Carly Sayce (Claimant/Appellant) v TNT (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Aikens,Lord Justice Pill |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1583 |
| Docket Number | Case No: B2/2011/0355 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2011 |
[2011] EWCA Civ 1583
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
(His Honour Judge Charles Harris Q.C.)
(District Judge Flood)
8SK01997
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Moore-Bick
and
Lord Justice Aikens
Case No: B2/2011/0355
Mr. Christopher Butcher Q.C. and Mr. Benjamin Williams (instructed by Burges Salmon LLP) for the appellant
Mr. Neil Berragan (instructed by Pollard Bower) for the respondent
Hearing date : 6 th October 2011
Background
This appeal arises out of a road traffic accident on 30 th May 2007 in which the appellant's car was damaged by one of the respondent's vehicles. The appellant, Miss Sayce, was injured in the accident, but that part of her claim and her claim to recover the cost of repairs to her car were settled before the proceedings were started. The only head of loss which therefore remained outstanding was the cost of hiring a replacement vehicle for the period during which her own car was off the road undergoing repairs. That amounted to £3,446.28.
The driver of the other vehicle involved in the accident was an employee of the respondent, TNT (UK) Ltd. At the time of the accident he gave Miss Sayce a card asking her to contact TNT as soon as possible. Miss Sayce telephoned TNT later that day and was told that if her own car had been rendered unroadworthy they would see about providing a courtesy car. Her attention was drawn to a paragraph on the back of the card headed "Mitigation of losses" which included the following:
"…if you require a hire car whilst your vehicle is undergoing repairs, call us and we will provide with a hire vehicle, the same or equal to yours, free of charge."
It also contained the following warning:
"Please note that if you choose not to contact TNT or take advantage of our offer (see below) this may affect your entitlement to recover hire or storage charges that you have incurred by using the services of a third party. In any case it is imperative that you show this card to your insurer, any third party hire company that you may use or your legal representative as it is very important that they are made aware of our offer, so that they can advise you accordingly."
In the event Miss Sayce did not accept TNT's offer but, having consulted her own insurers, obtained a replacement car under a credit hire agreement. In due course she started proceedings to recover the amount charged for the replacement vehicle.
The claim was originally allocated to the fast track, but was transferred to the small claims track at the instigation of TNT and eventually came on for hearing before District Judge Flood. She found that by failing to accept a replacement car from TNT Miss Sayce had failed to act reasonably in mitigation of her loss and that because the replacement would have obviated any need to hire a car in the open market she could not recover anything from TNT.
Miss Sayce appealed against that decision and the matter came before His Honour Judge Charles Harris Q.C. In the meantime this court had given judgment in the case of Copley v Lawn [2009] EWCA Civ 580, [2010] 1 All E.R. (Comm) 890. In view of the central importance of that decision to the present case, it is convenient to refer to it in some detail at this point.
In Copley v Lawn the court heard two appeals concerning claims for loss of use of cars damaged in road traffic accidents for which the claimants were not to blame. In each case the defendant's insurers had offered the claimant a replacement vehicle at no cost, but the claimant had failed to take up the offer and had obtained a vehicle from another source under a credit hire agreement. Two questions arose for determination: whether the claimants had failed to act reasonably in mitigation of their loss; and, if so, whether that failure prevented them from recovering damages from the defendants. The court below had found that the claimants had failed to act reasonably in rejecting the defendants' offers and that as a result they could not recover substantial damages for the loss of use of their vehicles. However, this court disagreed. Longmore L.J., with whom Waller and Jacob L.JJ. agreed, pointed out that in neither case had the claimant been told how much it would cost the defendant to provide a replacement vehicle, so that the claimant could not work out whether it would be cheaper for the defendant to provide a replacement itself than to reimburse him in respect of the hire charges he would otherwise incur. He held that in those circumstances it was not unreasonable for the claimants to have refused the defendants' offers and that, since the question whether a claimant has failed to act reasonably in mitigation is a matter of evaluation and judgment rather than a finding of primary fact, the court was entitled to interfere if it considered that the judge's conclusion was wrong.
That was sufficient to dispose of the appeal, but Longmore L.J. went on to consider what the position would have been if the claimants had in fact failed to act reasonably in mitigation. He held that a claimant's loss is not wiped out by an offer of a replacement vehicle at no cost to himself and that even if he has acted unreasonably in rejecting such an offer, he can still recover an amount equal to "the actual reasonable cost of hiring a replacement" as reflected by the cost that the defendant would have incurred in providing a substitute vehicle.
The proceedings before Judge Harris
When the matter came before Judge Harris TNT accepted in the light of the decision in Copley v Lawn that, even if Miss Sayce had acted unreasonably in failing to accept its offer of a replacement vehicle, she was nonetheless entitled to recover by way of damages an amount equal to the cost that it would have incurred in providing her with another car. It was agreed that that would have amounted to £14 a day, or £868 in total. However, Judge Harris not only held that that the District Judge was entitled to find that Miss Sayce had acted unreasonably in failing to accept TNT's offer, but also that her failure to do so precluded her from recovering any damages for loss of use from TNT. He declined to follow the decision in Copley v Lawn because he considered that it was inconsistent with several previous decisions both of the House of Lords and of this court. He therefore dismissed her appeal. Miss Sayce now appeals against his decision.
The present appeal
Before us Mr. Christopher Butcher Q.C. for Miss Sayce submitted that Judge Harris erred in two important respects: first, he decided the case on a basis that was inconsistent with the way in which the parties had argued it and did so without giving them an opportunity to address him on the approach he was minded to take or the relevant legal principles; second, he failed to follow and apply the decision in Copley v Lawn, which was binding on him. Mr. Berragan for TNT felt unable to challenge either of those submissions and indeed for the purposes of the appeal the parties had prepared a joint statement in support of an order that the appeal be allowed. TNT made it clear, however, that it intended to seek permission to appeal to the Supreme Court on the grounds that the decision in Copley v Lawn was inconsistent with established authority and wrong as a matter of principle.
In view of the serious criticisms made of Judge Harris's conduct of the proceedings, and in anticipation of TNT's application for permission to appeal to the Supreme Court, we invited counsel to address us fully on both aspects of the case, rather than simply allow the appeal by consent. We are grateful to them both for their assistance, because it has enabled us to understand more clearly the criticisms made of the judgment below and the grounds on which TNT submits that this court should itself grant permission to appeal to the Supreme Court.
Procedural irregularity
It is convenient to begin by considering the way in which the judge dealt with the proceedings. In the light of the second limb of the judgment in Copley v Lawn TNT accepted that Miss Sayce was entitled to recover at least part of her loss and that therefore the appeal would have to be allowed. It said that it had told her that it would incur a cost of £14 a day in providing her with a replacement vehicle and although it continued to maintain that her failure to take up its offer was unreasonable, it accepted that on that basis she was entitled nonetheless to recover damages for loss of use in that amount, a total of £868. Indeed, in an attempt to bring the dispute to a close it offered to pay her £900, as well as a sum on account of costs.
The question whether Miss Sayce had acted unreasonably thus remained a live issue on the appeal, but it is clear that both parties accepted that it was to be determined in accordance with the decision in Copley v Lawn. That meant that it was necessary to decide whether TNT had informed Miss Sayce how much it would cost it to provide her with a replacement car. The District Judge had made no finding about that because when the case was before her no one had thought it was a relevant consideration. However, the documents in the case, all of which were before Judge Harris, included a letter from TNT to Miss Sayce dated 6 th June 2007, in which she was told that she would be offered a car of an equivalent type to her own at a fully inclusive rate of £14 a day, the cost being borne by TNT. By that time, however, Miss Sayce...
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