Andrew Bunting v Zurich Insurance Plc
Written by Sarah Cartlidge, Partner and Verinder Bedi, Associate
A decision by Pepperall J in the High Court sitting in Birmingham created another useful tool in the armory of the defendant credit hire practitioner as it provides further guidance on the merits of the various arguments raised around the alleged inadequacies of basic hire rate evidence. It is hoped that this will draw a line under the claimant tactic of seeking to recover the full credit hire rate by undermining the basic hire rate evidence adduced.
Following attempts by the Court of Appeal in McBride v UK Insurance (2017) to draw a line under the various challenges to basic hire rate (BHR) evidence adduced by claimant solicitors/hire companies, there sadly continued to be a plethora of issues raised with the contents of the evidence.
Indeed it was not infrequent for claimant practitioners to adduce their own rebuttal evidence whose sole purpose was to pull apart the BHR evidence to convince the court that the defendants had failed to discharge by the burden of proof in adducing the BHR. This would then mean by default the full credit hire rate ought to be awarded.
It was therefore perhaps inevitable that further guidance would be sought from the appeal courts.
Immediate impact and practical consequences
The case will become an excellent ‘go to’ when responding to challenges to basic hire rate evidence.
The appeal indicates that the courts continue to take a pragmatic approach to BHR evidence and any challenges over rates need to be substantial as opposed to ‘nit-picking’ before the BHR evidence will be rejected.
It is likely that the credit hire companies will have to re-visit their strategies around rate challenges. Some may seek to move to targeting impecunious claimants; others to hiring specialist vehicles where obtaining BHR is more difficult and others to adducing their own BHR evidence as an alternative.
As a consequence of the appeal court making it more difficult for credit hire companies to recover their full rate when the claimant is pecunuious, the hire companies may look to make up their losses by increasing their number of claims or in other elements of hire e.g. hiring for longer periods or accepting split liability claims.
The facts of the case and the reasoning of the court
After a road traffic accident, the claimant had incurred over £28,000 worth of credit hire charges, by hiring at a daily rate of £338.76 for an agreed 78 day period. The issue of quantum proceeded to a Trial before Recorder Le Poidevin (QC) where rate was the main area in dispute.
The defendant adduced rates evidence which set out daily and weekly rates from three hire providers. The evidence was contemporaneous but it did not provide any information as to deposits or when the data had been harvested.
The claimant did not raise impecuniosity and confirmed that his annual mileage was 230 miles per week. Interestingly the claimant had witness summonsed the defendant’s rates evidence provider for the purposes of cross examination.
The Recorder awarded the claimant £3,989.14 for hire by allowing the lowest rate in the report (a seven day rate from Thrifty) but with a ‘rough and ready adjustment’ of £10 per week to deal with the fact that there was no details as to the deposit; the mileage was limited to 500 miles per week and there was a 30 day maximum hire limit.
On 13 May 2020, Pepperall J dismissed the appeal and he found that the claimant was ”nit-picking” and made the following findings:
The first instance Judge would be wrong to require evidence from precisely the time of the accident.
The court was entitled to use the Thrifty BHR rate for the 78 day period even though there was a 30 day contractual limit as any charge beyond the first four weeks was unlikely to be more than the cost of the first 4 weeks.
The court does not require evidence of a particular car on a particular date before awarding a BHR. Availability does not need to be specifically proven.
The court can use 1/7 of the weekly rate to make up odd days (i.e day 78 in this case).
The question of deposit was irrelevant as the claimant was not asserting impecuniosity.
What this means for you
This decision endorses the fact courts/defendants can and should use their common sense and experience when faced with imperfect rates evidence in order to strip out the irrecoverable benefits from the credit hire rate claimed to get the market rate.
This is another welcomed decision for defendant insurers in their long standing battle to strip away the additional benefits offered by CHO in order to get to the true BHR.
Longer term impact:
A tactical change in approach may be instigated by some of the hire companies and their panel solicitors. This may mean the practice of adducing rebuttal statements to criticise the BHR evidence is a thing of the past and that some firms revert to adducing their own BHR evidence to try and persuade the court that their evidence is more reliable (and is no doubt for a higher sum).
In addition, due to the impact which the case may have on the potential to recover full credit hire rates, the hire companies may move to try to ensure that their customers contend and prove impecuniosity on more cases and indeed some companies may look to target the impecunious hirer market place. Alternatively we may see a move into the hire of specialist vehicles or hiring to specific types of claimants so as to maximise the recoverable rate relying on the difficulty which credit hire practitioners have in obtaining BHR evidence for such cases.