HELEN DOLOUGHAN V TERENCE MULVENNA AND NORTHERN HEALTH AND SOCIAL CARE TRUST AND
FOOT V QUINN; CUNNINGHAM V HOMECARE NI LIMITED; MCMENAMIN V CHILLINGWORTH AND CANNING V CANNING
The first case of Doloughan was an appeal by the Defendants against the decree made by the District Judge awarding the Plaintiff:
The basis of the appeal was whether the agreement between the Plaintiff and Crash Services and Agnew Repair Centre was a debtor/creditor agreement.
The Plaintiff WAS the owner of a Volkswagen Golf vehicle (purchased from the well known commercial entity Agnews, who were also the Plaintiff’s insurance brokers. On 9th March 2009, a vehicle driven by the first-named Defendant, as servant or agent of the second-named Defendant, collided with the Plaintiff’s vehicle. The Plaintiff, given her previous relationship with Agnews, determined to have the vehicle repaired by Agnew Repair Centre (“ARC”).
At the request of the handling agents (“Contac Claims”) of the Defendants’ insurers, who contacted the Plaintiff directly, the Plaintiff obtained from ARC an estimate for the cost of repairing her vehicle. The ARC repairs estimate is dated 12th March 2009 and is in the amount of £2,303.90. On 23rd March 2009, the Plaintiff drove her vehicle to ARC, to be left there for repairs.
On the same date, 23rd March 2009, the Plaintiff executed the aforementioned “Crash Services” agreement. On 24th March 2009, an engineer retained by Crash Services inspected the vehicle and prepared a repairs estimate in the amount of £2,226 plus VAT. On 27th March 2009, ARC executed a “Notice of Assignment” in favour of Crash Services, the subject matter whereof was invoice number 34591 in the amount of £2,596.67. On 31st March 2009, Crash Services received from ARC a document entitled “Account Invoice”, No. 34591, in the amount of £2,596.67, including VAT.
On the same date, 31st March 2009, Crash Services paid a lesser sum, £2,466.83, to ARC in consideration of the assignment of the invoice.
On appeal the Defendant maintained the argument submitted in first instance that the agreement between the Plaintiff and Crash Services was a debtor/creditor agreement since, in the language of Section 13(b) of the 1974 Act, it constitutes “a restricted use credit agreement which falls within Section 11(1)(c)”.
The Defendant further argued that the Plaintiff was in debt to ARC; this debt was purchased, via an assignment, by Crash Services; ARC then invoiced Crash Services, rather than the Plaintiff; and the Plaintiff would, but for these arrangements, have been liable to ARC for the invoice. It was submitted that upon completion of the repairs to her vehicle, the Plaintiff became indebted to ARC, who provided credit for the debt and financed the repairs by not requiring immediate payment. It was submitted that this gave rise to a refinancing agreement under Section 11(1)(c) which is not exempt from the 1974 Act and not enforceable.
Mr Justice McCloskely however rejected this argument and held that the Palitniff/Crash agreement could not be considered a refinancing agreement, as there was no pre-existing financing of which the Plaintiff was the beneficiary. On the date when the Plaintiff executed her agreement with Crash Services (23rd March 2009) her vehicle was in a damaged condition and repairs had not been commenced. The Plaintiff was not in a debtor/creditor relationship at this stage. Furthermore, no debt of any kind arose until 31st March 2009, when ARC transmitted an invoice to Crash Services.
Accordingly because when the Plaintiff entered into her agreement with Crash Services there was no pre-existing indebtedness on her part therefore the Crash Services Agreement was not a restricted use credit agreement and was not a debtor/creditor agreement.
The appeal was therefore dismissed.
Foot v Quinn; Cunningham v Homecare NI Limited; McMenamin v Chillingworth and Canning v Canning
These were conjoined credit hire appeals, in which various contentious issues relating to interrogatories and discovery of particular documents arose for determination by Mr Justice McCloskey. The main question arising in all four cases was whether it was fair, reasonable and proportionate to subject the Plaintiff to the burden of answering on oath extensive interrogatories and/or making discovery of particular documents.
In each of the four cases the court advised that they must, in considering such applications, strike a balance, striving to achieve a fair, realistic and proportionate outcome. The specific details of the discovery/interrogatories sought in each case where not set out in detail in the written judgment. In summary Mr Justice McCloskey held:
However Mr Justice McCloskey emphasised that this decision was not all doom and gloom from the Defendant’s perspective. He considered that properly and reasonably composed letters and responses between the parties and/or their solicitors should, in most cases in the field of credit hire litigation, suffice to yield the quantity of information deemed necessary and desirable by Defendants’ insurers to enable informed settlement discussions and decisions to be pursued and made. This is a clear indication that the Plaintiff’s representatives should respond to reasonable requests for further information made by the Defendant.
He went on to state that in those cases where pre-trial correspondence yields inadequate, suspect or otherwise unsatisfactory replies, there will be ample material for cross-examination of the Plaintiff and the court will be at liberty to make such inferences and conclusions as it considers appropriate in the particular litigation. The principal merits of appropriately composed correspondence are to put the Plaintiff on notice of questions which will be raised and issues which will be explored at the trial and to afford an opportunity to provide a sufficient quantity of information and/or documents to facilitate informed pre-trial settlement discussions and decisions. Mr Justice McCloskey concluded this judgment by stating that unco-operative or defaulting Plaintiffs will pay the price accordingly.