On 20th December 2019 I attended before HH Judge Freedman in the County Court at Newcastle upon Tyne to argue an appeal on the issue of “betterment” instructed by the very competent and very pleasant Mr Liam Davidson of Winns Solicitors. The decision is (as far as I know) the only decision of a Circuit Judge on the point, and also has some interesting comments on the viability of an illegality defence in credit hire claims. The judgment can be downloaded here: Jack -v- Borys (2019).
There are still a few places left on the Credit Hire for Claimants Conference in Manchester on 2nd April 2020, so if you’d like to attend please drop me a line on andrewhogan@ropewalk.co.uk
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Whilst having no MOT does not constitute a serious illegal act, it’s still a breach of law. Moving Ex Turpi Causa to one side, is there not an argument over entitlement to recover where said breach of law has a causal link to the loss incurred? IE – Given the vehicle was not tested, it should never have been on the public road to be involved in a collision in the first place. There’s clearly a link between the illegal act and the eventual loss.
Would you expect a judge to take a similar view if the claimant’s vehicle wasn’t taxed? I would suggest that a lack of road tax is more serious breach of the law and has an even more direct link to the vehicle’s entitlement to be on the road. A vehicle should either be SORNd or Taxed, there is no grey area in between. If it is not taxed then it should be off the public highway and not exposed to RTAs.
No, because following that logic to its conclusion an illegally parked vehicle destroyed by a tortfeasor would not have been damaged at all, had a crime not been committed. The approach at common law to causation is much more focused: Lord Hoffmann put the matter beautifully in the Banque Bruxelles case (I think). In any event not all conduct engages ex turpi. Think about it: every road traffic accident claim, involves one or both drivers committing an offence of driving without due care. Yet the claims continue. Outlawry is not a concept recognised in this jurisdiction.
The mountaineer and the doctor was a great example by Lord Hoffman.