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Eagling v Foreman, Truro County Court, 10 May 2010

18 May 2010
The issues

Credit Hire – Costs – Small Claim Track – unreasonable conduct.

The facts

In October 2007, the defendant reversed into the claimant’s parked and stationery moped. Liability was admitted early on and the case proceeded on the issue of quantum only. The claimant (Helphire) claimed 39 days of credit hire at a rate of £47.50 per day. Veitch Penny for the defendant pointed out to the claimant that its own evidence indicated that the moped was in fact roadworthy and repairable and that the damage was slight and effectively cosmetic. There was no doubt that the vehicle was a total loss but the evidence provided by Helphire indicated that this was because the moped was uneconomic to repair. Accordingly, Veitch Penny asked for proof that the vehicle was un-roadworthy. None was forthcoming and the claimant proceeded with its claim regardless.

The case was heard by DJ Thomas on 3rd March 2010 and 10th May 2010. The hearing on 3rd March 2010 was adjourned in order to give the claimant an opportunity to provide evidence that the moped was un-roadworthy. They failed to do so.

The decision

At the hearing on 10th May, DJ Thomas dismissed the claim and made the following comments:

“The hearing was previously adjourned for the Claimant to provide further evidence which is conspicuously lacking and secondly for Helphire to provide an explanation as to how they came to bring the case to court for over £2,000 when their own document says that the only damage sustained by the moped is scratches and cracks and is repairable. The moped is a total loss but that is consistent with it being uneconomic to repair. Helphire cannot succeed in these circumstances. What is recorded in writing is entirely consistent with the photographs which show almost entirely cosmetic damage consistent with Helphire’s reference to the damage as scratches and cracks. It was obvious to everyone last time that the claim would fail. Claim dismissed.”

On the issue of costs, DJ Thomas commented further as follows:

“Pre-litigation Helphire and their solicitors have had their attention drawn to the fact that their own documents basically destroy their own case and these points are pleaded with force and precision in the Claimant’s Defence. They have ignored it completely. At best is was a negligent misrepresentation to their own lay client to suggest that a hire vehicle was required and there is nothing to suggest that the lay claimant was culpable…..The case was adjourned to afford Helphire the chance to explain what they have or have not done and they have ignored it. It is the height of conduct which at least is grossly unreasonable. To bring a claim when the other side have alerted you that it is at odds with your own case and then completely ignore it and bring the claim anyway and then attempt to shelter behind the lay client is at best negligent. Despite the fact that this is a small claim, the defendant should therefore recover costs on an indemnity basis due to the conduct of the claimant.”

For further information on the above case please contact Dr Nicola Isaacs (Devon Chambers, Plymouth) or Jo Pruden (Veitch Penny LLP).

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