|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Akhtar v Boland  EWCA Civ 872 (25 June 2014)
Cite as:  EWCA Civ 872
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM MANCHESTER COUNTY COURT
HIS HONOUR JUDGE PLATTS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
SIR STANLEY BURNTON
| PERVEZ AKHTAR
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Andrew Prynne QC and Darren Walsh (instructed by Horwich Farrelly) for the Respondent
Crown Copyright ©
Sir Stanley Burnton:
Hire of Vehicle £5280
Recover charges £300
Storage charges £712.80
Vehicle test appointment £50
Miscellaneous Expenses £50
Accordingly, the prayer was for "Damages for (sic) exceeding £5000 but not exceeding £10,000 (sic)". On this basis, of course, the fast track was appropriate. There was a notice of funding stating that there was a conditional fee agreement.
"2. Hire charges are denied in the sum of £5280. The defendant admits hire charges in the sum of £1860. This figure represents T4 ABI GTA daily rate of £73.81 plus VAT for a period of 21 days. The hire charges remain in dispute in the sum of £3420.
3. Recovery charges are denied in the sum of £300. The defendant admits £150 plus VAT in respect of recovery charges. The defendant avers that no specialist recovery was necessary for the claimant's accident damaged vehicle. The amount in dispute is £120.
4. Storage charges are denied in the sum of £712.80. The defendant admits £486 in respect of storage charges. This represents £15 plus VAT daily charge for a period of 27 days. The amount in dispute is £226.80.
5. The Rochdale Metropolitan Borough Council three monthly vehicle test appointment is denied in the sum of £50. The defendant avers that this head of claim is irrecoverable, pursuant to the case of Clark v Ardingtons at paragraph 155. Further, or in the alternative, the defendant avers that this would have been incurred by the claimant in any event.
6. Miscellaneous expenses are denied in the sum of £50.
7. For the purpose of allocation, the amount in dispute is £3866.80 and falls within the remit of the small claims track."
"9. The defendant is unable to plead precisely through want of knowledge. The claimant is put to strict proof as to:
i. The written terms and conditions of hire by way of production of the original documentation.
ii. The intended date of payment as determined when he signed the agreement.
iii. What representations were made by AM or its agents, as to the terms of payment of the said hire charges. The defendant requires the claimant to attend the hearing for the purposes of cross-examination."
Paragraphs 11 and 12 put the claimant to proof of his impecuniosity justifying his entering into the credit hire agreement. Paragraphs 13, 14, 15, 18, 21 and 22 were as follows:
"13. It is not admitted that the claimant needed to hire a vehicle at all or for the full hire period in question. The claimant is put to strict proof that he took all reasonable steps to mitigate his losses in respect of the hire period.
14. The defendant has no knowledge of whether the claimant could have had use of another vehicle at no charge or a lesser charge during the hire period, or whether the claimant had a reasonable need for a vehicle throughout the entirety of the hire period and in these respects the claimant is put to strict proof.
15. No admissions are made as to the period of hire. The claimant is put to proof regarding how he managed without a vehicle between the accident date on 13 October and the start of the hire period on 20 October. Further, the defendant avers that hire should have ceased 7 days after the date when the cash in lieu settlement was sent to the claimant (3 November), instead of continuing until 29 November.
18. The defendant avers that the rate of hire charged by AM includes a charge for additional services and benefits, which are irrecoverable pursuant to the decision in Dimond v Lovell. The defendant avers that such hire charges as the claimant can recover should be calculated at the equivalent "basic hire" rate. The defendant reserves the right to adduce such "basic hire rate" evidence to support the contention that it would have been reasonably possible to hire an appropriate vehicle at a lower cost.
21. The claimant is put under strict proof as to the nature of his insurance policy and, if comprehensive cover was provided, why the policy was not utilised rather than incurring credit hire charges and additional charges.
22. The claimant has failed to mitigate his loss in that he:
b. Failed to make any reasonable attempt to negotiate with the credit hire company for the hire of a vehicle on less expensive terms than those set out in the credit hire agreement.
"The defendant refers to paragraph 7 of the defence and avers that the amount in dispute is £3,866.50. The issues in dispute are not complex and therefore the claim falls within the remit of the small claims track."
"The judge was wrong in his interpretation of CPR Part 26 in relation to the allocation of the claim, in particular that a "partial admission" of a distinct head of claim constitutes a reduction in the amount of the dispute. Further, or alternatively, the judge erred to the appropriate extent in the exercise of his discretion in relation to the allocation of the claim by considering relevant such "partial admission". We have attached a skeleton argument in support of our appeal."
In section 6 of his notice, in which the appellant states what he is asking the appeal court to do, the claimant's solicitors left unticked the box against "set aside the order which I am appealing" and ticked the box against "vary the order which I am appealing and substitute the following order". The order sought was stated to be "Allocate the claimant's claim to the Fast Track". No mention was made of the judgment and there was no application to set it aside.
"14. Dealing with the issue of whether or not the defence constitutes an admission, the submission is that in reality what is put forward is an offer, not an admission. I reject that argument. It seems to me that it is clear on the face of the wording of the defence that it is an admission: paragraphs 2 and 3 of the defence could not be clearer and the matter is made abundantly clear at paragraph 7 when it is said that the amount in dispute is limited as a result of those admissions. Mr Dawes relies heavily on the later paragraphs, paragraphs 13, 14, 15 and 21, to which I have made reference, and argues that as a result of those paragraphs when taken with the earlier paragraphs the defence is incoherent or inconsistent. I do not accept that either of those is the case.
15. The admissions were sufficient for the learned District Judge to enter judgment on them, a matter which he could not have done if he properly felt that they were not admissions but rather were offers. In my judgment the later paragraphs would not allow the defendant to go behind the admissions which had been made earlier in the defence; as Mr Taylor submitted they would be relevant to any argument that the defendant wanted to raise as to the balance which was still being pursued by the claimant but I cannot see that the defendant would be permitted to argue that it could defeat the claim for credit hire or storage charges in the light of paragraphs 2 and 3 of the defence. It is also right, in those circumstances, as Mr Taylor submits, that in reality the claimant could do no worse in this litigation than as admitted in paragraphs 2 and 3 of the defence whereas if these were, in reality, offers then he could do worse. That does not arise in this case. Therefore I reject the argument that the learned District Judge was wrong to treat these as admissions; he was clearly entitled to do so and in my judgment was bound to do so, given the way the matter was pleaded."
Accordingly, he dismissed the claimant's appeal. He ordered the claimant to pay the defendant's costs of the appeal, which he summarily assessed in the sum of £2738.94.
The substantive appeal against the small claims track allocation
The parties' contentions
(1) In considering whether to allocate a claim to the normal track for that claim under rule 26.6, the court will have regard to the matters mentioned in rule 26.8(1).
Matters relevant to allocation to a track
(1) When deciding the track for a claim, the matters to which the court shall have regard include –
(a) the financial value, if any, of the claim;
(c) the likely complexity of the facts, law or evidence.
(2) It is for the court to assess the financial value of a claim and in doing so it will disregard –
(a) any amount not in dispute;
"7.2 The object of this paragraph is to explain what will be the court's general approach to some of the matters set out in rule 26.8.
'The financial value of the claim'
(1) Rule 26.8(2) provides that it is for the court to assess the financial value of a claim.
(2) Where the court believes that the amount the claimant is seeking exceeds what he may reasonably be expected to recover it may make an order under rule 26.5(3) directing the claimant to justify the amount.
'any amount not in dispute'
7.4 In deciding, for the purposes of rule 26.8(2), whether an amount is in dispute the court will apply the following general principles:
(1) Any amount for which the defendant does not admit liability is in dispute,
(2) Any sum in respect of an item forming part of the claim for which judgment has been entered (for example a summary judgment) is not in dispute,
(3) Any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute,
(4) Any sum offered by the defendant which has been accepted by the claimant in satisfaction of any item which forms a distinct part of the claim is not in dispute.
It follows from these provisions that if, in relation to a claim the value of which is above the small claims track limit of £10,000, the defendant makes, before allocation, an admission that reduces the amount in dispute to a figure below £10,000 (see CPR Part 14), the normal track for the claim will be the small claims track. As to recovery of pre-allocation costs, the claimant can, before allocation, apply for judgment with costs on the amount of the claim that has been admitted (see CPR rule 14.3 but see also paragraph 7.1(3) of Practice Direction 46 under which the court has a discretion to allow pre-allocation costs)."
The costs appeal
"(1) Part 27 (Small claims) and Part 46 (Fast track trial costs) contain special rules about –
(a) liability for costs;
(2) Once a claim has been allocated to a particular track, those special rules shall apply to the period before, as well as after, allocation, except where the court or a practice direction provides otherwise."
(1) Before a claim is allocated to one of those tracts the court is not restricted by any of the special rules that apply to that track.
(2) Where a claim has been allocated to one of those tracks, the special rules which relate to that track will apply to work done before as well as after allocation save to the extent (if any) that an order for costs in respect of that work was made before allocation.
(3) (i) This paragraph applies where a claim, issued for a sum in excess of the normal financial scope of the small claims track, is allocated to that track only because an admission of part of the claim by the defendant reduces the amount in dispute to a sum within the normal scope of that track.
(See also paragraph 7.4 of the Practice Direction 26)
(iv) On entering judgment for the admitted part before allocation of the balance of the claim the court may allow costs in respect of proceedings down to that date."
Lord Justice Floyd:
Lady Justice Gloster