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Should there be sequential or simultaneous disclosure in credit hire claims?

Kansal - v – Zhang
Slough County Court

Increasingly claimant firms in credit hire claims are seeking to vary standard small claims directions so as to provide for sequential exchange with, disclosure of the Defendant’s basic hire rate evidence followed by rebuttal evidence from the Claimant.

Various conflicting county court judgments have attempted to deal with this point. DWF advocate Spencer Turner reports on the outcome of a hearing where the Judge considered all of the relevant authority to come to a conclusion that sequential exchange was not appropriate. 

Facts

The claim relates to a road traffic accident which occurred in 2014. Liability was not in dispute. The particulars of claim sought damages consisting of repair costs of £3,880.64 and hire charges in the sum of £2,686.80. There was also a claim for an engineer’s fee of £60.

The matter first came before the Judge on paper on 5th September 2016 for allocation and case management following transfer from the CCMCC. The Claimant’s Directions Questionnaire was accompanied by written submissions on the issue of basic hire rate ("BHR") evidence and a transcript of the decision dated 14th March 2016 of District Judge Bloom sitting at the County Court in Willesden in Gonzales v. Dignity Funerals Ltd. and other related matters.

Having considered both parties Directions Questionnaires and the accompanying documentation, the Judge allocated the claim to the small claims track and made relatively standard directions including provision for mutual exchange of BHR evidence no later than 14 days before the final hearing, subsequently listed for 13th January 2017.

An application to vary those directions was made by the Claimant on 8th September 2016, so as to provide for sequential exchange.

The law

It is now well established following Stevens that the figure for the purposes of comparing the credit hire rate (CHR) and the BHR is the lowest comparable rate for the vehicle actually hired by the claimant from a mainstream supplier in the Claimant’s locality or, if no such supplier is available, from a reputable local one. The burden of proving that the BHR is less than the CHR and lies on the defendant (see Pattni and Stevens). If it fails to discharge that burden, then the claimant will recover the CHR.

It is also well established the court should approach the task on what was described in Stevens as a structured basis, following dicta in Pattni to the effect that:

…the questions are: (i) did the claimant need to hire a replacement car at all; if so, (ii) was it reasonable, in all the circumstances, to hire the particular type of car actually hired at the rate agreed; if it was, (iii) was the claimant “impecunious”; if not (iv) has the defendant proved a difference between the credit hire rate actually paid for the car hired and what, in the same broad geographical area, would have been the BHR for the model of car actually hired and if so what is it; if so, (v) what is the difference between the credit hire rate and the BHR?

The Judge added that there was no decision of the higher courts on the question that he had to decide. Counsel for the Claimant directed the Judge to Gonzalez. In turn, the Judge invited Counsel to address him on the decision of District Judge Bell in Miller v. AIG. In Gonzalez, District Judge Bloom decided that sequential exchange was appropriate. In Miller the opposite view was taken, albeit obiter. Neither decision bound the Judge but as a matter of judicial comity accorded proper respect to the carefully considered reasons of his fellow District Judges.

Submissions

Counsel for the Claimant made the submission that in the vast majority of cases defendants in credit hire cases do not identify the basis (if any) for alleging that the BHR is less than the CHR. He went on to recognise that this case was an exception to a limited extent, in that some BHR evidence is attached. He submitted however that it is unsatisfactory and anticipates, no doubt correctly, that the Defendant may wish to rely on other evidence. He argues that the Claimant must be entitled to know what case is being advanced on BHR so that it can meet it.

DWF Advocate, Spencer Turner for the Defendant argued that none of the Claimant's submissions provided a basis from which to depart from the usual rule that exchange of witness statements should be mutual. To allow the Claimant to ‘pick off’ the Defendant’s rates evidence at its leisure would be to confer an unfair advantage on one party. He argued that in practice the accident management firm that in effect stands behind the Claimant is well versed in such matters and knows what case it is likely to have to meet.

Findings

Dismissing the Claimant's application on 14 December 2016, District Judge Glen said that his starting point was to focus on the essential task of the court as identified in paragraph 33 of Stevens. Although the Claimant was not minded to concede that this was the case, it is a fact that the CHR contains elements which are irrecoverable and the purpose of the evidence is to establish a value for those elements. The party that is uniquely in possession of the information necessary to establish that value is the claimant (see Stevens at [36]).

The fact that one party or another bears the burden of proof does not lead to the conclusion that it should go first in a sequential exchange of evidence. It may be that claimants in such cases now have no interest in serving BHR evidence but if that is right, there is of course no compulsion on them to do so. They can elect to offer no evidence and hope that the defendant fails to prove its case, or they can choose (as they usually do) to put in their own BHR evidence at rates they regard as properly comparable to the CHR to show that there is no difference.

The Judge also indicated that he thought that there was a practical aspect to this application. The Claimant sought to adduce ‘rebuttal evidence’. The experience of the court was that such evidence often amounts to not much more than a quasi-skeleton argument pointing out at great length the deficiencies in the defendant’s BHR evidence (Miller is a good example of precisely this problem). Usually the only actual ‘evidence’ will be BHR rates and there is no good reason why this should not be the subject of a mutual exchange.

Commentary

The outcome of this hearing is demonstrative that as a general rule a claimant in a case of this kind should be entitled to the advantage of sequential exchange of evidence of fact.

However, the Judge did indicate that moving forward, there ought to be changes in the way that the courts and the parties approach directions:

  • In small claims track cases of this kind factual evidence should be exchanged in accordance with a timetable set from the date of the order rather than 14 days before the hearing as is usually the case. This will enable a claimant in those rare cases when it is necessary to seek permission to adduce evidence in rebuttal well in advance of the final hearing.

  • Defendants ought to be required to produce the full terms and conditions relating to any hire that they seek to rely upon and to ensure that both a daily and a weekly rate is quoted in order to ensure that a fair comparison can be made.

It would be prudent for Defendants to ensure that they start pleading a positive case, with some evidence of the BHR they seek to rely on in their Defences to stifle the argument that the Claimants do not know the case that they have to meet on BHR. 

Contact

For further information please contact Spencer Turner, Advocate, on +447738689368 or at Spencer.Turner@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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