Credit Hire – Defendant Entitled To Summary Judgment When Claimant Could Not Establish Need

By Colin Richmond

Paul Simon Frankland v UK Insurance Ltd – Darlington CC – 18/03/2016

HHJ Armstrong refused the Claimant’s application for permission to appeal the decision of District Judge Read that the Defendant was entitled to summary judgment when the Claimant could not establish need in relation to a vehicle he had hired.

Facts of the Case

The Claimant’s Ferrari 360 Modena was damaged in a liability-admitted RTA. The repair took a considerable time due to specialist parts having to be obtained from Italy. The repair cost was approximately £25,000. In the meantime, the Claimant hired, on credit, two separate Ferrari California convertibles at a cost of £236,724. In his Particulars of Claim, he claimed this amount as the measure of the loss of use of his car.

The Claimant owned five vehicles in total. The damaged vehicle was insured to be driven no more than 1,000 miles a year. The Defendant applied for summary judgment on the basis that the Claimant could not establish need and that, in the absence of any pleading for general damages in relation to the loss of the vehicle, there was no surviving claim to proceed to trial.

The Decision of the District Judge

11. District Judge Read’s reserved judgment is contained in Divider 6 of the appeal bundle. In it he set out the background to the case, the nature of the claim and the Defendant’s application for summary judgment (paragraphs 1 to 6). He also set out the test to be applied under CPR Part 24 and referred to the authorities of ICI v TTE, ED&F v. Patel, and Three Rivers DC v. Bank of England, supra, (paragraphs 7 to 10). As to “need” he discussed the arguments about the principles to be derived from the authorities of Giles v Thompson and Singh v. Yaqubi , supra, (paragraphs 11 to 16). His conclusions were that (1) whether there was a need for a replacement vehicle on hire depended on an assessment of the relevant circumstances; (2) that the evidence so far unchallenged or explained by other evidence pointed so far in the direction of there not being a need for a replacement vehicle that the prospect of the Claimant being able to establish such a need lay inside the realms of fantasy and was detached from any realistic prospect of success (paragraphs 17 to 25); (3) that the way in which the claim for loss of use had been pleaded restricted the damages claimed to the recovery of hire costs and did not amount to a claim for general damages and that when the claim for special damages failed there was no surviving general damages claim raised in the proceedings to go forward to trial (paragraphs 26 to 30).
12. Accordingly the District Judge found that the application by the Defendant for summary judgement succeeded in full and so ordered with the issue of costs to be decided by agreement or be the subject of further submissions (paragraph 31).

The Grounds of Appeal

13. In the Grounds of Appeal, contained in Divider 8 of the appeal bundle, the Claimant seeks permission to appeal the order of District Judge Read on the grounds (1) that the District Judge erred in his interpretation of the word “need” in the context of a special damage claim for the cost of hire of a replacement chattel; (2) that the District Judge applied too narrow a definition of the word “need” in finding that the Claimant’s ownership and use of other motor vehicles precluded him from having any real prospect of showing a need for a replacement Ferrari; (3) that the District Judge erred in finding on the evidence that other suitable vehicles were available to the Claimant; (4) that the District Judge erred in determining that the pleaded case was not wide enough to encompass an alternative claim for general damages; (5) that the District Judge was wrong in the circumstances to strike out the claim on a summary basis. In support of the Claimant’s application for permission to appeal Mr Vickers submitted a skeleton argument dated 27^th of August 2015 (contained in Divider figure 10 of the appeal bundle) which repeated and expanded upon the submissions originally made before the District Judge.

Need – Was The District Judge Wrong In Law?

22. In my judgement the District Judge correctly identified the legal requirement of the need for a replacement vehicle to be established in order to found a claim for special damages by way of hire charges. Further he correctly interpreted the authorities referred to him as establishing that “need” is to be decided on an assessment of the relevant circumstances in a particular case. I do not find that he wrongly decided that the existence of an available alternative motor car necessarily or automatically precluded a Claimant from establishing possible need. Each case is fact specific. It is open to a Claimant even where an alternative vehicle is available to put forward reasons why a replacement vehicle may be necessary. The fact that the car in question could be described as a luxury points neither to nor away from the question of need. In Bent, supra, the Claimant was able to establish the need to replace one expensive sports car with another despite (as Mr. Vickers was able to inform the court as he appeared in that case) the fact that the Claimant had another vehicle available. In that case the Claimant was able to put forward cogent reasons for the specific need for the replacement vehicle in question. It should be remembered however that the claim is for the loss of use and not for the loss of pleasure of owning such a vehicle.

Need – Was The District Judge Wrong On The Facts?

24. In my judgment the District Judge having considered all the evidence in the case was entitled to find that the inference of need was strongly displaced by the documents attached to the Defendant’s witness statement. On the evidence he was entitled to find that the Claimant was able to use an alternative vehicle. Putting it another way I am equally satisfied that in the light of the history of the case and the Claimant’s clear failure to comply with the provisions of the Pre-Action Conduct Practice Direction and the other evidence obtained by the Defendant the District Judge was entitled to find that the Claimant had failed to present a cogent case of need for a replacement vehicle and had no real prospect of being able to do so. The District Judge correctly identified the evidence in support of his findings and did not take into account anything irrelevant on this question.

Summary Judgment – Did The District Judge Correctly Apply CPR 24?

25. It seems to me to be clear that the District Judge entirely properly considered and had in mind the provisions of Part 24 and the requirements of an application for summary judgment. He was clearly aware of the necessity of not entering into a “mini trial” and in my judgment he did not do so. I am also of the opinion that in accordance with ICI v. TTE and ED& F Patel, supra, the District Judge rightly decided that he had sufficient evidence before him on which to be able to make a judgment under Part 24 and that it was appropriate and in accordance with the overriding objective to decide the issues at the preliminary stage reached in the proceedings. Having found that the Claimant had no real prospect of being able to establish a need for a replacement vehicle the District Judge was entitled to enter summary judgment for the Defendant on the issue of the claim for special damages by way of hire charges.

Special/General Damages – Did The District Judge Correctly Decide The Pleading Point?

26. Having effectively dismissed the Claimant’s claim for special damages the only remaining issue was whether the District Judge was correct in deciding that because of the way the claim had been pleaded there was no surviving general damages claim to go forward to trial. Whilst his decision might have the effect of affording the Defendant tortfeasor a “windfall escape” from any further liability for the consequences of his negligent act, I am unable to say that the District Judge failed to take into account any relevant matters nor took into account any irrelevant matters but considered the arguments on both sides carefully and came to a decision which was within his power to make. I would be unwilling to say that it was a decision which no reasonable District Judge could make. Accordingly the District Judge was entitled to enter summary judgment for the Defendant and dismiss the Claimant’s claim in its entirety.

Conclusion

27. My conclusions therefore are that I do not consider that an appeal against the order of District Judge Read entering summary judgment for the Defendant would have a real prospect of success nor is there some other compelling reason why the appeal should be heard. Accordingly permission to appeal cannot be and is not given. The Claimant’s application for permission to appeal is therefore dismissed and the District Judge’s orders are confirmed.