Boulevard of Broken Dreams

I walk a lonely road
The only one that I have ever known
Don’t know where it goes
But it’s home to me, and I walk alone

-Boulevard of Broken Dreams, Green Day

I fear I have been neglecting you recently. 

There have been relatively few articles on this blog, this year, really because I have been so busy with the day job, that finding a quiet moment to write, has proved elusive. It is not because there is a shortage of things to say about credit hire. There have been interesting developments in the law relating to misrepresentation and illegality, which warrant some further articles.

But for now, let me turn to the vexed issue of applications for non party costs orders.

I think I have been arguing non party costs orders, for and against credit hire organisations for more than 15 years now, though latterly all my instructions seem to be to defend such applications. In the majestic surroundings of the Croydon County Court, last week, yet another application brought by an insurance company crashed and burned, on the basis of a misreading of the terms and conditions of the credit hire agreement and on the issue of causation, which was a point which has assumed greater importance since a decision of the Supreme Court a couple of years ago.

Nonetheless, well argued and thoroughly considered judgments at County Court level on applications for non party costs orders are relatively rare: most such applications are commonly dealt with by the District Bench, and only occasionally is the Circuit Bench invited to roll up its sleeves, and consider the law and how it applies to the grubby business of credit hire.

Thus it is of some interest to read the recent decision of HHJ Freedman in the case of On-Hire Limited v Smithson (Handed Down 20 May 2022) The case is a good illustration of the two key principles at play in such cases, namely the difficulty in proving that a credit hire company is a “real party” to the litigation, as merely being a credit hire company with a shared commercial interest in the proceeds, is not, without more enough, and how causation is to be considered as “but for” causation, by looking to see whether any conduct by the credit hire company, can be said to have caused the incurrence of costs.


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