Following the recent Court of Appeal decision in Copley v Lawn [2009], Kennedys has successfully argued that a Claimant failed to mitigate his loss by not accepting the Defendant’s insurers’ offer of a hire car.

In Copley v Lawn, the Court of Appeal held that any offer made by a defendant’s insurers must contain all such information that would be relevant for a claimant and their agents to make a reasoned response. This information should include the cost to the insurers of hiring a car. If the insurers could genuinely obtain a hire car more cheaply than a claimant could, it might be unreasonable for the claimant to hire a car elsewhere and a mitigation argument might get off the ground.

Kennedys’ case is an early indication of the approach being taken by the courts following the Court of Appeal’s decision. The claim involved a road traffic accident, which occurred on 5 March 2007, in which the Claimant sustained damage to his vehicle. The Defendant’s insurers admitted liability shortly after the accident.

Following the accident, the Defendant’s insurers wrote to the Claimant offering to provide him with their “direct claim service”. The letter stated “We can arrange a similar car to that which you are hiring for £18 per day.” The letter was ignored by the Claimant, who later obtained a substitute car for the period of repairs from credit hire company Accident Exchange, at a daily rate ranging from £150.54 to £164.88.

The Defendant’s insurers advanced arguments that the Claimant, by choosing to ignore the offer of a hire car, had failed to mitigate his loss.

Proceedings were issued and the Claimant sought to recover hire charges in the total sum of £4,739.81. The hearing was adjourned pending the decision of the Court of Appeal in Copley v Lawn.

Following the Court of Appeal’s decision, we repeated the argument that the Claimant, by rejecting the offer of a hire car, had failed to mitigate his loss and therefore would only be able to recover what would have been the cost to the Defendant’s insurers of the hire. We pointed out that the letter sent to the Claimant had included the cost of hire at £18 per day, this figure being considerably less than the spot hire rates.

The Claimant’s solicitors rejected this argument and the matter proceeded to a hearing at Gateshead County Court. The case was heard before Deputy District Judge Hardy who held:

  • The Claimant had acted unreasonably by refusing to accept the Defendant’s insurers’ offer of a hire car.
  • As the Defendant’s insurers had specified the cost of hiring a similar vehicle at £18 per day, this was the appropriate rate to apply.  

The Judge therefore reduced the Claimant’s claim for hire to £867, a reduction of nearly £4,000 from the amount claimed.

Comment

Although the decision in Copley v Lawn was disappointing to insurers, mitigation arguments remain possible should the Claimant ignore a suitably worded letter from the Defendant’s insurers. It must be emphasised that such a letter should set out the costs to the insurer of the hire of the vehicle being offered and outline the Claimant’s duty to mitigate.

In this case, the daily rate allowed was significantly less than the spot hire evidence available and we achieved a significant saving for the Defendant’s insurers.

View our e-update on Copley v Lawn