Rebuttal and Period

Some of you may have seen this already but DWF have posted their analysis from a case heard before HHJ Kelly at Birmingham CC. Most of you that litigate will know that Birmingham and Coventry have never been particularly friendly to Credit Hire Claimants and whilst this is clearly more of the same, it does highlight some key issues that need to be addressed by the CHO/solicitor prior to litigation. Perhaps of more concern is the risk that defendants will take the opportunity to make the BHR rebuttal evidence an issue they can challenge as a preliminary issue which puts you at risk of both failure and an adverse costs outcome. I know that Dean Roberts has reflected on some of the criticisms in his rebuttals over the past year or so and that his reports now usually include a fact-based executive summary as to why the defendant’s evidence is unreliable in a particular case. Just in case defendants to now try to take issue over this and bearing in mind the backlog of litigated cases and how old some of the rebuttal reports might be, it might be worth reviewing the evidence in currently litigated cases as an exercise in risk management (especially in Birmingham). And finally, a 214 day hire without the Claimant providing chronological evidence of delays is a learning point for everyone.The DWF report is below. They do not identify the CHO or claimant solicitor.“ Summary In a case where DWF were instructed by Hedgehog Insurance, a County Court judge in Birmingham has thrown out a £58,000 credit-hire claim, criticising the evidential basis of the claim as "shambolic". The dispute stemmed from a June 2022 Road Traffic Accident for which liability was admitted. The Claimant sought more than £58,000 for a replacement vehicle hired over 214 days, plus £13,600 in repair costs.

Preliminary Issues There were preliminary submissions regarding the admissibility of the Claimant's rebuttal evidence. The judge considered whether a 58-paragraph witness statement from Dean Peter-Roberts complied with an earlier case management order permitting each side to serve a single witness statement providing factual BHR evidence. The Defendant argued that Roberts had produced a document that largely criticised the Defendant's BHR evidence rather than supplying factual rates of their own. The court agreed with the Defendant. HHJ Kelly found that the "vast majority" of Dean Peter-Roberts statement amounted to submissions and opinion on why the defendant's evidence should not be accepted which is not what was permitted by the court. She held that submissions resembled counsel's argument rather than factual evidence of alternative hire rates. Some factual evidence, including e-mail evidence from Enterprise regarding hire duration, was however allowed.

Trial Once this evidential part of the hearing had taken place, the actual trial on hire proceeded. The judge ruled that the Claimant had failed to prove he had incurred any hire charges at all. The judge highlighted major inconsistencies between the Claimant's pleadings, his witness statement, and the documents he produced in court. Three separate hire agreements-each incomplete, contradictory, and missing key terms and conditions-failed to establish what the Claimant had contracted to pay. Although not finding the Claimant to be dishonest, the judge said he had been "spectacularly ill-served" by the credit hire company and his solicitors for failing to obtain the essential documents to prove the claim.

The Claimant's legal team had advanced at least four different figures for the credit-hire claim, none supported full by the documentation. The Defendant has repeatedly raised the point and asked for explanations and evidence. HHJ Kelly concluded that neither the court nor the defendant could identify what claim was truly being made stating "It is not the role of the Court or defendant to try to piece together a claimant's case."

Outcome Even if loss had been proven, the judge indicated she would have capped the rate at £65.99 per day, matching Enterprise's own rates that had been provided by the

Defendant as BHR evidence. She also criticised the 214-day hire period, noting that the Claimant's engineer had estimated repairs would take just 19 days. With no repair logs or explanation for the thirteen-fold delay, the defendant would have been able to limit hire to 28 days. Here Mattocks was distinguished as in that case the Claimant gave reasoning for the delays with repairs. Finally, the VAT element of the repairs was disallowed, giving a further saving to the Defendant, with the Claimant unable to prove that Enterprise would not have re-claimed the VAT element later on.

Gavin Perry, Partner & Head of Credit Hire, DWF Law LLP said: "We are absolutely delighted with the outcome in this matter, underpinned by some excellent investigative work and evidence gathering pre-litigation. Our work in collaboration with DWF yields yet another success - a judgment which all involved can be immensely proud of"

David Fowler, Head of Claims, Hedgehog Insurance said: "This case highlights the importance of having clear documentation, dealing with queries that are legitimately raised, and relying on evidence that complies with the Court's directions rather than sleepwalking through the "usual" steps"