THE IMPACT OF FAILURE TO MITIGATE DAMAGES ON A CLAIM FOR COSTS: CLAIMANT’S COSTS CONFINED TO SMALL CLAIMS TRACK
I am grateful to Simon Fisher, Costs Lawyer at DWF Costs Ltd, for sending me a copy of the decision of District Judge Matthews in Messenger -v- Zenith Insurance (3rd July 2019). A copy of the transcript is available here. Alan Messenger – Slough CC – Judgment – 20190703 – V FINAL
The claimant brought a claim for credit hire costs following an accident. His claim for personal injury had been dealt with separately.
THE DAMAGE TO THE CLAIMANT’S VEHICLE
The damage could have been repaired by replacing a lamp at a cost of £230 (excluding VAT) plus a figure (possibly £300) in relation to storage charges.
The claimant hired a vehicle for 337 days. He argued that he could not afford the repair costs and hired the car for some 11 months.
The claimant accepted the defendant’s offer to settle in relation to the hire claim, which had been pleaded in excess of £40,000. The consent order provided that the defendant would pay the claimant’s reasonable costs of the action on the standard basis. The order also stated “neither party is prevented from raising any issues relating to conduct, if relevant, in the detailed assessment proceedings.”
The question the judge had to decide was whether the claimant had failed to mitigate his loss and, if so, whether this was relevant conduct and the effect of that conduct on the costs order.
FAILURE TO MITIGATE LOSS
The District Judge made a clear finding that the claimant had failed to take reasonable steps to mitigate his loss.