Jonathan Calvert

During 2020 and throughout the Covid pandemic, MOT testing in Northern Ireland was suspended several times after safety concerns were raised regarding vehicle lifts within MOT centres across the jurisdiction. As a result, a significant MOT testing backlog ensued, however the Department for Infrastructure and the PSNI agreed not to prosecute motorists for driving without a valid MOT at the time.

Thankfully, that problem has resolved in recent times and normal service has resumed so it remains the case that a vehicle should not be on the road without a valid MOT certificate. However, an unsurprising side effect is that some people have become more relaxed when it comes to ensuring that their MOT test is booked before their old certificate expires.

How does this play into the world of credit hire?

It perhaps comes as no surprise that in the NI jurisdiction in particular, it is increasingly common to see plaintiffs claiming credit hire charges when their own vehicle did not have a valid MOT certificate.

In the recent past, insurers have attempted to argue an illegality defence (ex turpi causa) with varying degrees of success. In essence this doctrine does not allow an individual to recover damages from a loss incurred while performing an illegal act — in this scenario, driving a vehicle without a valid MOT certificate.

In practice, however, courts tend to apply this doctrine in more extreme cases where a plaintiff has shown a more obvious unwillingness to book an MOT test.

Causation — when illegality doesn’t apply

A recent decision in the High Court in England and Wales, Majid Ali v HSF Logistics Polska SP Zoo [2023] EWHC 2159, approached this scenario from a different angle; the argument was one of causation rather than illegality.

The defendant argued, and the court agreed, that because the plaintiff did not have a valid MOT certificate during the period of hire and could not lawfully drive their own vehicle on the road, there was technically no loss of use, and it was therefore not a reasonable act of mitigation for the plaintiff to hire a replacement vehicle.

This argument is helpful in a situation where a plaintiff did not have a valid MOT certificate at the time of an accident but had already booked their MOT test. In such a scenario, a court would be less likely to apply the illegality doctrine; however, based on the reasoning within this judgement, the plaintiff should not be able to recover hire charges until the date of the MOT test, because until that time they would not have been able to drive their own vehicle anyway, meaning there was no loss of use.

At Johnsons, we have had recent successes in arguing this point for our insurer clients and it serves as a reminder that the illegality doctrine is not the only argument open to insurers where a plaintiff had no valid MOT certificate at the time of an accident.

• Jonathan Calvert is a senior associate at Johnsons Solicitors in Belfast.