15 July 2020
“Don’t nit-pick” – basic hire rates evidence in credit hire cases; Bunting v Zurich Insurance Plc  EWHC 1807 (QB).
The credit hire proxy war continues apace. Bunting v Zurich Insurance Plc is the latest skirmish between credit hire companies and insurers; the case deals with the correct approach to “imperfect” basic hire rates evidence. Although Pepperall J stated that the appeal raised “no new issues of law”, the case will inevitably be regarded as useful guidance on the practical issues which frequently arise in the many thousands of credit hire cases heard by the courts. Steven Turner appeared on behalf of the Defendants. Facts The appellant was the non-fault party in a road traffic accident in 2015. While his vehicle (a Lotus Exige Coupe) was being repaired for several weeks, he hired a Mercedes C220 Sport on credit hire terms. The total cost of hire was £28,551.84. It is apparent from Pepperall J’s judgment that, at trial, the usual issues of need, enforceability, period and vehicle type were canvassed. Need and period were conceded, and the Defendant’s arguments on enforceability and vehicle type were dismissed. The appellant was pecunious. The real issue in the case was therefore narrowed down – in a way that will be instantly familiar to credit hire practitioners – to two points: had the Defendant proved that there was a difference between the credit hire rate and the basic hire rate (“BHR”); and if so, what was it? Unusually, the Claimant called the author of the Defendant’s BHR report (Mr Rose) to give evidence. He was asked about his witness statement which, it would appear, was in the usual form. Mr Rose had not personally compiled the database of comparable basic hire rates, but had searched it and exhibited the results. He explained that he would assume that a vehicle was available unless the relevant web entry showed otherwise. If the hire period exceeded the maximum hire period in the BHR provider’s terms and conditions (as it did here), the hirer would simply have to be in touch with the company to seek another period of hire. It was his experience as a BHR surveyor that the hirer would be able to do so, at a similar rate. The hire period was 11 weeks and a day, and Mr Rose had valued the final day at one-seventh of the weekly rate. He cited his experience as the basis for that conclusion. The trial judge accepted the BHR evidence, and awarded a sum for hire based on Thrifty’s seven day rate. The total judgment sum was a small fraction of what had been claimed. The arguments on appeal The Claimant appealed. The arguments raised on appeal will be recognisable to practitioners; they are the sorts of issues that judges at County Court level are frequently asked to address.
- Although no objection was taken to the admissibility of Mr Rose’s evidence at trial, the appellant argued that the trial judge was wrong to have accepted it, given the alleged non-compliance with the court’s directions order.
- It was said that the judge was wrong to have applied the Thrifty rate, given their 30-day time limit for hire periods.
- The appellant argued that the judge was wrong to have addressed the issues with the rates evidence by “rounding up” the cost of hire.
- It was said that the judge had been wrong to find that the lack of evidence of availability (of a hire vehicle at the time of hire) was not in breach of the directions order.
- The appellant further contended that, in any event, the judge was wrong to find that a car would in fact have been available.
- Finally, it was said, the judge was wrong to have calculated the cost of the final day’s hire by allowing one seventh of the weekly rate.
30 November 2023