When dealing with motor claims and recovering uninsured losses, we occasionally encounter defences from insurers and third-party solicitors that attribute the incident to severe weather conditions, claiming this negates any negligence on their driver’s part. While weather data might support these claims, it is essential to look beyond this defence to act in the client’s best interest.

Representing our client in county court

Recently, we represented a client in a county court case where this defence was used. The defendant owned a third-party heavy goods vehicle. Our claim was that their driver lost control and collided with our client’s barrier. The defendant argued that a gust of wind caused the collision and denied liability, stating their driver had done everything possible to avoid the incident.

The judgment highlighted that merely attributing an incident to severe weather conditions is insufficient. The circumstances and the defendant’s actions in response to challenging weather must be scrutinised. This case also dealt with the issues of early disclosure and the importance of Part 36 offers.

Presenting such a defence shifts the burden onto the defendant to prove an alternative cause for the accident. Here, the alternative cause was the wind, but to what extent?

It was essential to consider the incident’s context to establish the claimant’s potential chances on liability: Was this the worst wind ever recorded? Did it affect the location in question? Had the driver done everything possible to manage the conditions? Was driver inexperience a factor? Were there other incidents involving large vehicles due to these high winds?
The defendant’s evidence showed high winds were forecast for 2 days after the index incident date. Our research confirmed that weather conditions on the date of the accident were recorded as ‘good.
We argued that the operator was responsible for assessing the safety of their vehicle, especially given a yellow weather warning, which required road users to evaluate their journeys’ safety and take appropriate precautions in severe weather. The defendant’s representatives contended that halting operations due to a yellow warning could have significant economic repercussions. They maintained that the wind caused the incident, and their driver was not negligent.

Agreeing to litigate

Based on the above, our client agreed to litigate. During litigation, it emerged that dashcam footage existed. The defendant’s representatives failed to provide a copy until two days before the hearing, despite requests from inspection to the attempts to try and agree a trial bundle.

This footage was key. Had it been favourable to the defendant, the late disclosure would have given the claimant the opportunity to seek discontinuance without paying costs or at least a reasonable argument to do so. If such footage had been available and presented to the claimant earlier, it could have avoided litigation altogether and saved the Defendant considering costs.

However, upon viewing the footage, our view of the driver’s negligence remained unchanged. There was no sign of a gust of wind; rather, the driver appeared to drift past their designated lines on several occasions before colliding with our client’s property.

A day before the hearing, the defendant’s solicitors surprisingly chose to respond to our Part 36 offer, which was made 3 months prior to the hearing date. The importance of considering Part 36 offers when presented cannot be overstated, given the implications if accepted later. In this case, the defendant’s solicitors proposed an offer subject to liability for the sum stated in the Part 36 presented in 3 months before the hearing date. If liability was found in our favour, the defendant would then automatically find themselves paying further costs and uplift on damages in line with CPR 36.17.

Part 36 offers, from a tactical perspective, are akin to the stock market. The claimant should present offers as sell limit orders, a minimum price at which you are willing to settle. Giving genuine considering of the weakness and strengths in your case. The defendant should consider it as buy limit orders, a maximum price at which they are willing to settle based on the evidence provided and what a judge might consider acceptable.

In this case, there was nothing to be gained by returning to this Part 36. Tactically, such offers need to be presented before a Part 36 is made or for a sum lower than the initial Part 36 offer.

The trial proceeded with our unchallenged witness evidence, as quantum was agreed, subject to liability.

The defendant’s testimony was cross-examined, focusing on the dashcam footage, which showed no other large vehicles were affected, the driver was travelling at 54 mph, and there were no visible signs of severe weather.

Judge’s findings

The judge found that:

• The burden shifted to the defendant, per the Smith v Fordyce and Quinn Insurance [2013] EWCA Civ 320 decision, to establish an alternative cause of the accident. Court of Appeal confirms that res ipsa loquitur is a rule of evidence based on fairness and common sense and should not be applied mechanically;
• The defendant failed to do this, as the driver could have taken steps to avoid the accident, such as slowing down;
• On the balance of probabilities, the defendant did not discharge the burden of proof, resulting in a liability finding against them.

Conclusion

For claimants, this case serves as a reminder to be diligent in challenging weather-related defences and gathering comprehensive evidence to support their claims. For defendants, it illustrates the importance of evaluating the safety of vehicle operations under adverse conditions and the potential legal ramifications of failing to do so. Fundamentally, res ipsa loquitur is a rule of evidence based on fairness and common sense.

Ultimately, this judgment reinforces that maintaining control and taking necessary precautions in challenging weather conditions are paramount, and a failure to do so can result in a finding of negligence. This case study should serve as a valuable reference for both claimants and defendants in similar situations, emphasising the need for thorough preparation and strategic litigation tactics.

Author: Hafijul Ali

We received instructions from one of our clients on a case where, in August 2016, structural damage had been caused to an overbridge by a third party vehicle, with comprehensive repairs required.

Our team was instructed to recover uninsured repair costs from the vehicle operator and their motor insurers.

The situation

A haulage vehicle transporting machinery collided with a bridge as it was trying to pass underneath. The machinery was not loaded to the vehicle in the correct manner, hence  This was a significant repair, with original repair costs assessed and considered to be more than £2m. Our client and repairing contractor managed losses so that final repair costs were much reduced, although it was several years before reinstatement of the bridge was complete and the quantum pack finalised.

The letter of claim was finally issued in May 2021.

Needless to say, our client encountered numerous challenges from the defendant loss adjustor, who intended to reduce the claim value. Requests for additional information and documentation were complied with however it only achieved an offer of approximately two thirds of the actual cost. Our client instructed us in November 2021 in order to expedite an increased settlement.

Actions taken

The most pressing issue was limitation and our team agreed with the defendants not to issue proceedings, instead entering into a post-limitation standstill period.

During that period further evidence was obtained and exchanged, independent expert advice was obtained in relation to quantum and substantial negotiations entertained.

Outcome

We agreed an increased settlement of £1m+ including legal costs, which was agreeable to both parties.

Author: Ian Evans

We received instructions from an emergency services client on a case where their vehicle was involved in a collision with an ice cream van. The circumstances were that both vehicles collided head-on, on a narrow country lane with little visibility for both parties prior to the impact. Our client’s vehicle had emergency lights activated but no sirens. We were instructed to recover uninsured losses including repairs and loss of use.

Our approach

We carried out preliminary investigations to obtain a full driver/passenger statement, the dashcam footage from our client’s vehicle and from the third-party driver, details of their motor insurers.

We further liaised through the appropriate channels with our client and their business partners to collate quantum documentation. We issued our Letter Before Action to the third party and their named motor insurer. That was submitted in full but with the knowledge this was a likely split liability matter and negotiations would be necessary.

Actions taken

Alongside our claim against the third party / third party insurer, the third party submitted his own vehicle damage and personal injury claim against our client, via their insurer.

We liaised with the insurer to share evidence and discuss the appropriate strategy to achieve the optimum settlement for our mutual client. We received no response or engagement from the named third party or their insurer. With the case in impasse, we discussed next steps with the insurer. It was mutually agreed that proactive litigation was necessary and the only route to resolution, so we took the lead on that to provide our client some advantage as the claimant.

As expected, our court proceedings were defended and with the third-party vehicle damage / personal injury included as a counterclaim. Again we liaised with the insurer to agree the counterclaim would be defended by this firm to ensure consistency and manage costs.

Despite proper RTA notice however, there was still no engagement from the third-party insurer. They later provided evidence that the vehicle was in fact sold prior to the incident and they held no insurable interest. We took the decision at that point to make an application to the court to add the Motor Insurers’ Bureau as second defendant, intended to protect payment of the client’s claim in the event of a successful outcome.

The Defendant later produced a purported insurance policy which they said covered them for the incident. The insurer however disputed it was valid. Due to the uncertainty, we took the decision to make an application to court for the third party to disclose the position on his vehicle insurance. The court order followed and the third party was ordered to clarify his insurance arrangements.

Outcome

It was not until the day of the trial that the Defendant admitted he was uninsured at the time of the incident. The MIB at that point agreed they would satisfy any Judgment obtained against the Defendant. Due to unforeseen circumstances, our client’s driver was unable to attend trial and as such we had instructions to negotiate settlement on a split basis.

Settlement was agreed between the parties on a 60/40 basis in the claimant’s favour with the trial utilised to deal with the issue of costs only.

We were therefore successful in recovering 60% of our client’s repairs and loss of use, plus the legal costs of pursuing the matter. The outcome justified the litigation as there were no offers of settlement prior. It was unfortunate that the Defendant’s dishonesty and misconduct throughout prolonged this litigation to nearly 2.5 years and this was reflected in the substantial costs order made against them.

Author: Oliver Burke

The Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48 has given guidance on the approach the Courts should take on the question of expert evidence at trial, where Defendants choose not to cross-examine the Claimant’s expert(s).

TUI UK Ltd v Griffiths [2023] UKSC 48

The Griffiths family had gone on a TUI package holiday to Turkey. Mr Griffiths became ill two days into the trip. At trial Mr and Mrs Griffiths had uncontested evidence as to fact, and the Claimant also called an expert who opined that on a balance of probabilities the food or drink served at the hotel was the cause of acute gastroenteritis causing hospitalisation. Stool sample analysis showed multiple pathogens, both parasitic and viral.

The Defendant did not call its own expert evidence and did not cross-examine the Claimant’s expert at trial. TUI failed to serve a report from a gastroenterologist in time, and chose not to serve expert evidence from a microbiologist. TUI sought permission to rely on expert evidence served late but the Court refused such permission. TUI lodged witness statements of fact and intended them to give evidence by video link, but in the event they were not called to the trial, and their evidence was accordingly discounted.

TUI did not seek to cross-examine the Claimant’s expert evidence, which was uncontroverted in the sense that it did not conflict with any other expert evidence and was not challenged in cross-examination. TUI had asked a number of Part 35 questions of the Claimant’s expert which were answered.

The trial judge found that the Claimants had not proven their case. The Claimant’s expert was criticised as being incomplete in his explanations and for a failure to expressly discount other possible causes of the illness.

TUI’s trial counsel made a number of challenges in submissions about the Claimant’s expert’s report. They were (i) that there had been a failure to discount the occurrence of two separate infections and a meal outside the hotel as the possible cause of the second, (ii) the absence of an explanation why the illness was caused by food or drink from the hotel, (iii) a failure to exclude a meal in town or in the airport as possible causes, (iv) a failure to comment on health and hygiene procedures in the hotel, and (v) a failure to discount alternative methods of transmission of the illness.

The trial judge also criticised the report for failing to explain why adenovirus or rotavirus should be discounted, and that other possible causes had not been excluded such as air conditioning and a nappy in the swimming pool.

The Defendant appeared to find comfort in the principle that the burden of proof is on the Claimant, and that it can sit back and do nothing and make whatever submissions it chooses in closing at the trial.

A fundamental requirement

However, the Supreme Court ruled that a fundamental requirement is for a fair trial. In the words of Lord Hodge (with whom the other 4 Lords agreed in a unanimous judgment), “It is the task of a judge in concluding a trial in an adversarial system to make sure that the trial is fair. It is the task of the judiciary in developing the common law, and the makers of the procedural rules, to formulate rules and procedures to that end. On such long established rule is usefully set out in the current edition of Phipson on Evidence […]: ‘In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.’ This statement is supported by case law […] I am satisfied that the statement in Phipson is correct and […] summarises a longstanding rule of general application […] It is a matter of the fairness of the legal proceedings as a whole.”

Lord Hodge stated:

“In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:

(i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.

(ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.

(iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

(iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.

(v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.

(vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.

(vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.

(viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.” (A challenge collateral or insignificant, evidence manifestly incredible and cross examination would make no difference, expert conclusion without reasoning, obvious mistake, fact contrary to basis for expert opinion, expert has had sufficient opportunity to respond, failure to comply with PD 35).

In the case at hand, TUI did not put the Claimant’s expert on notice on their criticisms. They did not request he be available for cross-examination. The challenges were not intimated until a skeleton argument on the eve of trial.

The Supreme Court found “Both the trial judge and the majority of the Court of Appeal erred in law in a significant way. The trial judge did not consider the effect on the fairness of the trial of TUI’s failure to cross-examine [the Claimant’s expert].”

The Supreme Court considered Mr Griffiths had established his case on a balance of probabilities.

It can be tempting for Defendants to be lulled into a sense of security by the perception that the burden of proof is on the Claimant and that the Defendant can therefore ‘do nothing’ and put the Claimant to proof.

While the burden of proof is generally on a Claimant, the English Court process has evolved over time with a view to ensure fair trials and justice, and it is unjust for a Defendant to ‘do nothing’ and then ‘ambush’ a Claimant with submissions at trial.

On the contrary, submissions should be put to the Claimant’s witnesses, and those witnesses given a fair opportunity to respond. That is how fairness and justice is achieved in an adversarial system.

Defendants will be well advised to adopt a level of engagement beyond simply sitting back and doing nothing. A challenge mounted for the first time at trial is likely to fail.

Author: Chris Heitzman

The latest update to the Civil Procedure Rules (by way of the Civil Procedure (Amendment No. 3) Rules 2023 SI 2023/788) has introduced a revised Part 14. Our Legal Director, Chris Heitzman, discusses this further below.

The Courts have for some time sought to encourage parties to have a meaningful dialogue before commencing proceedings, with a view to avoiding the need for proceedings, or at least narrowing the issues therein. That was the idea behind the pre-action protocols and, for claims outside the scope of a specific protocol, the general protocol on pre-action conduct.

The lacuna in the law in this respect was that there was little to stop a Defendant from issuing a very short admission of liability in response to a letter of claim, only to then within proceedings resile from that and defend the claim on a potentially long list of issues. A Claimant in such circumstances might feel aggrieved and the Courts tended to be understandably frustrated that litigation was being conducted on issues not explored pre-action.

The new Part 14

The new Part 14 attempts to deal with such a problem. The new 14.1(2)(b) requires the maker of a pre-action admission to apply to the Court should that party wish to withdraw from the admission once proceedings are commenced. In deciding whether to give such permission, the Court will consider all the circumstances of the case, including specifically (CPR 14.5):

(a) the grounds for seeking to withdraw the admission;

(b) whether there is new evidence that was not available when the admission was made;

(c) the conduct of the parties;

(d) any prejudice to any person if the admission is withdrawn or not permitted to be withdrawn;

(e) what stage the proceedings have reached; in particular, whether a date or period has been fixed for the trial;

(f) the prospects of success of the claim or of the part of it to which the admission relates; and

(g) the interests of the administration of justice.

Furthermore, pre-action an admission may only be withdrawn with the agreement of the person to whom the admission was made (CPR 14.1(b)).

Post-issue, any party may apply to Court for judgment on a pre-action admission (CPR 14.1(2)(a)).

Summary

This is a significant tightening up of the process around pre-action admissions. A party who admits a claim or issues pre-action but then denies within proceedings is likely to need good reason to do so, and is unlikely to be simply allowed to change its mind because it wants to do so absent some relevant change in the circumstances or other good reason with regard to the criteria in CPR 14.5.

A pre-action admission can no longer be withdrawn at the whim of the maker even before litigation, unless the other party agrees, and they are unlikely to do so unless there is a good reason.

Claimants in receipt of a pre-action admission are likely to apply for Judgment on the admission within subsequent proceedings pursuant to CPR 14.1(2)(a) and there is scope for challenges to defences that purport to resile from pre-action admissions without having obtained permission to do so.

Defendants might be tempted in light of the foregoing to avoid making pre-action admissions, but there is potentially an even greater penalty down that route. Ignoring a letter of claim is a bad idea because a Court has the power to penalise a party who fails to engage with pre-action correspondence in accordance with the protocols on pre-action conduct. A Defendant could then be tempted to provide a letter of response but to ‘deny everything’. However, a party who denies when there is no real prospect of succeeding with such a defence may find themselves funding, ultimately, the costs on both sides of litigation on a wider range of issues than necessary, and putting the claim into a higher complexity band if it is below the multi-track. They may also be vulnerable to strike out and/or summary judgment on the whole or part of the claim if some or all of a defence is without reasonable prospects of success.

The need to engage meaningfully pre-action with a claim has never been more important. Astute advice and proper consideration of the issues prior to the commencement of proceedings has never been more important. Those who fail in one way or another will pay a heavy price in the litigation that follows.

Author: Chris Heitzman

We successfully resolved a standstill in negotiations between insurers and an animal conservation sanctuary, after the charity was left with property damage caused by a third party.

The situation

An animal conservation charity was left with a large hole in one of its buildings after an unattended car that did not have its handbrake fully secured rolled over the pathway and collided with it, causing significant damage and necessitating immediate repairs.

Following the incident, the third-party insurer appointed a loss adjuster to assess the damage and determine the cost of repairs, valuing them at £6,031. However, as the sanctuary is situated in a rural area, it faced difficulties finding a suitable builder to carry out the repairs for this amount.

With limited options available, the charity received a quote from the only available contractor in the vicinity, amounting to £10,201.08 – exceeding the insurer’s valuation by a significant margin and leaving the sanctuary with a financial deficit. The sanctuary tried sourcing quotes from further afield but found no one willing to undertake the work due to the distance.

How we helped

Despite the evidence of the higher repair quote, the third-party insurer was unwilling to increase its contribution, leading to a standstill in negotiations. As a result, we were appointed and contacted the loss adjuster, asking them to cover the £10,201.08 quote, arguing that this was, as the law states, the “reasonable cost of repair” given the sanctuary’s rural location and lack of available alternatives.

This was denied, so we issued legal proceedings against the insurer, and the claim was swiftly settled in full, allowing the sanctuary to proceed with the necessary repairs without incurring any out-of-pocket expenses and enabling it to continue its vital conservation efforts.

A note from Oliver Burke

The financial strain resulting from the £3,900 deficit between the insurer’s assessment and the actual repair costs left the sanctuary in a challenging position. As a charitable organisation, it did not have the spare funds readily available to cover the shortfall and proceed with the repairs.

The loss adjuster argued that the work could be carried out for just over £6,000 if the sanctuary shopped around. However, this was unreasonable – it was a completely unique case due to the sanctuary’s remote location. We are thrilled we were able to recover the costs in full, meaning the sanctuary could get its building repaired and continue its fantastic rescue and rehabilitation work.”

Contact us

Many businesses overlook property uninsured loss recovery, mostly because they are not aware the opportunity for recovery exists. Whatever the circumstances, if an incident was caused by someone not directly employed by your business, we can help you get that money back. Contact us for more information.

Author: Oliver Burke

Judgment has been handed down in National Highways Ltd v EUI Limited t/a Admiral Insurance and others.  Insurers arguments were dismissed and judgment awarded for the Claimant.

Our Senior Claims Handler, Oliver Burke, and Legal Director Chris Heitzman are the conducting solicitors for the Claimant, and have summarised the issues and the outcome.

‘The cap’

Insurers sought to argue that a claim for damage to a highway could never exceed what they called ‘the cap’ by which they meant the pre-accident value of the materials damaged.  In other words, if a central reserve was taken out in an accident and the labour, plant and materials required to reinstate it cost say £20,000, the recovery against the responsible insurer would be capped at just the pre-accident value of the steel barrier, perhaps £500, leaving the public purse to bear the majority of the loss with the insurers only bearing the pre-accident material value.

The segment argument

Insurers then sought to argue that in the case of, for example, a crash barrier strike, the thing damaged was not the barrier but just the individual parts of the barrier which were damaged, so that the repair cost should be limited to the value of the segments damaged, rather than the cost of repairing the barrier.

The Court decided, “it is clear that subdivision of a damaged chattel into segments is a flawed exercise.  The fundamental difficulty with the segment argument is that it seeks to characterise the beams of a crash barrier as if they were, for example, a fleet of cars.  One beam in a warehouse may have the same legal character as one of the claimant’s highway maintenance cars.  But 50 beams joined together and fixed to the highway do not have the same character as 50 separate highway maintenance cars.  The beams have become part of one construction, one barrier, like bricks in a building.”  The property damaged is the highway.

The measure of the loss is the reasonable cost of repair

Earlier cases, including those previously labelled by insurers ‘test cases’, which awarded the full reasonable cost of repair, not just the reduction in value of the materials damaged, were found to be correctly decided.

In each case the Court held that the quantum of damage is the notional reasonable cost of repairing the highway.

Quantum

The claims were found not to be excessive and so not reduced in terms of quantity of resource or rates charged for the resources used in the repairs.  CECA rates, including the uplifts therein, were found to be reasonable, with no reduction.

Limiting disclosure in future cases

The Court wondered whether in future cases extensive disclosure as had been given in these test cases, would be reasonably required or proportionate: “I expect that in future cases, insurers including EUI Ltd may draw upon the extensive disclosure given in these test cases.  In short, I do not think that they are now lacking in material from the claimant.”

The claimant’s contracts with its repairers

The Court also disapproved of the insurer’s initial case that the contracts between the asset owner and its repairers ought to be relevant, in that because the Claimant pays its contractors to some extent for maintenance in any event then the loss recoverable from an insurer is nil or minor: “In these direct loss claims for diminution in value, the court will not condone misconceived enquiries into who is paying for work or whether it is gratuitous […] [I]n the test cases the claimant’s maintenance and repair contracts are irrelevant.”

Discussion

The decision is unsurprising.  A property owner whose property is damaged by a tortfeasor is generally entitled to the cost of putting right the damage.  It was not attractive morally or in law to suggest that should somehow be capped to just the pre-accident material value, which would leave the innocent victim under-compensated for putting right the damage caused by the tortfeasor.

In holding that the loss is the reasonable cost of repair, the Court unsurprisingly has upheld a long line of caselaw in such cases along those lines.

The Court went beyond dismissing the insurers misconceived arguments on the measure of the loss and quantum by expressing a view that the contracts and disclosure ought not to be an involved exercise in future claims, the former usually being irrelevant, and the latter being addressed in this test cases so that insurers cannot in future complain they don’t have what they need to consider and pay valid claims.

Insurers will now have to pay the claims, plus the costs of the proceedings on both sides, including a three-day trial conducted by leading Counsel.

Contact our team today

If you’d like to speak with our experts about anything in the article above, or wish to enquire about how we could help your business with uninsured loss recovery, please call us free on 03300 945 100.

Author: Chris Heitzman & Oliver Burke

Inflation might be easing, but the pressure on fleet operators is not. Rises in energy, fuel and vehicle prices are causing a strain on the motor repairs sector, making it more expensive and time-consuming to get vehicles back on the road after accidents, and leaving operators without the use of their fleets for extended periods of time.

In fact, towards the end of 2022, 63% of independent garages and dealership workshops said they would be looking to increase their repair and servicing prices in 2023 in order to stay afloat amid higher overheads. The momentum and demand for used vehicles that we saw in 2022 have carried into 2023, leading to longer wait times. As current vehicles are expected to be on the road for at least another 12 months before they are replaced, it is imperative that current fleets are kept in good condition regardless of higher servicing fees.

And to top it all off, it is widely stated that claims inflation is around 10% for both third party and own damage losses, so it is expected that cost pressures will feed through into insurance pricing as well.

What can be done?

There is no quick fix to these challenges. This makes margins more important than ever before, and means it is becoming increasingly necessary to maximise recoveries through an uninsured loss recovery (ULR) provision, when a fleet vehicle has been involved in an accident.

All too often, ULR is overlooked by many in the industry – resulting in thousands of pounds’ worth of unclaimed losses. However, in a time when cash is key, this under-utilised solution can help in combatting uncontrollable escalating costs.

For those who are not aware, ULR is the process of recapturing costs and expenses that may have incurred if a vehicle has been involved in an incident that is not the fault of an employee. Depending on the insurance policy, these losses may be ‘uninsured’ if not covered and can include repairs, loss of use or revenue, policy excess and replacement vehicle charges.

The priority for fleet managers after an incident will, of course, be getting vehicles back on the road as quickly as possible. However, due to time-consuming repairs, this is not always possible at present, and they may find loss of use, revenue or hire costs escalating.

These losses incurred as a result of non-fault accidents represent a commercial opportunity, which can be taken advantage of with the appropriate ULR provisions in place, some of which operate on a no-win, no-fee basis.

Our advice to fleet operators

It is worth reviewing ULR damages that are being recovered; is your present supplier maximising returns on repairs that haven’t yet commenced or been handled through your recommended network? Is loss of use or loss of revenue subject to the requisite focus and is your present supplier fighting your corner on these more challenging heads of loss?

Fleet operators should reflect on their internal procedures and policies to ensure they know what to do if one of their vehicles is involved in an accident that was not their fault. They should also ensure all their drivers understand the importance of getting full details after an incident, including photographs of their vehicle (especially if is it a company vehicle with a livery on it), areas of damage and if possible, the other driver.

The impact of failing to do these basics can cost businesses significant sums of money. Furthermore, while it is not usually relevant to the recovery of losses, discreet photographs of the inside of the other vehicle to show whether there were any passengers and how many is always a good idea.

It is also important to remain diligent and keep on top of paperwork and communications with insurers – this can sometimes feel like a full-time job, but it is vital to recovering owed money.

Claiming for losses

Businesses can put forward whatever claims they like. However, they will, of course, be subject to scrutiny and insurers will ask for documentation. The lack of documentation does not mean recovery is impossible, but it does lower the prospects. For example, if there is a claim for loss of profit, workings out need to be shown; just providing simple details from a spreadsheet is not usually sufficient.

While some incidents will be fault claims, it is important to have a proper ULR solution in place to minimise claims spend on non or partial-fault incidents.

Many fleet operators will, rightly, concentrate on the cost against the business in fault incidents, but it is not an either or – having a proper ULR solution in place, which is best procured on a commission basis so only payable at the conclusion of a successful recovery, is key to maximising loss recovery with no upfront fees and helping to reduce overall spend in times of economic uncertainty.