This law report has been contributed by national law firm Berrymans Lace Mawer.
Sayce v TNT (UK) (Court of Appeal — 19 December 2011)
Queen's Bench Division, 19 December 2011
The claimant pursued a claim for car hire following an accident with the defendant’s employee. Prior to hiring the claimant was offered a replacement vehicle by the defendant, but chose not to accept it.
At first instance the judge found that the rejection of the offer was a failure to mitigate and awarded no damages, as acceptance of the offer would have negated any loss. The claimant appealed.
Previously, the Court of Appeal had heard Copley v Lawn. Copley indicated that if the claimant unreasonably refuses an offer of a car from a third party, they can still recover the cost of the provision of that car as damages. Despite this, HHJ Harris QC upheld the appeal. He considered that the judge’s finding of failure to mitigate was one which she was entitled to reach and he would not interfere with it. Furthermore, he upheld the award of no damages stating he was not bound by Copley and preferred other House of Lords’ decisions.
The decision not to follow Copley was reached despite neither party making submissions on the same point. This was a procedural irregularity sufficient for the appeal to be granted.
The finding in Copley as to the recoverable sum is not part of the ratio of the judgment. Nevertheless where a court is not bound by the decision of a higher court they ought to follow it even if they do not agree with it when the decision was given to provide clarity.
The court had some difficulty with the Copley judgment and therefore permission to appeal might have been considered. However, it would not be granted as it was conceded by all parties that an appeal had to succeed due to the procedural irregularities and because permission was recently refused in Copley, where all relevant arguments were aired in the appeal notice.
The Court is very critical of HHJ Harris’s decision and appears to revert back to Copley. However, the judgment does give an indication that issue of the recoverable sum may still be suitable for the Supreme Court.
Sarah Cartlidge, BLM Birmingham
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