Credit hire in England and Wales continues to evolve at a swift pace and there is much talk in the legal press and amongst credit hire practitioners of the cost of credit hire, tactics deployed and judicial appetite. Little is said however about credit hire outside of England and Wales.
From the 1st July, we are delighted to confirm we now have a DAC Beachcroft credit hire team in Northern Ireland, as we are taking on the insurance team of McKinty & Wright.
As a team, we have worked with McKinty & Wright for three years in order to share best practice and strategy.
In this article, Partner Aisling Mellon from our Belfast office explains (1) how credit hire differs and (2) what recent developments may impact strategies deployed in this jurisdiction.
Setting the scene
To challenge Northern Ireland (NI) credit hire claims, it is crucial to understand the NI Court system, procedures and pre-action protocols which differ greatly from those in England and Wales. This will significantly influence your strategy and tactics.
How does Northern Ireland differ?
Credit hire organisations (CHOs)
There are fewer CHO's operating in NI, with two or three enjoying the majority of the credit hire market.
Impecuniosity
Generally, NI looks to the same case law as England and Wales for a legal definition. The burden of establishing impecuniosity is on the Plaintiff (i.e. the Claimant). However, the aforementioned procedures and protocols can play a huge part in obtaining the relevant documentation.
Rate
Courts in NI are particular in the type of evidence they will allow. Some Judges have been receptive to the argument that McBride v UK Insurance Ltd. [2017] EWCA Civ 144 encourages a 'broad brush stroke' approach which permits them to take rates and make adjustments as they see fit.
Mitigation – Intervention
NI Courts are increasingly receptive to the argument that the Plaintiff cannot ignore an offer made by the Defendant's insurer to provide a replacement vehicle. It should however be borne in mind that the letter must meet certain criteria and provide sufficient information to a Plaintiff to enable them to decide which option they should take.
Fraud
Credit hire fraud does of course take many forms, the most extreme example being the phantom CHO/AMC. As NI is a relatively small jurisdiction, this is not a feature in the same way as it in England and Wales.
The NI judiciary treats fraud somewhat differently particularly where one element of the claim is tainted. Former High Court Judge, Mr Justice Gillen (as he then was) stated in a 2014 High Court case that striking out the entire claim would be "draconian". Referring to the decision in Fairclough Homes v Summers, he differentiated the position in NI as follows:
".....courts in this jurisdiction need to be acutely aware that the English authorities are often governed by the Civil Proceedings Rules (CPR) which do not apply in Northern Ireland..........Northern Ireland has not introduced the CPR Rules and accordingly that is not necessarily the approach that has to be adopted in this jurisdiction."
As aforementioned, understanding the differences in NI practice and procedure is key.
Notwithstanding the current judicial attitude above, with the correct strategy and tactics, success in challenging fraud claims is achievable in NI. In particular, the DAC Beachcroft Intelligence Team has proven to be a unique and invaluable resource to the NI Team in tackling credit hire fraud.
Recent Case law developments in credit hire
Morgan v Bryson Recycling [2018] NIQB 2012
A decision of the High Court in NI.
In this case, the Plaintiff did not have a valid MOT Certificate on the accident date thereby invalidating his insurance. The Plaintiff's evidence was that he would have continued to drive his vehicle possibly to the date of insurance renewal in August 2016, well after the period of hire had ended. In the circumstances, the Court disallowed the hire element of the claim in its entirety.
Additionally, the storage charges claim was refused due to the absence of a legally enforceable contract.
Crash Services Limited v AXA Insurance Limited [2018] NICty 3
A County Court decision which involves repairs arranged via CRASH.
The at-fault party had a comprehensive policy of insurance with Axa. She contacted CRASH to arrange repairs on her behalf and requested that Gribben Motors (which did not form part of the Axa approved network) carry out the repairs.
AXA advised its policyholder that as per the policy terms, it will only pay what its engineers have calculated to be the cost of repairs to the car - based upon its Approved AXA network rates. As a result, there was difference between the sum sought by CRASH and what Axa were prepared to pay in line with their terms of £929.15. Contractual law arguments ensued at hearing with CRASH arguing that the term in question was unfair and void for uncertainty. District Judge Gilpin disagreed– a victory for Axa.
Understanding the key differences and recent NI case law is fundamental to setting an effective NI credit hire claims handling strategy. In this article we have discussed the main differences between the jurisdictions in addition to some essential NI case law. If you would like to know more or would like any support in setting your NI credit hire strategy please get in touch.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
