Courts and BHR

Tests 73. …To summarise, the questions are: (i) did the claimant need to hire a replacement car at all; if so, (ii) was it reasonable, in all the circumstances, to hire the particular type of car actually hired at the rate agreed; if it was, (iii) was the claimant “impecunious”; if not (iv) has the defendant proved a difference between the credit hire rate actually paid for the car hired and what, in the same broad geographical area, would have been the BHR for the model of car actually hired and if so what is it; if so, (v) what is the difference between the credit hire rate and the BHR? Bent

Tests “35……But it seems to me reasonable to suppose that the lowest reasonable rate quoted by a mainstream supplier for the hire of such a vehicle to a person such as the claimant is a reasonable approximation to the BHR.” Stevens

Tests “36….. try to identify the rate or rates for the hire, in the claimant’s geographical area, of the type of car actually hired by the claimant on credit hire terms.” Stevens

Tests “39……The search must rather be for the lowest reasonable rate quoted by a mainstream supplier for the basic hire of a vehicle of the kind in issue to a reasonable person in the position of the claimant.” Stevens

Tests Terms? “27…….in looking at the nil excess the Recorder was endeavouring to find the closest like for like comparator”

Directions In accordance with the authorities, the claimant must first (if he so claims) produce the evidence to prove that he could not have afforded to hire up front (i.e. that he was impecunious); if the Defendant does not accept that the claimant was impecunious on the evidence produced he should then have time to show that there was a comparable alternative available to the claimant at a lower rate than the contractual credit hire rate. Such evidence not necessarily being factually irrebuttable on issues such as true comparability and availability, the claimant should have further time to rebut the defendant’s rates evidence with his own factual evidence directed specifically at the rate or rates the defendant seeks to rely upon. Clearly, it is only equitable that the claimant should have the opportunity to rebut such rates evidence.

Directions 1)Within 28 days of the date of this order the claimant provide evidence in support of impecuniosity. Failure to comply with this date means the claimant be debarred from raising impecuniosity at the final hearing.

Directions 2.Within 42 days of the date of this order, the defendant do file and serve evidence of hire rates available within the claimant’s geographical location, from a mainstream supplier, for the vehicle actually hired, on the terms hired to the claimant and for the dates covering the claimed hire period.

Directions 3.Within 56 days of the date of this order, the claimant, if so advised, do file and serve rebuttal evidence.

Courts approach

Derby:- he would not have approved an order in the terms of their draft anyway because he did not consider it appropriate to micro manage the evidence in this respect (although of course the original directions order does, just in a different and somewhat out-of-date way)

Courts approach Norwich:- He said that the assessment was objective not subjective so that it didn’t matter if any specified company didn’t have the specified vehicle at the material time, the Court was just trying to look at what the price in the marketplace was, not whether the car could actually have been supplied to this Claimant. So there was no purpose served by rebuttal evidence of that type and hence no need for it to be directed.

Courts approach Coventry:- DJ commented that he believed it was rapidly becoming the norm. The D did object to the wording in relation to rates evidence but, save for inserting the words “or comparable vehicle” (over my strenuous objection given the wording of Stevens which the DJ said was a matter for argument at Trial but he would not restrict the D to evidence only of the exact car actually hired) the DJ agreed our wording although did insert the words “if possible” in relation to the evidence covering the period of hire.

Is it worth it? Welikele v Markerstudy Ins. Co. Ltd October 2015 (unreported) The D’s case is that period and rate are too long and too high. There is the daily rate by AX or the daily rate by Ms Bolleurs. She recommends three rates: Enterprise, Thrifty and Avis. The D particularly hangs its hat on Enterprise. Thrifty is abandoned. Avis is a best guide.

Is it worth it? Equity v Stevens says it is to be for the type of car hired in the C’s geographical area. What is meant by type? It probably means a car falling within the same hire bracket. I think it’s what their Lordships intended. So an equivalent Mercedes would be adequate. There are arguments against that. But I will leave that aside. Moving on to geographical area this is because rates vary from place to place. For example they are more at airports.

Is it worth it? What about time [of year and passage of time]? Surely rates vary over time. Here the rates are two years later than the date of hire. The rates provided are for a fixed period of hire for February next. Can it be over two years they don’t vary? Or even week to week or season to season? It’s altogether likely they vary considerably. It is sufficient to make it useless. I may be wrong about this. Stevens v Equity doesn’t deal with this and it’s a curious omission.

Is it worth it? But the rates are not on the same basis. They omit the extras. The most important is the excess waiver. The way in which Mr Rozier ingeniously tried to get around this was to add the excess waiver from AX. Is this right? No not at all. Pricing doesn’t depend on dividing a product up. I’m unsure if pricing is an art or a science, but it’s an extremely difficult business. It’s not the case the same percentage of profit is charged on all elements. There are loss leaders - it’s a matter to which enormous thought is given. It is not appropriate to add the charges from one company to another. Rates should be obtained on the same basis and this invalidates this.

Is it worth it? Welikele v Markerstudy Ins. Co. Ltd October 2015 (unreported)

Is it worth it? Burridge v Greig October 2015 (Unreported) The evidence is from January 2015 and hire was in April He acknowledges that later rates can give some guidance but this hire period actually spans the Easter holidays. Counsel for the D says I shouldn’t take account of that unless there is evidence to this effect. But the burden of proof is on the D and I should have regard to all aspects. If Mr Ashby puts sufficient doubt in my mind then the rates fail. There is a significant doubt in my mind whether rates in January would be available in the Easter holidays. In Clark v Ardington there is reference to different rates.

Is it worth it? It’s not just that point that gives me cause for concern. The lowest figures are from Avis. Mr Ashby says there are no terms and conditions. Secondly there is a screen shot showing a tariff price and a book now price. Counsel for the D sought to argue that probably the book now price was available. There is no evidence from Mr Burridge as to whether he would book online – looking at his age this is unlikely [DDJ took these points about online booking and age of his own initiative – no one made submissions to that effect]. In any event I am far from satisfied it’s a reasonable rate if he was looking himself.

Is it worth it? It also contains an excess of £1,500. There is an excess reduction charge that can reduce this to £500. The issue is over the reasonableness to hire on a nil excess. If not, are these a reasonable comparator? I accept the submissions of Mr Ashby. I am bound by the Court of Appeal authorities. DDJ then read out the relevant parts of the High Court version of Bee v Jenson and said: that seems to me an accurate reflection of the law. He is entitled to be put back in his own vehicle. It was not his own vehicle. It was a prestige vehicle. It was entirely reasonable for a nil excess. The C was not impecunious but the D hasn’t reached the burden that allows me to interfere with the rates claimed.

Is it worth it? Burridge v Greig October 2015 (Unreported)

Plain sailing Taj v Isran – July 2015 My task is to decide - in accordance with paragraph 73(iv) and (v) of Lord Justice Aikens judgment in Bent No 2 - firstly whether the defendant has proved adifference between the credit hire rate actually paid for the car hired and what, in the same broad geographical area, would have been the BHR for the model of car actually hired and, secondly, if so, what it is; so that any difference between the credit hire rate B and the BHR can be established.

Plain sailing I reach that decision because, again following the judgment in Stevens v Equity Syndicate Management Limited [2015] EWCA Civ 93, it is reasonable to suppose that the lowest reasonable rate quoted by a mainstream supplier, which in my view must include a broker as well as the actual owner and direct supplier of the car, for the hire of such a vehicle to a person such as the claimant is a reasonable approximation to the BHR. I infer from the claimant’s occupation and age that it is unlikely that she would need to drive more than 200 miles per day on average over the 33-day for which she had the vehicle, and I also infer that the deposit which she would have had returned in full would not have been an impediment in her hiring a car via Rental Cars. I therefore find that the BHR is £ for the 33-day period in question.

Plain Sailing

Plain sailing The difference therefore between the credit hire rate and the BHR is the difference between £ and the sum of £2,274 is £1, I therefore award the claimant the sum of £

Enforceability challenge The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (off premises contracts) (h) in the case of a contract of indeterminate duration or a contract containing a subscription, the total costs per billing period or (where such contracts are charged at a fixed rate) the total monthly costs;

Enforceability challenge The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (off premises contracts) (f) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated,

Lessons to be learned 1)Get the right barrister. 2)Know your cases. 3)Don’t trust (most) solicitors! 4)Which court are you in? 5)Which judge will you be in front of?