Civil Team Blog – ‘Civil Matters’ #1 – Credit Hire – the burden for both parties to mitigate loss (and to evidence it!)

Introduction

Credit hire claims are rarely straightforward, nor do they ever really go (exactly) as you might expect. They can vary in value significantly, and there are countless ways that the Defendant can minimise the award that is sought by the Claimant. Acting for both Claimants and Defendants alike, I have observed a number of omissions in bundles that have ultimately resulted in the dismissal of the entire claim or a significant reduction in the award that was made. Chapter and verse could be written about the many ways that this arises in practice, but this article intends only to address the broader points that I have personally encountered in recent practice.

I was recently instructed to represent the Defendant in a credit hire matter where great emphasis was placed on that very point. Although quantum was successfully reduced as a result of the Defendant’s basic hire rate evidence, ultimately, the judge was not persuaded to reduce the duration of the credit hire period as a result of the Defendant’s failure to evidence their own mitigation.

Facts

The substantive claim was in respect of a 41-day period of credit hire. The Claimant’s insurer/credit hire provider produced very limited evidence in support of their own mitigation to end the credit hire period promptly. The Defendant unfortunately failed to produce any evidence to demonstrate such mitigation on their part (assuming they had taken such steps).

Within the Claimant’s evidence was a letter dated a few days after the accident, inviting the Defendant to assess the vehicle damage. There was no mention of the letter ever being sent and it failed to provide a contact number by which the Claimant’s insurers/providers could be reached, potentially contributing to delays in the parties communicating. All other ‘logs’ of ‘communication’ were sparse and infrequent with simply a date, time and handful of words to ‘explain’ what had happened (e.g. Call to TPI, 8/8/22). The call logs lacked any detail and failed to identify whether the calls had been successful, whether voicemails had been left or what might have been discussed had the call been successfully made. It was therefore inferable (with some confidence) that the calls had not been successful. Certainly, one of the logs was followed by a note stating ‘will email TPI’ as though the Claimant insurers/credit hire providers had planned to attempt an alternative means of contact, having failed to speak to the Defendant’s insurer. Such an email attempt did not follow with any immediacy, only being sent some two weeks later.

Thereafter (approximately three and a half weeks post-accident) there appeared to be a successful call between the Claimant’s insurer/credit hire provider and the Defendant’s insurer regarding plans for a vehicle inspection. It was unclear which party reached out to the other, but it appeared that the Claimant’s insurer/credit hire provider failed to pass the Defendant the Claimant’s contact number to enable a vehicle inspection, only doing so a week later.

Unsurprisingly, the judge was not helped much by the logs that were produced by the Claimant’s insurer/provider, but they were entirely dissatisfied by the lack of evidence that the Defendant had taken any steps to progress matters, and therefore, to mitigate its own losses. Put simply, the inferences that could arguably be made from the very limited evidence produced by the Claimant would not be entertained in light of the Defendant’s silence as to their own actions.

This case reiterates to legal representatives the importance of evidence and challenges to it.  Some evidence is better than no evidence, and weak evidence should always be challenged. There is always attributable value in evidence that seeks to explain events, especially in respect of internal communication that has taken place between parties that could otherwise only be made impliedly or by way of inference. It may sound trite to say, however these small components can have a significant effect on the outcome of a matter.