Impecunious drivers' duty to mitigate
6 December 2010
SMITH v. KRG TRANSPORT (Winchester CC, 06.12.10)
Nigel Wilkinson QC and Anthony Johnson represented the Defendant in this matter which arose from a road accident following which the Claimant had hired a credit hire vehicle for 285 days. Although the claim had originally been presented on the basis that the Claimant had been waiting to be placed in funds to replace his vehicle, at the Fast-Track trial of the matter it became clear that this had never actually occurred. Nevertheless, the District Judge allowed both the hire claim and a recovery and storage claim in full, finding as a fact that he had acted reasonably. The Defendant (represented by Anthony Johnson) successfully appealed to the Circuit Judge, who overturned the District Judge's decision on the basis that the Claimant had been under a 'duty' to act economically in mitigation of his loss. The Claimant launched a second appeal which, amongst other arguments, sought to establish a principle that an impecunious claimant does not have to mitigate their loss in the same manner that a 'pecunious' claimant does. After hearing oral and written submissions from Leading Counsel on both sides, Holroyd J. reached the conclusion that he did not have jurisdiction to determine a second appeal from a contested trial. The Defendant now awaits confirmation whether or not the Claimant intends to renew its appeal in front of the Court of Appeal.