A common-sense approach to Basic Hire Rates (BHR) evidence

Andrew Bunting v Zurich Insurance PLC [2020] EWHC 1807 QB

Executive summary

This update discusses the recent decision of Mr Justice Pepperall regarding a claimant’s appeal against the decision to assess the claimant’s claim for hire on the defendant’s BHR evidence. 

Facts

The claimant hired a replacement vehicle from Auxillis for a total of 78 days incurring charges of £28,551.84. The claimant did not raise impecuniosity as an issue.

The claim proceeded to trial on 1 November 2018 where the first instance judge accepted the defendant’s BHR evidence. Unusually, the claimant summonsed the author of the defendant’s BHR report as a witness for cross-examination.

In accepting the evidence of the basic hire rate author, the lowest rate in the report was awarded but with a ‘rough and ready adjustment’ of £10 per week to deal with the fact that there were no details as to any deposit to be paid, the mileage was limited to 500 miles per week, and there was a 30-day maximum hire limit. The court assessed the hire in the sum of £3,989.14.

The claimant appealed the decision filing lengthy grounds and argued at the hearing of the appeal that the first instance judge should have disregarded the defendant’s BHR evidence on the basis of admissibility, the BHR evidence not complying with the directions given in the first instance case as it did not include evidence of any deposit to be paid, there was a restriction to the mileage allowed to be covered under the agreement (500 miles per month) and the agreement was restricted to a term of 30 days. It was submitted also that the first instance judge should not have awarded the Thrifty rate, and that they had been wrong to use the 1/7 of the seven-day rate for the 78th day of hire.

In dismissing the appeal, Mr Justice Pepperall found that the appeal was a ‘nit-picking challenge’ that came nowhere near to establishing that the findings of fact at first instance had been perverse. The following findings were also made:

• In the first instance, the judge would be wrong to require evidence from precisely the time of the accident.
• The court was entitled to use the Thrifty BHR rate for the 78-day period even though there was a 30-day contractual limit. Any charge beyond the first four weeks was unlikely to be more than the cost of the first four weeks.
• The court does not require evidence of a particular car on a particular date.
• The court can use 1/7 of the weekly rate to make up odd days.
• The question of deposit was irrelevant as the claimant was not alleging impecuniosity.
• The first instance judge’s ‘rough and ready’ additional allowance was precisely the sort of matter open to a first instance judge with which the appeal court should be very slow to interfere.

Comment

This decision serves only to reinforce previous decisions from the Court of Appeal when Basic Hire Rates evidence has been challenged by CHOs and claimant representatives and confirms that:

• BHR evidence does not have to be contemporaneous from the time of hire (Bent no1);
• BHR evidence does not have to be for a specific vehicle or the same as that hired by the claimant (Bent no1);
• It is perfectly open to a trial judge to make allowances for any perceived deficiencies in the evidence that is before them (McBride v UKI).

Mr Justice Pepperall endorsed the ‘sanguine’ approach to BHR evidence taken in Bent no1 and the trial judge’s ‘rough and ready approach’ in that courts are entitled to rely on imperfect BHR evidence to enable them to assess what the lowest BHR rate would have been as it is an endeavour that is consistent with the Civil Procedure Rules’ overriding objective of ‘enabling the court to deal with cases justly’ CPR 1.1(1).

There was also further useful guidance for defendant insurers and practitioners on the issue of deposits, something that has not been adjudicated on substantively by the appellate courts. There is now a binding High Court authority that states where a claimant is pecunious, deposits on Basic Hire Rates are irrelevant. Mr Justice Pepperall accepted the respondent’s submissions that the cost of a deposit would not make any difference to the overall cost of hire.

The judgment endorses common-sense approaches to BHR evidence to allow county court judges to strip out the additional extras charged by CHOs to get to the lowest BHR rate and that in doing so, first instance judges can use their experience to deal with imperfect evidence before them (McBride v UKI). In finding that there was no error of law at first instance and that the appeal was a ‘nit-picking challenge’ (exemplified by one of the grounds of appeal being over the application of weekly rates for the final day of hire, which amounted to £24) Mr Justice Pepperall showed that the appellate courts continue to adopt the same approaches to BHR evidence and credit hire claims in general that started with Bent no1 and have continued with Stevens v Equity and McBride v UKI.

Where CHOs and claimant representatives will go next remains to be seen; we may revert to some claimant representatives adducing their own rates evidence, no doubt at higher rates than defendants’ rates evidence; CHOs may change their business models to target more impecunious claimants to ensure a greater rate of recovery of commercial rates; there may even be a greater engagement in settlement of claims where ‘the writing is on the wall’. However, and for the moment, this is another solid decision and application of legal precedent on what is recoverable by a pecunious claimant who seeks to recover credit hire charges.