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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Piercy v Kangethe [2025] EWCC 11 (19 March 2025) URL: http://www.bailii.org/ew/cases/Misc/2025/CC11.html Cite as: [2025] EWCC 11

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IN THE COUNTY COURT
SITTING AT OXFORD

		Oxford Combined Court Centre St Aldate's Oxford
		19/03/2025

This judgment was handed down remotely at 10.30am on 19 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. DISTRICT JUDGE LUMB

District Judge Lumb :

1. This is a claim for damages arising from a road traffic accident that occurred on 6 September 2023 outside 8 Walmer Close in Tilehurst, Reading. The Defendant whilst reversing her Range Rover collided with the stationary, parked Volkswagen ID4 leased by NHS Fleet Assist for use by the Claimant in connection with her occupation as a specialist nurse.
2. Liability for the accident was promptly admitted on behalf of the Defendant. The issue before the Court is to determine quantum of the special damage claim principally in respect of the credit hire claim and associated costs, the costs of repair to the VW having already been agreed and paid to the Claimant by way of an interim payment.
3. In her Defence the Defendant challenges the claim for credit hire on the all-too-common grounds in this sort of case namely enforceability, rate of hire, period of hire, need to hire, impecuniosity, a like for like replacement vehicle requirement and failure to mitigate losses. In addition, the Claimant was put to proof of claims for delivery and collection of the hire car, a Tesla model 3, and recovery and storage of the VW.
4. In many ways this is a straightforward credit hire claim, allocated to the Intermediate Track due to the value but otherwise involving the same issues that are dealt with day in and day out by County Court Judges in Small Claims usually up to a value of £10,000. What might come as a shock to the general public is how the Credit Hire Industry operates. In particular, some may consider the sums of money that motor insurers of culpable policyholders become liable for to be staggering. These are recoverable by operation of the existing common law determined by the Higher Courts and binding upon judges in the County Court. In an age where motor insurance premiums are reported to have risen to unprecedented levels some may find it surprising that there appears to be no real appetite in the insurance industry to campaign for reform, presumably by Parliament, to control the level of credit hire charges compared to the ordinary market basic hire rate.
5. The Claimant's solicitors had prepared a trial bundle running to some 345 pages. Regrettably, this included quite a lot of duplication and in some cases triplication. The bundle included the pleadings, the credit hire documentation, Engineer's inspection report, various invoices, the witness statement of the Claimant and that of Glyn Parker served on behalf of the Defendant giving details of alternative Basic Hire Rates.
6. The only live oral evidence was from the Claimant herself. Mr Parker's evidence was served with a Civil Evidence Act Notice so that his attendance was not required.
7. The Claimant's written evidence comprised her witness statement prepared by her solicitors largely based on a template format, the contract documentation that she confirmed she had signed with an electronic signature as directed, an engineer's report and other invoices.
8. It was the Claimant's oral evidence that provided the clearest insight of how credit hire claims operate in practice and how an innocent motorist effectively cedes all control to the credit hire company and their solicitors once they commence the process.
9. I accept entirely the Claimant's oral evidence. She was clearly an honest, straightforward witness who answered all questions put to her to the best of her knowledge. Other than being told that the repairs would take about a week it was striking how little she had been informed about the details of how the claim was proceeding.

Enforceability

10. Immediately after the accident the Claimant telephoned NHS Fleet Claims who transferred her call to Winn Solicitors who then set up the credit hire on her behalf with their subsidiary business, On Hire Limited. The Claimant accepted that she didn't shop around for hire quotes and didn't think to do so because as far as she was concerned, she was following the process required by NHS Fleet who had supplied the car for her use.
11. A Tesla model 3 was hired to the Claimant for a total period of 96 days starting the day after the accident and finishing on 11 December 2023 when the VW was returned to her. She confirmed that the electronic signature on the credit hire, credit storage and recovery and credit repair contracts were hers.
12. She could not explain why the extended hire agreement was not signed until 25 February 2024. She assumed that her solicitors must have had a good reason to ask her to sign a document for a backdated period and saw no reason to question their requirement to do so believing that this was all part of the process that NHS Fleet had arranged for the users of their vehicles. In the light of that evidence, it was clear that there was no point to be taken by the Defendant as regards enforceability.

Need and period of hire

13. The Claimant explained that she needed a car for her work and to transport her children to and from school. The alternative of walking relatively short distances or using public transport was impractical as the Claimant is disabled. She is unable to walk very far and is a blue badge holder. The only other vehicle in the household was her husband's works van which would obviously be unsuitable.
14. When asked in cross-examination why she didn't ask NHS Fleet if there was an alternative fleet vehicle available to use while hers was being repaired rather than entering into an expensive hire agreement at a cost of over £500 per day, the Claimant quite reasonably explained that it never occurred to her to ask. She believed that she was following the NHS Fleet's own process for providing an alternative temporary vehicle. She was never offered a fleet vehicle as an option by NHS Fleet. While accepting that, strictly speaking, she had a personal liability in law for the credit hire and associated costs, she was reassured that these would be recovered from the insurers for the Defendant and there was no realistic prospect of her having to pay anything.
15. Although told that the repairs would only be likely to take a working week, the Claimant told the Court that she was never sent a copy of the engineers report itself which was the original source of this time estimate. It came as a surprise to her that the report assessed her vehicle as roadworthy and that, unbeknown to her, she could have continued to drive the VW until the repairs were ready to be carried out. She was never given that option but readily accepted that if she had been she would "absolutely have taken the car back." Had she done so it is self-evident that the reasonable period of hire would have been greatly reduced from 96 days.
16. Included within the trial bundle are a number of telephone attendance notes from Winn Solicitors of regular conversations they had with the repairing garage, Bodytec (UK) Limited, with regard to progress of the repairs. These documents are of limited evidential weight as they are not supported by any witness statement but give an impression of compliance with a tick box exercise process of making regular calls without any proper or detailed enquiry as to why the repairs were taking much longer than expected let alone insisting on any urgency of the need for the repairs to be completed promptly.
17. The bundle also contains an email dated 26 November 2024 from Mervyn Moys of Bodytec (UK) Limited to Mia House of Winn Solicitors setting out a chronology of the repair process. This confirms that the vehicle was booked in on 14 September 2023, repairs authorised 5 days later, parts ordered on 19 September 2023 and delivered a day later. The next line of the chronology is that the repairs were completed on 11 December 2023.
18. No explanation is provided in a witness statement or at all as to why there was a delay between the parts being available on 20 September and the repairs not being completed until almost 2 months later. The Claimant explained in her evidence that she telephoned Winn Solicitors regularly but, in her words, "never got anywhere", nor did she get anywhere when she tried telephoning Bodytec directly herself. She assumed that the delay was due to parts not being available but the email from Mervyn Moys now shows that was not the reason. At no time was she told by the repairers that the VW could have been returned to her to use until they were ready to carry out the repairs.
19. Taking into account the engineer's estimate that the repairs should take a week the reasonable period to hire an alternative vehicle should have been about 21 days from 7 September until say 28 September 2023.

Was it reasonable to hire a like-for-like vehicle and was the hire rate reasonable or open to challenge?

20. There can be no question of the Claimant hiring a better vehicle than her own. Both are electric vehicles that retail at an almost identical purchase price. As regards the daily hire rate the sum notionally charged to the Claimant was £524.70 including all extras and VAT. The evidence of Mr Parker of comparative Basic Hire Rates (BHR) available on the open market revealed that comparable vehicles were available. The Defendant did not seek to provide any evidence of more modest vehicles being available and so the argument that it was unreasonable to hire like-for-like was not pursued at trial.
21. Even taking the most expensive of the Defendant's rates evidence namely that provided by Enterprise (the nearest to the Claimant's home address and therefore the one that she was most likely to choose from the reasonable options available) averaged out at £175 per day. Over the period of 96 days the credit hire charge totalled £50,371.20. The equivalent BHR charge from Enterprise would have been £16,800. If the reasonable hire period had been 21 days, then the credit hire claim would equate to £11,018.70 and at the BHR £3,675.
22. Whether a Claimant can recover the Credit Hire Rate depends upon whether she is able to establish that she was impecunious. Impecuniosity is defined as being unable to afford to hire on the open market without having to make unreasonable sacrifices.
23. This issue is determined by a careful examination of the Claimant's financial circumstances including income and expenditure and credit. She is required to disclose copies of statements of all current, savings and credit card accounts. In this case the Claimant provided copies for all 6 accounts that she held and demonstrated conclusively that she was a very prudent manager of the household finances including maintaining an emergency fund of £4,000.
24. It was obvious that for a hire period of 96 days, even on the basis of the Defendant's BHR evidence, she could not have afforded £16,800 to hire a replacement car. Even if the reasonable hire period was 21 days, then the BHR cost of £3,675 would have been so tight and left no leeway for any unforeseen delays in the repairs that I conclude could not have been affordable without unreasonable sacrifice.
25. I am therefore satisfied that the Claimant has discharged the evidential burden upon her to show that she was impecunious. The Credit Hire Rates are therefore the applicable ones.
26. In any event, I accept her evidence that she was never advised that she had an option to hire a vehicle herself. Instead, she believed that she was following the process put in place by NHS Fleet for provision of an alternative vehicle. In my judgement it was entirely reasonable for her to believe this.

Delivery and collection of the hired Tesla

27. Although there was no direct evidence of the identity of the provider of the hire car arranged by On Hire Limited, the Claimant readily agreed that if it had been a local supplier her husband could easily have dropped her off and picked her up from their premises. If she had been hiring at her own expense she would certainly not have committed to paying £144 for a service that she didn't need. She stated that she had never seen the invoice for delivery and collection before despite it being in her name with her address on it. She had no idea why she had a liability to pay this.

Recovery and storage

28. Again, the Claimant stated that she had never seen the invoice for this part of the claim before despite the invoice being in her own name and with her address on it. She was not aware of her car being stored anywhere but confirmed that it was collected for repair from her home address.
29. Had she been told that her car was roadworthy and that she could have continued to drive it, she would have been quite happy to drive to the repairing garage which was less than 3 miles from her home and been picked up by her husband. Again, she said that if she had been asked to pay £348 for this service from her own resources at the time she would have taken the car to the repairers herself. Again, this was never offered or even suggested to her as an option.
30. Summarising the evidence from the lay Claimant's perspective with the benefit of hindsight and if she had been fully advised;

i) as to the position regarding the roadworthiness of her VW until the repairs were carried out and;

ii) that she could have avoided incurring the collection and delivery charges of the Tesla and the recovery and storage charges of the VW;

the value of her claim would have been limited to the credit hire charges for 21 days namely £11,018.70 together with repair costs of £4,552.71 and not the presented claim of £55,271.91.

31. Unfortunately for the Defendant, these claims are rarely decided on the basis of what the Claimant could have done to mitigate her losses had she known the full circumstances but on the basis of what she did know and any delay has to have been caused by the Claimant's own conduct or actions. That is the ratio of the decision of the Court of Appeal in Mattocks v Mann [1973] RTR 13 later confirmed in Burdis v Livsey [2002] EWCA Civ 510 which are binding on this Court. A further exception exists where there is an independent cause of loss of the use of the car for the period of delay. That does not apply to the facts of the instant case.
32. To compound their difficulties in defending these claims the evidential burden of proving a failure to mitigate loss is upon the Defendant. On the facts of this case, the Defendant cannot discharge this burden. While it might conceivably be arguable that Winn Solicitors and their subsidiary company On Hire Limited (in which Winn have a declared financial interest) were acting as the Claimant's agents, Bodytec (UK) Limited, most certainly were not as there was no contractual relationship between the Claimant and the repairer.
33. The evidence confirms that the reason why the hire period was much longer than anticipated was that there was an unexplained delay in the repairs being completed and whatever the cause of the delay it was not caused by the Claimant herself. The lay Claimant's conduct throughout is beyond reproach. She was simply following instructions she was given having been introduced into the process by the fleet claim arm of her NHS employers. Accordingly, the Defendant is liable for the credit hire charges as claimed.
34. Insofar as the Delivery and Collection and Recovery and Storage charges are concerned, the Claimant is contractually liable for these having signed the contractual documentation put before her as part of what she believed to be the usual process. Save for an unexplained reference to "administration charges" of £40 for the recovery and storage which are irrecoverable, the balance of these two invoices is recoverable as it cannot be said that the Claimant acted unreasonably in incurring these. Even if there was an agency argument regarding Winn and On Hire Limited these charges were incurred before the status of the VW as roadworthy was known as this was only known when the engineer's report was received.
35. Accordingly, there will be judgment for the Claimant for the pleaded claim save for the £40 Administration Charges with credit to be given for the interim payment made in respect of the repair costs.
36. Counsel are invited to agree the appropriate order including any liability and quantum of costs under the CPR Part 45 fixed recoverable costs regime. If there are any consequential matters that require my attention, counsel are invited to let me know and I will give directions for either written submissions or a short remote hearing.