SHERIFFDOM OF SHERIFF COURT ARBROATH [2010] CITATION NUMBER
CASE NO A111/08	JUDGMENT OF SHERIFF NAME OF SHERIFF C N R STEIN, ESQUIRE, ADVOCATE. In the cause PURSUER ARTHUR CLELLAND Pursuer Against DEFENDER QUINN DIRECT Defender

Act: INFO SPROULE, SOLICITOR, MESSRS CORRIES, SOLICITORS, GLASGOW

Alt: HAWKES, ADVOCATE INSTRUCTED BY MESSRS SIMPSON & MARWICK, EDINBURGH

ARBROATH 22^ND OCTOBER 2010

A111/08

Arthur Clelland v Quinn Direct

Act: Hawkes, Advocate

Alt: Sproul, Solicitor

Arbroath 22 October 2010. The Sheriff having considered the evidence and the submissions thereon and having resumed consideration of the Cause

Finds in Fact

1. The pursuer resides at 9 Alexander Gordon Drive, Monifieth.

2. The defenders are a company incorporated under the Companies Acts having a place of business at Dublin Road, Cavan, Dublin, Eire.

3. On 27th September 2007 the pursuer's TVR Tuscan Mark 1 fibre-glass motor vehicle registration number RV52 ZNR was parked and unattended in the car park at Carnoustie Leisure Centre.

4. At the material time the defenders' insured, Mark Robertson, was driving motor vehicle registration number SC04 4NZN. Reversing while attempting to park it, he collided with the front of the pursuer's motor vehicle causing damage to its paint and bodywork.

5. At the time of the accident the pursuer's vehicle was worth about £18,000.

6. The pursuer is a resident of the United Kingdom. At the material time Mark Robertson was insured to drive the motor vehicle under a policy fulfilling the requirements of section 145 of the Road Traffic Act 1988. The pursuer has a right of action in delict against him arising out of the accident. The defenders are accordingly directly liable to the pursuer to the extent that Mark Robertson is liable to the pursuer under the European Communities (Rights against Insurers) Regulations 2002.

7. As a result of the accident the pursuer's vehicle, although roadworthy, was damaged and required repair. The damage was predominantly to the paint work.

8. On 15^th October 2007 the pursuer drove the vehicle for repair to an authorised TVR dealership, Hexham Horseless Carriages Limited, from whom he had purchased it.

9. Hexham Horseless Carriages Limited was the nearest authorised TVR dealership to the pursuer's home. The pursuer was not aware of any paint and body shops in his own area which had the specialist knowledge of the vehicle to carry out repairs to the same standard as an authorised TVR dealership. In any event, he wished it to be repaired by the company which had hitherto regularly serviced it for him.

10. The pursuer was advised by Hexham Horseless Carriages Limited that it might be in his interests for his claim to be handled by Accident Exchange Limited, a "reputable" credit hire company used by many TVR owners.

11. Accident Exchange Limited is one of a number of companies which specialises in handling non-fault claims for vehicle owners, whose vehicles have been damaged through the negligence of others, who prefer not to involve their own insurers. Their charges tend to be very significantly in excess of conventional claims.

12. Reluctant to involve his own insurers because of possible increased premiums and loss of no-claim bonus, the pursuer agreed to engage the services of Accident Exchange Limited. He entered into a Vehicle Rental Agreement with them dated 17^th October 2007 (nos. 5/1/3-4 of process).

13. In terms of the Vehicle Rental Agreement the pursuer had a contractual right to credit on the hire charges from the date of hire, 17^th October 2007. At the expiry of the hire period he was contractually bound to pay the hire charges in full together with interest during any period the hire charges remained outstanding. In the event, the hire charges and interest remain unpaid. The pursuer relied on the defenders to make payment.

14. In the event, a virtually new Jaguar XK coupe provided by Accident Exchange Limited was awaiting him on his arrival at Hexham Horseless Carriages Limited. The pursuer was pleased with it and decided to hire it.

15. The Jaguar XK coupe was comparable to the pursuer's vehicle.

16. The pursuer took out collision damage waiver and additional driver insurance cover for his wife and son.

17. On 22nd October 2007 the pursuer's vehicle was inspected by D.M.Bulloch Associates Ltd, Engineers, who approved the necessary repairs and restoration.

18. On 29^th October 2007 approval was given for the repairs to be carried out.

19. The pursuer was further advised by Hexham Horseless Carriages Limited that due to the specialist type of pigmentation of his vehicle it should be sent to a specialist TVR paint shop, Surface & Design, in Blackpool for the necessary work to be done.

20. On 29^th October 2007 the vehicle was sent to Surface & Design for repair.

21. The paint in question was rosso pearlescent. It is a very unstable pigment which suffers from "sun bleaching". Matching of existing undamaged colour is difficult. A full re-spray is generally required to secure a uniform colour.

22. Following an inspection of the vehicle, Surface & Design decided that a full re-spray was required.

23. Prior to the accident the paint work of the front of the vehicle had over time been extensively damaged by stone chips.

24. The area of the vehicle which required to be repainted as a result of the accident damage constituted only about 25% of the vehicle surface. Accordingly, a full re-spray constituted a (necessary) betterment of 75% to the paintwork of the vehicle.

25. On 22^nd November 2007 the vehicle was returned duly repaired and repainted from Surface & Design to Hexham Horseless Carriages Limited.

26. The pursuer was unable to collect it until 26^th November 2007 because of work commitments.

27. In the event, the pursuer hired the replacement vehicle for 41 days.

28. An invoice from Hexham Horseless Carriages Limited dated 22^nd November 2007 for the repair of the vehicle was submitted to the pursuer (no. 5/1 of process). It was in the sum of £7,919.50.

29. An invoice from Accident Exchange Limited dated 5^th December 2007 (no. 5/2 of process) was submitted to the pursuer. It was in the sum of £16,321.63 and comprised the following items:

Hire charge £12,638.25

Collision damage waiver 512.50

Additional driver charge 615.00

Credit repair administration fee 50.00

Delivery and collection fee 75.00

VAT 2,430.88

Total £16,321.63

30. The pursuer has not been required to settle either of the invoices referred to in the previous two findings.

31. A BMW 6-series vehicle, a comparable vehicle to a TVR and a Jaguar XK coupe could have been hired at a spot hire rate of £199.95 per day or at a reduced daily rate of £90 for a hire period of 30 days or more.

32. The pursuer is a director in a firm of dispensing opticians, McBurney, Clelland & Boyd Ltd with premises in Broughty Ferry and Blairgowrie. The company's annual profits to March 2008 were about £30,000. He has a 50% shareholding in the business. At the material time his average net monthly drawings were £4,459. His monthly expenditure was about £5,200. At the material time his wife had a salary of about £55,000.

33. The pursuer's expenditure on his Bank of Scotland account at the material time (the period from 30^th September to 26^th October 2007) was approximately £5,200 (no. 5/6/1-2 of process). The only income paid into his bank account during that period was his monthly salary of £4,459.72 9 (no. 5/6/3 of process) .The pursuer's expenditure accordingly exceeded his income in that month.

34. The pursuer at the material time operated two credit cards. Each was in debit, one to the extent of over £5,700. In the case of the latter card his credit limit was £15,000.He was endeavouring to reduce his credit card debts. He was reluctant to use either card to hire a replacement vehicle while his was repaired to avoid further credit charges.
35. The pursuer used his motor vehicle for commuting to and from work, for his charitable work in karate and kick-boxing and for social purposes. Having no alternative available, he required to hire a replacement vehicle for such purposes during the period of repair.

Finds in Fact and in Law

1. The pursuer acted reasonably in not making a claim on his vehicle insurance policy in respect of the damage to the vehicle.

2. The pursuer acted reasonably in having his vehicle repaired at Hexham Horseless Carriages Limited.

3. When the pursuer entered into the Vehicle Rental Agreement with Accident Exchange Limited he was not 'impecunious'. In the result, he had a choice as to whether to enter into that agreement or to obtain a comparable replacement vehicle on the spot-hire market while his own was repaired.

4. The entire repainting of the pursuer's vehicle was required to restore it so far as possible to its pre-accident condition.

5. The time taken for the repair and repainting of the vehicle was, in the circumstances, reasonable.

6. The pursuer did not delay unreasonably in collecting his vehicle from Hexham Horseless Carriages Limited.

Finds in Law

1. The pursuer having suffered loss, injury and damage as a result of the negligence of the defenders' insured, is entitled to reparation therefor from the defenders.

2. The pursuer is entitled to damages in respect of the hire of a replacement vehicle at the spot-hire market rate of £90 per day for 41 days while his vehicle was repaired.

3. The pursuer is entitled to damages in respect of the Engineer's charge of £75 for the inspection of the vehicle.

4. The pursuer is entitled to damages of £7,919.50 in respect of the repairs to and re-painting of his vehicle.

5. The pursuer is not entitled to damages of £512.50 in respect of the collision damage waiver insurance cover.

6. The pursuer is not entitled to damages of £615 in respect of the additional driver insurance cover.

THEREFORE, Sustains the 1^st plea-in-law for the pursuer and the 2^nd plea-in-law (pro tanto) for the pursuer; Sustains the 5^th plea-in-law (pro tanto) for the defenders; and quoad ultra Repels the parties' pleas-in-law; Grants decree for payment by the defenders to the pursuer of the sum of ELEVEN THOUSAND, SIX HUNDRED AND EIGHTY FOUR POUNDS ANF FIFTY PENCE (£11,684. 50) Sterling with interest thereon at the judicial rate from 27^th October 2007 until payment; and Reserves meantime the question of expenses; Appoints the parties to be heard theron and Assigns 26 November 2010 at Arbroath Sheriff Court at 2 p.m. as a diet in respect thereof.

Note

Introduction

The pursuer's TVR is very much his pride and joy. He has taken great care of it. Having driven it to the Sports Centre at Carnoustie one evening and then driven home, all appeared well. It was not. The following morning he discovered, to his horror, that extensive, if comparatively minor, damage had been caused to its front bodywork. It transpired that a young inexperienced driver, who had only recently passed his driving test, had while attempting to park accidentally reversed into it.

It is against that background that the pursuer has raised this action. The action is, of course, in his name but, as Mr Hawkes was quick to point out, the driving force behind it, so to speak, is Accident Exchange Limited, a credit hire company. In any event, the pursuer seeks decree for payment to him by the defenders of damages in respect of loss sustained by him as a result of the damage caused. Liability is not in dispute. It is not in dispute, either, that he is entitled to an award of damages. The question is how much.

The pursuer seeks to recover the cost of repairs to the vehicle, its entire re-painting, the expense of hiring a replacement vehicle through Accident Exchange Limited, a credit hire company, while it was repaired and certain miscellaneous costs. As I understood it, there would have been no substantial dispute between the parties had (1) it been sought to recover only the spot hire rental cost of hiring a comparable replacement vehicle, (2) the vehicle been repaired in Scotland and (3) the front of the vehicle alone been re-painted after the damage to the body work had been repaired.

Four principal factors, it seems, have given rise to the dispute.

First, the pursuer hired a replacement vehicle under a credit hire agreement. The hire costs he thereby incurred were far in excess of those which would have arisen had he simply hired a vehicle on the spot market. The defenders' contention was that the costs arising from the credit hire agreement were not recoverable in whole.

Secondly, was it reasonable for the pursuer to have his vehicle repaired in England rather than closer to home (provided such a facility existed) thereby limiting the time during which he required a replacement vehicle?

Thirdly, instead of the front of the vehicle being re-painted, it was given an entire re-spray. In short, the defenders asked: was there a degree of betterment and, if so, to what extent?

Fourthly, was the time which the repairs took excessive?

On several aspects of the evidence there was no real dispute. It was accepted that the pursuer required to hire a replacement vehicle. It appeared to be accepted that the vehicle which he did hire was equivalent to his own. There was no significant issue about the pursuer's financial circumstances nor those of his wife. Similarly there was no question as to the work which was carried out to the vehicle nor as to the period over which the repair process took place. I concentrate, therefore, on an account of the evidence which was led in respect of those matters which were controversial.

The evidence for the pursuer

The pursuer gave evidence of purchasing his vehicle, a specialist car, from Hexham Horseless Carriages Limited, approved TVR dealers, for approximately £40,000 in 2004. He decided to take it to them for repair. They had serviced his vehicle; he wanted it to be repaired by them to protect its value. Moreover, they were the nearest approved TVR dealers of which he was aware. In any event, he did not want to resort to his own insurers for fear of imperilling his premiums and no claims bonus as had happened on one occasion in the past when a vehicle had been repaired following damage caused by the negligence of another. In light of the vehicle's colour, a full re-spray was recommended to him. Localised repainting would be noticeable and affect the value of the vehicle; the rest of the car would look pale in comparison and its residual value would be reduced. He relied on their advice. He also relied on their advice that Accident Exchange Limited should be asked to handle the claim on his behalf. As for the apparent delay in collecting his vehicle after its repair, he stated that it had arisen because of his working commitments.

Anthony Abrams, managing director of Hexham Horseless Carriages Limited, gave evidence of the pursuer contacting the company following the accident. The company had sold the vehicle to the pursuer. He had himself inspected it on its delivery to their premises. They were the closest authorised TVR dealership to the pursuer. In any event, it was common for customers to revert to them for repair by an authorised dealership to ensure that the work was properly done and the value of the vehicle maintained. He was aware of the issues arising with pearlescent red paint through contact with customers and TVR body shops. It was unstable; there were difficulties with colour matching. For those reasons a full re-spray had been recommended. Partial re-spraying was not advisable. If not noticeable immediately, it could become so in time. The company had tried localised repairs with this particular colour in the past and it had not worked. A full re-spray was, therefore, required for a proper repair. He had advised that the repairs should be carried out by Surface and Design, a company in Blackpool, which was comprised of former TVR employees who were used to carrying out complex repairs on such vehicles.

As to the time taken for the repairs, he stated that the vehicle arrived at his premises on 15^th October 2007; it had been inspected by engineers the following week; repairs had been authorised another week later; and it had been returned from Surface & Design to his company on 20^th October 2007. The time taken was not unreasonable. Delays in inspection and authorisation were inevitable due to the information to be digested. It was normal for a vehicle to be inspected by engineers prior to repairs being authorised. The paint was expensive and was not stocked by Surface & Design. It needed to be ordered. It could take one week to ten days to arrive. The work had been done as promptly as possible and to the best standard. A period of 16 working days for repair was reasonable.

He denied the suggestion put to him in cross-examination that his company had any interest to advise a full re-spray: the necessity for that arose because of the damage to the vehicle and the paint involved. He admitted that his company received a referral fee from Accident Exchange Limited.

Kevin Monaghan, an independent paint specialist with 34 years' experience in the motor trade, stated that he had had 20 years' experience at TVR Blackpool controlling the day to day running of the paint and primer departments. He had inspected the vehicle in person at Surface & Design and had considered a full re-spray would probably be required due to problems with the specialist colour. He spoke to the terms of his report (no. 5/5 of process). It was widely acknowledged that rosso pearlescent was a very unstable paint which suffered from sun-bleaching with the result that matching of the colour was "very difficult" and sometimes "near impossible". There were "application" and "colour-matching issues", as referred to in his report. In the result, many dealers would not even attempt to repair this colour but would insist on a total re-spray. His experience was that it could only be determined if a full re-spray was required by inspecting the vehicle in person, as he had done. From his experience, most damaged vehicles of this colour came back to TVR because "they couldn't get it right elsewhere." Surface and Design had the required level of expertise to ensure the job was done properly. As for the evidence in a report for the defenders to the effect that 'rarely was a re-spray necessary', that was no more than a generalisation for an ordinary car of a standard colour which was not the case here. The author of that comment, in his opinion, was not aware of the full facts of the present case, namely, the paint and colour involved and its complications. The paint was not a standard colour. It was not readily available for mixing and was not an off-the-shelf product. It needed to be ordered from a supplier. Delivery could take 8 days. The costs incurred were not unreasonable with this type of paint. The costs of repair could fluctuate between garages nationwide. He considered 16 working days to be "fast" for repairs to a TVR and spoke to higher repair costs being quoted elsewhere. The repair costs and periods referred to by the defenders of four days for a partial re-spray and ten days for a full re-spray were a generalisation made by those who had no knowledge of rosso pearlescent paint. Bill Heaney Car Body Centre's estimate was more realistic regarding costs. If that was a quote for a partial re-spray to one quarter to one third of the vehicle then the costs of a full re-spray would be slightly higher than those quoted by Hexham Horseless Carriages Limited, making the latter's costs not unreasonable in the circumstances.

The evidence for the defender

David Brown's evidence was limited to his taking of photographs of the vehicle in its damaged state (no 6/1/2 of process) and was not controversial beyond certain criticism made of the quality of the photographs and the absence of 'close-ups' of the damaged area.

Clifford Fairhurst, the managing director and owner of Auto Inspections UK, a company which, inter alia, assesses accident damage (which he set up in 1965) stated that it dealt with 4,000-5,000 insurance claims per annum with an equal number for claimant and insurance company. He had assessed damage to about 10-15 TVRs a year. In particular, he had dealt with cases involving damage to TVR paintwork. He had never encountered any problems with blending. Having inspected the photographs of the vehicle in its damaged condition taken by David Brown, he considered that the damage was of such a slight nature that he could not understand why a full re-spray was necessary. He had noticed a surprisingly large amount of stone-chipping to the vehicle. It appeared to be through all three layers of paint down to the fibreglass. In all his experience of dealing with damage to paintwork, he had never known of anyone requiring to have a full re-spray because the colour could not be matched. He had spoken to the body shop manager at Hexham to say that having seen their estimate he disagreed that a full re-spray was appropriate without at least trying a partial re-spray first. The body shop manager had told him that there was no point in discussing it: "the figures were already agreed". In his opinion, a full re-spray would mean that the pursuer's vehicle was in a better condition than it was before. He observed that accident repair companies and credit hire companies try to extend the hire period. As he put it, "stretching the hire [period] is endemic in the 'no-fault business'. In passing, it may be noted that he apparently had some familiarity with Accident Exchange Limited as an engineer on their 'panel'.

In cross-examination, he acknowledged that he was not an expert in paint and that pigmentation lay outside his area of expertise. He also acknowledged that he was not aware of the paint formulation of the pursuer's vehicle. He acknowledged there was a problem with red paints fading caused by ultra violet light. He had had no experience of paint-related repairs to TVRs. He repeated, however, that he had never seen matching problems with partial re-sprays. He acknowledged that he had not inspected the vehicle. He had formed his own interpretation from poor images which included reference to 'friction burn damage' which he could not explain from the images provided to him.

Ron Gladstone, a director of Bill Heaney Car Body Centre and previously a workshop foreman with the same company, stated that he had done work on TVRs and was familiar with pearlescent paint: 10% of vehicles he dealt with had that 'effect'. He described the damage to the vehicle as "light"; "just scuffed - a bit of paint damage".

When asked about the process to repair it, he stated that he would have had it sanded down, primed, rubbed and then painted. Asked if this would just be to the damaged area, he stated that he would have painted the whole front end right to the edge. He would have had to do the whole front grille and blended between the new paint and the old. There had been no need to paint the whole vehicle. He had never needed to re-paint a whole vehicle in 35 years. He had been surprised that it had been necessary to do a full re-spray.

He stated that his company received about 10 cars for repair per month through Accident Exchange Limited. Asked about the financial arrangements with that company, he stated that they received £350 together with 10% of the hire charge.

He spoke to his company's repair estimate (No.6/1/3 of process) and confirmed that he was aware that rosso pearlescent paint would have been required. The estimate was for a re-spray of the full front end of the car, that is, both wings, the bonnet and the grille.

In cross-examination, he acknowledged that he had limited experience of working with TVRs and had no experience of paint-related repairs to TVRs of the colour in question. He stated that the vehicle's red colour would not bleach due to the vehicle being lacquered. He had not, however, inspected the vehicle and was unable to confirm that it was, in fact, lacquered.

Alan Bathgate, a consulting automotive engineer, accident claim assessor and owner of T & T Technical Services, stated that he assessed damaged vehicles for insurance companies, dealing with about 1,400 claims yearly. He had extensive experience of TVRs, his company having in the past dealt with Norwich Union which had a division for TVR owners. He spoke to the terms of his report (No.6/1/1 of process).

He stated that he knew that Eastern Western Accident Repair Centre had been an approved repair shop for TVRs from his experience with Norwich Union.

In his view, a partial re-spray over 3 panels, in line with the Bill Heaney repair estimate (no. 6/1/3 of process), should be capable of being carried out in about 4 days. A full re-spray would take about 10 days. A full re-spray (taking into account the pre-accident condition of the paintwork) would constitute, he estimated, about 75% by way of betterment.

Questioned about rosso pearlescent paint, he stated that every car had a paint code indicating the base colour, the type of pearl required and the quality and quantity of lacquer. Whilst conceding that he was not an expert on paintwork, he was able to state that, assuming the paint was mixed properly and the correct procedure was followed, it should have been possible to undertake a partial re-spray.

As for the subject of vehicles that might be thought to be comparable to TVRs he did not, as I understood it, take issue with the proposition that the vehicle hired by the pursuer fell into that category. As stated in his report, there are very few similar vehicles available for hire. In his evidence, reflecting the terms of his report, he stated that "the most closely comparable" vehicle to the Jaguar XK 4.2 coupe was a BMW 635. He had consulted various dealers in the Edinburgh and Lothians area. Eastern BMW in Edinburgh had one such vehicle available for hire. He was quoted a daily rate of £199.95, falling to a rate of £90 for a period of over 30 days. In the present case that would amount, over a period of 41 days, to £3,690. In cross-examination, he stated that he was "quite familiar" with car hire rates. He acknowledged that he had not extended his enquiries beyond the Edinburgh and Lothians area: "it would have taken longer to enquire more widely". He did, however, state that the dealers he consulted "had networks up and down the country". Put to him by Mrs Sproul that he had not provided a range of rates, he stated that he had provided "the most competitive". He had not been able to get any rates for October 2007: the dealers thought they would have been "much the same".

In cross-examination, he acknowledged that he was not a paint expert. In his report, he had proceeded on the basis that the vehicle was finished in "standard" Volkswagen paint. He had not inspected the vehicle. His experience was based on his exposure to TVR claim assessment work.

Red cars formed the minority of the TVR's he dealt with which were predominately blue (a 75%/25 % split)

He acknowledged red cars were more problematic for two reasons, namely, that they faded more quickly and pearlescent reds could have problems if not painted properly and the application was improperly done. He accepted that there was no certainty that a full re-spray was not required. He accepted that the costs of the paint in question were higher than the norm for other paints.

Submissions for the pursuer

It was submitted that the pursuer had made out a case for the need to hire a replacement vehicle while his was repaired - Giles -v- Thompson 1994 AC 142 per Lord Mustill at pages 18-19. On the evidence it was required for business, social and family purposes. There was no evidence that another vehicle was available to him.

As for the type of vehicle hired it was submitted that the starting point when measuring damages was that of restitutio in integrum, namely "the sum of money which will put the pursuer as best as money can do it in the position he would have been in but for the accident". The pursuer was entitled to avail himself of "like-for-like" transport pending reinstatement.

As for the right to recover the full credit hire charges, it was submitted that the pursuer was "impecunious" in the sense explained in Lagden - v - O'Connor [2004] 1 AC, namely, that he would not be able to afford to pay hire charges quoted by local hire companies at a spot rate without incurring "unreasonable financial sacrifice" - per Lord Nicholls of Birkenhead at page 1073. The pursuer's evidence, it was submitted, was to the effect that to require him to pay costs of hire at spot rate upfront by either drawing on his bank account balance or utilising his credit card and incurring excessive interest charges would indeed constitute an "unreasonable financial sacrifice". Where the pursuer was 'Lagden-impecunious', he was entitled to recover the full cost of the credit hire vehicle including additional charges. The critical point at which the pursuer's impecuniosity needed to be determined was the date of hire, namely, 17^th October 2007 when the pursuer placed his vehicle for repair and required to consider hiring a replacement vehicle.

The pursuer's evidence was to the effect that he used credit cards only sparingly and was trying to get his credit card debts down. He was not prepared to utilise his credit cards to cover the cost of hire charges and thereby increase his indebtedness or incur excessive interest charges on sums which might remain unpaid for an indeterminate period of time. There were no available resources or available cash in his bank account at the time of hire and, in the result, it would be an unreasonable financial sacrifice to require him to draw on these to pay hire charges at a spot rate for the period of hire without unreasonable financial sacrifice. To hold otherwise would be forcing the pursuer to mitigate the loss of the defenders.

The defenders claimed that the sum sued for was excessive and that the pursuer failed to act reasonably in mitigating his loss in relation to the hire charges incurred. Mrs Sproul accepted that the test was, indeed, one of reasonableness. The standard of reasonableness, however, was not high in light of the admitted negligence of the defender. She referred to Banco de Portugal v-Waterlow & Sons [1932] AC 452 at p.506 per Lord Macmillan who, in observing that this comment applied equally to tort as it did to contract, stated:- "Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty.... The law is satisfied if the party placed in a difficult situation by reason of breach of the duty owed to him has acted reasonably in the adoption of remedial measures and he will not be disentitled to recover the cost of such measures merely because the party in breach can suggest other methods less burdensome to him that might have been taken." Reference was made also to Mc Gregor on Damages 17^th Edition at paragraphs 7-064 to 7-067.

As for mitigation of loss, in general it was a question of fact and the onus was on the defender - Royal Scottish Assurance PLC -v- Scottish Equitable PLC 2006 SCLR 300; and Standard Chartered Bank -v- Pakistan National Shipping Corporation [2001] EWCA CIV55. She referred to the judgment of Potter LJ in the latter case at paragraph 38 where he stated: - "It is trite law that the onus of proof on the issue of mitigation lies upon the defendant..." She referred also to the same judgment at paragraph 39 where it is stated: - "If an issue is raised by the defendant that the price received was diminished by reason of the claimant's failure to take reasonable steps in negotiating the sale, or by effecting an alternative sale at a higher price, so that the loss suffered (or part of it) is attributable to such failure rather than the original fraud, then the burden of that issue lies upon the defendant. That being so, it is part of that burden not merely to show that the plaintiff failed in some way to act reasonably, but that his failure did in fact lead to a diminution in the price he could have obtained had reasonable steps been taken."

It followed, in her submission, that if the defenders were to discharge the evidential burden and prove that the pursuer failed to mitigate his loss in relation to the rate of hire, they had to surmount two hurdles. First, they must prove that the pursuer failed to act reasonably in the circumstances. Even if they did so, they must then prove that in all the circumstances prevailing at the time of hire the pursuer would have been able to mitigate his losses had reasonable steps been taken by him. In her submission, they had failed to clear either hurdle. The evidence showed that the pursuer acted reasonably. He had been referred to Accident Exchange Limited by Hexham Horseless Carriages Limited, a reputable repairing garage. He had had no reason to enquire of the rates of hire. He was the faultless victim of the defenders' insured who required a replacement vehicle to return home and for everyday use until his own was repaired. There was no obligation upon a pursuer who accepts a recommendation from a reputable source to 'shop around' - Dimond -v- Lovell [2000] 1QB 216 per Sir Richard Scott V-C at page 239. The offer of a hire car from Accident Exchange Limited provided him with a suitable replacement which it was not unreasonable for him to accept to spare him any further cost and inconvenience. It was not sufficient for the defenders to claim a vehicle could have been hired from a more local concern at lesser rates of hire for them to discharge the onus of proof on them to show that the pursuer had failed to act reasonably to mitigate his loss.

As for the period of hire, the pursuer's witnesses Anthony Abrahams and Kevin Monaghan had both spoken to the time taken to repair and re-paint the vehicle cost being reasonable. She invited the court to prefer their evidence to that of the defenders' witnesses.

The defenders questioned the fact that the pursuer did not pick up his vehicle until some days following him receiving the call from Hexham to say his vehicle was ready for uplift. She drew attention to the pursuer's evidence that Monday was his day off. In her submission, it would have been unreasonable to expect the pursuer to uplift the vehicle sooner if this would cause him further loss or inconvenience in taking time off his business commitments.

It was submitted that the onus was on the defenders to show that the pursuer could have hired a comparable vehicle on the spot hire market in his vicinity for less than that incurred through hiring from Accident Exchange - Burdis-v-Livsey [2002] ECWA Civ 510 at paragraphs 146-148. In that case, the Court of Appeal considered how to quantify the spot-hire rate. In doing so, it held that "the fundamental principle is that a person whose car has been damaged is entitled to compensation for the loss caused. In a case where such loss includes loss of use and establishes a need for replacement, he is entitled to the cost of hiring a replacement car. He can go round to the nearest car hire company and is prima facie entitled to recover the amount charged whether or not the charge is at the top of the range of car hire rates. However the basic principle is qualified by the duty to take reasonable steps to mitigate the loss. What is reasonable will depend on the particular circumstances. We do not anticipate that the application of the correct principles will lead to disproportionate costs in small cases. The claim will be based on evidence as to the rate charged by a car hire company in the relevant area. Perhaps the rate will be at the top end of the range of company rates. Thereafter the evidential burden passes to the insurers to show that it would not have been reasonable to use that particular car hire company and that the reasonable course would be to use another company which charged a lower rate. What is reasonable and whether a loss is avoidable are questions of fact, not law, which District and County Court judges regularly decide. It can arise in many different types of cases, ranging from damage to chattels to a failure to take action. We do not believe that a decision on such issues in respect of car hire charges will be any more difficult than in respect of car repair charges."

Adopting the Burdis-v-Livsey approach it was submitted that the defenders required to lead evidence of (1) the range of rates charged by car hire companies in the relevant area at the relevant time; and (2) the actual availability of suitable vehicles at the relevant time.

Against that background, Mrs Sproul challenged the rates of hire referred to by the defender's witness Alan Bathgate on a number of grounds. First, he had accepted that rates of hire would fluctuate dependent on various factors (such as the period of hire, location, and availability) but did not provide the necessary evidence of the rates charged by car hire companies in the relevant area (that is, the pursuer's vicinity) at the relevant time (that is, at the time of hire) and did not confirm the actual availability of suitable vehicles at the relevant time. As such, he did not satisfy the test in Burdis-v-Livsey. He only spoke to having obtained the "most competitive rate" and did not provide a range of hire rates applicable. As such, he did not satisfy the test in Dimond v Lovell where there was evidence led before the court showing the range of rates in the plaintiff's area at the relevant time. Thirdly, his evidence could not be regarded as authoritative if not spoken to by any relevant representative of the car hire company. Fourthly, Alan Bathgate had not investigated the level of excess required by Eastern BMW and could not confirm what excess payment would be required were a hire taken from them. He did, however, confirm that excess payments could vary and can be high dependent on the type of vehicle hired. Accordingly, he provided no indication of the true cost of hire.

In summary, on this aspect of the case, Mrs Sproul submitted that the defenders had failed to surmount either of these two hurdles by failing to prove that the pursuer had failed to act reasonably in the circumstances; and that in all the circumstances prevailing at the time of hire the pursuer would have been able to mitigate his losses had reasonable steps been taken by him.

Mrs Sproul then turned her attention to whether the pursuer was entitled to recover the repair costs in full and the engineer's inspection fee.

In this respect also she submitted that the pursuer had acted reasonably and could not be said to have failed to mitigate his loss. First, the pursuer had acted reasonably in following the advice of the authorised TVR dealership from which he had purchased the vehicle to refer it to a specialist TVR paint-shop to ensure that it was returned to its pre-accident condition. Secondly, the pursuer's expert witness, Kevin Monaghan, had given evidence of the particular difficulties faced with the specialist type of pigmentation of the pursuer's vehicle and the need to refer it to a TVR specialist paint-shop for repair to ensure the work was done properly. Thirdly, evidence had been given by the pursuer's witnesses of the particular difficulties faced with the specialist type of pigmentation of the pursuer's vehicle and why a full re-spray was necessary. Finally, they had given evidence of the repair period and the costs of repairs being reasonable in the circumstances.

She further submitted that an engineer's report was commonly obtained before accident repair work was carried out and that the charge in respect thereof was reasonable.

In response to the defenders' claim that the pursuer had failed to mitigate his loss by not having his vehicle repaired by a more local garage and in having a full re-spray carried out, she invited the court to consider the pursuer's position and his actions at the time of the collision.

The pursuer was a faultless victim of the admitted negligence of the defenders' insured who had damaged his vehicle. The defenders' insured had to "take his victim as he found him." The pursuer was neither an expert in the repair to or re-painting of TVR's nor on hire charges. He had followed the advice of an authorised TVR dealership, from which he had purchased the vehicle, to refer it to a specialised paint shop to ensure repairs were carried out properly. He had followed their advice and hired a replacement vehicle from Accident Exchange Limited. What other option, she asked, did the pursuer have in the circumstances?

According to the defenders, he should have considered a more local concern such as Eastern Western Accident Repair Centre in Broxburn. The pursuer, however, had not been aware of that company being an authorised TVR dealership. In any event, he was not required to neglect the advice of specialists and go to another unauthorised paint shop and risk an unsatisfactory repair to a valuable vehicle. The pursuer was entitled to make the choice he did and accept the expert opinion of an authorised TVR dealership such as Hexham Horseless Carriages Limited.

Mrs Sproul invited the court to prefer the evidence of the pursuer and the pursuer's witnesses to that of the defenders' witnesses for a number of reasons. The pursuer himself had been a reliable, candid and genuine witness. Anthony Abrams and Kevin Monaghan had presented their evidence in a coherent, candid and professional manner. Their level of expertise in the field of TVR paint-related repairs involving the colour in question was unmatched by any of the defenders' witnesses. They had inspected the vehicle in person. The defenders' experts had worked only with images of the damage and colour. The poor quality of those images had been challenged as not being an accurate reflection of the damage, the colour of the vehicle or the extent of fading. The pursuer's witnesses had spoken to the need for a visual inspection to assess the general condition of the vehicle and fading. The evidence of Clifford Fairhurst and Ron Gladstone was not consistent.

The evidence of Alan Bathgate was consistent with the pursuers' expert witness evidence in that he confirmed that red pearlescent paint was problematic in fading more quickly and could have 'application' problems.

Alan Bathgate only indicated that he believed that Eastern Western were still approved TVR dealers. Mr O'Malley who had been listed as a witness for the defenders' was not called and could not confirm this one way or another.

Even if the Court were not inclined to favour the view of the pursuer's expert witnesses to that of the defenders' witnesses, it did not necessarily follow that the pursuer had failed to act reasonably as he was not an expert in repairs or paint and acted reasonably in following their professional advice. The evidence of the defenders' witnesses did not challenge the reasonableness of the pursuer's conduct as their analysis was made after the event in their professional capacity, once-removed from the pursuer's position. The defenders were not entitled to argue betterment in the circumstances where the pursuer acted reasonably. They were not entitled after the event to criticise the pursuer's actions by suggesting alternative courses open to him which were less burdensome to them and could expose the pursuer to further detriment, expense or risk (namely, the risk of an unsatisfactory localised, temporary repair) when their insured caused the damage which the pursuer was entitled to have properly repaired on expert advice. If there were an element of betterment involved in a full re-spray, it was merely incidental to steps the pursuer was entitled to take to mitigate his loss and should not be taken into account.

In relation to the issue of betterment, Mrs Sproul referred to the speech of Lord Hope in Lagden v O'Connor where he stated (at paragraph 34):- "It is for the defendant who seeks a deduction from expenditure on grounds of betterment to make out his case for doing so. It is not enough that an element of betterment can be identified. It has to be shown that the claimant had a choice and he would have been able to mitigate his loss at less cost. The wrongdoer is not entitled to demand of an injured party that he incurs a loss, bear a burden or make unreasonable sacrifices in the mitigation of his damages. He is entitled to demand that, where there are choices to be made, the least expensive route which will achieve mitigation must be selected. So if the evidence shows that the claimant had a choice and the route of mitigation he chose was more costly than the alternative that was open to him, then a case will have been made out for a deduction. But if it shows that the claimant had no other choice available to him, the betterment must be seen as incidental to the steps which he was entitled to take in the mitigation of his loss and there will be no ground for it to be deducted."

In the circumstances, it was submitted, the pursuer simply had no choice but to accept the advice of his trusted professional advisors regarding the need to have a full re-spray to have his vehicle properly repaired.

In summary, the evidence given by the pursuer and his witnesses should be preferred in terms of the reasonableness of the pursuer's actions, the cost of repair and the repair period. He should be entitled to recover the repair costs incurred in respect of the full re-spray and also the engineer's fee for inspection.

In cross examination of the pursuer, the defenders had raised the issue of him not utilising his insurers. Although in the end of the day, as I understood it, the defenders conceded that there was no evidence that the pursuer's insurance policy covered the cost of a replacement vehicle, I should refer for the sake of completeness, albeit briefly, to Mrs Sproul's submissions thereon. She submitted that the pursuer was under no obligation to resort to his own insurers particularly when that could result in some further loss or inconvenience being occasioned to him - Bee -v- Jenson [2007] EWCA CIV 923; Martindale-v-Duncan [1973] 574. The pursuer was aware of the complications and financial penalties incurred in involving insurers. He had referred to his previous experience with his insurers in a situation where his vehicle was damaged through no fault of his own which ended with him being penalised with higher premiums and excess charges. It was not unreasonable for him not to consider utilising his insurers and he was under no obligation to do so. By not doing so, he could not be claimed to have failed to mitigated his loss.

In relation to the hire charges sought of £16, 321.63 Mrs Sproul's primary submission was that the pursuer was 'impecunious' and unable to pay hire charges at a spot rate without unreasonable financial sacrifice. He was, therefore, entitled to recover the hire charges in full. The need for hire had been established; there was no evidence that the hire car represented a material betterment; and the period of hire was reasonable.

In the event that the court was not prepared to accept that the pursuer was impecunious, she submitted that the pursuer was nevertheless entitled to recover the hire charges in full on the basis that he acted reasonably in accepting the recommendation from Hexham Horseless Carriages Limited to hire from Accident Exchange Limited and was not obliged to 'shop around'. Furthermore, the onus was on the defenders to show that the pursuer had failed to mitigate his loss. They had failed to do so by lack of evidence that the pursuer failed to act reasonably in all the circumstances of the case. They had not led evidence that he would have been able to mitigate his losses had reasonable steps been taken by him. In relation to the rates available on the spot-hire market, they had failed to lead evidence of the available rates of hire in the pursuer's locality and of the actual availability of suitable vehicles at the relevant time.

The pursuer had acted reasonably in the circumstances and should be entitled to recover the repair costs incurred in respect of the full re-spray. He should also be entitled to the cost of the engineer's inspection fee.

In the result, she moved the court to grant decree against the defenders for payment to the pursuer of the hire charges, repair costs and the cost of the engineer's fee in full and award the sum of £24,695.86 with interest at the judicial rate from 27 September 2007 and also to award expenses against the defenders.

Submissions for the defender

At the outset, Mr Hawkes invited the court to have regard to two preliminary matters which emerged during the proof. First, the extent to which the pursuer himself was conducting the claim and, secondly, the "recurring" theme of delays on the part of those involved in the repair of his vehicle and the financial consequences of the prolonged hire period as a result of those delays.

In his submission the pursuer was involved in the litigation only in a nominal capacity. It was quite clear from his evidence that Accident Exchange Limited was the dominus litis in the proceedings. Under reference to the Terms and Conditions attached to the Vehicle Rental Agreement (no. 5/1/3 of process), the pursuer was subject to certain contractual obligations in relation to this claim. The reality was that Accident Exchange Limited had exercised control over the conduct of the proceedings and were the only party thus far to have suffered any loss (they having settled the Hexham Horseless Carriages Limited invoice). The pursuer had not paid their hire charges (notwithstanding the expiry of the 51 week period of credit) nor had he, apparently, settled any of the other heads of loss which form part of the claim.

Other than Hexham Horseless Carriages Limited's invoice having been paid by Accident Exchange Limited, the only other money to have changed hands had been the referral fee of £250 paid by Accident Exchange Limited to Hexham Horseless Carriages Limited and, although Mr Abrams had neglected to mention it in his evidence (despite a clear invitation to disclose any financial incentives offered to Hexham by Accident Exchange Limited), the receipt by Hexham Horseless Carriages Limited of 10% of the hire charges. Not only did the omission to mention that entitlement call into question the credibility and/or reliability of Mr Abrams' evidence, it also provided Hexham Horseless Carriages Limited with 'no encouragement to rush'. When one considered that the vehicle was delivered to their premises on 15^th October 2007, was not inspected by AEL's engineer until a full week later, was not moved to Surface & Design to have the work carried out until authority was granted by Accident Exchange Limited a further full week later, the question arose as to whether Accident Exchange Limited were similarly disinclined to progress matters as expeditiously as one might reasonably expect. In his submission, the court did not simply have to rely on inference to reach that conclusion. Clifford Fairhurst had spoken to his experience of Accident Exchange Limited's inspection regime and their curious insistence that an inspection take place on a specific date several days beyond the date of instruction (instead of simply asking for it to be carried out at the earliest available opportunity). On a similar note, in his submission, it was also worth highlighting at the outset that the pursuer was unable to collect his car from Hexham until six days after he had been informed by them that it was ready for collection. That further example of delay only served to highlight the practical difficulties which might reasonably be foreseen in taking the car to be repaired several hundred miles away. Even leaving aside whether that delay in itself was reasonable (work commitments had been mentioned), it supported the defenders' assertion that local repairs at East Western Repair Centre in Broxburn would have been more convenient. A total of about.£2,000 had been added to the claim as a result of that 6-day delay alone.

As for the pursuer's evidence, Mr Hawkes pointed to a number of inconsistencies which cast a light, in his submission, on his credibility or reliability as a witness. In examination-in-chief, he had described the pre-accident condition of the TVR's paintwork as 'excellent' but, after being shown a selection of photographs in cross-examination, he had conceded that it had been subject to significant stone-chipping. In addition, there was an inconsistency between the pursuer's evidence and that of the manager at Hexham Horseless Carriages Limited as to when the pursuer first contacted AEL. According to the pursuer, he picked up a leaflet at Hexham (later, he again stated that he had been advised about Accident Exchange Limited by Hexham) but this was contradicted by Anthony Abrams, who stated that the hire car was already at his garage when the TVR was brought down on 15^th October 2007 and, therefore, there must have been prior contact.

Assuming that Anthony Abrams' evidence on this point was to be preferred (he was able to specify the hire car as being a Jaguar and, perhaps of even greater weight, the hire period began the date the vehicle was delivered to Hexham), that raised a question about the pursuer's credibility. In his submission, the pursuer could not have been mistaken about such a significant point. Either he had contacted them independently before driving south (which would explain the replacement car being available for his drive north) or he only did so at the suggestion of Hexham Horseless Carriages Limited after dropping off his car (in which case, he had no alternative means of returning home). The pursuer's explanation, which, in his submission, was in keeping with his persistent desire to be seen as having adopted an entirely passive role throughout, was flatly contradicted by the practicalities of the situation, the evidence of another witness and the documentation upon which he sought to rely. The court was invited to hold that the pursuer was, at the very least, mistaken on the issue of why and when he first contacted Accident Exchange Limited.

He accepted that he had made no enquiries about whether a more local bodyshop (able to re-spray a TVR) existed, such as Eastern Western Accident Repair Centre in Broxburn. This was despite being a member of the TVR Club, with access to other sources of information and the potential for advice from members on the website.

He had accepted that almost a full week passed between him receiving notification that his car was ready for collection and making the trip to Hexham to collect it.

He had made no efforts to ascertain whether a hire car was available, or to contact his own insurers or the at-fault driver's insurers. He accepted that the Jaguar was a newer, more expensive car than his own and that, if it had been his own money, he would not have paid £335 per day to hire it.

Crucially, he accepted that he used Accident Exchange Limited because it was "convenient" for him to do so. It was, as he stated, "the easiest option on the day". That concession, in his submission, might well prove to be the pivotal point in his claim, at least in relation to the recoverability of credit hire charges. As Lord Hope had pointed out in Lagden v O'Connor, the determining factor in this context was whether the pursuer had a "choice,and that he would have been able to mitigate his loss at less cost". As soon as the pursuer accepted that he had the financial means to 'afford' spot-hire rates and that his decision to enter into a more expensive arrangement was motivated by convenience, Mr Hawkes submitted that he had no basis on which to recover at the higher rate.

Overall, it was submitted that the pursuer's evidence should be treated with a degree of circumspection. He had been prone to exaggeration on points which he realised were important for his case; he had maintained an untenable position on a number of matters in cross-examination; he had viewed himself as an entirely innocent victim in the whole affair, entitled to incur liabilities in a way which he would not have done had it been his own money. Any sense of recognising the need to mitigate his loss had been absent. He took his car to a garage which was an 8-hour round-trip from his home without making any efforts to identify a more local repairer. This in itself resulted in an extra week of hire charges. He had entered into a credit hire arrangement which he assumed would be paid for by somebody else when, in his submission, he could quite comfortably have afforded to pay spot - hire rates. At the beginning of October 2007, his joint account had had a credit balance of about £6,000; at the end of the month it was just over £7,000. He had had a credit card and had been prepared to charge a number of 'non-essential items' to it. At the relevant time, he had about.£10,000 credit available to him on that card.

Against that background, and as a company director with a combined family income of over £100,000 per year, he could hardly, in his submission, be characterised as the type of 'impecunious' individual for whom it would be an unreasonable financial burden to meet spot-hire rates. It was that category of claimant which the House of Lords had identified as being the exception to the general rule that credit hire charges are irrecoverable. It was, in his submission, readily to be seen why for those without access to sufficient funds or credit card facilities, credit hire arrangements are seen to be the only realistic way in which they may be adequately put into the position which they would have enjoyed but for the accident. The pursuer, in his submission, was not even close to falling within that limited category. Quite to the contrary, he was well able to afford the conventional hire arrangements but sought instead to enjoy a different and more convenient remedy. That he chose to do so was entirely a matter for him; the issue was whether he should be entitled to recover that additional cost from a third party. In his submission, he was not.

As for the evidence of Anthony Abrams, he had accepted that Eastern Western Accident Repair Centre "could probably do the same job [as Surface & Design] if they did good quality work". He also had accepted that proximity between customer and garage would be an advantage and that, had the pursuer used a repair shop closer to home, it would have been easier for him to collect his car, thereby avoiding the type of delay which necessitated an additional 6-day hire period.

When asked about Accident Exchange Limited's interest in authorising the work (as opposed to the pursuer himself), Anthony Abrams' position was that Accident Exchange Limited made money out of supplying the replacement vehicle thus creating an obvious conflict of interest on their part. They made more money the longer the hire car was supplied to the customer; yet they assumed responsibility for instructing an engineer to inspect the car and thereafter authorise the repair work. On this occasion, it took a week for an engineer to attend at Hexham Horseless Carriages Limited (notwithstanding the fact that Accident Exchange Limited must have known in advance the date that the car was being delivered as they had the hire car at the garage awaiting the pursuer's arrival) and a further week for authorisation to be given (notwithstanding the apparently unequivocal view of all concerned that a full re-spray would be necessary). Throughout that 2-week period, the 'meter' was ticking over at £335 per day. No cogent explanation had been provided for these delays. It was not suggested that an engineer ought to have been on hand immediately upon the car's arrival at Hexham but it did not seem unreasonable to expect an inspection to have been arranged within a day or two. Accident Exchange Limited were aware (i) when the car was arriving; (ii) that nothing could happen to it unless and until an engineer inspected it and the works were authorised; and (iii) meantime a car was being hired for a significant daily rate in the expectation that a third party would be settling the accruing liability. Likewise, upon receipt of what was presumably a brief report from their engineer, they ought to have been able to issue authorisation for the works to be carried out within a reasonable period (which, the defenders suggest, should have been the same day). It was perhaps revealing, he submitted, that Clifford Fairhurst gave evidence to the effect that, in his experience as an engineer for AEL, in common with other accident hire companies, they were in the habit of issuing him with instructions to inspect a car on a specified date which would invariably be after the date when, in the absence of such an instruction, he would otherwise have been able to undertake the task. The clear inference which the defenders invited the court to draw was that Accident Exchange Limited deliberately delay the process of authorising repairs for financial gain and that they did so on this occasion. If that submission were to be accepted, no doubt that would be a matter of some concern to the court. The fact that the repairing garage also benefits financially from prolonging the process may only serve to exacerbate any such concern.

As for the evidence of Kevin Monaghan, he had accepted that no attempt had been made in practice to find out whether a partial re-spray would have been adequate. His report made the concession that, in determining whether a full re-spray was necessary, the general condition of the vehicle was an issue and stone-chipping, inter alia, had to be taken into consideration. He would go no further than to say that, having seen the vehicle, a full re-spray would "probably be required for matching reasons". That evidence had been contradicted by Clifford Fairhurst and Ron Gladstone, the defenders' witnesses, as to the necessary extent of the re-spray.

In broad terms, it was submitted that these witnesses were both credible and reliable. They delivered their evidence in a measured and balanced fashion, accepting where necessary the limits of their expertise. They attempted to assist the court in relation to the matters in dispute and, notwithstanding repeated attempts by the pursuer's solicitor, declined to engage in an academic debate about "peripheral" matters (such as paint codes and pigments).

Mr Hawkes stated that the defenders recognised that the pursuer was entitled to some financial redress for the damage caused to his vehicle. In line with the views expressed by their expert witness, Allan Bathgate, both in his report (no. 6/1/1 of process) and in oral evidence, they suggested that decree should be granted in the pursuer's favour for the following sums:

Partial re-spray (inc VAT) £2,328.00

Hire charges (4 days @ £199.95 per day) £799.80

Total £3,535.20

In the event that the court was persuaded that a full re-spray was necessary but that the pursuer failed to mitigate his loss by not having the work carried out at Eastern Western Accident Repair Centre, the award should be as follows:

Full re-spray (inc VAT) £5,875.00

Hire charges (10 days @ £199.95 per day) £1,999.50

£7,874.50

Less 75% betterment £4,406.25)

Total £3,468.25

In the event that the court accepted that a full re-spray was necessary and that the pursuer did mitigate his loss by having the work carried out by Hexham Horseless Carriages Ltd ('Hexham'), the award would be as follows:

Full invoice value £7,919.50

Less valet element (£460.00) £7,459.50

Hire charges (35 days @ £90 per day) £3,150.00

£10,609.50

Less 75% betterment (£5,594.62)

Total £5,014.88

If the full period of hire (41 days) be allowed, the hire charges increased to £3,690 giving a total of £5,554.88.

Mr Hawkes suggested that were the Accident Exchange Limited hire charges allowed, there were several deductions which may be appropriate (even if the full 41 day period be accepted), such as the elements for Collision Damage Waiver, the Additional Driver Charge and the 'late payment charges'.

Mr Hawkes referred to Dimond v Lovell [2002] 1 AC 384 and, in particular, the speeches of Lord Hoffman and Lord Hobhouse of Woodborough; Lagden v O'Connor [2004] 1 AC 1067 and, in particular, the speeches of Lord Nicholls of Birkenhead (paragraphs 1-13) and Lord Hope of Craighead (paragraphs 14-44); Whitehead v Johnston, unreported (Dumfries Sheriff Court, 20^th January 2005) and Boardman v Byrne, unreported (Walsall County Court, 18^th April 2008).

Decision

Before setting out the reasons for my decision, I may observe that I did not consider that any significant issues of credibility arose in relation to the evidence of the witnesses. So far as I could determine, each witness was doing his best to address the issues in an honest and straightforward manner. All witnesses (except for the pursuer) had many years of experience in the motor vehicle industry and of accident-repair cases and gave an impression of giving their evidence in a candid and professional manner. On the matters raised by Mr Hawkes in relation to credibility, it may well be that the pursuer was incorrect in his recollection of when he was first in contact with Accident Exchange Limited. It may be that Clifford Fairhurst was reticent in acknowledging the full financial benefit to his company in relation to claims handled by Accident Exchange Limited in non-fault claims. Neither of those factors reflected, however, in my view, on their credibility.

There was a number of matters to be resolved. I deal with each in turn.

Is the pursuer entitled to recover the hire and other charges levied by Accident Exchange Limited?

The answer to that question, in my view, turns in the last resort on whether the pursuer had a choice in what he did or, in other words, would hiring a vehicle at spot rates have involved an unreasonable sacrifice on his part?

At the outset, it is helpful to look at the two cases which, it was agreed, had a determining effect in law upon the matter - each, as it were, at opposite ends of the spectrum.

In Dimond v Lovell Lord Hobhouse of Woodborough, as if anticipating the present case,

sets the scene at pages 403-4. The dispute in that case

"represents a competition between two different insurance interests. The factual situation is typically a collision between two privately owned motor vehicles. Only one driver is at fault, the other's car is damaged and needs to be repaired...."

"The driver not at fault would like to hire a substitute car so that he is not without one. But he does not want to have to bear the cost. His own insurance does not cover this insurance. He appreciates that he should be able to recover from the driver at fault the cost of hiring the substitute but is reluctant to get involved in the hassle and expense of going to court to recover the money. He therefore engages the services of an accident hire company. There are quite a number of such companies. They are in a profitable line of business..... As explained in their promotional literature they provide a substitute car to a party not at fault and see to the recovery of the cost from the other party. The result is designed to be that the customer does not have to go without a car, does not have to find any money and is saved the hassle of himself pursuing the guilty party. It is a good arrangement and understandably popular."

"However it is much more expensive than simply hiring a car from an ordinary car hire company..... The reason for this discrepancy is not hard to seek. The accident hire company is doing more than just hiring out a car. It is financing the transaction until the expected recovery made from the other party; it is bearing a commercial (though normally not the legal) risk that there may be a failure to make that recovery; it is bearing the cost of handling the claim and effecting the recovery...."

"The popularity of this scheme with the public is matched by its unpopularity with the mainline insurance companies who are covering the negligent motorists against third party claims and find themselves faced with these increased claims...."

At page 407 he continued: "What Mrs Dimond was paying for here was more than the cost of hiring a car for a week. It was reasonable for her to pay the additional sum in order for her to obtain the additional benefits enjoyable under the scheme even though the accident hire company were under no legal obligation to do no more than to provide her with a car on credit. The sum which she paid, having regard to what she was to get was, on the evidence, reasonable. But she cannot claim the whole cost as the cost of mitigating the loss of the use of her car. The cost of that was, on the evidence, only about £24 per day. The remainder of what she paid was attributable to other matters and therefore should not be included in the cost of mitigation. This is the preferred way of looking at this aspect of the dispute between the parties on this point but there are other ways which lead to the same conclusion......"

In that case, of course, the court found, in effect, against the credit hire company. Needless to say, Mr Hawkes placed the pursuer squarely, so to speak, in Mrs Dimond's shoes.

By contrast, in Lagden v O'Connor it was held that although only an amount equivalent to the spot-hire rate of hiring an alternative vehicle would normally be recoverable by a claimant who, deprived of the use of his car by the negligence of the defendant, had used the services of a credit hire company, and not the cost of the additional benefits obtained by the use of such a company, if it was shown that the claimant's impecuniosity was such that he would have been unable to obtain a replacement car had he not used a credit hire company, the reasonable additional charges of that company would be recoverable as damages, it being reasonably foreseeable that there would be some car owners who would be unable to obtain a replacement car other than by use of a credit hire company.

Lord Nicholls of Birkenhead said at pages 1072-73:

"In Dimond v Lovell, Mrs Dimond could have found the money need to hire a replacement car until she was re-imbursed."

"But what if the innocent motorist....is unable to afford the cost of hiring a replacement car from a credit hire company? Unlike Mrs Dimond he cannot find the necessary money. So, unless he can use the services of a credit hire company, he will be unable to obtain a replacement car... Common fairness requires that if an innocent plaintiff cannot afford to pay hire charges, so that left to himself he would be unable to obtain a replacement car to meet the need created by the negligent driver, then the damages recoverable should include the reasonable costs of a credit hire company. Credit hire companies provide a reasonable means whereby innocent motorists may obtain use of a replacement vehicle when otherwise they would be unable to do so. Unless the recoverable damages in such a case include the reasonable costs of a credit hire company the negligent driver's insurers will be able to shuffle away from their insured's responsibility to pay the cost of providing a replacement car. A financially well-placed plaintiff will be able to hire a replacement car, and in the fullness of time obtain re-imbursement from the negligent driver's insurers, but an impecunious plaintiff will not. This cannot be an acceptable result."

"There remains the difficult point of what is meant by "impecunious" in the context of the present type of case. Lack of financial means is almost always a question of priorities. In the present case what it signifies is inability to pay car hire charges without making sacrifices the plaintiff could not be reasonably be expected to make......"

Lord Hope of Craighead said at page 1074: "Mr Lovell's case raises an issue which is of concern to those innocent motorists who wish to hire a car while their own car is being repaired, but for economic or financial reasons have no choice but to use the services of a credit hire company.... It arises from the decision in Dimiond v Lovell that only the spot hire rate of hiring a replacement vehicle is recoverable, and not the higher rates charged by credit hire companies. The question is whether that decision applies to a claimant who, due to lack of funds or for any other reason which is reasonably foreseeable, has no alterative but to use the services of a credit hire company.

Having made certain observations about the duties of the innocent motorist to minimise his loss, his lordship referred (at page 1078) to "another principle, as was made clear in Dimond v Lovell, that must be given effect to in the calculation of damages. This is the principle that requires additional benefits which are obtained as a result of taking reasonable steps to mitigate loss to be brought into account when the damages are calculated. The question which has been raised in this case is whether this principle is subject to modification where, if he is to minimise his loss, the claimant has no choice but to accept those additional benefits."

"So far, so good. But what if an injured party has no choice? What if the only way that is open to him to mitigate his loss is by expending money which results in an incidental benefit which he did not seek but the value of which can nevertheless be identified? Does the law require gain to be balanced against loss in these circumstances? If it does, will he be unable to recover all the money that he had to spend in mitigation. So he will be at risk of being worse off than he was before the accident. That would be contrary to 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. ...."

At page1080 his lordship proceeded as follows: "the criterion which must be applied is whether he had a choice - whether it would have been open to him to go into the market and hire a car at the ordinary rates from an ordinary car hire company. In practice, for reasons that are obvious, companies which offer cars for hire insist on payment of the rental up front before the car is collected, together with a sum to cover the risk of damage to the car while it is on hire. Many car owners are, of course, well able to provide what is needed to satisfy the hirer that the money which is needed for the hire is available. If they choose to use the services of a credit hire company they must accept as a deduction from their expenditure the extra cost of doing so. The full cost of obtaining the services of a credit hire company cannot be claimed by the motorist who is able to pay the cost of the hire up front without exposing himself or his family to a loss or burden which is unreasonable. But it is reasonably foreseeable that there will be some car owners who will be unable to produce an acceptable credit card or debit card and will not have the money in hand to pay for the hire in cash before collection. In their case the cost of paying the provision of additional services by a credit hire company must be attributed in law not to the choice of the motorist but to the act or omission of the wrongdoer."

And at page1082 he continued: "In practice the dividing line is likely to lie between those who have, and those who do not have, the benefit of a recognised credit or debit card. It ought to be possible to identify those cases where the selection has been made on grounds of convenience only without much difficulty".

Did the pursuer have an alternative, "a choice", as to the course he took in engaging the services of Accident Exchange Limited? Was there "no other way"? In my view, there was. He was plainly in a financial position through his credit card to hire a vehicle on the spot market. It is by no means clear that any charges he would no doubt thereby have incurred would be irrecoverable from the defenders who, perhaps, would prefer that a claimant in the pursuer's position incurred simple credit charges, as it were, rather than the full panoply of the service provided by a credit hire company such as Accident Exchange Limited. However that may be, it is difficult, in my view, to categorise such a step as entailing an "unreasonable financial sacrifice". If one has in mind the likely cost of hiring an equivalent vehicle on the spot market even for a period of about six weeks (as disclosed by Alan Bathgate's evidence) compared to the hire charges levied by Accident Exchange Limited, one might be permitted to wonder whether the amount of interest charges on a credit card are perhaps likely to be significant. In any event, looking at it in the way suggested by Lord Hope of Craighead, did he not in fact fall on the 'wrong side of the line', so to speak, by having access to a credit card? In my view, he did.

On this aspect of the case, then, I accept that the defenders have discharged the onus on them of establishing that the pursuer failed to mitigate his loss.

What would have been the cost at the relevant date of hiring a comparable vehicle at spot rates?

On this question, the evidence came from one source: Alan Bathgate. I had no reason to doubt what he said on the subject in his report and in his oral testimony. The real question which arose is whether his evidence went far enough. As Mrs Sproul submitted, the onus was on the defenders to see to it that it did.

Mrs Sproul, it has been seen, had several points to make on that matter under reference to Burdis-v-Livsey and Dimond V Lovell. While recognising their force, each case turns on its own circumstances. The situation in this case is that, according to the evidence, TVRs are highly specialist vehicles. They themselves, it appears, are not available for hire. One therefore has to look for an alternative. According to Alan Bathgate there is a limited choice, of which the vehicle accepted by the pursuer and BMW 635s are instances. Mrs Sproul made the point, quite reasonably, in my view, that evidence was required of the cost of a hire car 'in the pursuer's vicinity'. She did not say what that was. I took it, however, to be Hexham where the need for the vehicle arose. There was no evidence as to whether there were any car hire dealers in Hexham. I did note, however, that the vehicle which the pursuer did hire had to be delivered to Hexham. However that may be, it appears, perhaps unsurprisingly, that there is a nationwide network of dealers in such vehicles. There may, of course, be regional variations in the cost of hiring them. In the nature of things, it is perhaps to be expected that there is a relatively small number of such vehicles to be hired compared to more run-of-the mill vehicles. In passing, I note that on the evidence Eastern BMW had one only such vehicle available for hire. In such circumstances, there is perhaps little to be gained by embarking on a survey of the market as to what was available, where and at what rate of hire. As Alan Bathgate stated, he had produced the most competitive rates. It was reasonable, in my view, given that he was offering his evidence as an expert, to rely on what he said in place of representatives from Eastern BMW or other dealers.

I am not certain that I understood the relevance of the 'insurance' excess to rates of hire, as referred to by Mrs Sproul. As Alan Bathgate pointed out that issue would only arise in the event of an accident.

Could the vehicle have been properly repaired by a dealer in Scotland?

At the outset, I should say that I accepted that it was reasonable for the pursuer to have his vehicle repaired by a TVR-approved dealer. He wanted the repairs to be carried out properly and to preserve its value. I accepted the evidence of Anthony Abrams that Hexham Horseless Carriages Limited was the nearest such dealer to the pursuer's home. That evidence was consistent with the evidence of the pursuer, evidently a TVR enthusiast and, moreover, one who was used to read the trade TVR newsletters. Alan Bathgate's evidence that Eastern Western Accident Repair Centre was a TVR-approved dealer did not necessarily appear to be up-to-date and was based on his previous experience dealing with Norwich Union cases. It is not clear, perhaps, what significance is to be placed on the fact that an individual apparently cited as a witness from that company, who could have clarified the matter one way or the other, did not, in the event, give evidence. At all events, there was no reliable evidence, in my view, that there was such a dealer and one able to carry out the work to the required standard. The onus, in my view, was on the defenders to establish that fact and they did not, so far as I could see, do so. I therefore reached the conclusion that the pursuer could not be criticised for having his vehicle repaired at Hexham Horseless Carriages Limited.

Is the pursuer entitled to recover the charges levied by Hexham Horseless Carriages Limited?

That question, in my view, turns on whether a complete re-spray was required.

Plainly, the evidence of the parties' respective witnesses diverged on that question. In the event, I preferred the evidence of Anthony Abrams and Kevin Monaghan. Each had experience of the paint in question; each had inspected the vehicle in its damaged condition, an opportunity unavailable to the defenders' witnesses. I accepted the opinion of Kevin Monaghan that the paint posed significant matching problems, was prone to sun-bleaching and entailed difficulties in its application. Of all the witnesses, he alone had extensive experience with this particular paint and its application. He was well-qualified, it seemed, to express an opinion on whether a full re-spray was required. It appeared that the evidence of the defenders' witnesses on this question, which I had no difficulty in accepting as a broad proposition, proceeded on the basis that the paint was a 'standard' one. Needless to say, perhaps, the re-painting of the whole vehicle gave rise to a significant degree of betterment given its age and condition at the time of the accident. That, however, in the circumstances, in my view, was an incidental (and unavoidable) benefit of restoring the damaged front of the vehicle to its pre-accident condition.

I have, therefore, found in the pursuer's favour in this regard.

Was there an undue delay in the pursuer collecting the vehicle on completion of the repairs?

I was unable on the evidence to accept that it had been established that there was any undue delay. On the face of it, the pursuer's work commitments, in my view, accounted for any appearance of delay.

Damages

I have accordingly granted decree for payment by the defenders to the pursuer of the sum of £11,684.50 comprising the notional cost of hiring the replacement vehicle on the spot market (£3,690) and Hexham Horseless Carriages Limited's invoice of £7,919.50 together with the engineer's fee of £75.

I did not find him entitled to recover the collision damage waiver charges and additional driver cover on the view that they were not required under the principal of restitution in integrum and, in any event, as I understood it, they were not in the end sought by Mrs Sproul.

In the circumstances, I have reserved the question of expenses.