Bent v Highways and Utilities Construction Ltd & Anor

In February 2007 Mr Darren Bent, the well-known footballer, had an accident in his Mercedes V12 6.3, £72,000 sports car. The first defendants’ driver was at fault. Both defendants (the second defendants are the first defendants’ insurers) accepted liability for the accident. Although Mr Bent had another car, a 4x4, left-hand drive Cadillac, the Judge below, HHJ Yelton, accepted Mr Bent’s reason for not wanting to use it. There is no appeal about that.

So the defendants accept that Mr Bent was in need of a replacement car whilst his car was being mended. They also accept that he was entitled to hire a broadly equivalent car to his own, damaged, Mercedes and that they will have to pay appropriate hire charges. They also now accept that the period of hire, albeit a lengthy period of 94 days, cannot be challenged as unreasonable in the circumstances which included what the Judge called “a considerable delay” during which liability was not admitted.

What the defendants do not accept is that they have to pay the full hire charges for what Mr Bent actually hired. It was an Aston Martin DB9 worth about £105,000 provided by a so-called credit hire company called Accident Exchange Ltd. The total hire costs are £63,406.90 – nearly as much as Mr Bent’s own car was worth.

The defendants say this was too much for two reasons. First that the provided car was more expensive (and so likely to be more costly to hire) than Mr Bent’s own car. And second that in any event Mr Bent, pursuant to his duty to mitigate, ought to have hired from the “spot” market which would have been cheaper by someone paying there and then rather than on credit.

The Judge rejected both points. They are interrelated to some extent in that what amounts to an equivalent car in this rather up market world of expensive sports cars can affect the hire rates which were available at the time.

The authorities establish that in the case of “pecunious” (as the Judge described Mr Bent) claimants, the damages to be awarded are normally to be assessed at “spot hire” rates – the rate at which a broadly similar car could be had on the market.

But the Judge did not attempt to assess the “spot hire” rate for a broadly similar car in January 2007. His reasons were terse:

14.

The difficulty in this case is that, as I have remarked several times in the course of the evidence, we are dealing here with a very specialised market. We are not talking about Ford Escorts or even Volkswagen Golfs, or even Jaguar XK Coupes, as was the case in one of the other authorities cited to me. We are dealing here with top-of-the-range powerful sports cars, of which there are very few no doubt in the country and very few available at any one time.

15.

I do not accept the submission made on behalf of the defendants that there is proper evidence before me as to what the spot rate was at the material time in February 2007. There is evidence of what the rate would be at 2009, and various different cars are available at various different prices. If Mr Bent had carried out some negotiations, as he said he would have done if he had known he had to pay for it himself, it may be that he could have found something cheaper on the spot hire market, but he did not, and there is no evidence as to what he would have paid. The inflation table does not seem to help me at all because it deals with cars up to £40,000 only. I repeat also that this claimant was at the material time only 23 years of age and therefore not somebody who would be in the general run of hirers, even apart from the fact that he wanted to hire a very expensive and a very powerful motor car.

16.

… But in this case, although the defendant has provided a considerable amount of evidence, none of it, it seems to me, deals with the real issue, which is: what was the cost of hiring a Mercedes or Mr Bent’s type or an Aston Martin of the type he hired on a daily rate, because nobody knew it was going to last for 94 days, as at February 2007. In the absence of that evidence, it does not seem to me that I can speculate. So it follows that the claimant succeeds.”

Although it is not entirely clear, the Judge appears to have accepted that he did have evidence of spot rates for equivalent cars for 2009 (actually he erred here – it was for 2008). The heart of his reasoning is that evidence of the position at a somewhat later date than that of the hire is irrelevant.

With respect, that was a mistake. Very often when one is assessing valuation evidence in all sorts of fields, one has evidence of prices of the same or similar things at different dates and has to make appropriate adjustments. Working with comparables and making adjustments is the daily diet of judges concerned with valuation in all sorts of fields. Clearly evidence of the spot rate a year or so later than the relevant date is likely to throw considerable light on what the spot rate would have been at the time.

I would add further that one must not be hypnotised by any supposed need to find an exact spot rate for an almost exactly comparable car. Normally, the replacement need be no more than in the same broad range of quality and nature as the damaged car. There may be a bracket of spot rates for cars rather “better” and rather “worse”. A Judge who considered that bracket and aimed for some sort of reasonable average would not be going wrong.

The parties were agreed that if we concluded the Judge had erred about spot rate, then the case would have to be remitted for a retrial about that. The parties were also agreed as to the scope of any retrial save as to one aspect – a suggestion that Mr Bent may have had available to him a Bentley motor car which, pursuant to his duty to mitigate, he could have used. We indicated that our provisional view is that this should be omitted as an issue at the retrial because it had not formed part of the original trial. Mr Mark Turner QC for the appellants sensibly did not press the point.

I add this. It was accepted that it will be open to both sides to adduce what evidence they choose about spot rates and equivalent rates at the retrial. That will allow the respondents to adduce evidence attacking the defendants’ “spot rate” evidence. That they originally proposed to do in this court by way of an application to adduce fresh evidence. We did not have to rule on that. So I say nothing about it.

It is for those reasons (with which the other members of the court were in broad agreement) that we indicated at the hearing that the appeal would be allowed and a retrial ordered.

I agree.

I also agree.