Finance company fails to mitigate loss! Standard

So was the finding of the Court in a reserved written judgment handed down by the Judge following a recent small claims hearing attended by our member.

This was a claim for breach of contract arising from the sale, on finance, of a BMW for the sum of £5,995.00. The BMW was rejected by the end user/consumer, which our member did accept. Regardless, finance (the ‘Claimant’) accepted the rejection and rescinded the agreement.

Finance then sold the BMW at auction for just £924 net!

On the facts, the Judge determined that our member was liable for breach of contract having innocently misrepresented the mileage of the BMW. 

The Judge accepted evidence that the cap value of the BMW was something North of £3,000.00 and was concerned to know why it failed to achieve anything like that figure at auction. This went to the issue of mitigation. 

He considered it was very unfair that our member should wear the burden of that, particularly when evidence was given that it had offered finance some £2,995.00 to buy back the BMW, which finance had unreasonably refused.

The Judge went on to state “The Claimants have a duty to mitigate and the law certainly requires a Claimant in the position of the Claimants to take all reasonable steps to mitigate the loss consequent upon the Defendant’s wrong”.

He continued “The court can refuse to allow damages to a Claimant in respect of any part of the loss which is due to his own neglect to take steps. In other words, are there losses that the Claimant ought to have avoided”.

The Judge then quoted McGregor on Damages, which says “Even persons against whom wrongs have been committed are not entitled to sit back and suffer loss which could have been avoided by reasonable efforts or to continue any activity unreasonably so as to increase the loss”.

The Judge found that it was open to finance to have accepted our members offer. He was satisfied that it was wholly wrong for finance to have sat back and auctioned the BMW in the state it was left in by the consumer and expect our member to pay losses of more than £5,000.00.

 

Authors: Howard Tilney

Published: 14 Sep 2020

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