Top tips… credit hire claims

1. The need for a replacement vehicle is not self-proving; Giles v Thompson [1994] 1 AC 142.  The burden of proof is the claimant’s, but can be easily overcome.  However, a claimant who had sufficient access to another vehicle, or who could not drive because they were convalescing or away on holiday, will struggle to satisfy the court that they needed a replacement vehicle.

2. Documents evidencing impecuniosity should be preserved and obtained at an early stage; their disclosure is now ordered as a matter of course and an unless or a debarring order is often the automatic sanction for non-compliance; check directions orders carefully!

3. Most litigators are now familiar with the operation of the Cancellation of Contracts Made in a Consumer’s Home or Place of Work etc Regulations 2008 (if you’re not read Chen Wei v Cambridge Power & Light Ltd 2010). 

(a) The Regulations were considered again in W v Veolia Environmental Services (UK) Plc [2011] EWHC 202 (QB), in which the hire charges had been paid by an ATE legal expenses policy; the Regulations had rendered the underlying agreement unenforceable against the claimant, but as the charges had already been paid, they were recoverable to the limit of the ATE policy indemnity, but not above that.  When such claims arise, evidence that the charges have been paid pursuant to a claim on the ATE policy will be necessary.

(b) In Aggouche v TNT UK Ltd (2011) the claimant was a mini-cab driver and said that he needed a replacement vehicle to enable him to continue working and for private purposes.  He was not provided with a written cancellation notice.  The Deputy District Judge held that an acquisition for dual purposes is not a consumer acquisition unless the trade purpose is negligible; it was not negligible on the facts and the claimant was therefore liable for the hire charges.  The judge came to this conclusion on the basis of his own research and his decision is not binding, but it does merit further consideration; in matters with similar facts carefully crafted pleadings will be required.

4. Particulars of claim rarely plead that a claimant is impecunious.  However, CPR 16 PD 8.2(8) requires a claimant to specifically set out in their particulars of claim any facts relating to mitigation of loss or damage when they wish to rely on them in support of their claim.  It is important for claimants to follow the practice direction and defendants should see non-compliance as a tactical weapon.

5. Surveys of spot hire rates can normally be carried out by a legal team, without the need for third party input.  In Darren Bent v Highways & Utilities Construction [2010] EWCA Civ 292, the Court of Appeal noted that working with comparables and making adjustments was the daily diet of judges and evidence of what the spot hire rate was a year or so later was likely to throw considerable light on what the spot rate would have been at the time.

Article by Sarah Venn