By Peter Yates.
Once you have done a handful of credit hire cases, they soon become second nature. At first, however, it seems a complicated area with decades of authority behind it. You need to spend some time familiarising yourself with the basic principles underlying hire claims, as well as the specific authorities dealing with discrete issues such as need, period, enforceability, intervention, impecuniosity and rate.
Recently, I have seen a number of cases involving applications to strike out hire claims on the basis that the Claimant has made a previous claim for damages for personal injury within the RTA Portal, without including the hire claim. Until there is binding authority on the point, these arguments are likely to continue.
Not necessarily in hard copy, and not necessarily all of them, but be prepared to refer the judge to the key paragraphs. The cases which crop up frequently include: Giles v Thompson; Clark v Ardington; Stevens v Equity Syndicate Management Ltd; McBride v UK Insurance Ltd; Copley v Lawn; Zurich Insurance Plc v Umerji and Irving v Morgan Sindall Plc.
You will be an expert (see point 1, above), but the judge may not. Many of the legal principles applicable are counter-intuitive and complicated, and a judge with a busy list will not have had time to read the authorities. Be prepared to spend some time explaining the background to your submissions in a clear, concise way.
If you are acting for the Claimant, be alive to the possibility that your client may be a little bewildered, and possibly frustrated. After all, he or she will usually have been the non-fault party in the underlying accident, so they may be slightly confused as to why they are there and the other driver isn’t!
Many of the statements of case are pro-forma documents which give little insight into what is actually in issue in the case. Nevertheless, you need to have checked them carefully to see what can properly be raised. If the Defendant intends to rely on an intervention letter, for example, the issue should be pleaded.
Like statements of case, directions orders are generally standardised, particularly in small claims. However, some courts impose slightly different directions, and it is necessary to check the order in every case. For example, the directions will usually have a “debarring order”, which prohibits the Claimant from raising the issue of impecuniosity unless he or she has served certain documents (usually three months’ worth of wage slips and bank statements), but some orders prescribe different periods, and some have no debarring order at all. Don’t be the advocate who launches into a submission about the Claimant being debarred on impecuniosity, only to realise that there is in fact no order.
I find it useful to make a note of the key dates, such as the accident, the start of hire, the engineer’s inspection, the engineer’s report, the total loss payment (if applicable), and the end of hire. Are there delays, and if so to whom are they attributable? Is there a significant gap between the accident and the start of hire, and if so how did the Claimant manage without a vehicle in that time?
Very often a case will come down to the basic hire rates evidence. Many BHR reports (but by no means all) are poor, and open to criticism. Look at the court’s directions – usually there will be a paragraph prescribing what the report should cover. Does the BHR witness statement address those points? Do the exhibits to the BHR report actually match up to the witness statement? I have seen several reports where the exhibits in fact relate to an entirely different case, and where the screenshots relate to different providers, geographical areas, or car types.
10. Know the rules on costs
This may seem like a statement of the obvious, but there is often some confusion about the applicable costs rules. In small claims cases, it is common for both sets of advocates to be instructed to seek assessed costs if they beat their own side’s offer. In the absence of unreasonable behaviour (Rule 27.14(2)(g)), however, there will be no such order. Simply failing to beat an offer is not, on its own, unreasonable behaviour (Rule 27.14(3)).