Rate evidence post Bunting

Whilst we continue to wait for the Bunting transcript, both Principia, and I am sure others, report continued success at recovering commercial hire rates in the face of inadequate evidence from the defendant solicitors. Yesterday Principia reported on LinkedIn some successes in Guildford and also in Hastings where they were assisted by Helen Rutherford of counsel. The elephant in the room, however, remains the question of what comes next and how the purported rate experts, Which Rate and Surveyorship (now owned by The Davies Group which also owns Keoghs LLP) will react.

Dean Roberts has written a note on the evidence in Bunting that has been widely circulated and is accessible on the Forum pages of our website. He set out the factual and other evidential deficiencies associated with the evidence of Mr Rose of Which Rate. His evidence, if Steven Turner’s note of the judgment is completely accurate, was relied on by both the Recorder at first instance and Mr Justice Pepperall later.

There is a possibility that DAC Beachcroft and others will try to gloss over some of the evidential inadequacies, characterising them as ‘nit-picking’, and attempt to seek directions limiting evidence of rate, at least in small claim track trials, to a screen print of the lowest rate for a comparable vehicle.

Of course, someone will still need to adduce that evidence. Bear in mind that it cannot be the defendant solicitor who are prohibited from giving evidence on behalf of their client. In addition, I am not sure whether Keoghs can now deploy evidence from Surveyorship without declaring a relationship, and still manage to pass the sniff test bearing in mind the common ownership under their parent company.

That aside, what about the Claimant and where he figures in all of this? He or she is too often overlooked in what is in reality a fight between insurers and CHOs but the claimant still has a contractual liability to deal with the hire charges incurred as a result of the negligence of a tortfeasor and whilst it might be construed as nit picking by Pepperall J, the claimant is entitled to justice.

In giving judgement in Purushothoman v Malik & others [2011] EWCA Ci 1374, Aikens LJ was first seized with the Autofocus issue where AX had alleged dishonesty, which had not then been proven, and we were seeking to adduce evidence of that dishonesty out of time. What Aikens LJ said was interesting:

the investigations demonstrated that surveys contained in Autofocus reports had not in fact been carried out as described in the witness statements of employees and if such surveys had been carried out then their results were misrepresented”.

Of course, we now know that Autofocus had perpetrated the biggest deceit on the Civil Justice system ever and eight people subsequently received custodial sentences having been found to have committed either perjury and/or contempt of court by making a statement they knew not to be true. However, the key point appears at paragraph 18 of the judgment in respect of the rights of the claimant to a fair trial where Aikens LJ said:


… we do conclude that the fact that there is evidence to demonstrate that there was what has been called in the course of argument a “systemic slipshod approach” or “systemic fraud” must be evidence in support of a strong argument that in each case the claimant has not had a fair trial in contravention of both domestic law and contrary to Article 6 of the ECHR”.


The claimant’s right to a fair trial and to cross examine the rate witness is assisted by this conclusion especially where there is prima facie evidence of deceit.


If Dean Roberts is correct in his forensic assessment of the evidence in Bunting v Zurich Insurance then it is perhaps a little clearer why Auxillis sought to appeal the first instance decision. In future first instance hearings, especially with the implications of the revised statement of truth, I would suggest that the opportunity to hold the feet of the rate experts to the fire has improved materially. Again, with thanks to Dean for his contribution, I set out below a precis of the rules relating to evidence served under cover of a Civil Evidence Act notice:


Section 3(2) of the Civil Evidence Act 1972 provides that


It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived’


Therefore, individuals giving evidence for a company should be confined to opinions on matters that they have “personally perceived” and not be allowed to opine generally on matters in which they had no personal direct involvement.


It is a mandatory (but often overlooked) requirement that a witness provide the source of any information and belief in their statement.


In the case of Bunting v Zurich Insurance, the witness, Mr Rose, whose witness statement containing a survey of basic hire rates had been filed and served by the Defendant, was summonsed to Court and called by the Claimant.


Mr Rose’s statement included, inter alia, uncorroborated assertions that (paraphrasing):


Vehicles not available for hire are shown as 'sold out', 'not available at this location' or were not displayed on the website


that


An equivalent substitute would be provided if the booked vehicle was not actually available”.


that


Hire can be extended ad Infinitum by visiting the local branch, via telephone or online”.


and that


Odd days (i.e. those that are not multiples of 7) would be charged at 1/7 of the weekly rate”.


When questioned by counsel for the Claimant as to how he knew these matters to be true, Mr Rose’s apparent response was that his knowledge came from his “experience”, the inference being, therefore, that these matters had been personally perceived by him.

Dean reviews statements from Which Rate on a daily basis and what was unbeknown to Recorder Poidevin QC at the Northampton County Court was that the genesis of Mr Rose’s statement was, in fact, a generic template provided by his employer, which Mr Rose had amended accordingly to the fit the particular requirements of the case; these amendments being nominal and, by necessity, limited to: (1) the names of the parties, (2) the names of the rental companies, (3) the vehicles selected, (4) the excess amounts imposed on those vehicles, (5) the reduced excess amounts available for those vehicles, and (6) the distances of the companies from the Claimant’s address.


The majority of the statement remained generic and not originally authored by Mr Rose.

Mr Rose’s written statement did not include any corroborative evidence to support his assertions and neither did Mr Rose provide any specific oral evidence that he, personally, had hired from Thrifty, extended the rental period every 7 days, that this extension had exceeded 30 days, or when this had occurred.


Ironically, Mr Rose exhibited with his statement the terms and conditions of hire from Thrifty, which directly contradicted his oral evidence by expressly providing that rental extensions only ‘may’ be granted and that, ‘if’ granted, could not exceed 30 days, and yet the Court disregarded those express written terms in preference for Mr Rose’s uncorroborated oral evidence.


This begs the question important question: How did Mr Rose sign his witness statement believing the contents to be true when he had not personally perceived hiring from Thrifty, extending the hire every 7 days, permitted to do so in excess of 30 days, and been charged only 1/7th of the weekly rate for any odd days (i.e.) not divisors of 7 days, but rather had relied on a generic assertion within his written statement and originally authored by someone other than himself which, during the course of giving oral evidence, had morphed into his “experience”.


Furthermore, the capacity in which Mr Rose provided his evidence was not that of an expert since Mr Rose’s statement had not satisfied the requirements of Practice Direction 35 of the Civil Procedure Rules, specifically sections 3.2 and 3.3.”


I repeat my thanks to Dean for the above analysis which is helpful in terms of sowing the seeds for how future BHR evidence served by the defendant might be addressed but, I suggest, only where there is prima facie evidence that the evidence is deceitful. Seeking the attendance of every rate witness in every case will not please an already constipated court system and, from experience with Autofocus, where there is no basis to forensically destroy the evidence then having the witness there does more harm than good.


We now have 15 law firms, 10 CHOs and half a dozen counsel subscribed to the Credit Hire Forum. More than that, however, we now have over 200 professional employees of those firms that are registered on the website and have access to our resources and discussion mechanism. Those members are predominantly lawyers and paralegals engaged in managing credit hire claims and their participation is both valued and appreciated. For those CHOs that are compelled to use litigation to recover their debt, at a cost of just £85 a month, and with unlimited access to the resources on the Forum for all its employees, why only 10 CHOs have subscribed is a mystery to me.


In any event, we wait for the transcript of the Bunting judgment to be published. When it is available, Dean and I will look to arrange a Zoom session or sessions with members of the Credit Hire Forum in order to debate, agree and propose the manner by which rate evidence should be managed going forward in order to minimise the potential damage created by Bunting. I hope that most of you will agree, dealing with rate evidence, and dishonest rate evidence at that, is perhaps something I know more about than anybody. I got a PhD on the back of it!


My suggestions, for those of you waiting to see what happens next, subscribe to the Credit Hire Forum at www.credithire.org.uk.

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