ON APPEAL FROM NORTHAMPTON COUNTY COURT
(His Honour Judge Charles Harris Q.C.)
(District Judge Flood)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE AIKENS
| CARLY SAYCE
|- and -
|TNT (UK) LTD
Mr. Neil Berragan (instructed by Pollard Bower) for the respondent
Hearing date : 6th October 2011
Crown Copyright ©
Lord Justice Moore-Bick :
" . . . 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."
Copley v Lawn
The proceedings before Judge Harris
The present appeal
"9. Several questions arise. The factual questions (a) whether the claimant was unreasonable not to accept the defendant's offer; (b) whether the District Judge's decision is wrong and is appealable; and (c) if the claimant's rejection was unreasonable, what is the legal position and is this court, bound by Copley v Lawn?
10. As to (a) and (b) it is well established that the question of mitigation is one of fact: Payzu v Saunders  2KB 581 CA, quoted and approved in The 'Solholt'  1 Ll. Rep. 605 CA per Sir John Donaldson MR. Because mitigation is a question of fact, "It is, therefore, rarely appropriate to interfere with the conclusions of the trial judge": per Potter LJ in Standard Chartered v Pakistan National Shipping Corporation  1 All ER (Comm) 822 CA, paragraph 47.
I note that Longmore LJ in Copley v Lawn felt that "Questions of mitigation are ... questions of evaluation and judgement and there is no reason why this court should not interfere if the judge's conclusions are in its considered opinion wrong."
However, that observation does not alter the rule. Sir Mark Potter in Beechwood v Birmingham  3 WLR 1677 at 1687 remarked that it "requires to be read in context" and he cited with approval Aldous LJ in Burdis v Livsey  QB 36 at paragraph 148: "What is reasonable and whether a loss is avoidable are questions of fact, not law, which District and County Court Judges regularly decide."
In the instant case the District Judge considered the evidence and reached her conclusions in the terms I have read. She was quite entitled to reach this conclusion on the basis of the evidence she considered."
"19. The above citations from judgments of the House of Lords show clearly that if a claimant unreasonably adopts a course of conduct which means that more money is spent by her on providing herself with a replacement car than is necessary then that money is not recoverable from the defendant.
20. I propose to follow this body of authority. In the circumstances of the present case I can see no reason why this approach should not have been adopted. The claimant contended quite properly that she wanted a replacement car. She did not need to hire one. She was offered one free of charge. If she had accepted it she would have had no claim for the cost of hiring. On the finding of the District Judge it would have been reasonable to have accepted TNT's offer. To put it more firmly, it was unreasonable not to have accepted it. Why then should the defendant have to pay anything at all? The fact that it would have cost it something to provide the car free to the claimant is, of questionable relevance, since the question is what sum did the claimant (not the defendant) need to incur. To order TNT to pay that sum, which is the Copley principle distilled, seems more like an attempt to punish a defendant than to provide an answer which fulfils the elementary rule that the purpose of an award of damages is to place the injured party in the same position as he was before the accident as nearly as possible, viz, in this case with a car for which no rental is payable by her."
He therefore dismissed the appeal.
The ratio of Copley v Lawn
"20. In that case [Darbishire v Warran  1 WLR 1067] the comparative cost was clear from the beginning and the claimant could make an informed choice. In the present cases no such informed choice was available to either the claimants or their advisers and I do not see how they can be said to have acted unreasonably in not accepting the offer in the form it was presented to the claimants. The claimants and their advisers need to know the true cost to the defendant and his insurers since it might . . . be the case that the cost of the defendants' insurers hiring the replacement car was actually the same as (or more than) the cost of hiring a replacement from Helphire. If that were the true position, it could scarcely be said that it was unreasonable for the claimants to pay the Helphire cost.
21. . . . A claimant who has been deprived of the use of his car by the negligence of a tortfeasor only has to take reasonable steps to mitigate his claim for that loss of use and he cannot, in my judgement, be said to act unreasonably if he makes (or continues) his own arrangements with his own hire company, unless he is made aware that this commercial enterprise can be undertaken more cheaply by the defendant than by his own arrangements."
"It is the duty of a subordinate court to give credence and effect to the decision of the immediately higher court, notwithstanding that it may appear to conflict with the decision of a still higher court. The decision of the still higher court must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court. . . . Any other course is not only a path to legal chaos but in effect involves a subordinate court sitting in judgment on a decision of its superior court."
Permission to appeal
Lord Justice Aikens:
Lord Justice Pill:
"1. This is another credit hire case in which the claimant motorist obtained a car to replace one damaged in a collision caused by the fault of the defendant and seeks to recover the hire charges. In this case, the defendant, TNT Limited, offered the claimant a replacement car at no cost to her; an offer she did not accept. Unsurprisingly, it contends that she should not, therefore, be entitled to the cost of hiring a vehicle which it was prepared to supply to her at no charge.
. . .
3. TNT, a large and reputable transport company, operates a scheme whereby it provides a hire car to a claimant at no cost where one of its drivers has been responsible for a collision. It obtains the car from a concern called Enterprise. TNT also offers to pay the repair charges.
4. The facts of the instant case are that the claimant, a young woman, owned and was driving a Vauxhall Corsa in Northampton on 30th May 2007 when one of the defendant's employees drove into the back of it. The driver admitted liability and handed her a card with TNT's details on it and a passage which read:
'If you require a hire car whilst your vehicle is undergoing repairs call us and we will provide you with a hire vehicle the same or equal to yours free of charge.'
She rang TNT on the date of the accident and said that she was told that it would, "see about providing a courtesy car". She said at trial she was told not to contact her own insurers though this was a curious and surprising assertion because the TNT card had stated, "It is imperative that you show this card to your insurers". She did speak to her insurers and she told the court that for some reason she was, "unsure as to the motives behind TNT's offer to assist". She did not take up the TNT offer but on 2nd June 2007 entered into a credit hire agreement with Albany under which charges of £3,446.28 were in due course incurred for two months' car hire.
5. On 6th June 2007 she received a letter from TNT, after two telephone conversations with that company. The letter stated that if she needed:
'...alternative transport to be used while your car is in for repair...then this facility can be arranged from this office direct. You will be offered a car of an equivalent type...to your own at a fully inclusive rate of £14 a day, the arrangements and costs being met by this office...please note that if you choose not...to take advantage of this offer this may affect your entitlement to recover hire charges that you have incurred... in any case it is imperative that you show this letter to your insurer, any third party hire company you may use or your legal representative...so that they may advise you.'
The offer was not taken up . . ."
". . . Unsurprisingly perhaps Mrs Copley could not recall this telephone call when she came to give evidence but her response was, no doubt, non-committal, if not frigid."
"It is very difficult to know what an average driver would make of all of this. It comes (within a day or two of the accident) from the insurers of a defendant who has negligently caused damage to the claimant's car and perhaps his person too. It has an unpleasant threatening tone to it and does not even suggest that the recipient should pass it to his insurer or solicitor for advice as to its contents. It is tempting to say that any recipient should be entitled to ignore it completely. But that is not a course which any of the judges below adopted. What is completely clear to me is that the cold telephone call to Mrs Copley was inappropriate. If that is KGM's practice it should be discontinued forthwith."
". . . She (as anyone else would) passed it [the letter] immediately to her solicitors and left them to deal with it. On no view could she personally be said to have acted unreasonably in doing as she did and awaiting their advice. The fact that that advice never came was not the fault of Mrs Copley. Deputy District Judge Reed held that Mrs Copley should, on receipt on KGM's letter, have accepted KGM's offer and cancelled the agreement she already had with Helphire. If one is looking at the matter solely from Mrs Copley's view, I can only disagree. It is positively unreasonable to expect Mrs Copley to take the initiative, without advice, of cancelling an agreement she has already made just so that she can get a different "free" car from the "free" car she already has. It may well be that the deputy district judge and Judge Langan were effectively conflating the position of Mrs Copley and her solicitors and deciding that Mrs Copley's solicitors should have advised her to take the defendant's offer of a free replacement car and the question whether it is right to look at it in that way will have to be addressed."
". . . The present dispute is an ordinary commercial dispute and the court cannot close its eyes to the obvious fact that hiring cars is a profitable business from the point of view of the supplier and a cost–incurring exercise from the point of view of the hirer. A claimant who has been deprived of the use of his car by the negligence of a tortfeasor only has to take reasonable steps to mitigate his claim for that loss of use and he cannot, in my judgment, be said to act unreasonably if he makes (or continues) his own arrangements with his own hire company, unless he is made aware that this commercial enterprise can be undertaken more cheaply by the defendant than by his own arrangements."