Colin Mitchell, Senior Partner at MTB Law, discusses two recent credit hire appeals that took place in the Queen’s Bench Division (Northern Ireland): McKibben v UK Insurance and Clarke v McEvoy
On the 8th of March 2021, judgments in two credit hire appeals were handed down in Northern Ireland’s Queen’s Bench Division. In Northern Ireland, QBD decisions are binding on our County Court, where most credit hire matters are heard.
The cases were McKibben v UK Insurance and Clarke v McEvoy.
The facts of the cases
The facts in the cases will be familiar to those who operate in this field. In each case the Claimant (or Plaintiff in NI parlance) were involved in non-fault accidents. They approached a local accident management company/CHO “Crash Services” to deal with the damage to their vehicles and the hire of a replacement. Both were typical credit hire scenarios.
The main dispute in both cases was duration. The Judge was asked to decide how much of the delays in the cases were unreasonable. And, if there were unreasonable delays, the extent to which they could be laid at the door of the CHO.
This has proven to be a bone of contention over the years. In several authorities (e.g. Mattocks v Mann) it has been held that the Claimant (and by extension the CHO) cannot be responsible for delays of other parties such as the garage or engineer.
Where the comprehensive insurer oversees the vehicle damage and is therefore in control of the timing that is not such a controversial issue. However, where the CHO is in control of the damage process it has often seemed incongruous to Defendant insurers that the CHO can hide behind the principles in Mattocks v Mann.
In these two appeals the Judge solved this issue by finding that the CHO were an agent of the Claimant. As a result, any delays caused by the CHO could be imputed to the Claimant. For example, 2 days’ delay by the CHO would be treated as the Claimant’s delay and the hire account reduced accordingly. The Judge also found that other parties could be agents or indeed sub-agents of the Claimant, such as the instructed solicitor or the engineer. Any delays on the part of these parties could similarly be imputed to the Claimant.
On the plus side for Defendants, these judgments give a legal basis for them to challenge duration and go” behind the veil” of Mattocks v Mann in some cases.
However, it is not all positive for Defendants. The Judge was at pains to point out that the repairing garage was not an agent or a sub-agent of the Claimant. The result of this finding is that any delays once the repairs have started are highly unlikely to be imputed to the Plaintiff. In addition, the Judge commented that there was a difference between delays in the vehicle being brought to the repairing garage and delays in repairs starting once there. The Judge was clearly of the view that the latter was more likely to be caused by the garage and could not therefore be imputed to the Claimant.
Perhaps more importantly still, the Judge clearly stated that the courts were not to impose a “counsel of perfection” on duration. As a result, nit-picking over days here and there by Defendants should be rejected. An example of this would be a 10-day hire account where a Defendant Engineer argues that repairs (going on labour hours alone) should take 5 days. On foot of these Judgments such an argument is less likely to succeed.
Clearly these judgments will be binding in Northern Ireland. Their influence in other jurisdictions remains to be seen.
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