Case was originally awarded on basis of credit hire rate as TCF’s BHR evidence was not contemporaneous to the date of hire. This was overturned on appeal. The appeal judge stated as follows:

“The heart of [the trial judge’s] reasoning is that evidence of the position at a somewhat later date than that of the hire is irrelevant. With respect, that was a mistake. Very often when one is assessing valuation evidence in all sorts of fields, one has evidence of prices of the same or similar things at different dates and has to make appropriate adjustments. Working with comparables and making adjustments is the daily diet of judges concerned with valuation in all sorts of fields. Clearly evidence of the spot rate a year or so later than the relevant date is likely to throw considerable light on what the spot rate would have been at the time.”

Case was originally awarded based on TCF’s Avis Prestige rate, however, this was appealed on three grounds. Firstly that the district judge had erred in preventing the cross-examination of our rates collator, secondly in terms of locality of the rate used and lastly that any comparable evidence should have adduced evidence of the cost of hiring at nil excess. The appeal judge stated as follows:

‘Insofar as they relate to cross-examination and restrictions imposed thereon, only apply to situations in which cross-examination is available as part of the forensic process. A witness must first be called in chief or tendered for cross-examination. Party A cannot compel party B to call a witness that B does not wish to call simply to provide an advantage to A. The duties imposed by the CPR are to promote the over-riding objective; but they fall short of requiring one side to help out the other once the trial has commenced; that distorts the meaning of cooperation.’ ‘It had been open to the Claimant at all times to adduce a short survey of countervailing spot hire rates in his locality; that he failed to do so cannot be the responsibility of the Defendant.’

‘In an era when the internet is the first resort for anyone researching anything, the concept of locality is immediately enlarged; this is further exemplified by the preparedness of organisations to win commerce by offering delivery and collection services (whether at a cost or at no cost).’

Recorder Smith rejected the final ground of appeal noting that: “’This was precisely the ground of appeal in the County Court case of Lawson v Mullen, for the avoidance of doubt, had I been hearing this case at first instance I would probably have made the same finding.’

Case was originally awarded based on TCF’s Avis Prestige rate, however, this was appealed on three grounds. Firstly that the district judge had erred in preventing the cross-examination of our rates collator, secondly in terms of locality of the rate used and lastly that any comparable evidence should have adduced evidence of the cost of hiring at nil excess. The appeal judge stated as follows:

‘Insofar as they relate to cross-examination and restrictions imposed thereon, only apply to situations in which cross-examination is available as part of the forensic process. A witness must first be called in chief or tendered for cross-examination. Party A cannot compel party B to call a witness that B does not wish to call simply to provide an advantage to A. The duties imposed by the CPR are to promote the over-riding objective; but they fall short of requiring one side to help out the other once the trial has commenced; that distorts the meaning of cooperation.’ ‘It had been open to the Claimant at all times to adduce a short survey of countervailing spot hire rates in his locality; that he failed to do so cannot be the responsibility of the Defendant.’

‘In an era when the internet is the first resort for anyone researching anything, the concept of locality is immediately enlarged; this is further exemplified by the preparedness of organisations to win commerce by offering delivery and collection services (whether at a cost or at no cost).’

Recorder Smith rejected the final ground of appeal noting that: “’This was precisely the ground of appeal in the County Court case of Lawson v Mullen, for the avoidance of doubt, had I been hearing this case at first instance I would probably have made the same finding.’