Compensation experts Thompsons Solicitors have welcomed the decision of the Court of Appeal in England in Copley v Lawn and Maden v Haller. This is likely to be followed in Scotland.
Partner Patrick McGuire, who manages Thompsons Legal Expenses Department welcomed the judgment as:
“Good news in terms of supporting the autonomy of accident victims and preventing, what the Court of Appeal has called, “inappropriate” behaviour of third party Insurance companies.”
The key issue in dispute was mitigation of loss in credit hire claims.
The appeal considered the common situation where, following a road traffic accident, the at-fault insurer intervenes to offer a “free” car to the innocent driver.
The cases in question concerned drivers who, despite ‘cold’ calls from the third party insurers, had sought hire of vehicles independently and had originally been punished by the court for doing so.
The court had originally decided that the drivers were forbidden from recovering the hire costs from the insurance companies as it was said that failing to take these offers from the insurance companies represented a failure to “mitigate their loss”. The no-fault drivers were not even able to recover the cost of what the hire would have cost the third party insurance company had they accepted their offer of a hire car.
Thankfully for the drivers, the Court of Appeal recognized the injustice of the situation, re-affirmed that the drivers had a choice as to their car hire provider and criticised the ‘threatening’ way in which the third party insurers approached the drivers made their offer while failing to explain the implications.
Lord Justice Longmore, noted:
- Any offer made by a third party insurer must be in simple terms and contain all such information (such as the cost of the hire to the third party insurer) as will be relevant for a claimant and their agents to make a reasonable response.
- The letter from the third party insurers offering a replacement vehicle was lengthy and had “an unpleasant threatening tone to it”. In addition, the telephone calls to the non-fault drivers were “inappropriate” and the practice of making calls in these circumstances should be “discontinued forthwith”.
- The claimant can recover the “spot” or market rate of hire . Arguments that a claimant should take further steps by way of mitigating his loss should be looked at with some scepticism.
- In the cases in question the drivers had not acted unreasonably in failing to accept the third party’s insurers offers or in failing to explore them further.
Had the drivers been found to have acted unreasonably, they would have been entitled to recover at least the cost which the Third Party insurers could show they would reasonably have incurred. The landmark judgment shall hopefully restore the autonomy and choice of accident victims as to their preferred and most convenient route to redress, while curtailing abusive behaviour by third party insurers.
If you have been injured in a Road Traffic Accident or your car has been damaged, contact our No Win No Fee Compensation Claim experts immediately on 0800 0891331 for FREE legal advice.