In Ali v HSF Logistics Polska SP ZOO [2024] EWCA Civ 1479 (04 December 2024) the Cout of Appeal overturned a finding that the absence of a valid MOT Certificate meant that a claimant could not recover vehicle hire charges of £21,588.72. 

The Claimant’s car which was parked when it was damaged by the Defendant. A the time of time of the accident the Claimant’s vehicle did not hold a valid MOT certificate in contravention of s. 47(1) of the Road Traffic Act 1988.

The Claimant hired a replacement vehicle and brought a claim for hire charges. The Defendant raised the defence of ex turpi causa non oritur damnum (that illegality bars recovery of the damages) as the illegality of having a car on the road that was not MOT’ed meant that the damages were not recoverable. 

At the first hearing of the claim, damages were refused by the Recorder on the basis of causation as the Claimant did not have a vehicle he was entitled to use on a public highway, and therefore there was no loss of use.  The Court noted that on the evidence the vehicle had been without an MOT for some time and there was no evidence to suggest the Claimant intended to obtain a certificate. The Recorder’s decision was upheld in the High Court and so the Claimant appealed the decision in the Court of Appeal.

In making their judgment the Court of Appeal considered the case of Hewison v Meridian Shipping Services PTE Ltd [2002] EWCA Civ 1821 which provided that a ‘collateral [insignificant] illegality or unlawful act of the Claimant should not see them deprived of damages they would otherwise be entitled to caused by a breach of duty by the Defendant.

The Court of Appeal in Ali held that proportionality needed to be considered in the circumstances in determining whether to bar and that the failure to have the vehicle MOT’ed was a minor offence. The Court also found that on causation the Claimant had suffered a loss because of the defendant’s negligence as the Claimant had been deprived of the use of their vehicle regardless of its MOT status.

This ruling has important implications for several reasons:

Firstly, the Court of Appeal gave comparative examples, when finding that the failure to MOT a vehicle is a minor offence. It was noted that this offence with its £1,000 fine ‘incurs a lesser penalty than using a car on the road without insurance; or than having a bald tyre, with its obvious safety connotations for which the maximum penalty is a level 4 fine (£2,500), obligatory endorsement with 3 penalty points and discretionary disqualification per tyre’ [49].

This suggests that the Court deemed the above two examples to not be minor offences and as such could be a bar to the recovery of damages.

Secondly, the Court considered that ‘there may be relevant arguments to be had in other cases concerning the issue of reduction of damages to reflect the chance of criminal prosecution and/or fine and disqualification’ [58]. However, the Court did not go to consider such arguments as they had not been raised or pleaded.

In conclusion, the Court may allow damages but the sums may be reduced rather than disallowed when considering illegality.