Mr Gary Dickinson and Others (Applicants/Appellants) Tesco Plc and Others (Respondents) Morgan Cole LLP (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Rimer,Lord Justice Moore-Bick |
| Judgment Date | 19 March 2013 |
| Neutral Citation | [2013] EWCA Civ 36,[2013] EWCA Civ 226 |
| Docket Number | Case No: (1) B2/2012/1575 + A (2) B2/2012/0401 + A (3) B2/2012/0976 + C (4) B2/2012/2506 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2013 |
[2013] EWCA Civ 226
IN THE COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM READING COUNTY COURT
DISTRICT JUDGE HENDERSON
9RG02942
(2) ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE MITCHELL
8CL07812
(3) ON APPEAL FROM UXBRIDGE COUNTY COURT
DEPUTY DISTRICT JUDGE NICHOLLS
9UB01363
(4) ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
DEPUTY DISTRICT JUDGE HOPKINS
8CL07812
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Rimer
and
Lord Justice Aikens
Case No: (1) B2/2012/1575 + A (2) B2/2012/0401 + A (3) B2/2012/0976 + C (4) B2/2012/2506
Andrew Edis QC, Guy Vickers & Benjamin Williams (instructed by PCJ Solicitors) for the Apellants
Nigel Wilkinson QC & Paul McGrath (instructed by Kennedys Law Llp) for the Respondents
Approved Judgment
This is the judgment of the court. The principal judgments on the appeal were handed down on 4 February 2013: see [2013] EWCA 36. We will use the same abbreviations that we used in the main judgments. The issue of costs remained contentious. The parties were ordered to provide short written submissions on costs. The submissions were indeed short but the accompanying material voluminous.
Effectively, the opposing parties for the purposes of costs are AEL and AXA. On 12 February 2013 AEL has lodged a written application to be added as a party for the purposes of costs, pursuant to CPR Pt 48.2, so that a costs order can be made in its favour. AXA has consented to this order. We agree to it.
We can briefly summarise the rival contentions on costs as follows: AEL submits that it won the appeal and so should have its costs. Moreover, it submits, it made reasonable attempts to settle all the cases but AXA would not listen or make any reasonable offer to settle matters overall or in relation to these cases.
AXA submits that the "key" issues for it on the appeals was the question of whether (as AEL had submitted on the appeal) AXA was to be debarred from contesting any retrials or from having the opportunity on any retrials to adduce further evidence on the issue of hire rates. AXA won on those points. AXA also submits that it made an offer to mediate all the cases in June 2012 but that offer was rejected unreasonably. Further, AEL has been unreasonable in its demands for an overall settlement figure. It is said that AEL could have dealt with all these issues much earlier than it did, but was insistent on going over old ground.
In our judgment the starting point must be that AEL has been successful in its arguments to adduce the fresh evidence and in obtaining permission to appeal out of time and in achieving its main goal of an order for a retrial in all four cases. We recognise that there has been some intransigence, but this has been on both sides and we are not prepared to try and measure minutely which side has been more intransigent than the other. We only note four factors in particular. First, the fact that AEL had to seek an extension of time in all cases and, as we noted in the main judgment, there were serious issues to consider about delay. Secondly, it seems to us that AEL placed too much emphasis on their belief that AXA and its solicitors, Morgan Cole, were somehow mixed up with Autofocus, points which we refused to consider at the appeal hearing and were dropped by Mr Edis QC. Thirdly, in our view, (although we accept that we have not seen specific evidence on this), Mr Evans of AEL was being unreasonably optimistic in initially seeking an overall settlement of £1.6 million plus costs at that stage, although the figure was reduced subsequently in negotiations. Fourthly, AXA could reasonably have conceded the issues of an extension of time and permission to appeal and fought the appeal on the issue of whether the fresh evidence could be adduced and whether they should be allowed to contest any retrials or any limitations on the evidence that AXA could adduce at any retrials. In the end AXA fought on all issues and only won on the issues of whether they could contest any retrials and, if so, what form the retrials should take, neither of which took up much time at the hearing.
Our conclusions are as follows: first, all questions of costs on the retrials themselves must be dealt with by the judge who conducts those retrials. Secondly, bearing in mind the points we have mentioned above, AEL should have 70% of its costs of the appeals. AEL's costs will be subject to a detailed assessment on the standard basis if they cannot be agreed.
The parties are to draw up a draft order on costs to reflect this judgment.
It has been drawn to our attention that there is a discrepancy in the terms of paragraphs 108 and 111 of the principal judgment and the principal order of the court which may have led to difficulties in relation to other cases where there is to be a retrial in the County Court as a result of our judgment in these four cases. At paragraph 108 of the principal judgment, Aikens LJ said:
"Mr Wilkinson (counsel for the respondents) accepted that if the appeals were to be allowed then in all four cases there should be retrials of the issue of the recoverable hire rate."
In paragraph 111, Aikens LJ said:
"In all four cases I would allow the appeals and order retrials in the terms that (a) the retrial in each case is limited to the issue of the quantum of the car hire recoverable…."
The second formulation is the one reflected in the court's order. We understand that this has led to arguments in other cases that this court intended that, on a retrial, the parties could reargue other issues such as the need for a hire car and the length of the hire period. This is an error. This court was anxious to ensure that any other issues which are not affected by the Autofocus evidence, such as the need for a car and the length of the hire period should not be reopened on any retrial. Accordingly, we will direct that the order of the court be amended pursuant to CPR Part 40.12(1) in terms that we hope will make it clear that no other issues other than the rate of hire can be reopened at any retrial.
[2013] EWCA Civ 36
IN THE COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM READING COUNTY COURT
DISTRICT JUDGE HENSON
9RG02942
(2) ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE MITCHELL
8CL07812
(3) ON APPEAL FROM UXBRIDGE COUNTY COURT
DEPUTY DISTRICT JUDGE NICHOLLS
9UB01363
(4) ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
DEPUTY DISTRICT JUDGE HOPKINS
9LB52411
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-bick
Lord Justice Rimer
and
Lord Justice Aikens
Case No: (1) B2/2012/1575 + A (2) B2/2012/0401 + A (3) B2/2012/0976 + C (4) B2/2012/2506
Andrew Edis QC, Guy Vickers & Benjamin Williams (instructed by PCJ Solicitors) for the Appellants
Nigel Wilkinson QC & Paul McGrath (instructed by Kennedys Law Llp) for the Respondents
Simon Monty QC for the Interested Party
Hearing dates : 30th October — 1st November 2012
I. How these cases arise
All four cases before the court concern charges incurred in hiring a replacement car on credit terms following a road traffic accident ("RTA") in which the claimant was not to blame. Two of the cases are applications for permission to appeal out of time on the basis of "fresh evidence" and for permission to adduce that "fresh evidence" on appeal if permission to appeal is granted; the third case is for permission to adduce "fresh evidence" on appeal (permission to appeal having been granted by the lower court) and the fourth case is an appeal where the court below has granted permission out of time and ordered that "fresh evidence" could be adduced on the appeal. The cases are part of a continuing battle between the motor insurance market and car hire companies which provide an innocent victim of an RTA with a replacement vehicle on credit terms whilst his is being repaired.
Accident Exchange Limited ("AEL") is part of Accident Exchange Group PLC. AEL is a specialist car hire and claims management company whose main business is the hire of cars to victims of RTAs. It operates a fleet of mainstream, specialist and prestige hire vehicles. AEL provided a replacement car on credit hire terms in each of these four cases. AEL is, effectively, the applicant or appellant in the relevant case. Mr Steven Evans is the chief executive officer of Accident Exchange Group. He has been heavily involved in the saga that has given rise to these cases and has given many witness statements in support of the four individual cases and collectively.
All four cases were originally determined in the relevant County Court in, respectively, November 2009, February and May 2010 and January 2011. However, the history of events which gives rise to the current applications and appeals goes back much further than that and I must sketch it out to make sense of the current proceedings.
The history starts with the decision of the House of Lords in Dimond v Lovell1 in 2000. It confirmed that a claimant could recover damages for the loss of the use of a car damaged as a result of the negligence of another driver, even if the car was not a "profit earning chattel". If the loss of use could be mitigated or avoided by the hire of a replacement car then the cost of that hire...
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