The uses of adversity

So Trinity Term draws to an end and the Long Vacation beckons.

A very long one for me, as I shall be gone for most of the next two months. This time last year, I was contemplating surgery, and then had two months off work recuperating from my wounds: being deprived in consequence of a summer holiday, I have determined to make up for it with an extended break in consequence, this year.

I have undertaken relatively few trials in the last term: not because there has been any shortage of credit hire claims going to trial, but because I have been diverted into another area of aligned work, namely the current vogue for applications for non party costs orders against credit hire organisations. 

One of the pleasures of growing old, is that if you live long enough, you get to see the same old points coming around again, touched up and given a lick of paint, by a new generation of lawyers.

Thus many of the arguments currently being rehearsed had some traction 15 or 20 years ago, but are now being deployed in a world subject to QOCS, and where the balance of authority has moved on.

Almost all the applications I have dealt with in the last three months have turned on whether the “real party” test is satisfied as far as the credit hire company is concerned, reducing the actual claimant to a mere nominal party or cipher, and the application of the test of “but for” causation, as to whether the costs in the action, would have been incurred anyway by the claimant’s conduct, rather than the credit hire organisations.

At the moment, the Circuit judges seem to be finding against the insurance companies and in favour of the credit hire organisations as demonstrated in the cases of Onhire Limited v Smithson, Shahzad v Royal Sun Alliance plc and Da Silva v Rahmoune and Direct Accident Management Limited decided over the last year.

So, I wish you all a splendid summer.

This blog will return in the autumn, as will I.


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