Majid Ali v HSF Logistics Polska SP Zoo

A loss-of-use claim is founded on inconvenience caused by the tort and a proven need for convenient transport. A claimant may quantify that loss by reasonable replacement hire, subject to mitigation.

The absence of a valid MOT does not mean that no loss was caused when the tort deprives the claimant of the vehicle. A proposed causation defence based on the claimant’s inability lawfully to use the vehicle is in substance an illegality argument and cannot avoid proportionality. Minor MOT non-compliance, without evidence that the vehicle was unroadworthy, did not justify refusing the hire charges. The court left open whether illegality might affect quantum in a properly raised case.

A lorry negligently collided with the claimant’s parked Volvo. The vehicle was undriveable for 36 days. The claimant had used it for work and personal purposes, had no reasonable alternative vehicle, and hired a replacement on credit-hire terms.

The Recorder found the hire reasonable but rejected the hire-charge claim because the Volvo’s MOT had expired, while allowing recovery of repair and recovery costs. Martin Spencer J upheld that decision on first appeal: [2023] EWHC 2159 (KB). The Court of Appeal considered whether the expired MOT meant that the claimant suffered no compensable loss of use, or whether the defendant’s argument was an illegality defence in another form.

Lord Justice Stuart-Smith gave the leading judgment, with which Lady Justice Nicola Davies and Lady Justice Macur agreed. The appeal was allowed.

1. A loss-of-use claim is founded on the inconvenience caused by deprivation of convenient transport. The claimant must prove a justifiable need for replacement transport. Mere ownership of a damaged vehicle is insufficient. The absence of a valid MOT did not remove the deprivation or the resulting inconvenience.
2. Replacement hire is a mitigation measure. Applying the questions identified in Pattni v First Leicester Buses Ltd [2011] EWCA Civ 1384, the claimant needed a replacement, the vehicle and rate were reasonable, he was not impecunious, and the defendant had not proved a difference between the credit-hire rate and the basic hire rate. The hire charges were therefore recoverable.
3. The Court applied the structured approach in Patel v Mirza [2016] UKSC 42. The purpose of the MOT requirement, other relevant public policies, proportionality, and the proper division between criminal and civil responsibility had to be considered. Under the Road Traffic Act 1988, the MOT offence carried a maximum fine of £1,000. Denying more than £21,000 in hire charges would have been disproportionate, particularly since there was no evidence that the car was unroadworthy.
4. The proposed causation defence was misconceived. It did not show absence of loss; it asserted that damages should be refused because the claimant’s use of the original vehicle might have involved a criminal offence. That was ex turpi causa by another name, but without the doctrine’s essential proportionality requirement. Hewison v Meridian Shipping Services PTE Ltd [2002] EWCA Civ 1821 confirmed that illegality may affect the whole action, a head of damage, or part of a head, rather than operating as an automatic all-or-nothing bar.
5. The Court left open whether the absence of an MOT could affect the quantum of damages by reference to the risk of prosecution, fine or disqualification. That issue had not been pleaded or argued. The claimant was entitled to recover the hire charges in full.

• Court of Appeal (Civil Division) allowed the claimant’s appeal and held that the hire charges were recoverable.
• High Court, King’s Bench Division Martin Spencer J upheld the Recorder’s rejection of the hire-charge claim on first appeal: [2023] EWHC 2159 (KB).
• County Court the Recorder allowed the repair and recovery claims but rejected the claim for credit-hire charges because the vehicle had no valid MOT.