Alexander Greenlees V. Allianz Insurance Plc
| Jurisdiction | Scotland |
| Judge | Lord Matthews |
| Neutral Citation | [2011] CSOH 173 |
| Court | Court of Session |
| Published date | 18 October 2011 |
| Year | 2011 |
| Date | 18 October 2011 |
| Docket Number | A531/09 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER 173 | |
| A531/09 | OPINION OF LORD MATTHEWS in the cause ALEXANDER GREENLEES Pursuer; against ALLIANZ INSURANCE PLC Defender: ________________ |
Pursuer: Casey; Thompsons, Solicitors
Defender: Balfour; HBM Sayers, Solicitors
18 October 2011
[1] The pursuer is Alexander Greenlees. The defenders are Allianz Insurance Plc who at the material time were the insurers of a Mercedes motor vehicle driven by a gentleman named John Allsop. On 10 November 2008 the pursuer's Jaguar Sovereign motor vehicle, registration number A6 EXG, was parked and unattended at a car park in Hamilton, Lanarkshire. Mr Allsop was driving his Mercedes, registration number SF56 MWO, when it struck the pursuer's vehicle causing damage. For the purposes of the action the defenders admit liability.
[2] The issue, when the case called before me for proof before answer, was as to the measure of loss, if any, sustained by the pursuer.
[3] Broadly speaking, the pursuer's vehicle was written off as being beyond economical repair although he eventually managed to have it repaired and is now still driving it. In any event, after the collision he entered into a credit hire agreement with Accident Exchange Limited, (AEL) a credit hire company who provide a number of benefits including the use of a replacement vehicle. The nature of the services provided by such companies has been the subject of a considerable amount of litigation but their role is generally now well understood. It is admitted on record that the pursuer was not impecunious and the proof proceeded on the basis that assuming he was entitled to hire a replacement vehicle he would only be entitled to recover what are known as spot hire rates. That concept is also reasonably well understood. He had access to the credit hire vehicle between 10 November 2008 and 20 February 2009. He avers, and it is admitted, that he is contractually obliged to pay to AEL the costs of the report by an engineer instructed by them and also the hire costs for the replacement vehicle, including credit hire rates and interest on all sums until payment. In the circumstances which I will set out it is argued that the pursuer is not entitled to recover any sums at all but in any event the sums sought are said to be excessive. It is averred on behalf of the defenders, amongst other things, that the vehicle taken on hire by the pursuer was not an equivalent one, that he was aware as early as 13 November 2008 that his vehicle was a total loss and that the length of the hire was, in any event, excessive.
[4] At the outset Mr Balfour, who appeared for the defenders, moved me to allow a number of late productions as to the rate of hire of what was said to be an equivalent vehicle. The motion was opposed by Ms Casey who argued that the pursuer's case would be prejudiced if I were to allow the productions to be lodged at that late stage.
[5] I agreed with her submissions and refused the motion.
[6] Thereafter the pursuer gave evidence. He spoke of parking his vehicle in the car park at Hamilton and finding out about half an hour later that a bin lorry had reversed into it. He said it was about nine or ten years old at the time and had done about 72,000. It had also just had a replacement engine put into it. He thought it was worth, at most, £6,000 or £7,000. The wheel base was 69 inches longer than normal. It was a chauffeur driven car used by brewers and the like and he bought it. He had always liked that sort of vehicle, which was beautiful to drive. It weighed some two and a half tons and was a very safe vehicle. It was one the last of that style made and he expected that the value would go up eventually. Number 6/10 of process was an invoice for a replacement engine dated 1 August 2008. It was in the sum of £2,653.28 and a firm in Partick by the name of Lorimer and Findlay had done the work. It was a reconditioned engine because the original one was not perfect and would have cost more than that to strip and rebuild. The pursuer explained that this was his seventh or eighth Jaguar. He had bought and sold them since he was seventeen or eighteen and he was now forty-eight. Most of them had been long wheel-based Sovereigns. One of them was a 1979 Mark II in British racing green for which he had paid £2,500 and which he had sold seven or eight years later for £15,000. Ms Casey asked a number of questions about the pursuer's finances but objection was taken to this on the basis that there was no Record for it and in any event it was admitted that he was not impecunious. I allowed the evidence to be led subject to competency and relevancy but I am satisfied now that the objection was well founded, although nothing turns on it. He had insured his vehicle through Lawrie Ross Insurance Brokers in Maryhill on a fully comprehensive like for like basis. He expected that if his vehicle was damaged he would receive a replacement car on a like for like basis that same day. That is what he paid insurance for. After the accident he phoned his brokers and they sent out a transporter for the car. They called back in the afternoon to say that someone would be there with a replacement car for him. He knew nothing about AEL until that time. Later on that day, when it was dark, a man showed up with a 2.7 Jaguar diesel which, he said, was in beautiful condition. It did not even have 1,000 miles on it. The person who brought it ran through the controls etc and the witness said that he signed for it. He thought that the document he was signing was simply an acknowledgement that he had received it and that there was no damage on it. 6/1 of process was a statement of the hire charges. The daily rate for the vehicle which was in fact an XJ 2.7 TDVi Sport Premium, four door automatic, was £283.59 per day. There was a surcharge because it was an automatic of £7.50 per day and a further charge called CDW, or collision damage waiver, of £12.50 per day. The hire ran for 103 days, so the total charges were £31,369.77. With the addition of a delivery and collection fee of £100 as well as VAT of £4,705.47 the total came to £36,075.24.
[7] He was then referred to 6/2 of process, a copy of the agreement he signed with AEL. Objection was taken to this as it was an uncertified photocopy but that objection duly resolved itself since the original was ultimately produced.
[8] Mr Greenlees said, and I accepted his evidence, that he did not examine the agreement but just signed it. While he thought it was a receipt for the vehicle it is in fact a vehicle rental agreement. There is a non-waivable excess of £200. Clause 1.5 indicates that the "AX charges" are the hire charges and any repair charges. Clause 1.6 defines his claim as his claim for compensation for the hire charges and any repair charges against the third party. The rental period is described in Clause 1.12 as "the shorter of the period for which you have a reasonable need for a vehicle by reason of the accident and the period of 85 days from the date of this agreement." The obligations of AEL to the pursuer are set out in Clauses 2.1 and 2.2. 2.1 reads as follows:
"2.1 Where you cannot use your motor vehicle as a result of an accident which in our opinion was the fault of a third party we may hire you the vehicle for the rental period and allow you credit on the AX charges in accordance with this agreement."
Clause 3.4 reads as follows:
"3.4 You must take reasonable steps to keep the rental period to a minimum." Clause 3.6 reads as follows:
"3.6 You will authorise us to monitor the repair or replacement of your vehicle and will provide us with all information reasonably needed for this purpose."
Clause 5.1 reads as follows:
"5.1 You grant us the exclusive right to pursue the claim on your behalf."
[9] He reiterated that he had not read the agreement but had just signed it. He was then referred to 6/3 of process, a witness statement by a gentleman called John David Kyle. He was the branch manager of AEL's Glasgow depot. The statement set out a timetable of events and Clause 16 reads as follows:
"27/11/2008 10:54:00 D Pritchard at AEL called the pursuer's partner Mrs Tremble as they had received a payment that is not acceptable to them."
He said Mrs Tremble was his partner Margaret. The third party had sent a cheque for £1,000 less than they should have. He could not have got a vehicle for the money they sent. They wanted to know the details of the new engine and he said that those details were sent several times. He said that on 27 November 2008 he had not yet received any payment. He had received a cheque for £2,500 but had never cashed it. It was not enough. That was their first offer and he thought they had made a mistake. Clause 17 of Mr Kyle's statement reads as follows:
"27/11/2008 10:58:48 J Law at AEL spoke to the pursuer who called again and advised not accepting payment."
Again the pursuer said that the payment was not sufficient. He was referred to 7/4 of process, a letter from a firm called Strange Jeens & Mathison (North) Limited dated 20 November 2008 to Accident Exchange. The salient parts read as follows:
"We have been contacted by the insured who has advised they have had an engine fitted at a cost of over £2,500. On this basis we have amended the valuation to £4,700. Please note this valuation is only agreeable if a valid receipt is made available and agreement with the third party insurers."
[10] He said that, although he had not seen this letter before, it might explain why the original cheque was not acceptable. He reiterated that he could not have bought a replacement Jaguar for the amount sent. Clause 18 of Mr Kyle's statement was read. It is in the following terms:
"27/11/2008 11:16:50 D Pritchard at AEL called the TPI and spoke to Mark who advised that amended report has been received and is due for review for today and called and advised pursuer that this is an interim payment and that TPI should issue...
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