Hello and welcome to this credit Higher Webinar recorded credit Hire part one because we're going to talk particularly today about two aspects off credit higher on There is, of course, a part two to follow on due course, and we will cut other issues that are relevant when it comes to dealing with credit. Higher cases. Let's take a look at what we're going to cover today. Um money, Nicky Cancer, By the way, Claimant B I. Background for May. Let's look up what we're going to actually be focusing on. We're going to take a look at need. You could you could argue when it comes to credit higher. There are four key issues really quick key argument areas that come up. And I wanted to look focused really on two of those in this weapon off. Firstly, need for the vehicle at all. So does the claimant have a need for any vehicle, if you like on then particularly to focus on well, if they do have a need for a vehicle, do they have a need for a vehicle of the type that they have hired? So we'll take a look at that. Of course, the next big issue of argument. Andi conflict is right. We go lots to say about right. Basic, higher rate used to call it spot higher rate. There's older cases that we're going to look at cases like Pattni that kind of set the scene all way back, actually to Clark and Arlington. But we're going to look at much more recent developments. What's going on with the HR evidence? Whose burden is it to produce that evidence or who is the response on him? Is the responsibility on what kind of evidence is important? What's the court going to be taking a look at now when a credit card company drives out next and then often gonna need a replacement vehicle on? That's not surprising when the Roman is damaged on its being repaired or place, so they'll often need a replacement vehicle on credit. Hire companies will often be the place where the claim of goes now, what credit card companies will generally do when a Soviet, the prospective Hira, they'll try and make us analysis For us. I can still, whether the accident is genuinely along for accident, they'll arrange potentially on inspection and repair off the damage vehicle on their normally then appoint solicitors to pursue the negligent party for the cost of higher on their behalf. Sometimes the credit hire companies that that instruction can be quite frustrating because, of course, they have to trust if you like the P I solicitors, if they're being injuries, to deal with the credit higher in an appropriate manner. And that can be quite frustrating. If you're the expert credit card company toe, hand the file over to affirm, for example, of P I solicitors and trust that all the credit higher issues will be dealt with adequately. We said at the beginning that there are common areas dispute on argument Onda lots and lots of satellite litigation when it comes to credit higher on, I'm not some argument, they break down really into the categories that you're looking at on your slide. So to we're going to talk about this morning on one. Need need encompassing need for vehicle a tall and then do you need type of vehicle that you actually go well, look a rate on the whole issue surrounding rates evidence, and upon whom is it incumbent to collect evidence and what kind of evidence should it bay? Well, look at on our next presentation. Are duration so again and common area of argument? Is the length of period of hires reasonable? Is that the appropriate link? I could it have been shorter issues off impecunious city off the hirers are going to be relevant. And in a sense, we can't talk really about the issue off rate without mentioning and peculiar city. It's relevant for whether or not the rate should be the credit hire able the basic high rate. Of course, it's relevant issues of duration as well. So it's so all encompassing issue of accumulating. We do need to talk about it in this weapon are to some extent and then, lastly, enforceability and again not be the subject of our next presentation on this issue, you know, is the credit hire agreement actually enforceable? Is it something that complies Previously with the Consumer Credit Act 1974 on now, or rather from the 30 June 2014? Is it something that complies with the consumer credits, consumer credits or contracts, information cancellation and additional charges? Regulations Bit of a mouthful from 2013 so issues off enforceability on There are a few issues, particularly in relation to the roll off this so called doorstep regulations that when we come to talk about that in our next webinar will focus on. That's quite a change from June 2014. Okay, so for the purposes off today, we're interested, firstly in need. Now it's the duty. Isn't it off clearly the innocent motorists to mitigate losses as far as the motorist can do now. Certainly the motorist is only gonna be able to recover expenses that have bean reasonably incurred. That's the idea. Now the higher it is going to have to prove that he needed that replacement vehicle. If the claimant sales to prove need for a vehicle a tall than course, the claim for the credit card charges will fail in its entirety quite clearly. Now, whilst you know, the bar is quite low in terms of the level of proof, if you like establishing need, what we do know is that it isn't so proving, so you can't sit back the claim and say, Well, I had a vehicle previously, I've gone to the expense of purchasing one running a car Clearly, then, that establishes that I have a need for a vehicle. It all we know cases like Charles and Thompson from the mid nineties, where and the court looked this issue and said, Well, it's not self proving I'm give up gave a couple of examples things like What if someone had been in hospital for a while during the period of the higher In those circumstances, perhaps need wouldn't be established. What if they've been abroad out of the country for a while? Wall vehicles hired, perhaps that be problems with knees there. Interesting. Those two examples were chosen fairly extreme example, So it suggests that the bar is low. However, claimants can't relax and assume that having had the accident lost their vehicle for a period that need is a self proving issue. We could look no further really initially. Are you in a case called Mulholland and Hughes from a few years ago, a portal that actually in rt 1/4 matter that was heard in the new Castle County Court where arguments were made really about? What is it that the claimant has to establish to make out need for a vehicle now requiring claimants to prove need in every single case, even when it's not raised by the defendant. And remember, this was a portal matter, that this was all about whether or not defendants were raising particular issues, particular challenges to the higher of a vehicle at stage two. Just, of course, the you know moment when both parties have to put their cards on the table. A defendant who didn't raise in this particular case, the issue or need off a vehicle was never raised stage. To allow the defendant did was simply offer the claim and a lower some for the higher Was it okay for the defendant later, Apart a few nights Stage three hearing to raise that issue at that point. And we know from the portal on the way the protocol is put together that claimants can't raise fresh matters at Stage three. The question really was, can defendants Now? The court was quite clear about this. To make an offer in respect of higher charges is not to admit to the need for higher, but not to challenge need at Stage two, which is what the defendants have done was equivalent to saying the claimant did not need to formally prove it In other words, if the defendant neglects to raise that pretty basic issue, actually, I did. The claimant have a need for a vehicle. A tall I makes offers, which, indeed the defense did here for lower sums in respect of Higher, Then the claimant can if you like, relax on establish well. I don't need to formally prove need because it hasn't been putting issue at Stage two so really important principle established at that point in terms off where the arguments tend to come. Certainly the same principle tends to apply to the type off car hired, so disputes about need and type will be. Do you need a replacement vehicle at all when your own is out of action on If you've hired or your pires an expensive prestige model, what about you will need to hire such a costly type of vehicle? Wouldn't a standard vehicle have been Justus? Good. Now it's interesting when we look at this that we know that from a defendant, one of you, from a challenge point of view, defendants will closely look up with this statement. They will prepare put together part 18 questions for payments to try and narrow down the claims issues in relation to a need a vehicle on. They will scrutinize those part 18 responses, which remember, will be endorsed with a statement of truth on milk. Scrutinize them against the evidence they have obtained to try and ensure authenticity. And if there isn't authenticity, that course that may be more at stake than the higher charges. There may be issues of fundamental dishonesty, any contradictions at all in the statements in the park, 18 responses and the other evidence will be challenged pretty clearly by the defendant. So from a claimant point of view, one of the key issues is to ensure that there is consistency in the documents. Now, that doesn't mean the, you know, if a claimants no honest the climate that the climate solicitor is going to be trying to deal with that somewhere. Of course, no claimant sister wants to deal with someone with a dishonest claim, and that's just not gonna happen. But he is important because claimants rely on their solicitors for the preparation of documents, the preparation of statements to ensure there isn't a risk that there's an inconsistency that creeps in. The danger, of course, is that stock paragraphs. Stock sentences go into some of these statements. On the risk is that the climate doesn't fully understand the wording of the statement. They sign anyway and then find themselves in real difficulties when further, more detailed questions are asked one off the arguments issues. If you like that comes up, do you need a vehicle? It all comes up in the context off. Well, hang on a minute. Do you really need a vehicle? Because what if there's a courtesy vehicle available? Claimant under your own policy of insurance wise, the defendant being put to the expense all ah, higher vehicle when it was entirely possible for you, Claimant Teoh. Tick the box if you like, except the free courtesy so called free up. But we should put that in parenthesis, that word Kirsty vehicle that you won't ensures of offered. Now this argument goes by back to a case called said in and Take it from 2000 one. More recently, we see the argument running case school McCauley on Brennan from a couple of years ago, a Northern Ireland case, and what we know from both those cases is the availability of a courtesy vehicle under the claimants own policy insurance does not prevent the claimant recovering the higher charges. Why? Well, why should a defendant be up to take advantage of the fact that the climate is insured to reduce his own loss? If the claimant did so by taking the car from his own insurer than his own insurer could recover the cost from the defendant in any event, so there's no better if you like. For the defendant insurer, you'll notice are reminded you of a Latin tag that's relevant in this arena. Rest into Aljaz actor thing done between others does no harm or benefit others. In other words, the Klayman conscientious claimant who took out comprehensive insurance who paid extra for the availability of a courtesy vehicle shouldn't be in any worse position when it comes to a claim, Then the person who didn't bother doing that and took out cheaper car insurance third party on didn't have a courtesy car. The benefit, if you like, shouldn't go to the insurer, and it's a fairly established principle, isn't it? And pay I in recovery terms that the climate is good sense and preparation by taking out insurance shouldn't benefit the insurer. It raises the question. Obviously, start thinking about offers off and again. We use the word free courtesy vehicle mindfully because the wit free such thing as a free vehicle, just like a free lunch on the Copley. In long case looked at this in some detail. What if the claimants had been offered by the defendant? Our so called free vehicle on asked to return that vehicle that the higher vehicle they had un except the offer of the so called free vehicle? Would that mean that claimant had failed to mitigate their loss and will be in difficulty and recovering the higher charges from the defendant? Well, the Court of Appeal case of Copley on long looked at that in some detail on, in essence, what the court had to say about that. What's the offer of a free higher vehicle by a defendant? Insurance company may, in some circumstances, result in a reduction in the credit hard challenges found to be recoverable by the climate on it went on to say, in certain limited circumstances on the limited circumstances are what exactly is it that the insurers, the defendant insurers need to be telling that Lake Lehman about the so called free vehicle that is being offered. What information is the claimant entitled to for it truly to be a comparable to the higher vehicle that they've already got? The climate needs to be in full possession of all the information, and telling somebody that the vehicle will be free just isn't true. Apart from anything else, there will be charges attached that vehicle. And it was clear in Copley that it's not a failure to mitigate to reject an offer of a replacement vehicle. If the offer letter that you received or mitts to specify the cost of providing that replacement Andi key details about the replacement, How will it be collected? What type of vehicle is it? Is it really a replacement? We you know, the question is posed. Would it be enough for that offer? Let it to include the higher cost figure. We know that in subsequent years after Copley, defendants have honed their letters, if you like in this regard. But you know, most practitioners will say they rarely see our so called Copley compliant offer letter from a defendant insurer on. So what we're looking for is to see whether that letter truly gets the claim, all the information that they're entitled to be given and also course whether that vehicle really exists. Is there a vehicle actually available for the plane, as the defendant is suggesting? Let's take a look at the arguments about the type or vehicle that the claimant has actually hired on. We've said that you know the claim it needs to establish a basic need for a vehicle, while okay, that may not be too difficult to do, is we've ever as we've examined. But then we start to look at the type of vehicle that the Cayman has hired on. The issues are, of course, well is the claim and entitled to hire a so called like for like, vehicle. What about the argument, Perhaps, where the claimants own vehicle? The example given on the slide is ah, Ford Fiesta. But the claimant, according to the courts held to have reasonably hired ago, the core in that circumstance is going to prefer the evidence basic hire a evidence for a gulf over the rates for a fiesta when assessing the appropriate DHR for a replacement vehicle. Now, this can leave the defendant in a dilemma. And certainly that dilemma was clear in the case of Darren Bent on the Highways and Utilities Construction LTD. And Aliens Insurance. Remember, In that case, the defendants will pin their argument on honor, an issue about the type of vehicle that the claimant had hired on arguing that Darren Bent could and should have hired a different vehicle. They produced higher basic high rate numbers for the vehicle they argued he should have hired and didn't produce any evidence basic hire a evidence of the vehicle. He did, in fact, higher now. The problem there, of course, is that the courts not with you on the first part of your argument as a defendant, then the second half is bound to fail, so there's a huge amount of pressure, if you like on defendants to get this evidence right on. I think one of the things we need to take on board really is to say, Well, hang on. What kind of a test is this? We know the climate has to establish the need for a vehicle a tall on. We know that that bar is quite low. However, what about the test, if you like, for the reasonableness of the vehicle the claimants chosen to higher. Now I've given an example here on this slide off prestige vehicles could be sports vehicles. It could be a particular model of vehicle. The claimants going to need to establish that the vehicle they hired was a vehicle that had a reasonable need for now. You could argue that since perhaps the argument runs well, I already had that vehicle on. It was damaged in the accident, and I'm just hiring a replacement for it. Well, that started the argument. But the next issue is what about that type of vehicle was important to you on. This is where the test gets interesting because we need to remember that a test for this kind of evidence is, ah, subjective one. In other words, this claim and this individual climate, what were their views, what with their feelings about the need for that particular vehicle? It's not appropriate to look at whether the court thinks that was a reasonable thing or us bystander. A reasonable bystander would have thought so. Is it a genuinely held belief by the claimant and I think really well illustrated in this case, Go and in a few Mutual from a couple of years ago. The judge commenting in that case of Adam McClaren sports car, actually that the claimant, but owned on that. They then hired McClaren sports girl when his own was off the road due to an accident. When Miss the gown sits in his McLaren and drives about even if it's only to visit a public house, he feels very much better in himself. He does establish need. It's not about whether gals firmly held belief that he felt better about himself on that he had business image to present, which is what the case goes on to say by driving around in its McCarron. It's really a ground not so much whether anybody else thinks that's a reasonable position told, but whether Gal genuinely held that view. And if that's the case, then it's reasonable. However, word of caution got to say, I think about prestige vehicles in cases like Frankland and UK Insurance illustrates some of the dangers and the risks or running claims for the credit hire of prestige vehicles. In the Franklin case, it was actually a Ferrari California convertible hired for just over 220 days of the around that time at a cost of over £230,000 the defendant sort summary judgment on the basis the claimant had no need tire. Why? Well, they had evidence that he got five other vehicles available to him. The vehicle in question was only insured for a fails and miles a year only. And in his mitigation statement he declared that he wanted the vehicle for domestic use as well as commuting toe work. However, the insurance confirmed the vehicle wasn't insured for work purposes. Now this is an example of think off the contradictory pieces of evidence that can sometimes be revealed in statements when compared, Let's say two Part 18 replies when compared in this case with an insurance document. So there are real concerns. It's trying to get this right. Practice points from this really on claims featuring prestigious vehicles. Defendants will obtain the claimants insurance certificate to see if other vehicles were available are to see whether there's any mileage restrictions on. Be careful to ensure full responses given to the defendant. Challenges for need for the claimant might be questioned on the claim it needs to be given a chance to respond to. It's really important to clear this up while we're on the topic. I think one issue to mention is perhaps with older prestige vehicles, certainly under the baby. I took general terms of agreement where the vehicle is over six years old, say the FBI. Terms of agreement is the exception rather than the rule that a similar prestige vehicle is required. The only caveat. Here I think claimants is. Be careful because the GT A the general terms of agreement are not always going to be relevant or they're not relevant often in litigation. So that's a guide. But it may be that older prestige vehicle means that the claimant the driving of one, means the claimants entitled to hire a replacement prestige vehicle. One other area off difficulty challenge, let's say, is concerning self employed claimants and businesses on one of the arguments often run by defendants is, well, hang on a minute if the profit from the vehicle is £1000 per month, but I'm being expected to pay credit hire charges of £2000 per month surely are the cost of hiring is going to exceed. The profit may be all you can recover is the loss of profit. It's important, I think, to take a look at that in a bit more detail. And you know, they're contradictory cases on this point. Cases like a Line taxis award cases like Ali and Spirit Motor Transport, both county court matters in Alley. It was held in accordance with common law principles that this is a taxi. The climate was entitled only to the lower off the loss of profit he suffered by his taxi being off the road on the daily rate higher off the replacement vehicle. But one of the things to take a look out with these cases is waas the claimants vehicle just an income earning asset. Or did the claimant used that vehicle for social purposes? Did his family used the vehicle as a general principle, providing the climate kind of stuff that you need for a vehicle? They're entitled to replacement vehicle for reasons other than just preserving all maintaining an income and in addition to the loss of profit. In that particular case, the claimant was in type of compensation for loss of use of the vehicle. In this case of £15 a day be conscious, however, examples like Alley all very very case specific and so picking up detailed evidence in each case is really, really important. No claimants evidence really needs to look at what was the use of the vehicle. So if it's a taxi was their private family uses that vehicle does really, truly mitigation of loss include the claimant giving up work? Is that really something that Caught would expect the claimant to do claimants evidence to prove that he couldn't have afforded not toe work? I wouldn't have been able to pay his mortgage in that instance, evidence of contracts, perhaps with certain customers, which might have been lost if the work wasn't done. Possible. Loss of goodwill, it the claim. It was a way for any period of time on maybe any responsibilities that climate might have to sub contracted drivers in a bear in mind. Also, something we touched on businesses. If the argument is, there are other vehicles available, their fleets of car available available to the claimant cases like Parklane whip, I mean that that courts going toe want to see some evidence off the use. The higher vehicle was put to what was it actually used for? When was it used? Cases like Breach would up Birmingham LTD. Versus Hair from a few years ago. Same thing, Ah, motor dinner with substantial stock of vehicles, it might be that the right way to reward that Cayman is to receive damages for loss of use due to the damage based on the interest in capital on depreciation on that vehicle rather than the higher and in sing, and you could be in the court appeal in 2013 the court took the view that where there are other vehicles available on in this particular six prestige vehicles, specific evidence is going to be needed for the use the higher vehicles actually put to during the period of the higher now impecunious cities, something that's really important when it comes to issues off right. Basically, I'm right. It's reasonable for the climate tyre replacement car, but he couldn't afford to hire ah car by paying in advance. Then prime a Feitian. You're going to say he's entitled to recover the whole off the credit hire eight, provided it's a reasonable rate in those circumstances. Now that's a well established principle in credit, higher when we look at our second part, this weapon on the credit higher Webinar will look at the arguments that relate toe the relationship between impecunious city on duration said period or higher. Whether someone's impecunious or not will light if you like on the issue off the duration off the higher if pleading impecunious city that the climate's going to need to establish that they are impecunious on how they're going to do that well, details of their earnings statements from their current account details of any savings or credit card accounts for the relevant period, usually about a month before, are going to be relevant documents. But the cool will expect the claimant to be able to hand over on again the burden, if you like, is on the claimant to produce evidence to show in those circumstances. In peculiar city cases like Allen and Emlyn from 2013 Scottish Case made it clear it's for the defendant Scottish case of defenders the word but for the defendant to prove that the charges incurred by the climate or unreasonable if the defendant doesn't produce any rates evidence it all the pus era climate in this country was entitled to recover the full credit car. Higher charges. So we This doesn't let the defendant off the hook. If you like, for not producing any basic hiree evidence, it is an obligation for the defendant to do so. But the claimants going to need to show that that wasn't an option for them because they effectively were impecunious. One example. The cases are Irvine on Morgan, um, from 2018. Last year, where the court clarified this issue of impecunious city, what does it really mean? And the court said this Mr Justice Turner said this for the climate to reduce her capital to the bare minimum and increase her debt. It's not something that claim it should be expected to do. She shouldn't have to make sacrifices. She couldn't be reasonably expected to my and he went on to say in Peculiar City, need no amount to Penn. Yuri is really important. I think somebody has a relatively low income up, perhaps small savings. But maybe access to a credit card is this young woman had that the courts realistic about the options for her really is expected that that person should spend the only money they got toe prevent a risk that they may need money at some point in the future on and get themselves into debt by taking money out on that credit card on the court, said no. So it's not just a question of variability, it is a question of how reasonable be for the climate to do so. One issue about in peculiar city that we need to address is that in terms off the evidence that that disclosure the like of that our bank statements are credit card statements. The EU and Charles case from last year makes it very clear that possibly the proposed defendant, the insurer may well be absolutely right to make an application for pre action disclosure for the disclosure off that financial information for individuals would intimated claims for recovery of higher charges. So be aware that the possibility of the defendant using the 31 16 mechanism for obtaining that information before the claim is ever begun is an entirely realistic possibility in terms off rates. Ah peculiar is claim and it's only going to recover market spot rates as opposed to credit. High rates on a failing shop around automatically equals failure to mitigate. So if we impecunious these out the way, the peculiar is claiming, it's only going to get spot rates. The court once called. We know they now called basic high right vehicles high pursuant to a credit hire agreement or if in charge, daily, as opposed to weekly rates on the rates are usually higher. Of course, those charged by credit hire companies important decisions in this arena, Stevens and equity principle. If there's a range of thr evidence, what's the appropriate ones? Compare the lowest reasonable right quoted by a maze Dream supply local reputable supplier. Unreasonable expansion can't be claimed if the claimant had no use for a replacement car in park or a tall because the hire car was bigger, better than was reasonable. The car hire claim must be reduced to their the amount necessary to hire an equivalent car. The claimant could afford to hire a replacement car without credit. The damages will be the some attributable to the so called basic higher rate, once called spot higher. Now the terms basic hire. A Darren Bents case makes it clear that it's really, really important that the defendants obtain proper information about BH are failing, which someone like Darren Bent, a professional footballer who could easily have afforded toe higher at pays You go if you like. Rates recovered the full credit. Higher rates. The defendants failed to show direct evidence in the fourth published rates from actual credit part credit hire companies that hire the replacement car evidence could be provided of be a child charge, maybe by other car hire companies for the type of car actually hired. The defendant's burden is to obtain this evidence somehow, and the evidence has to show that it is truly comparable any additional services. That credit card company provides the credit the handling of the matter, the admin or not part of recoverable costs on the claimant can't recover those. When deciding the rates truly comparable, the rate put forward by the defendant to displace the credit rate must be comparable. So arguments about whether alternative rates are proper ones or whether they're not the defendant, has to demonstrate that what they put together is truly, truly comparable. One issue that the courts have had cause to look at recently in a case called McBride is the extent to which you really can compare the rates produced, if you like by the defendant with the credit higher rates that the claimants actually paying on. One of the issues that McBride revealed is that nil excesses on extras paid by the claimants as Mr McBride And indeed Mr Clayton did in the case that we're looking at now need to be compared with basic high rate in a proper manner. How do you do that? How do you compare them properly? Well, the court took the view that where both Mr McBride on Mr Clayton had paid extra. A collision damage waiver, extra £10 in one case, £70.50 in the other extra day to reduce the excess two nil. It was appropriate to compare that collision damage waiver added on if you like to the cost of basic high rate, because the basic hire a evidence that the defendants had produced did not show a mill excess in the court took the view that it was reasonable for the comparison to be made, including, if you like that additional cost. That's meant that in the credit high world now relevant evidence off the purchase of collision damage waiver insurance Can you get it cheap thrills where cheaper than the claimant was paying to the credit hire company is a relevant consideration. One issue just Teoh take away with us before the webinar ends is statutory interested. The credit hire agreement provides the higher will not be due and payable until judgment has been obtained on. There are no express terms in the higher agreement about interest. Then it's not appropriate for statutory interest to be awarded on the case of Pattni. On first less the buses establishes that very, very clearly. I hope the webinars been helpful and thank you very much for listening.
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