- Accuracy of Pleadings:
- Parties should be careful to accurately state the circumstances of the accident in the Particulars of Claim or Defence.
- Witness Statements should be cross checked with the Pleadings once they have been finalised. If there are inconsistencies, an amendment to the Pleadings should be drafted and agreed with the opposition. In the event of there being no agreement, an application to the Court should be considered.
- Witnesses to the Collision:
- Witness statements should be taken from any adult inside the vehicle at the time of the collision.
- Witnesses should not be excluded from the proceedings on the basis that they are a spouse/other family member. The Court will consider the evidence of family members and will not consider that witnesses lack credibility just because they are related.
- The more witnesses available, the stronger the case will generally be at trial.
- Memorandum of Understanding:
- Insurers should refrain from entering into a MOU as an alternative to the opposition bringing a counterclaim. If there is an MOU, the Court simply needs to be satisfied that the party making the claim has discharged the burden of doing so – this gives the Defendant a tactical advantage. If there is a counterclaim, the Court will have to choose between the competing versions of events as both parties bear equal burdens of proving their case.
- Credit Hire:
- Should a credit hire claim be included, it is not advisable for the Claimant to tender their own spot hire rates in circumstances where the Defendant does not intend to rely on their own. The Defendant bears the burden of establishing lower rates and, often, the Claimant is doing the work which allows the Court to justify a lower award.
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