UK: Credit Hire: Basic Hire Rates And Claimant Quibbles

The High Court has recently dismissed an appeal alleging that a Recorder in the County Court should have disregarded basic hire rate (BHR) evidence submitted by the Defendant. Handing down judgment in Bunting v Zurich Insurance Plc [2020], Mr Justice Pepperall found that the Claimant's challenges to the BHR rate were 'nit-picking'.

The decision offers further confirmation that a common sense approach should be used by the courts when stripping out the irrecoverable benefits of a claimed credit hire rate, in order to reach an appropriate basic hire rate.

These findings also make clear that claimant efforts to be hypercritical of BHR evidence will not be accepted as justification for a substantive challenge to BHR evidence.

The judgment further builds upon that of McBride v UKI (with which the writer was involved) and reinforces the need for a "common sense" approach to what remains a theoretical exercise. Hopefully "fanciful" challenges to Defendant's rates evidence will decrease following this further clarification.

Background

The Claimant had hired an equivalent class of vehicle from Helphire for a period of 84 days following a non-fault accident. The hire charges totalled £28,551.84. The Claimant was debarred from asserting impecuniosity.

The Defendant served a witness statement from an employee of Whichrate setting out alternative rates from BHR providers, including a 7 day rate from Thrifty (the lowest rate).

At trial, the witness gave oral evidence reinforcing the points in his statement, having unusually been summonsed by the Claimant to give evidence. Although the Recorder concluded that the Claimant had made some good points about the usefulness of the witness evidence, he disregarded their objections, using the 7 day Thrifty rate as the basis of the amount awarded.

The Recorder also made an uplift of £10 per week to reflect a lack of details of any deposit payable, mileage limit, and that the Thrifty rate was limited to a 30 days maximum hire rate. The Claimant recovered £3,989.14, a significant reduction of the amount claimed and also far below the Defendant's Part 36 offer.

The Claimant appealed, arguing that the Defendant's BHR evidence should have been disregarded for the following reasons:

• A lack of information of who carried out the Whichrate data harvesting exercise, as well as how and when it was carried out;
• A lack on information on any deposits payable, mileage restrictions;
• A 30 day maximum hire period was applicable to the Thrifty rate;
• The use of screenshots for advertised rates rather than reservation pages.

The appeal was dismissed by Mr Justice Pepperall.

He found that:

• Per Pattni, the Recorder had considered need, reasonableness of hiring and impecuniosity before addressing the Defendant's arguments on the difference between the credit hire and BHR. The Defendant had proved those arguments;
• Courts are often asked to consider imperfect evidence. In this instance, this meant the Recorder was entitled to rely upon data obtained from a date other than the time of the accident, and find that the Thrifty 30 day rate could be extrapolated to the full 78 day period;
• Nonetheless, the uplift awarded had been generous to the Claimant on the facts on the case, and was a 'reasonable adjustment' which forms part of the power of a trial judge.

The Claimant was ordered to pay the Defendant's costs of the appeal.

What can we learn?

• This decision reinforces 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.
• The decision may move the Claimant community towards a more aggressive argument of impecuniosity. Whereas here, the Claimant was debarred from relying upon an allegation of impecuniosity perhaps we will see more comprehensive financial disclosure and the economic effects of the pandemic will likely be brought into play in order to take the assessment of rates evidence irrelevant.