Credit Hire and mitigating loss
- By James Ferguson
What does it mean to mitigate your losses?
The High Court in Belfast recently heard a couple of related appeals on credit hire and the duration of vehicle hire claims.
The first case related to a road traffic collision in Annalong, Co. Down, in October 2018 where a primary school teacher was turning right into her driveway. A queue of cars formed behind her. The defendant attempted to overtake, colliding with the plaintiff’s vehicle. Liability was not in issue.
The second case also occurred in October 2018. The plaintiff’s husband was involved in a road traffic collision near Irvinestown, Co. Fermanagh when the defendant drove into the back of him. Again, liability was not in issue.
There was, however, some dispute as to whether the plaintiffs had adequately mitigated their losses in respect of the duration for which the hire of a replacement vehicle was required. At trial, the amount awarded for replacement vehicle hire in both cases was for nine days fewer than that claimed.
On appeal to the High Court, allowed five days of the disputed days in one case, and seven in the other. Mr Justice Scoffield provided additional guidance for credit hire cases:
Where a claim for vehicle hire charges is to be reduced …[for] unreasonable delay [by or on behalf of] a plaintiff, the judge should explain what the reasonable action was… and what period of vehicle hire has been disallowed
Where… a motor assessor has provided a report… a brief but clear chronology [would be helpful] [and] …it should be made clear whether they are… providing expert evidence [or opinion]. [For] expert evidence, they should complete the relevant expert’s declaration.
Parties should be astute to ensure that their continuing disclosure obligations are met, including by the timely provision of supplementary or addendum material from their appointed motor assessor where an initial report from the assessor has been served.
[P]arties [should] liaise with each other, and ideally the relevant court office, some time in advance of the hearing… to ascertain whether assessors’ reports can be agreed… without the need for formal proof.
The duty to mitigate one’s losses is nothing new. The clarification provided by the court in these cases should, however, serve as a useful reminder, if one were needed, of the benefits of early resolution where liability is not in issue.
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