Bee v Jenson

A defence may be struck out where it discloses no reasonable grounds in law or advances a case which cannot succeed on the pleaded facts. A motor insurance policy may require an insured who invokes its replacement-vehicle benefit to accept the insurer’s choice of hire company, vehicle type and hire period. In assessing mitigation, the court must identify the choices actually available to the claimant. A claimant is not fixed with knowledge of an alleged free replacement vehicle where no offer was communicated to him, and a general proposal to an intermediary may not amount to an offer to the claimant. It is insufficient to plead that the claimant could have accepted a free vehicle when the factual basis for that choice is absent.

The claimant’s vehicle was rendered undriveable in a road traffic accident for which the defendant admitted sole liability. The claimant held a motor policy under which DAS was to pay vehicle-hire costs, subject to the claimant accepting DAS’s choice of hire company, vehicle and hire period. DAS arranged a replacement vehicle through Helphire and paid the hire charges.

The defendant pleaded that the claimant had failed to mitigate his loss. It was alleged that DAS acted as the claimant’s agent, that its knowledge of an RSA proposal for free replacement vehicles was attributable to the claimant, and that the claimant should have used that scheme instead of the insured-hire arrangement. The claimant applied for summary judgment and/or strike-out of paragraphs 8 to 12 of the reamended Defence.

1. Application granted. Paragraphs 9 to 12 of the reamended Defence were struck out under CPR 3.4.
2. The policy required the insured, where DAS agreed to pay vehicle-hire costs, to accept DAS’s choice of vehicle hire company, vehicle type and hire period. The pleaded case that the claimant had a choice between the DAS arrangement and an alternative supplier was therefore inconsistent with the contractual terms.
3. The pleading that the claimant could have accepted a free car from RSA was inaccurate, misleading and embarrassing. It was common ground that RSA had not contacted the claimant and that DAS had not informed him of the alleged offer.
4. The claimant had no imputed knowledge of RSA’s letter of 8 July 2003. On the agreed facts, the letter had not been communicated to him and the circumstances did not justify attributing DAS’s knowledge to him.
5. In any event, the letter did not contain an offer of a free car to the claimant. It was a general proposal to DAS, subject to further conditions and investigation. No specific vehicle, type or period of hire had been offered to the claimant.
6. The pleaded comparison was therefore legally defective. The claimant’s actual choice was between exercising his contractual rights under the policy and hiring a vehicle on the open market at his own expense. The mitigation defence based on acceptance of the RSA scheme disclosed no reasonable grounds and was struck out.

First-instance decision. No appellate history is stated in the judgment.