Credit Hire – Update Your Precedents

Article by Rose Oliver

Summary: Comment on the 114th amendments to the Civil Procedure Rules, in force from 6th April 2020

In the Government’s 2017 consultation on credit hire claims, the Civil Procedure Rule Committee opened up the floor to all practitioners in the area. The result was the amended Part 16 of the Civil Procedure Rules, which came into force on 6th April 2020. There are now further mandatory requirements for all credit hire claims proceeding in the County Court, and further reaching amendments to the Rules as a whole.

Statements of Case

Practice Direction 16, paragraphs 6.3 and 6.4 now state:

6.3 Where the claim includes the cost of hire of a replacement motor vehicle following a road traffic accident, the claimant must state in the particulars of claim;

(1) The need for the replacement vehicle at the relevant time;

(2) The period of hire claimed (providing the start and end of the period);

(3) The rate of hire claimed;

(4) The reasonableness of the period and rate of hire; and

(5) Impecuniosity (if the claim relates to credit hire).

6.4 In paragraph 6.3—

(1) “Relevant time” means at the start of the hire and throughout the period of hire;

(2) The obligation to state the matters there set out includes an obligation to state relevant facts.

A well pleaded statement of case will set out the above as a matter of course. Attention is drawn to paragraph 6.4(2); it is insufficient to state, for example, that the Claimant needed a vehicle for the period of hire claimed. The burden of proof dictates, and this practice direction underlines, that the Claimant must set out the facts of their case which lead to the conclusion that the Claimant did in fact need that vehicle over the entire period of hire.

Witness Evidence

The particulars of claim are not a substitute for a thorough witness statement putting those facts into evidence. Care should be taken that thorough instructions are taken from Claimants, as was seen in Irving v Morgan Sindall [2018] EWHC 1147 (QB), wherein the Claimant’s oral evidence differed on the crucial point. Despite Miss Irving’s sworn witness statement that she was obliged to pay the credit hire charges, she gave oral evidence that she was not personally liable.

Amendments to Practice Direction 32 on Evidence now impose further standard requirements for witness evidence. Witness statements must also now include the method by which they were taken, and must be in the witness’ own words. Practice Direction 23 now requires that the witness statement must be in the witness’ “own language”, which presumably means their first language, and must contain the date of translation of any translated copies.

Statements of Truth

From 24th February 2020, claims presented through the online Money Claims System required the inclusion of a new form of statement of truth. From 6th April 2020, amendments to Parts 22 and 33 of the Civil Procedure Rules now require all statements of case and witness statements to include the new form:-

‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’

Standard Directions

The consultation proposals also included a requirement for standard directions in credit hire claims on all tracks. Concerns had been raised that small claims track directions in particular were not conducive to settlement, with disclosure due simultaneously only 14 days in advance of the final hearing.

Whilst the proposed standard directions did not make the final cut of recommendations, they remain a good point of reference and a useful indicator of judicial attitudes to evidence in these types of claims. The Rules Committee proposed specialist directions in respect of evidence of impecuniosity, need and the basic hire rate, in the form set out below:

“a) The Claimant will provide a witness statement addressing, and if relied upon, evidence in support of:

i) need to hire a replacement vehicle; and

ii) impecuniosity no later than 4pm on …………….[14 days from date of order].

(b) If impecuniosity is alleged by the claimant and not admitted by the Defendant, the Claimant’s disclosure will include:

i) evidence of all income from all sources for a period of 3months prior to the commencement of the hire to the earlier of 3 months after the cessation of hire or the repair/replacement of the Claimant’s vehicle; and

ii) copy statements of all bank, credit card and savings accounts for a period of 3 months prior to hire to the earlier of 3 months after the cessation of hire or the repair/replacement of the Claimant’s vehicle; and

iii) evidence of any loan or overdraft or other credit facilities available to the Claimant during the period of 3months prior to hire to the earlier of 3 months after the cessation of hire or the repair/replacement of the Claimant’s vehicle.

c) Failure to comply with the directions above will result in the Claimant being debarred from asserting impecuniosity at the final hearing save with permission of the Trial Judge”

d) The parties are to liaise and use reasonable endeavours to agree the basic hire rate no later than 4pm on [28 days from date of order].

e) If the parties fail to agree rates subject to liability and/or other issues pursuant to paragraph (d)above, each party may instruct a single witness to provide evidence of basic hire rates available within the Claimant’s geographical location, from a mainstream (or, if none is available, a local reputable) supplier. The Defendant’s evidence to be served by 4pm on [14 days after paragraph (d)above]and the Claimant’s evidence in reply if so advised to be served by 4pm on [28 days after paragraph (d)above].

– Draft Model Order for Directions in Credit Hire Claims, Consultation Exercise June 2017

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