PI Brief Update

The absence of a valid MOT certificate may defeat a claim for credit hire due to lack of causation, even if it does not defeat the entire claim - Nancy Kelehar, Temple Garden Chambers

28/09/23.Mr Justice Martin Spencer gave judgment in an appeal by the Claimant against the dismissal of the claim for credit hire charges on the basis that a lack of an MOT certificate meant that this part of the claim failed for lack of causation.

Decision at First Instance

The case concerned an accident between the Defendant’s lorry and the Claimant’s parked and unattended Volvo. Both liability and the fact that the Volvo was not driveable after the accident were not in dispute. However, the recoverability of the credit hire charges that were incurred by the Claimant was disputed on the basis that there was no valid MOT certification and the Claimant had no intention to obtain this. 

The Defendant explicitly pleaded in its Defence that the absence of such a certificate and the possible impact on the Claimant’s insurance meant that the claim for hire charges failed in accordance with the doctrine of illegality (ex turpi causa). At trial, the Defendant supplemented this position with a causation argument: that in circumstances were the Claimant’s pre-accident use of the vehicle was illegal, the accident could not be said to have caused any loss of use to be mitigated by hire charges [5]. Therefore, ‘illegality’ was essentially being relied upon by the Defendant in two respects [7].

The judge at first instance followed the decision in Agbalaya v London Ambulance Service (17/02/2022). However, in that case, the claim had also failed on the ground of illegality. In the present case, the judge rejected the ex turpi causa argument weighing up the public policy of ensuring that cars have valid MOT certificates against the fact that tortfeasors should compensate those damaged by their tortious conduct. It was held that it would be disproportionate to deny the claim by reason of not having an MOT certificate [9].

The remaining argument was that the Claimant had no loss of use claim because he did not have a vehicle that he could lawfully use on the roads [10]. The judge found that this was a distinct causation defence that was capable of applying only to the credit hire element of the claim [12]. The judge dismissed this part of the claim on the basis that there was no loss of use by reason of not having a vehicle that he was entitled to use and not having established that he could and would have obtained a valid MOT certificate during the hire period had the accident not occurred.

The Appeal

The issue on appeal was whether the judge’s alternative causation analysis on the MOT issue was, as put by Counsel for the Appellant, “just ex turpi causa wearing a different dress”. It was argued that it was contradictory for the judge to reject the ex turpi causa argument but then go on to dismiss the credit hire claim on “indistinguishable illegality grounds” [13].

On appeal, the judge commented that this was “a difficult issue to resolve” [16]. After careful consideration, it was held that these are two different forms of illegality and therefore the judge at first instance and the court in Agbalaya were correct. Thus, the appeal was dismissed.

The ex turpi causa argument was described as an “extreme defence” which involves consideration of the heinousness of the illegality and thereby proportionality in order for claims not to be entertained in certain specific circumstances where the integrity of the legal system would be diminished [16]. It was decided that, separate to this “all-embracing form of illegality which deprives the Claimant of all claims arising”, there is a “second, more targeted, form of illegality” which can apply to certain parts of the claim and which does not involve considerations of public policy or proportionality [17].

Comment

Therefore, in respect of a claim whose facts involve the lack of a valid MOT, the court can ask itself but for the accident, how long would the car have remained without a valid MOT. Thus, in some cases, the recoverable period may not be wiped out entirely (as it was here), but may be delimited had the Claimant intended to renew the MOT at some point soon. In Mr Justice Spencer’s view, this alternative form of illegality defence is flexible, enabling justice to be done through the well-rehearsed application of the doctrine of causation [17].

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