in accordance with the notes Indicate if applicable that: the consumer may be required to pay for the goods or services supplied if the consumer decides to have work done, or to receive goods, within the seven day cooling off period a related credit agreement will be automatically cancelled if the contract for goods or services is cancelled The written notice must also contain (Schedule 4, Part I): The identity of the trader including trading name, if any 6

9 The trader s reference number or other details to enable the contract or offer to be identified A statement that the consumer has a right to cancel the contract if he wishes and that this right can be exercised by delivering or sending (including by ) a cancellation notice to the person mentioned in the next paragraph at any time within the seven day cooling off period, starting with the day of receipt of a notice in writing of the right to cancel the contract The name and address (including any address as well as the postal address) of a person to whom a cancellation notice may be given A statement that notice of cancellation is deemed to be served as soon as it is posted or sent to a trader or in the case of an electronic communication from the day it is sent to the trader A statement that the consumer can use the cancellation form provided if he wishes If the third party is not made aware of the right to cancel in accordance with the Doorstep Regulations, the entire credit hire agreement is unenforceable. However, in this situation, the third party may be able to recover the equivalent of basic hire rates by way of a general damages award (Wei v Cambridge Power and Light Ltd [2010]). Be aware: third party representatives have developed certain tactics to avoid enforceability arguments. These include the provision of a witness statement to confirm that the third party knew the terms of the agreement and was aware of his right to cancel before he signed the agreement. 4.2 ELECTRONIC SIGNATURE OF AGREEMENTS Many credit hire agreements are endorsed at the time the hire vehicle is delivered to the third party by the third party signing for safe receipt on an electronic handheld device. It is not uncommon for these signatures to be transposed to the relevant signature sections on the credit hire agreement. The concern here is that the third party has not been made aware of the credit hire terms and conditions before signing the agreement. Even though the credit hire provider will probably argue that the agreement is enforceable because the agreement is signed, was the third party aware what they were signing? Indicators of status of the agreement/third party awareness include: Is the signature obviously electronically transposed? 7

10 Do the signatures look identical on the receipt document and the agreement (i.e. consideration of size and matching letter characteristics)? Is there a defined shading around the signature? See Dixon v Arriva [2007] and Tyrell v Staniforth [2009]. Other discrepancies Another practice surrounding creation of the agreement is to refer the third party to online terms and conditions. The concern is knowing whether the third party has actually viewed and agreed to these online. There have been cases where the terms and conditions have apparently been agreed by the third party at a location where it is unrealistic or unlikely they would have been. Such a discovery can be achieved by cross referencing the locations with the unique IP address of the computer on which the terms and conditions have been agreed. In addition to obvious geographic inconsistencies, the date and time of the purported agreement should be looked at closely, to ensure they are feasible. For example, a third party residing in Newcastle is provided with a hire vehicle from the credit hire provider s Newcastle branch. However, after carrying out a search of the IP address of the computer on which the terms and conditions were viewed and agreed, it transpires that the terms and conditions were in fact agreed to in Plymouth. This is unlikely to be possible unless the third party had reason to be in Plymouth. The location of the computer by reference to the IP address can be identified by placing IP address locator into any search engine. You should however be aware that these searches may not be accurate. 4.3 PUBLIC POLICY Whilst the credit hire agreement is not a regulated agreement for the purposes of the Consumer Credit Act 1974, the normal contractual provisions apply with regard to enforcement, which are: Was the third party made aware of the terms and conditions prior to entering into the credit hire agreement? Did he actually sign it? If either of these provisions is not satisfied the credit hire agreement is unenforceable. 8

11 Other situations where a credit hire agreement may not be enforceable relate to public policy issues as follows: Using the credit hire vehicle in the commission of an illegal act Driving a credit hire vehicle when the third party was driving his vehicle at the time of the collision without insurance or a valid driving license. (The third party would still be able to bring a claim for personal injury.) 4.4 SUBROGATED CLAIMS AND INSURANCE As with vehicle damage claims, credit hire providers will seek to recover credit hire charges by way of a subrogated claim brought in the third party s name. The right to do so is normally set out in the terms and conditions of hire. It is now common to have separate insurance premiums in place running alongside the credit hire agreement. These pay the outstanding credit hire charges in full on behalf of the third party, thereby discharging the third party from liability for these charges. The insurance provider will in turn seek to recover this payment from the at fault party (W v Veolia Environmental Services (UK) PLC [2011]). 9

12 5. ABI general terms of agreement (GTA) Paragraph 1.1 of the GTA states: These terms of Agreement (GTA) set out the arrangements between subscribers for the provision of replacement vehicles to third party motorists (referred to as customers throughout), and, where appropriate, the undertaking of repairs. Whilst intended to provide comprehensive guidelines, these are entirely voluntary between the subscribers involved, who may elect to un-subscribe from the GTA at any time. The GTA is only intended to apply to situations where a credit hire organisation (CHO) considers the third party has prospects of full recovery against an at fault driver s insurer. All subscribers are required to follow the GTA in such cases. In all other cases (i.e. those where full recovery is not anticipated) the subscribers may elect to follow the same principles, provided that they comply with the spirit and terms of the GTA, including the application of the relevant settlement rates. Where the GTA is applied, it can be used to negotiate: Daily rates of hire Hire period Unreasonable delays (see section below on timeframes) Class of vehicle (as well as ordinary vehicles this includes private hire/taxis, motorcycles and commercial vehicles) The necessity for a prestige vehicle Daily rates The applicable maximum daily rates are available on the ABI website. Timeframes: period and delays The insurer must respond to the CHO s new claim advice form within five days of receipt confirming the correct handling centre and claims reference number. If an insurer fails to do so, it will be responsible for any delays resulting from exchange of notification documents (paragraph 4.2). The hire period commences at the time the third party both needs and takes delivery of the replacement vehicle. Where it is reasonable for the third party to believe that the damaged 10

13 vehicle is unusable and/or unroadworthy but the engineer subsequently confirms the vehicle to be usable, the hire will be paid up to the date the disagreement is resolved. The third party should, however, mitigate his loss by returning his damaged vehicle to the CHO and returning the credit hire vehicle until repairs can be commenced (paragraph 4.6). The hire period should end no later than 24 hours after repairs to the third party s vehicle have been completed (paragraph 4.8). The CHO should monitor the hire period throughout the period of the hire and in particular: Ensure that repairs have been commenced within three working days of the damaged vehicle going in for repairs Make a further check with the garage after the lesser of five working days or three working days before the hire should have ended (paragraph 4.10) The insurer should be informed of all unreasonable delays with a notification of the delay. If the repair is delayed beyond these periods, the CHO should undertake checks every five working days after the original hire period should have ended. Any further delays should be notified to the at fault driver s insurer (paragraph 4.11). An unreasonable delay: defined as delays that are at least two working days longer than expected or over 20% more than the estimated hire period notified to the CHO. Provided that the CHO has correctly monitored the repairs, it will not be held responsible and the hire period will not be reduced, if an engineer fails to liaise with the at fault driver s insurer if a significant delay is likely for required parts (paragraph 4.13) (Clark v Ardington Electrical Services [2003]). Consideration should, however, be given to bringing contribution proceedings. Where the third party s vehicle is deemed a total loss, the CHO should check within ten working days of the hire commencing, that the vehicle has been inspected and an offer has been made to the third party. If an offer has not been made, the CHO should inform the insurer. The ten working day period can be extended by up to four working days, where the CHO s procedures provide for an offer being agreed with the third party. The CHO should inform the insurer of any dispute on the pre-accident value (PAV) so they can consider any appropriate action. The hire may continue until seven calendar days after receipt of the final settlement cheque by the third party. The insurer should advise the CHO, on request, as soon as possible of the date on which their total loss settlement cheque is issued (paragraph 4.14). 11

14 Where delays result from the insurer not receiving documentation from the CHO, proof of sending will be accepted by the insurer as the appropriate start date from which penalty payments apply (paragraph 6.6). Mitigation The CHO must advise the third party of his duty to mitigate his losses before and throughout the period of hire e.g. an overseas holiday without the need of the hire vehicle. The third party must complete a mitigation questionnaire/statement of truth form as part of the payment pack (paragraph 4.3). Class of vehicle The CHO will normally provide the third party with a hire vehicle in the same class as his own. The insurer must be consulted in the event of a dispute about entitlement. The third party may opt for a higher class vehicle or an extension of the hire period at his own cost (paragraph 4.4). Prestige vehicles Where the vehicle owned by the third party is a prestige vehicle, the CHO should make enquiries with the third party to ensure they have need for such a vehicle. Where the prestige vehicle is over six years old, it is only in exceptional circumstances that a similar prestige replacement is required. Need will be determined by reference to the make, model, value and use of the vehicle (paragraph 4.5). Payment pack The CHO must submit a payment pack in support of a payment request to the insurer as soon as full documentation is available. Content of payment pack The pack should include a covering letter which sets out all the charges due with documentation and supporting evidence. This should include a mitigation questionnaire/statement of truth form signed by the third party and a new claims form and hire period validation form (loss of use dates), where necessary. If appropriate, the following should also be included: engineer s report, repair authorisation details and details of storage and recovery fees (paragraphs 6.1, 6.2 and 6.3). 12

15 Penalty payments Failure to settle the payment pack within one calendar month will result in the following increases to the total invoice (paragraph 6.8). Hire Repair (if included in payment pack) Up to one calendar month None None Between one and two calendar months 7.5% 2.5% Between two and three calendar months 15% 5% 13

16 6. Offer of an alternative vehicle In order to avoid the third party incurring credit hire charges, the insurer should have in place the facility to enable them to offer the third party an alternative vehicle at no cost. The cost to the insurer is likely to be at basic hire rates or less. This is commonly known as capture or third party intervention (Copley v Lawn; Maden v Haller [2009]). Any offers on an alternative vehicle made by the insurer should be made before the third party enters into any credit hire agreement and should: Be in writing Be addressed to the third party and copied to the third party s insurer Be clear as to the cost of the vehicle to the third party as well as to the insurer Offer a like for like vehicle If a third party fails to consider an offer of an alternative vehicle, he risks an argument against him of failure to mitigate his loss. This could include where there are two periods of hire and the offer of an alternative vehicle was made after the first period of hire but before the second. However, even if the third party has unreasonably rejected the offer it is likely that he will be able to recover basic hire rates. Therefore it is essential that the offer of an alternative vehicle follows the guidance set out above and is made early. 14

17 7. Third party intervention In order to assist in keeping the hire period to a minimum, the insurer should consider whether any intervention by them could assist. The following are examples of where it would be appropriate to intervene: Offering to inspect the third party vehicle at the outset Arranging an alternative garage to carry out repairs if for some reason the instructed garage is delayed/unable to perform the repairs Offering to source and deliver parts if there is a delay by the repairing garage in obtaining parts Offering to provide the third party with an alternative vehicle Arranging a holiday for the third party which would cease their need to hire an alternative vehicle If these attempts are made by the insurer but are not agreed to by the third party, there may be an argument that the third party has failed to mitigate his loss. 15

18 8. Period of hire The period of hire will have a significant impact on the value of all credit hire claims. Most arguments in relation to the period of hire stem from delays caused by various factors, which can occur in isolation or in conjunction with other reasons. These include delays in the following: The third party or their representative advising the insurer of the collision The third party instructing an engineer to inspect the damaged vehicle The insurer instructing an engineer to inspect the damaged vehicle when the third party has third party cover only The third party sending the engineer s report to the insurer The insurer sending out payment for the pre-accident value of the damaged vehicle when the third party has third party cover only The third party authorising repairs Repairing garages commencing work e.g. due to work backlog Repairs due to delay in the delivery of parts The third party providing vehicle documents where relevant e.g. V5, MOT certificate and driving licence The third party collecting the repaired vehicle or signing the satisfaction note If it is impossible to show that the third party personally prolonged a period of hire, the insurer is likely to be liable for the whole period of hire. Third parties often rely on Clark v Ardington Electrical Services [2003] to argue this point. Where it is possible to show that the delay was caused by another party, such as the repairing garage or the credit hire provider, the option of bringing a claim for contribution can be considered. 16

19 9. Like for like vehicle A party should be put back into the position he would have been in had the collision not occurred. He will not be entitled to a better class of hire vehicle than his own. For this purpose, reference should be made to the grouping of vehicles within the GTA agreed maximum settlement rates. CHOs follow this structure but the grouping categories are often labelled differently. CHOs will sometimes provide a third party with a better class of vehicle than his own but charge at the daily rate for his own vehicle class, which is acceptable practice. 17

20 10. Impecuniosity The third party must prove that they needed to hire a replacement vehicle on a credit basis and did not have the financial means otherwise to fund the hire of an alternative vehicle. The burden of proof is on the third party to establish that they were impecunious at the time of the collision and had no other option but to hire a vehicle on a credit basis (Lagden v O Connor [2003]). However, the insurer holds the overall burden of proving that the third party could not have hired at a basic hire rate. A prudent insurer will recognise that third parties and/or their representatives are not always willing to assist in providing evidence of impecuniosity at the outset. It is therefore advisable for insurers to begin shifting the burden of proof to the third party by obtaining basic hire rate evidence early on. This may be by way of internet rates or a pre-litigation rates report from a preferred rates evidence provider. This report can then also be used for the purpose of litigation and negotiation (if need be). In order to establish the third party s financial position, you should request the following: Bank statements including details of any overdraft facility (ideally for a period three months before and three months after the collision) Credit card statements Savings accounts statements (including any joint accounts) Details of any loans Wage slips Tax returns Profit and loss accounts Details of any credit reference problems e.g. county court judgments Details of any unreasonable sacrifice which would arise from hiring at basic hire rates 18

21 11. Failure to mitigate The third party is always under a duty to mitigate their losses. Examples of ways a third party can do this are: Utilising public transport Borrowing/sharing a vehicle from a friend or family member Arranging hire at basic hire rates from providers such as Enterprise, Europcar, Hertz, Avis Using the courtesy car from the repairing garage Continuing to drive the damaged but roadworthy vehicle up until the point of repair Returning a credit hire vehicle whilst not in use, e.g. during a holiday Hiring a vehicle which is in the same or lower class than the damaged vehicle Giving genuine consideration to offers of a replacement vehicle from all parties involved in the collision and their representatives Responding to all parties involved in the collision and their representatives promptly Ceasing hire promptly when repairs are completed or when the pre-accident value cheque is received The above can be used to argue that the hire period or rate should be reduced or that the third party should not have hired a vehicle on credit at all. 19

22 12. Basic hire rate If the third party is unable to prove that they were impecunious at the time of the hire then the appropriate daily rate of hire should be limited to the market rate. This is otherwise known as the basic hire rate (Bent v Highways & Utilities Construction and Allianz Insurance [2011]). The basic hire rate is the rate at which the third party should have been able to obtain a vehicle on a non credit hire basis. The appropriate basic hire rate is for: Like for like vehicle Same location as the third party Same period of hire At the same time as the hire period If evidence fitting the above criteria cannot be obtained then basic hire rates as near as possible to the above criteria will be considered sufficient. Whilst not impossible, it can be difficult to obtain basic hire rate evidence for taxis, motorcycles and commercial vehicles. Again, the above criteria should be applied. The third party may still be able to recover credit hire rates even if they are not impecunious and can demonstrate there was no other option but to hire on a credit hire basis. Examples would be if they had driving convictions or were under the age of

23 13. Additional extras It is not uncommon for CHOs to include additional charges in the payment pack. These will include items such as: Collision damage waiver Underbody waiver Windscreen waiver Theft excess waiver Young driver excess Additional driver surcharge High mileage charge Satellite navigation charge Automatic vehicle charge Road tax Additional insurance Dual control charge (driving instructor) Assessment of whether additional items such as these are recoverable should be considered on a case by case basis. For example, if a third party had an automatic vehicle and was 18 years old at the time of the collision, he will be entitled to recover a young driver s excess and automatic vehicle charge. However, many of these items are not recoverable under the credit hire agreement and should be removed for calculation purposes as they constitute additional benefits which can only be seen as betterment. 21

24 14. Engineer s fee Any engineer s fee which is claimed by the third party where the CHO also arranged the repairs is not a recoverable head of loss as this is considered as an additional benefit (Clark v Ardington Electrical Services [2003]). 22

25 15. Interest Interest is regularly claimed on credit hire charges but is not recoverable. The point is that interest cannot be claimed on charges that are not yet paid (Pattni v First Leicester Buses Ltd [2011]). 23

26 16. Tactics Without prejudice payments Whether a third party vehicles is damaged beyond economical repair or is repairable, a without prejudice payment to settle the pre accident value or repairs should be made in order to cease the hire. These payments should be made even if liability is in dispute as they can be recovered if the third party admits being, or is held to be, fully or partially at fault. Review the credit hire agreement The credit hire agreement should contain information about the third party s age, occupation and driving licence endorsements. By reviewing this information assumptions can be made in relation to the financial status of the third party and his potential ability to hire a vehicle at basic hire rates. This should always be clarified with questions to the third party (or his representative). Offers It is advisable that you make offers to settle the third party s credit hire claim as soon as possible. The CHO will often accept a reduced sum to that claimed in total in order to conclude matters swiftly. Obtaining evidence You should support any offers of settlement with your own evidence from a basic hire rates provider, internet research or ABI based calculations. Obtaining evidence as near to the collision date as possible is important to help ensure accuracy. Challenging rates evidence When the third party representative or CHO presents their own evidence this should be challenged as soon as possible if you feel there is merit in doing so. This may include challenging the: Independence of the evidence: for example evidence provided by subsidiaries of the CHO Comparability of the evidence: by reference to vehicle class, hire period, location or time of hire 24

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