The Claimant claimed £23,567.94 for a 157 day period for a replacement motorbike from 4th Dimension. The matter exited from Stage 3 to Part 7 proceedings. The Claimant pleaded loss of use was applicable, but only if the hire agreement was found to be void.
Rate, enforceability, period and need were challenged. The Claimant stated pre-litigation it was "inconvenient" for him to use his other vehicles. The matter ran to trial, with financial disclosure incomplete and BHR obtained. The Defendant made a Part 36 offer of £5,000.00 which wasn't accepted.
First Instance Hearing
The Defendant was represented by Martin Ferguson of Farrar's Building. Enforceability was accepted, but need, period and rate disputed.
Under cross examination the Claimant confirmed that he had a car and a van, (despite only referring to a van in his witness evidence). It was accepted the van may not be suitable for day to day use, and the Claimant averred that the car was "off the road" at the time of the accident.
The Claimant's commute was a 26 mile round trip, but he averaged 8 miles per day on his bike. The Claimant explained that before his car had become unroadworthy he sometimes used it for commuting, and admitted he repaired the car himself in a day or so. The Claimant also admitted the main use of the bike was attending biking events on a hobby basis.
The Defendant submitted there was no need to hire.
The Trial Judge accepted need was not satisfied and found that the claim for hire should fail, commenting;
"The question of whether he has satisfied need relates to whether the hiring of a bike was a reasonable step in mitigating his loss.
… I do not consider that he has discharged the burden. He could have fixed his car quickly and before the need to use the van arose. The bike events do not establish a need to hire a bike. He prefers to ride, but that preference cannot be enough to establish a need to hire."
The Trial Judge did allow the Claimant to make an oral application to amend their pleadings to advance a claim for loss of use. An award of £4,000.00 was made for loss of use - resulting in the Defendant beating their Part 36 offer, and we were awarded costs.
The Appeal
The Claimant appealed the decision, also seeking relief for their failure to provide complete financial disclosure. The Claimant argued:
- The Court failed to attach sufficient weight to the principal the Claimant should be restored to a position he was in.
- The Court failed to attach weight to the fact the Claimant used the vehicle for more than just transport, and was an avid biker.
- The Court failed to attach weight to the need to replace a damaged vehicle with a similar vehicle.
The appeal was heard before HHJ Brownhill, who dismissed permission to appeal, commenting;
"Ground 1 – the DJ was in my view aware of and addressed the principle of restitution. He referred to it specifically. So I disagree with Claimant's Counsel.
…. The judge also considered para 24 of Lagden v O’Connor. That is the correct legal framework. I’m satisfied that ground 1 has no real prospect.
Grounds 2 and 3 – I agree with Mr Ferguson that they are a challenge to discretion. DJ Pain’s comment later in the hearing highlights that specifically. I do not agree that the judge failed to take into account the Claimant’s explanation as to his biker lifestyle, ease of commuting, he specifically did refer to them, he was entitled to evaluate the Claimant’s evidence, in particular the matters addressed in cross examination, the lack of detail as to what happened at the biker events, the mileage, the lack of reference to having a car before oral evidence and the Claimant’s evidence that had he known the costs involved he would not have hired."
It should be noted that the arguments over need or loss of use also extend to other leisure vehicles, such as mobile homes/caravans. In another matter which DWF were instructed; Billingham v Royal & Sun Alliance Insurance Limited, the Claimant claimed injury and other losses, including hire of £44.023.20. The Defendant challenged the need of the Claimant to hire a panel van from OnHire for 221 days to replace his converted motor home.
The Defendant made a global Part 36 offer in June 2023 valuing hire at £4,001.80 .The Claimant's statement stated he needed a replacement vehicle as he travelled 100 miles per week, yet his MOT history showed his vehicle covered only 6,000 miles over a 4 year period. This was raised to the Claimant's solicitors, who accepted the Part 36 out of time in January 2024.
Summary
The decision illustrates the benefit of investigating and challenging need. Furthermore, highlighting the need for Claimants to mitigate their losses rather than incurring extensive periods of hire purely to avoid some inconvenience.
Author: Liam Knight.
