The road not taken

Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth.

-Robert Frost

Already the year is running fast. So far we have seen and endured pestilence, storm and now war, a hot war with rockets raining down some 6 miles from the Polish border. 2022 is tinged with an air of unreality, and an almost palpable sense of dread.

I for one, refuse to despair.

Each day I take my exercise with my Labrador, breathe clean air in a green space, and count the days to spring. Each one is already lighter, and the dark is receding. The war will not last forever: the last gasp of a dying tyrant and already the reaction has begun. The world will shift on to a new and different path, and be all the better for it.

It is something of a diversion nonetheless from worry, to be able to focus on credit hire litigation as something of a distraction from the real world. Despite the great events now taking place, people keep having accidents in England and Wales, damaging their cars and hiring reasonably priced replacement vehicles on credit terms.

At the same time I read with interest the pronouncements of the Master of the Rolls on blockchain, smart contracts, how the Rolls Building offers a superb forum for litigating the disputes of international business, and ponder how very far removed the typical credit hire claim is from such sweeping vision.

Yet credit hire claims are significant in volume and constitute an industry worth hundreds of millions of pounds. They also contribute from time to time to the substantive law: rightly has it been said that credit hire cases have done for clarification and expansion of contractual principles in the twenty first century, what shipping cases achieved in the nineteenth.

So assuming that we are still litigating credit hire claims at the end of the year, what innovations in legal principle or practice might be achieved, but probably won’t be, for a variety of reasons?

First, I predict there will be no Pre-Action Protocol for credit hire claims. Despite the manful efforts of the insurance industry, seeking to rope together small claims for whiplash and credit hire claims, claims for vehicle damages will be brought disjunctively to small personal injury claims, and subject only to the vague entreaties of the Practice Direction on pre-action conduct.

Secondly, I predict that the case of Kadir v Thompson will continue to endure, when other holy scripts such as the Old Testament, pass into dust and memory: there will be no binding appellate decision on the (mis)application of arguments on misrepresentation before the year’s end.

Thirdly, that old stalwart of Ahgeampong v Allied Manufacturing will still feature in argument, notwithstanding judgment after judgment in the Supreme Court on the principles of illegality which have moved the law on somewhat, since Judge Dean QC’s magnum opus.

Fourthly, I would suggest that the merits of ADR, mediation, arbitration or even early neutral evaluation in credit hire claims, will pass the industry by: there will be no taking up the challenge of settling cases quickly and cheaply, whilst the county court slides into gridlock.

Finally, I anticipate that somewhere, somehow a District Judge will manage to find convincing reasons why a credit hire claim for £35,000 should be allocated to the small claims track, notwithstanding the squeaking of the parties, or the wording of Practice Direction 26, or the deprivation to HMCTS of it’s enhanced court fees, noting blithely that “we see these all the time.”

I could be wrong: in which case, I shall conduct an audit in December 2022, of which of my predictions have/have not come to pass.

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