Last week brought a decision from the Court of Appeal that will have warmed the hearts of opponents of credit hire.
Hardip Singh v Rashed Yaqubi (2013) was an appeal (made by PCJ Solicitors for the claimant) against a decision given at the Central London County Court to dismiss a hire claim pleaded at £99,439.06.
The claimant, Hardip Singh, was driving a Rolls Royce at the time of an accident in August 2009. The Rolls Royce sustained a dent to the rear door requiring repair. Unfortunately there was a month’s delay in inspecting the damaged Rolls Royce, during which time the claimant hired a Bentley and then a Rolls Royce – the latter of which attracted a daily rate of £2,000.
At first instance, the judge dismissed the hire claim in its entirety. The claimant’s solicitors appealed, challenging the judge’s finding on need to hire, and proposing that there was serious irregularity by reason of the judge’s apparent bias.
In the course of his judgment, Judge Cowell made arguably controversial comment, stating: “This case raises the moral questions… whether the ever increasing insurance premiums of the ordinary motorist, particularly one struggling to make ends meet and needing a modest car to go to work, should in some part be used so that the rich may continue at no expense to themselves to be filled with good things that they need.”
On appeal it was submitted that the judge’s reference to “the rich being filled with good things” indicated active hostility towards the appellant’s claim, a proposition which the Court of Appeal rejected.
On need to hire, of significance was the fact that the claimant’s partnership had at their disposal six other cars “all of a fairly prestigious make” (including a Bugatti valued at €1.4 million!). Amazingly, at Trial nobody had actually provided evidence as to the actual user of the Rolls Royce during the period before the accident, or evidence as to the actual user of the Rolls Royce during the period of hire. In fact, it transpired that the claimant himself was abroad for part of the hire period. The claimant stated that he “believed” that the Rolls Royce was used during that period for “moving clients around”, but there was no detail of that at all.
The claimant submitted on appeal that the burden was on the Defendant to prove the absence of need for a replacement vehicle. On the contrary, the judge felt that “if the inference can be displaced that there is need, in this case by the fact that there were six other vehicles, then the burden must shift to the claimant to give detail”. In view of the paucity of evidence and the lack of detail, Judge Cowell found that there was no clear evidence upon which he could conclude that need had been proved.
The Court of Appeal agreed that there was a burden on the appellant to show a reasonable need for a replacement Rolls Royce during the period of repair. The required need was the need of the partnership, and that need was not self-proving. Need was put in issue in the pleaded defence and in the hearing before the judge. It was for the claimant to establish it.
The Court of Appeal felt that very large hire claims like this should be scrutinised carefully by the Court, particularly when the business partnership had a fleet of seven prestigious cars. Appropriate evidence should have been readily available and the judge was entitled to require it when considering a claim for £2,000 a day. The Court of Appeal agreed that there was a “huge gap” in the case, and accepted that the judge was entitled to find against the claimant on the issue on which the claimant needed to succeed, namely the need for a Rolls Royce during the relevant period. The appeal was dismissed unanimously.