Gee v AXA Corporate Solutions – A Critical Case re “Credit Hire”

Judges, by the nature of their jobs, have to bite their tongues sometimes. They spend some of their time listening to wholly misconceived arguments, ridiculous hypotheses and disputes over trivialities treated as if the most important matter in the world. They are addressed by lawyers, parties and representatives who might not have inherited the Ciceronian skill at oratory.

Occasionally a barbed comment might descend from the lips of the judge, but that might be a tiny and understandable lapse after watching twenty or more cases where the same hopeless and hapless argument has been put before the court.

When it comes to written decisions, then the judge has the advantage of not having to make a decision on the spot, and ill-considered comments would be eliminated.

It is rare to read a decision where the exasperation of the judge is palpable. However Sheriff Principal Mhairi Stephen, the Sheriff Principal of Lothian and Borders, seems to have been driven to distraction by one case, standing the terms of her decision.

I am referring to Gee v AXA Corporate Solutions which can be found on the Scottish courts website here.

This case related to the common issue before the courts now of a road traffic accident where the main matter in dispute was that of the “credit hire” claim.

My thoughts on the case and the relevant parts of the Sheriff Principal’s decision are below, but first I have extracted some of the comments which suggest that Sheriff Principal Stephen was less than satisfied with the actions and reasoning of the Sheriff. I have rarely seen a judgement so scathing about the judge in the lower court.

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The parties and the court and particularly the sheriff have contributed to the needless delay in a case which is a simple, straightforward road traffic accident

In determining an issue raised by the Sheriff – The point is so obvious that I doubt the House of Lords would have thought onus to be an issue at all.

It is simply an absurd proposition for the respondent to suggest and indeed for the sheriff to accept that there might have been an onus on the defenders in this respect.

Frankly, it defies common sense to suggest, in this case, that there is any onus on the defenders in respect of the pursuer’s impecuniosity. It is quite unreasonable and unworkable to expect the Appellants to prove what is, in effect, a negative and that of facts almost exclusively within the Pursuer’s knowledge. It is for these reasons that I decline to answer the question of law 1a. The answer is obvious and ought to have been obvious to the Sheriff.

I am informed that the motion was refused by the sheriff on … an imperfect appreciation of the purpose and scope of a commission and diligence…

Perhaps Finding in Fact 5 is the sheriff’s finding in this regard...

Finding 7a and 7b do not appear to me to be findings in fact at all. Finding in Fact 7a may have been suggested or inserted by way of adjustment however this ought to be part of the sheriff’s note and not a finding in fact. The stated case lacks any proper finding on the normal method of quantifying damages ie “spot rates”.

Finding in Fact 7b likewise is not a finding in fact but an inadequate account of the defenders’ objection What is totally lacking, however, is any reasoning by the sheriff on the objection and on her decision to repel the objection and allow the evidence. This is of fundamental importance in this proof and therefore in this appeal. It is the de quo of this case. The sheriff’s stated case gives no clue as to how or why she comes to her decision. I cannot ascertain what her view of the arguments might have been. These are important matters especially as the sheriff puts these matters in issue for me in this appeal standing her questions in law.

Likewise the sheriff ought to have been alert to the clear prejudice to the defenders and in dealing with the objection ought to have regard to this obvious prejudice.

It follows that the sheriff … fell into error in accepting that the issue of impecuniosity was proved by the pursuer’s own evidence.the sheriff was not entitled to accept that evidence as sufficient to prove impecuniosity given the lack of vouching and the clear prejudice to the defenders. The sheriff, herself, has fallen into the trap of finding impecuniosity because she believed and accepted the pursuer’s evidence. What the sheriff is in effect saying is the person who asserts impecuniosity is impecunious because she says she is. The relevant findings in fact made by the sheriff indicate that the evidence given by the pursuer … was of a vague almost casual nature or at least the drafting of the findings in fact indicate a casual approach to the evidence.

Counsel for the appellant in his submission on the sheriff’s stated case showed undisguised restraint as to the terms of the stated case. However, even if I am wrong in determining that the sheriff ought to have upheld the objection to the evidence clearly the evidence which the sheriff had before her, was not of a quality and sufficiency to find that she was impecunious.

The sheriff gives no basis for saying “She was emotionally and financially in dire straits” and “would not have been able to pay up front for any alternative transport. She was impecunious.” It is clear from the sheriff’s note that she made the finding based upon the pursuer’s evidence and that alone. The sheriff therefore fell into error by finding that the pursuer was impecunious because the pursuer herself said so. In the absence of vouching this is a flawed approach to the issue of what evidence is required to prove impecuniosity.

It appears to me that Finding in Fact 10 has some relevance to this issue although it is difficult to know what relevance the quantum aspect may have if the point is truly whether there is an agreement to split liability on a 50/50 basis and whether this agreement is binding.

It appears that the sheriff’s reasoning conflates the issue of the agreement with the question of expenses. The sheriff’s reasoning is not clear but it does appear that she takes the view that this was an extra judicial admission or agreement and that there was no consensus in idem. I confess to finding the sheriff’s reasoning difficult to follow. The Sheriff somewhat glosses over the submissions on the correspondence and reaches the conclusion that there was no consensus in idem.

Thus the parties to the purported agreement are not the same as the parties to the litigation and although I find the reasoning of the sheriff unsatisfactory on this point I cannot say that she has plainly erred

Further, in view of the sheriff’s failure to make any findings on the evidence of Mr Sadler on “spot rates “there is no basis on which I can grant decree for any other lesser sum.

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(All emphases have been added).

As well as kicking the unnamed Sheriff round the Appeal Court, Sheriff Principal Stephen makes a few points about these cases quite clear, if they even needed to be made clear.

As analysed in detail below, the impecunious pursuer can seek to recover the full credit hire cost of a replacement vehicle, subject to certain conditions being met, one of which is that they cannot fund a replacement themselves.

It is for the pursuer in such a claim to aver that they are impecunious. In addition, and this is a point often overlooked in Small Claims and Summary Cause cases, the pleadings still need to give the defender fair notice of the case brought against them. If the pursuer fails to give sufficient specification, they run the risk of essential evidence being ruled inadmissible at proof.

Sheriff Principal Stephen’s useful potted look at Dimond v Lowell is worth the price of admission alone.

There is also a cautionary note for parties to a Summary Cause appeal. Make sure that the draft Stated Case states all the facts which are essential to your case. Be prepared to propose adjustments to get those facts in. Here the Sheriff made no findings about the charge for spot hire and thus a case which might have at least recovered that amount failed, with the additional penalty of the expenses being found in favour of the appellant, with sanction for counsel. It will be an expensive lesson for the pursuer, or the credit hire company backing her.

Finally, the Sheriff Principal rightly draws attention to, and criticises, the length of time for the matter to be disposed of. Over six years have gone by since the accident, and almost four since the case started.

It took seventeen months from the first calling to a decision being reached, and then a further four months for decree to be granted, after dealing with the matter of expenses. That delay was important as no appeal could be marked till decree had passed.

The Sheriff took over seven months, rather than the statutory 28 days, to draft a Stated Case, and then a further seven months passed before the Stated Case was finalised.

As the Sheriff Principal puts it, this is far too long for a Summary action.

Part of the problem though is that, where a judge delays issuing a decision, it is not easy to get them speeded up. The normal, and indeed only, route is to ask the Sheriff Principal to intervene. The feeling generally is that if the Sheriff Principal knocks on a Sheriff’s door and politely asks why an opinion is raking so long, the Sheriff might, even subconsciously, take against the complainer. A good way to gauge which side thinks it has won such a case is to suggest a joint approach to the Sheriff Principal. If the other side is eager to do so, that means they think they have lost!

I know from my experiences over the last year at Hamilton Sheriff Court that the Sheriffs work hard to see that there is progress in civil cases. Sometimes the interests of justice mean that delay can be appropriate, for example where a settlement is to be reached, or where the defender needs to show they can stick to a financial arrangement.

However, at least at Hamilton, very few cases seem to drag on listlessly. The importance of judicial case management has been mentioned in a number of recent cases. Some such case management might have brought this case to a conclusion long before now.

Posted by Paul McConville

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Sheriff Principal Stephen’s decision is summarised at rather greater length below. The Sheriff Principal’s quotes are indented.

This summary cause action relates to a road traffic accident in July 2006. The action relates solely to recovery of damages for repairs to the vehicle and compensation for the loss of use of her car whilst it was being repaired. So far so good and the subject matter entirely straightforward. This type of case arises daily in the sheriff court. The only issue on which evidence was led related to how much the pursuer could recover from the defenders by way of damages for loss of use of her car for a period of some 4 weeks in September /October 2006. The sheriff also heard submissions to the effect that proof was unnecessary as the parties had agreed a division of liability and settlement had already been effected.

The appeal was heard over two days in May and July 2012. Given the straightforward nature of the action it is appropriate to consider why six years have elapsed from the date of the incident.

 The timeline for this summary cause is as follows:

  • The pursuer, Ms Gee, is involved in a road traffic accident on 26 July 2006 when the defenders’ insured’s driver causes his HGV to collide with Ms Gee’s vehicle.
  • Despite the sheriff’s fourth Finding in Fact Ms Gee continues to use her vehicle until she takes it for repair in September 2006. She hires an Audi A6 Avant 2.0 from Accident Exchange on a credit hire basis from 19 September until 16 October 2006 at a total cost of £4,299.18.
  • Prior to litigation a claim is intimated for recovery of Ms Gee’s losses. During the pre-litigation negotiations there is correspondence between the defenders’ representative and Accident Exchange to the effect that matters may be agreed on the basis of a 50 50 settlement following which the defenders and appellants make payments to the respondent totalling £1,706.68.
  • The pursuer and respondent lodges her summons with this court in December 2008 with a first calling in February 2009. After a continuation for negotiations and other sundry procedure a proof is fixed for September 2009. That proof is put off on joint motion and another proof fixed for 9 March 2010 which requires to be discharged due to lack of court time. During this period both parties adjust and amend their statement of claim and answers. The appellants make a call on the respondent to state “whether she had sufficient funds to pay for the cost of hiring a vehicle other than by ‘credit hire’ “. The respondent then amends her summons to state ” The pursuer was impecunious at the start and during the hire period “
  • The proof proceeds on 12 May 2010 when evidence is led. The cause is continued to 18 June 2010 for submissions with a further hearing on 2 July 2010 on expenses. The sheriff delivered an ex tempore decision on 2 July granting decree for the sum of £3, 775.63 which is the sum claimed by Ms Gee.
  • 17 November 2010 the final interlocutor is pronounced following a hearing on expenses.
  • 19 November 2010 appeal lodged.
  • July 2011 draft stated case issued by the sheriff.
  • 20 February 2012 stated case finalised and issued.
  • 9 May 2012. Appeal hearing. Submissions by counsel for appellants. Counsel for respondents seeks leave to withdraw from acting as he considers he is unable to meet the appellants’ submissions and present his arguments having only been recently instructed. Hearing adjourned.
  • 31 July 2012 submissions by the solicitors for the respondent. Avizandum.

The appeal dealt with the issue of the alleged 50-50 agreement and the pursuer’s impecuniosity.

It was the appellants’ position that an exchange of e-mails formed an agreement to settle on a 50/50 basis. The sheriff had erred in taking the view that this was a pre-litigation agreement, observing that there was no consensus in idem between the parties. The correspondence clearly reflected an agreement between the parties to settle and therefore it bound the parties. The sheriff was wrong to treat the evidence in the manner she did.

As far as the credit hire part of the claim went, the appellants submitted that there was no evidence before the sheriff on which she could find the pursuer impecunious. The sheriff ought not to have allowed the evidence of the pursuer (which was objected to). The sheriff ought to have known that by allowing the pursuer’s evidence there would be material prejudice to the defenders and appellants. There was no fair notice of the pursuer’s case that she was impecunious. At an earlier stage the sheriff had refused the appellants’ application to obtain evidence from the pursuer on the unsatisfactory basis that as it was for the pursuer to prove that she had mitigated her loss it was unnecessary to allow the appellants’ specification.

It was argued that proper consideration of the English authorities of Dimond v Lovell [2002] 1 AC and the House of Lords Decision of Lagden v O’Connor [2004] 1 AC did not support the respondent’s position that the onus lay with the defenders. The pursuer had a duty to mitigate loss. These authorities do not deal with the onus of proof and do not suggest that the onus should shift to the contradictor.

In reply the respondent’s agent suggested that both grounds of appeal sought to challenge the sheriff’s view of the evidence. As the sheriff had heard the witnesses, she was entitled to reach the conclusion she did both on the question of the pursuer’s impecuniosity and also the lack of a binding agreement to split liability for the consequences of the accident. It was put to the Sheriff Principal that as an appeal judge she did not have the “privileges, sometimes broad and sometimes subtle, of the judge who heard and tried the case”.

The respondent questioned whether Dimond v Lovell which is an English authority reflected the law in Scotland.

The respondent’s submission was to the effect that the onus was on the defenders to show that the pursuer had acted unreasonably in choosing the credit hire agreement. In any event the sheriff being well aware of the concept of impecuniosity was entitled to accept, as she did, in finding that the “pursuer acted reasonably in using the services of Accident Exchange. The costs incurred by her were reasonable in all the circumstances.” The appeal should be refused and the sheriff’s decision adhered to. 

Sheriff Principal Stephen starts off her decision as follows:-

The history of this case does nothing to allay public concerns that litigation is slow, inefficient and expensive. That is most unfortunate especially as the clue to the procedure which ought to be adopted is in the title – this is a summary cause action and is the type of litigation which ought to be capable of being resolved economically and expeditiously. The parties and the court and particularly the sheriff have contributed to the needless delay in a case which is a simple, straightforward road traffic accident with no personal injury arising. There were, indeed, only two issues before the sheriff and these are the issues which now form the grounds of appeal. Further unnecessary delay and cost has been added during the appeal when counsel for the respondent appeared unprepared to meet the argument advanced by the appellants.

She then analysed the simple and basic legal principles which deal with cases such as these, including a quick tour round the leading authorities:-

A pursuer may recover damages for losses incurred due to the negligence of another driver. It is the duty of the innocent pursuer to mitigate his or her loss. The loss of use of a vehicle damaged due to a road traffic accident is one of the losses which, in appropriate circumstances, may be claimed. That loss may be met by the hire of a replacement car and the cost of that hire will be the measure of damages recoverable for the loss of use.

However the pursuer can only recover what is reasonable – that in mitigation of her loss of use of her own vehicle it was necessary and reasonable to hire another vehicle and that the vehicle hired is equivalent to the damaged vehicle.

As the pursuer can only recover what is reasonable, it is noted that in this case the pursuer seeks to recover expenditure not actually incurred. In a credit hire agreement the hirer is not liable to pay the hire charges until liability has been decided or there has been a court decree. If it was reasonable for the pursuer to hire a replacement vehicle and that hire is on credit hire terms the damages recoverable from the defenders will not necessarily be the amount of the credit hire that the pursuer agrees to pay the credit hire company. The amount recovered will depend upon the financial circumstances of the pursuer. If the pursuer could afford to hire a replacement vehicle in the normal way that is without credit terms and paying the basic hire rate in advance then the amount recoverable for loss of use of the damaged vehicle will be the sum attributable to the basic hire rate of the replacement vehicle.

In the cases of Dimond v Lovell [2002] 1 AC 384 and Lagden v O’Connor [2004] 1 AC 1067 the court discussed the difference between the basic hiring rate and the credit hire rate. The basic hire rate is the rate normally paid by individuals who choose to hire a vehicle by effectively paying in advance. It is often referred to as the “spot hire” rate. The credit hire rate takes account of additional advantages which the credit hire company gives to the hirer, namely, credit; the credit hire company also takes over the handling and pursuing of the claim for damages and of course there must be an element of profit for the credit hire company. These additional elements are not part of the recoverable loss of the hirer.

In Dimond v Lovell [2002] 1 AC 384 the majority of the House of Lords decided that a car owner could not recover more than the “spot rate” quoted by hirers and not the additional benefits the accident hire company provides eg credit and representation. Lagden v O’Connor developed that line of authority and effectively established an exception to the rule laid down in Dimond. 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 then the reasonable additional charges of that company would be recoverable as damages. Thus the court would not be precluded from considering the innocent motorist’s lack of means.

If the pursuer cannot afford to hire a replacement car by paying in advance (described as “impecunious” in the cases referred to) then the pursuer prima facie is entitled to recover the whole of the credit hire rate. The reasoning being that, if the claimant or pursuer is impecunious then if it is reasonable to hire a replacement car he has no choice but to take the credit terms. Whether the pursuer is impecunious depends on the facts and circumstances relating to the pursuer and especially the pursuer’s financial circumstances which, in my view, are correctly described as “facts and circumstances peculiarly within the knowledge of the pursuer“.

Lords Hope and Nicholls give some pointers in Lagden as to what they think may be important. Lord Nicholls at paragraph 9 states:-

“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 context what it signifies is inability to pay car hire charges without making sacrifices the plaintiff could not reasonably be expected to make.”

Lord Hope, along with other judges, in the House of Lords dealt with concern about a flood of small value road traffic claims in the court system on this point and at paragraph 42 states:-

“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 is important to observe that Lagden did not deal with the onus of proving impecuniosity. The point is so obvious that I doubt the House of Lords would have thought onus to be an issue at all.

The impecunious pursuer is, of course, an exception to the general rule and it is for the pursuer who asserts lack of means to put that in issue and to bring evidence to support the assertion. It appears to me that the question is a matter for pleading and evidence and it is for the party placing the issue of impecuniosity before the court to bring evidence in support that averment.

Lagden is certainly not authority for the proposition that the defenders bear the onus of proving the impecuniosity or otherwise of his opponent. It is simply an absurd proposition for the respondent to suggest and indeed for the sheriff to accept that there might have been an onus on the defenders in this respect.

The rule is – where one party makes a negative averment of facts and circumstances which are peculiarly within the knowledge of the other then the other, being the party within whose knowledge it lies, and who asserts the affirmative is the party to prove it. Any burden thus lies on the party asserting the question of impecuniosity which is, of course, the pursuer who wishes to avail herself of the exception to the rule on damages set down in Dimond v Lovell.

It is not difficult to understand the wisdom of that rule. On the contrary, it is virtually impossible for the defender to prove the Pursuer’s financial circumstances. It would require great diligence and disclosure for the defenders to begin to assemble and establish a matrix of the opponent’s means. Frankly, it defies common sense to suggest, in this case, that there is any onus on the defenders in respect of the pursuer’s impecuniosity. It is quite unreasonable and unworkable to expect the Appellants to prove what is, in effect, a negative and that of facts almost exclusively within the Pursuer’s knowledge. It is for these reasons that I decline to answer the question of law 1a . The answer is obvious and ought to have been obvious to the Sheriff. The party who asserts impecuniosity must prove it .Unfortunately, the Sheriff makes no mention in her stated case of her approach to this issue.

In the absence of notice and disclosure by the party asserting the positive averment of impecuniosity, the defenders might hope to avoid an expensive proof and seek information informally first of all and then by specification of documents. The defenders in this case did so but the pursuer opposed the specification and the same sheriff who heard the proof refused the defenders’ motion for a commission and diligence in terms of that specification. I am informed that the motion was refused by the sheriff on a correct view of where any onus lay but an imperfect appreciation of the purpose and scope of a commission and diligence which, amongst other things, is a tool available to either party in an effort to prepare for proof or limit proof and indeed facilitate settlement.

I turn now to the crux of the second ground of appeal. It is the essence of the appellants’ argument that the respondent fails to aver facts to enable her to establish impecuniosity and thereby has failed to lead proper and sufficient evidence on which the sheriff was entitled to make a finding on or relating to the pursuer’s impecuniosity.

Against that background, I turn to look at the second ground of appeal which states:-

“Further, the sheriff has erred in law in holding that it was established in evidence that the pursuer was impecunious. There was insufficient evidence led by the pursuer to entitle the sheriff to make such a finding”

and the relevant parts of the Sheriff’s stated case which are Findings in Fact 5 -8 and the sheriff’s note.

It was necessary and reasonable for the pursuer to require to hire a replacement vehicle. Perhaps Finding in Fact 5 is the sheriff’s finding in this regard, although it appears to be more of a narrative as to how the pursuer got in touch with accident exchange.

Finding 7a and 7b do not appear to me to be findings in fact at all. Finding in Fact 7a is indeed a narrative that the defenders’ witness gave evidence about spot rates which the sheriff says she did not require to consider on the grounds of the pursuer’s impecuniosity. There are no findings in fact on the “spot rates”. 7a may have been suggested or inserted by way of adjustment however this ought to be part of the sheriff’s note and not a finding in fact. The stated case lacks any proper finding on the normal method of quantifying damages ie “spot rates”.

Finding in Fact 7b likewise is not a finding in fact but an inadequate account of the defenders’ objection to the evidence elicited from the pursuer in relation to her financial standing. The sheriff correctly observes that the objection is based on lack of notice in the pleadings; lack of vouching and the impediment faced by the defenders’ due to their specification of documents having been refused by the sheriff. What is totally lacking, however, is any reasoning by the sheriff on the objection and on her decision to repel the objection and allow the evidence. This is of fundamental importance in this proof and therefore in this appeal. It is the de quo of this case. The sheriff’s stated case gives no clue as to how or why she comes to her decision. I cannot ascertain what her view of the arguments might have been. These are important matters especially as the sheriff puts these matters in issue for me in this appeal standing her questions in law. In my view, the appellants are correct in identifying that the specification of the pursuer’s pleadings and the approach taken by the sheriff to the evidence led from the pursuer are the crucial issues for this ground of appeal.

The respondent puts the averment of impecuniosity in issue for proof. She and only she can supply specification of her financial circumstances. Her advisers who refer significantly to the decision of the House of Lords in Lagden v O’Connor are indeed given some pointers by their Lordships as to what factors may be important but still specification is lacking.

The bare assertion of impecuniosity gives no specification of the respondent’s financial circumstances whatsoever and therefore no notice of the material facts which she requires to prove her state of impecuniosity. Standing the importance of these facts they ought to have been averred in support of the general averment on impecuniosity and the failure on the part of the pursuer to aver any facts mean, in my view, that the defenders suffered clear and material prejudice. It has never been and certainly can no longer be suggested that it is suitable for one party to say to the other that the detail will be revealed at proof. This is not only unacceptable but prejudicial. Likewise the sheriff ought to have been alert to the clear prejudice to the defenders and in dealing with the objection ought to have regard to this obvious prejudice. Accordingly, the question posed by the sheriff as question 1B in the stated case should be answered in the negative. She should not have repelled the objection made properly and timeously by the defenders.

Furthermore, it follows that the sheriff … fell into error in accepting that the issue of impecuniosity was proved by the pursuer’s own evidence. No matter how credible or reliable the pursuer may have been the sheriff was not entitled to accept that evidence as sufficient to prove impecuniosity given the lack of vouching and the clear prejudice to the defenders. The sheriff, herself, has fallen into the trap of finding impecuniosity because she believed and accepted the pursuer’s evidence. What the sheriff is in effect saying is the person who asserts impecuniosity is impecunious because she says she is. There were no checks, balances or vouching of her evidence. The relevant findings in fact made by the sheriff indicate, in any event, that the evidence given by the pursuer some four years after the accident was of a vague almost casual nature or at least the drafting of the findings in fact indicate a casual approach to the evidence. Counsel for the appellant in his submission on the sheriff’s stated case showed undisguised restraint as to the terms of the stated case. However, even if I am wrong in determining that the sheriff ought to have upheld the objection to the evidence clearly the evidence which the sheriff had before her, was not of a quality and sufficiency to find that she was impecunious. The sheriff’s own drafting of the stated case indicates that the financial information provided orally was given with the caveat “as far as she could recall“. The sheriff gives no basis for saying “She was emotionally and financially in dire straits” and “would not have been able to pay up front for any alternative transport. She was impecunious.” It is clear from the sheriff’s note that she made the finding based upon the pursuer’s evidence and that alone. The sheriff therefore fell into error by finding that the pursuer was impecunious because the pursuer herself said so. In the absence of vouching this is a flawed approach to the issue of what evidence is required to prove impecuniosity. I will therefore answer the question of law 1 in the negative.

The first ground of appeal is in the following terms:-

“The sheriff erred in law in reaching the decision that the correspondence between parties agreeing a 50/50 split on liability amounted only to an extra judicial admission by the pursuer.”

The sheriff deals with this point in Findings in Fact 10 – 14a. It appears to me that Finding in Fact 10 has some relevance to this issue although it is difficult to know what relevance the quantum aspect may have if the point is truly whether there is an agreement to split liability on a 50/50 basis and whether this agreement is binding.

It appears that the sheriff’s reasoning conflates the issue of the agreement with the question of expenses. The sheriff’s reasoning is not clear but it does appear that she takes the view that this was an extra judicial admission or agreement and that there was no consensus in idem. I confess to finding the sheriff’s reasoning difficult to follow. The Sheriff somewhat glosses over the submissions on the correspondence and reaches the conclusion that there was no consensus in idem. … Although her reasoning is not apparent to me there is indeed a clear difference between an agreement to settle without resort to litigation and whether that has effect once an action has been commenced.

In my view therefore there is a distinction to be drawn between an informal agreement to settle extra judicially and the effect that agreement may have in the event of litigation. It is not a trite point that the parties to any purported agreement are not the same parties that engaged in this litigation. Clearly, it is known from the discussion in the cases on credit hire charges (supra) that one of the benefits for a pursuer is that the credit hire company assumes responsibility for recovery of the charges on behalf of the pursuer. Thus the parties to the purported agreement are not the same as the parties to the litigation and although I find the reasoning of the sheriff unsatisfactory on this point I cannot say that she has plainly erred and I propose to answer the question of law 2 in the affirmative quoad the action before the sheriff.

I will accordingly, allow the appeal, dismiss the action there being no evidence entitling the sheriff to grant decree as claimed by the pursuer. Further, in view of the sheriff’s failure to make any findings on the evidence of Mr Sadler on “spot rates “there is no basis on which I can grant decree for any other lesser sum. Expenses will be awarded to the successful appellants and I also certify the cause as suitable for the employment of junior counsel in respect of the appeal.

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23 Comments

Filed under Civil Law, Damages Claims

23 responses to “Gee v AXA Corporate Solutions – A Critical Case re “Credit Hire”

  1. jim.larkin@hotmail.co.uk

    I gave up after 2 paragraphs!

    What is the point of this…in plain english !?

    Thanks

    • charliedon

      I think the point is covered quite precisely in the heading of the blog “Long Posts about Legal Matters of Interest to Me”. Perhaps you are not interested in such matters. So why are you reading this blog?

      • james larkin

        charlie don.
        maybe you should read my post a second time.

        i asked for it to be spelled out – in PLAIN english.

        i am interested in paulmcc’s random thoughts regarding legal matters…indeed, i wish he would do a feature on employment tribunals, both on individual cases and the general aspect of the government proposals of changing the rules.
        instead of 1 year employment to qualify for an et1 application, it will be 2 years and the claimant will have to pay a deposit [for costs].

    • Thanks Jim for reading.

      Don’t let that one put you off – just showing that I can write about things unrelated to Rangers!

    • Ian

      Judges can be very rude about each other, but when they are, they use a special language. For example, “I confess to finding the sheriff’s reasoning difficult to follow” = “Who gave this moron the job?” 🙂

  2. Pensionerbhoy

    I am leaving this one till after the game, Paul, just in case i need cheering up.

  3. Stuart

    Paul, I am one of those who discovered your blogs while reading up on the Rangers saga and I am sure that there are aspects of this report that have gone over my head, but it is fascinating to discover just how much detail has to be produced in a court case. The time involved in studying the evidence, checking precedents and composing the report must be phenomenal, even in “a case which is a simple, straightforward road traffic accident with no personal injury arising”.

    I can now understand why it is taking so much time for the FTT to produce a verdict and report on the infinitely more complex issue of the Big Tax Case.

  4. Pensionerbhoy

    Just finished reading – your section only. The rest was mind boggling. It simply goes to show how convoluted our legal system is. Perhaps this will help some brethren to have a little more patience regarding the outcome of the infamous tax case et al. Even though did not need cheering up when I started reading three birthdays ago, I was struggling to part my lips by the end. However, this article served two important purposes for me. First it gave even the ‘thickest’ of laymen some insight into the ponderous and slow-moving court system. I had some experience of this in one of my own careers (not through regular appearances in the dock, I hastily add) when providing non-legal support for young offenders. It has now clarified to some extent the possible reasons for many delays and deferments and I now understand a little better why not everything ran smoothly and as expected or intended. Secondly, it categorically confirmed that your ‘interest’ on this site, Paul, is a legal and most definitely not a sporting one. Considering it followed immediately after the Bob Bird/Tommy Sheridan article confirms for me that the description of certain legal issues that might hold a little general interest and an attempt to explain them to the layman are at the heart of your work. Whether those with preconceived perceptions or specific agendas will recognise similar objectives is definitely another matter. As for something more crowd pleasing, Paul, my dear old mother, God bless her innocence, always demanded that, if in a crowd, I always wear neutral colours – I think she was terrified of the funeral costs :). This advice has stood me in good stead in several explosive situations. It has also seen me survive to seventy and provided very convenient anonymity for a Scot living in England for the last fifteen or more years.

  5. k

    Hi Paul, I’m impecunious,any chance of buying me a new car? “Ciceronian skill at oratory” Nice.

  6. Carl31

    Paul,
    For what its worth, I dont think you need concern yourself with illustrating the overall purpose of your blog. I would have no issue with every post of yours being on some aspect of the Rangers Saga mainly for the following reasons:
    1. IMO its the biggest football story of my lifetime and (I hope) wont be repeated until I’m long gone.
    2. Its impact stretches way beyond the relatively insular football ‘arena’.
    3. If you did a few a day, every day, it still would not amount to coverage proportionate to the importance of the story overall in Scotland, considering all the possible avenues of information in the media.
    4. The present travails of Rangers arent simply current events or a story that started in the last year or two years, but instead is a tale stretching back more than a decade, possibly a generation.

    So my advice is (not that you need it) – keep on posting about various aspects of this Rangers story, mainly centred on the legal aspects of it, and continue to make the good job of it that you have been.

    • Pensionerbhoy

      Carl31

      The eloquence of your words encapsulate perfectly the myriad of confused thoughts in my mind. Like you, I firmly believe that the Rangers’ issues are of such gravity and consequence that it would be morally if not criminally negligent for those charged with presenting the facts and the truth to renege from their duties. There are numerous examples around us of those with responsibilities, political, social and legal, that have failed the Scottish people. Every reader on this site knows that the truth has seldom come from anywhere other than the ‘internet bampots’. The Scottish media have been outstandingly negligent. In fact they have been unforgivably irresponsible by distorting much of the facts and information. The Footballing authorities have been cowardly in their procrastinations and accommodations. It has been left to the indomitable and extraordinary efforts of informed layman and the committed professional to provide and promote the truth and to demand the proper actions. This has had to be done mainly through website blogs as the general media sources were and still are rarely if ever made available to them. That is why the Paul McConvilles and others of the internet world are so crucial to the people. The current Rangers saga has emphasised the absolutely desperate need for the world of news and opinion to be withdrawn without more ado from what has been the mainstream sources and transferred to the more open, accountable and responsible world of the computer. Without this site and others we, the common folk, would have been denied access to the goings on at Ibrox, the seriousness of the situation and above all the wholesale destruction it was causing. A host of sites provided excellent proper journalistic and investigative information while Paul, more than most, concentrated almost exclusively on the legal aspects of the case, a temperance that has been most necessary in such an inflammatory environment where imaginations can run riot. Carl, I have rambled where you have been succinct but I do not apologise for my emotions sometimes dictating my approach. All I really meant to say, my friend, is I agree whole heartedly.

  7. Al ross

    Well I now know what impecunious means thank you Paul for a very interesting read. Will you be commenting perchance on Alistair Bonnington’s thoughts at some point?

    • Pensionerbhoy

      Al

      If only I had a penny for all the other things you have learned on here 🙂

      • Al ross

        Including a few that make me despair from time to time about our country and its footballing authorities. That said it engages my brain and makes me think. Paul is to be commended all the way down the line ! If any of the MSM had any cojones they would give him a column.

  8. iain

    Responces on a blog supposedly about Scots law to a piece about the attributes of a football manager who happens to be employed by Rangers: 70

    Responces on a blog supposedly about Scots law actually about Scots law: 18 (including this one).
    And even then they manage to get the subject onto Rangers after a dozen replies!

    Yes Paul…as I said the other day…your target audience is well defined on here!
    🙂

  9. I have a sneaky suspicion that the Sheriff in question may not seek to climb the ladder so to speak.

    The problem we have here, is that many Sheriffs – in my opinion – are not sufficiently competent. However, i will say no more on that matter, for various reasons.

  10. charliedon

    @ james larkin

    Point taken, on reflection I think I perhaps missed the element of humour in your post. I agree that a piece on employment tribunals rules would be interesting. In my experience it’s something of a double edged sword. While I’m all for protecting employees’ rights in these harsh and cynical economic times, I have seen more than one example of cases taken to ETs for purely mischievious reasons which caused some considerable anxiety and grief to many involved for no purpose whatsoever.

  11. Richboy

    Thanks for another very interesting article Paul. I agree with Jim.L to a certain degree, that it was a tough read. However the end result was worth it. Perhaps, for some of us less legaly inclined posters, the “timeline” could be pushed to the start of the article.

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