Evidence in a credit hire claim: what does the claimant need to provide?

Credit hire claims often involve large sums of money, the majority of which is from the credit of the insurer. The exact amount of damages awarded is down, to a large degree, to the discretion of the judge so it is important for the claimant’s legal team to get as much of the evidence watertight before the hearing as possible. From experience at court, there are certain elements of a case which are hard to fix on the day of the hearing, but which can be caught in advance, and lead to a better result for the claimant.

Claimants usually have little idea about the intricacies of the law in the area, nor exactly what is expected of them to meet evidential thresholds and why they need to meet them. This can often lead to a situation where the insurer’s money is on the line though the Claimant is the person who has to put in the evidence (and effort) to recover it. The claimant’s legal team has to step in to bridge the gap in interests, engagement and knowledge (solicitors before the hearing, and counsel when the matter gets in front of the judge).

Here are some of the usual issues which arise and some hints and tips for dealing with them.

Impecuniosity

To be able to rely on impecuniosity, financial evidence needs to be provided. I have often found that a quick flick through the bank statements, looking at the money coming in and out, will indicate whether there are other accounts where money is being transferred from/to (often you will see the account number and sometimes also initials). If the bank statements for those connected transactions are not then provided or explained in the witness statement, it can lead to substantial evidential issues. 

In terms of the statements themselves, these should be both for accounts in the sole name of the Claimant, and any joint accounts which they share with other people.

Don’t forget that obtaining bank statements can take some time (particularly if you have to go back to the bank itself), so reviewing the bank statements really needs to be done before the deadline for disclosure and in enough time for the Claimant to provide any missing account statements.

If a statement cannot be provided then the bank should be asked for a letter explaining this, so a court can be satisfied that they are not in the control of the client and so they are not prejudiced by this.

There is sometimes confusion in relation to credit cards. Credit card statements should also be provided, particularly if the claimant is routinely relying on credit cards to make ends meet.

Intervention

If there has been a letter of intervention, then usually a reasonable period to consider it is acceptable. In addition, a reply seeking information (which is Copley compliant) relating to any concerns which the claimant has can be helpful, whether there is a reply to the same or not. For example, one might ask if there is a named provider of the car, who that is and/or the terms of any insurance and the level of the excess.

If the offer set out in the letter of intervention is not accepted, a claimant accepting that they received the letter (in their witness statement or in the witness box) and then not detailing it at all in their witness statement might lead a court to think that they just ignored it. The claimant then has to work back from this position to argue that they acted reasonably towards the offer. A letter in response can help to show that the claimant properly considered the offer even if it is not accepted.

Repair Duration

Claimants often rely on their solicitors or the company providing the hire car to act as their agent. They often know very little about what is happening to the car while it is being repaired. This can often allow speculation about the period and, especially during longer periods of hire, to the delay. Having a section in the Claimant’s witness statement breaking down the period into smaller sections can help in explaining why the whole period was necessary, as well as any call notes chasing repairs. Often an indication from the garage of when parts were ordered, received and when works on the repairs started can help the court understand why a period which may seem prima facie excessive is actually reasonable – breaking down the longer period into more understandable chunks of time.

Witness Statements

These can sometimes become formulaic, but it is important to respond to any novel points raised in the defence. Not replying to a point, if it has impact on the case, can create an adverse inference by making it seem that the claimant is ignoring an issue or is not taking it seriously.

Another important ingredient to a good outcome is to explain any problematic areas of the case, such as:

• If there are larger sums of money in the Claimant’s bank statements, why they could not be used?
• If there are regular, repeated payments out of the Claimant’s accounts, where did they go and why?
• If there was an intervention letter, was it passed on for advice (and when) and was there a response (without waiving legal privilege)?
• If repairs took longer than the engineer estimated, did the claimant chase the garage and if so, what was the response?

Summary

Though the above is not an exhaustive list, it is a list of some of the key areas where additional evidence can make a substantial difference to the outcome of a damages claim. Conversely, when that evidence comes from the witness on the day of the hearing in the witness box without supportive documentation, it can lead to criticism and a diminution in reliance upon that evidence by the court.

Summary Checklist

1. Check the Claimant’s bank statements carefully, and obtain copies of statements for all connected accounts.
2. Check whether there has been an intervention letter, and a response. Ensure that the claimant deals with the letter in their witness statement
3. Consider the length of the repair period, and exhibit any attempts to chase the garage for updates on the repairs.
4. Don’t ignore problematic issues in the witness statement – use the statement to explain the claimant’s position.