No MOT in Credit Hire and Causation

In credit hire cases, it is not an entirely an uncommon situation for a claimant not to have a valid MOT for the vehicle which is involved in the road traffic accident.

To be clear this article is not dealing with “ex turpi causa non oritur actio” which translates into English as “no cause of action arises from illegal or flagrantly immoral acts”. This is a topic which I dealt with in my earlier article “Credit Hire and Illegality”. To assist the reader however in understanding how causation operates, I will however highlight some differences between causation and illegality. This article should be read in conjunction with my earlier article on “Credit Hire and Illegality”.

This article is dealing with the effect that no MOT has on a credit hire claim. Specifically, it is dealing with causation.

I will deal with the topic in the following way:

(1) summary of some relevant cases;

(2) clarifying in simple terms what causation means in the context of no MOT;

(3) the distinction between causation and illegality – this is important, in order to understand what causation means in the legal context and to avoid conflating the two separate topics of causation and illegality, and

(4) conclusion.

Summary of some relevant cases

There are two non-binding cases that I deal with briefly.

In Jack v Borys [2019] 12 WLUK 606, HHJ Freedman stated in a case involving no MOT, that the District Judges decision to dismiss the hire claim on the basis that the Claimant was placing himself in a “better position” by having a hire vehicle with a valid MOT was wrong, as he had a vehicle capable of being driven before the accident. If the Claimant could not recover hire charges for having no MOT, then this was effectively going down the route of ex turpi causa. In my view referring to a “better position” may be considered to be another way of espousing the “causation” argument.

In Agbalaya v London Ambulance Service [2022] 2 WLUK 545 HHJ Lethem decided that the hire claim failed, due to causation, as there was no MOT for the vehicle and had there been a MOT it would have failed the test. The Claimant would also not have been able to afford to repair the vehicle following any such MOT. There was therefore no evidence that claimant would have been able to render the car useable on the road at any stage during the hire period. The judge made a distinction between a “driveable” vehicle and a “useable” one.

The more important case is Majid Ali v HSF Logistics Polska ([2023] EWHC 2159 (KB), as it is a High Court case and therefore binding. The Claimant's parked vehicle had been hit by the Defendant's lorry. There was no dispute on liability. The Claimants MOT had lapsed four months before the accident and there was no evidence that the Claimant had any intention of obtaining a MOT certificate. At first instance, the Recorder dismissed the credit hire claim of over £20,000. The Recorder found that the credit hire claim would be dismissed on the basis of causation.

The High Court upheld that decision of the County Court. Mr Justice Martin Spencer stated in paragraph 17:

“What has been decided in this case, however, is that even if there is not this all-embracing form of illegality which deprives the Claimant of all claims arising from the accident, there is a second, more targeted, form of illegality which can be directed towards a particular aspect of the claim being made. This form of illegality does not involve considerations of public policy or proportionality because, by its nature, it allows the courts to distinguish between the "meritorious" Claimant – the Jaguar owner in my example in the preceding paragraph – and the "unmeritorious" Claimant who has no intention to obtain an MOT in the near future, or at any rate during the period of hire of an alternative vehicle” - underline are my emphasis only.

There was reference to Judge Lethem's distinction between a “drivable” and a “useable” car. There was also mention of the difference between a vehicle which is “useable” and a vehicle which is “lawfully useable”. A lawfully useable vehicle obviously being one that has MOT.

Majid Ali v HSF Logistics Polska mentioned that the lower court had found that there was no “...evidence that the Claimant had any intention to obtain a MOT certificate in the near future.” - paragraph 3 of the judgment.

The High Court refers to the “all-embracing form of illegality” which can dismiss all claims, due to public policy reasons. This illegality can lead to a dismissal of the entire hire claim, repair costs and recovery charges. This is the defence of “ex turpi causa non oritur actio”.

It then referred to a more “targeted” form of “illegality”. This “targeted form of illegality” is actually referring to the causation defence. Whilst having upmost respect for the language used in Majid Ali v HSF Logistics Polska, I am not sure the language entirely assists in understanding the issue of causation which is separate to illegality. Further the references to the “meritorious” claimant and “unmeritorious” claimant can also in my view potentially conflate the two separate defences of causation and illegality.

Clarifying in simple terms what causation means in the context of no MOT

In Majid Ali v HSF Logistics Polska the court referred to an “all embracing” illegality - this is “ex turpi causa non oritur actio” or more simply put the illegality defence.

In Majid Ali there is also reference to a more “targeted form of illegality” in relation to causation - whilst the word “illegality” is also used here, in my view they add nothing and indeed may throw confusion into the mix into what is simply the age-old concept of causation. In order words if a claimant cannot prove that s/he had a lawfully usable vehicle (due to no MOT) and cannot further prove that that during the hire period (absent the accident), s/he would have acquired MOT, then the claimant should not have been using the vehicle that was involved in the accident. Accordingly, there is no “loss of use” claim as the claimant would never have been entitled to lawfully use a vehicle in the first place at the point of the accident and also during the entire period of hire. This is why in my view, it's always more helpful to refer to “a loss of use claim, which is quantified by hire”, rather than just a “hire claim”. The words “loss of use” makes it easier to understand why not being entitled to such a lawful use of the vehicle (due to no MOT) would result in causation problems in recovering hire charges.

It is within the context of causation and not illegality that Spencer J refers to a “meritorious claimant” and an “unmeritorious claimant”. As per my understanding it is not referring to the defence of illegality.

A “meritorious” claimant is someone who would have had MOT during the period of hire, absent the index accident. This will be a question for the court to decide, having heard the claimant's evidence and seen any documentary evidence. This would cover those who would have had MOT right at the start of the hire period, absent the accident. For example, a road traffic accident takes place on the 1st of December 2022, and the hire starts on the 7th of December 2022. Yet the claimant gives evidence that as the road tax was due on the 5th of December 2022, he would have remembered to have the MOT by the 7th of December 2022. If the court accepts the evidence, then there would be unlikely to be any reduction in the hire period on account of a lack of MOT.

It seems that a “meritorious” claimant would also include someone who is only entitled to recover the hire charges for only a proportion of the hire period (not the entire period), after the court assesses causation. For example, using the scenario in the preceding paragraph, let's say the claimant states that his road tax was due on the 15th of December 2022 and that's when he would be prompted to renew his MOT – in this case a court may reduce the hire period by 8 days, as the hire would have started on the 7^th of December 2022.

Previous good compliance with having MOT would be evidence supporting the claimant's proposition that he would have had a valid MOT during the entire period of hire or for at least part of the period of hire.

An “unmeritorious” claimant is someone who would never have had MOT during the entire period of hire, absent the index accident. An “unmeritorious” claimant would not be someone who recovers hire charges for even part of the hire period. This will be a question for the court to decide having heard the claimant's evidence and seen any corroborating evidence. A claimant may assert that he would have had obtained MOT during the course of the hire period absent the accident, however if there has been an abysmal record of compliance in the past, then the court may have difficulties in accepting this evidence.

The curious point here is this: if the words “meritorious” and “unmeritorious” were taken out altogether from the equation and simply causation was referred to, it would be far easier to understand the concept of causation in the context of having no MOT. The words of “meritorious” and “unmeritorious” have the potential to conflate causation with illegality, which are two entirely different concepts. This is essentially the same point to the one I made earlier in this article, namely that using the words “a targeted form of illegality” also has the potential to conflate causation with the illegality defence itself.

There may of course be an overlap between the factors considered under causation and illegality. For example, a previous history of non-compliance with MOT may show that on balance it was unlikely that the claimant would have had MOT during the period of hire. Such a poor history of compliance with MOT may equally persuade a court into dismissing the hire charges due to illegality, probably on the basis of the third limb of the test in Patel v Mirza [2015] 2 W.L.R. 405 which refers to “proportionality” (please see my article on Credit Hire and Illegality”).

The distinction between causation and illegality

In order to understand causation, the following (non-exhaustive) differences between causation and illegality should be noted, namely:

(1) Causation is simply this issue, namely: does the court find on a balance of probabilities, that the claimant would have obtained MOT at some point during the hire?

(2) In contrast illegality is an entirely separate defence. In simple terms and for the purposes of this article, illegality can be broadly described as society's mark of disproval of the claimant's conduct. Please see my article on “Credit Hire and Illegality”. Patel v Mirza sets a three-stage test for illegality.

(3) On causation, if the court finds that the claimant would have obtained MOT, then the court will allow the hire period either fully or partially. The court may allow the hire period fully if the court finds that the MOT would have commenced by the start of the hire period. The court may only partially allow the hire period, if the court finds that the MOT would have been obtained after the hire period started. Accordingly, causation is not necessarily an all or nothing defence;

(4) If, however the illegality defence succeeds, it will lead to a zero award of damages for hire charges. Accordingly, the illegality defence is an “all or nothing defence”.

Conclusion and summary

The issue for causation for no MOT simply goes back to the basics in tortious law: on a balance of probability would the claimant have obtained MOT cover during the period of hire and if so then when during the hire period would MOT have been obtained?

The answer to that question will dictate how many days of hire will be allowed: it may be that no hire period will be allowed, if it is found that MOT would not have been obtained at all during the hire period. It may be that the entire hire period is allowed, if it is found that MOT would have been obtained by the start of the hire agreement. It may however be that the hire period is reduced, if the court finds that the documents would have been obtained at some period after the hire had started. Poor or good compliance with MOT in the past may assist a court in determining these issues.

Please note this article does not constitute legal advice for any specific case or cases or for any circumstances.

© Mohammed Azeem Ali 2024 01/03/2024