Impecuniosity/duty to mitigate - when applied if other party fails to respond

rufusindigo

Hello, Please can someone help with this? In April 2013 I had an accident on Islington Council property. The estimate for repairs exceeded the cost of the car. I sent this to them immediately and continued to chase but was told wrongly another party was responsible. They finally admitted liability 18 months later. By then I had scrapped the car. At the time of the accident I had 5k in my a/c as I had just finished a job, but this was earmarked for bills as I returned to low paid freelance work. By the time they admitted liability I had spent this money on mortgage - indeed one payment had bounced and I had almost nothing in my account, so....1. Does the fact they failed to respond to the repairs estimate, in fact telling me wrongly it was someone else's fault mean that I have discharged my duty to mitigate? 2. When is impecuniosity calculated from - day of the accident or date they admitted liability?. Any help very gratefully received:A Thank you

dacouch

Please read OP's previous posts for the background details

forgotmyname

You had £5k in your account but couldnt fix a car that needed £1k of repairs?

You spent it on your mortgage after the fact, but had the funds accumulated over time you claim you didnt have the funds to repair the car?

OnanTheBarbarian

I haven't searched back for your previous posts, although I can remember commenting on them in the past.

Remind me, how much was the value of your car set at?

Did the absence of a vehicle then limit your earnings? If it did, you may get bashed for not mitigating the losses and spending some of your savings to mitigate other losses arising.

As I recall, your main ongoing dispute surrounds the loss of use claim yes?

The circumstances of mitigation with your case and any issues of impecuniosity can largely be reflected with what goes on in the credit hire world.

The most applicable case I can think of is W -vs- Veolia Services where the claimant had a Bentley worth around £16k, he hired a replacement Bentley on a credit hire basis for 135 days and the credit hire charges came to over £130k!!! So his financial situation was looked at in order to determine if the credit hire rate of over £700 per day could be claimed, or if his financial situation suggested that he could have afforded hire (i.e. not impecunious) and therefore the daily rate recoverable would have been a "spot hire" rate - i.e. what you would pay as a private punter.

Although the claimant had a Bentley and had £50k in savings, upon examining his overall financial situation, the court found that W was impecunious.

So look at paragraph 7 in the judgment in this link

http://www.bailii.org/ew/cases/EWHC/QB/2011/2020.html

Essentially, as you seem to be able to argue that although you had £5k in the bank, that was needed for costs of living and supporting yourself and your business/ work and that it would cause you "exceptional hardship" if you had to plough into these reserves to replace the vehicle, leaving you with little in the way of any safety net or the ability to meet future financial obligations.

Without knowing every sinew of your case and circumstances, it is difficult to be absolutely certain with "advice" for you, but on balance, I would say you still have a reasonable run at them for the lengthy loss of use claim.

let us know how you get on

OnanTheBarbarian

Also look at the comments in para 58 of the judgment

rufusindigo

forgotmyname wrote: »

You had £5k in your account but couldnt fix a car that needed £1k of repairs?

You spent it on your mortgage after the fact, but had the funds accumulated over time you claim you didnt have the funds to repair the car?

Yes, sorry for late reply. I have now been to court and the judge found in my favour. Although I had 5k I had previously been without work for 5 years prior to a short 3 month contract (hence the 5k). After this contract I became self employed freelance but was on a very low, and not guaranteed income. Therefore that 5k had to last indefinitely and was gone within 6 months of the accident. AS the other party didn't admit liability until 17 months after the accident I won the dispute.:)

rufusindigo

OnanTheBarbarian wrote: »

I haven't searched back for your previous posts, although I can remember commenting on them in the past.

Remind me, how much was the value of your car set at?

Did the absence of a vehicle then limit your earnings? If it did, you may get bashed for not mitigating the losses and spending some of your savings to mitigate other losses arising.

As I recall, your main ongoing dispute surrounds the loss of use claim yes?

The circumstances of mitigation with your case and any issues of impecuniosity can largely be reflected with what goes on in the credit hire world.

The most applicable case I can think of is W -vs- Veolia Services where the claimant had a Bentley worth around £16k, he hired a replacement Bentley on a credit hire basis for 135 days and the credit hire charges came to over £130k!!! So his financial situation was looked at in order to determine if the credit hire rate of over £700 per day could be claimed, or if his financial situation suggested that he could have afforded hire (i.e. not impecunious) and therefore the daily rate recoverable would have been a "spot hire" rate - i.e. what you would pay as a private punter.

Although the claimant had a Bentley and had £50k in savings, upon examining his overall financial situation, the court found that W was impecunious.

So look at paragraph 7 in the judgment in this link

http://www.bailii.org/ew/cases/EWHC/QB/2011/2020.html

Essentially, as you seem to be able to argue that although you had £5k in the bank, that was needed for costs of living and supporting yourself and your business/ work and that it would cause you "exceptional hardship" if you had to plough into these reserves to replace the vehicle, leaving you with little in the way of any safety net or the ability to meet future financial obligations.

Without knowing every sinew of your case and circumstances, it is difficult to be absolutely certain with "advice" for you, but on balance, I would say you still have a reasonable run at them for the lengthy loss of use claim.

let us know how you get on

Thank you so much for your help :Tand sorry for the late reply (I was away for xmas and then caught up with preparing for court). I was in court on Monday. I followed your advice re: steering away from linking the loss of my vehicle with loss of earnings and so lowered my claim slightly, but the judge found in my favour and I won over £7,000:j The value of the car was established at £500 The other party tried to argue that I was asking for too high a rate over too long a period. I argued that the length of period was due to their delays (they told me 3 times in writing that someone else was responsible) and didn't admit liability until 10 months after the car was scrapped and 17 months after the accident. The judge accepted that and also accepted my plea of impecuniosity even though I had 5k in my a/c at the time of the accident - the other party had made a load of assumptions based on this figure. In fact, I had been out of work for 5 years before taking a 3 month temp contract (which gave me the 5k) at the end of that contract I became self employed freelance and as a single parent with sole responsibility for the mortgage that 5k had to last indefinitely and was gone within 6 months. I also gave evidence to show I had been actively looking for work during this period. The judge accepted my argument that this was not disposable income. I also had no credit cards or overdraft facility and 5k of debts. The period of compensation was very slightly shortened because the judge said I should have taken them to court sooner, but I won the bulk of the claim. I did use the legal references that you directed me to - in particular Umerji Zurich to argue (successfully) that it was reasonable for me not to scrap the car straight away as I was waiting for a response from them to my engineer's report (which they never gave me). Thanks so much again for the help! I hope this helps anyone else who might find themselves in the same situation :T

OnanTheBarbarian

Good day's hunting - well done!