Guy Vickers of Counsel reported doing a trial today where the hearing was held remotely. The trial featured basic hire rate evidence from TCF Corporate.
Guy reports having made his usual submissions on TCF Corporate evidence; it is not contemporaneous (this was 9 months later) and the evidence expressly stated that it was not evidence of such rates (or cars) being available at the time of hire.
However, counsel added that, given that the rate evidence was obtained in April 2020, during lockdown and in the midst of a Global Pandemic, it was wholly unreliable as evidence which could be used to carry out the Dimond stripping out exercise in relation to a hire in July 2019.
The judge said he had heard the other arguments before and never acceded to them because, in normal circumstances, rates 9 months after hire were, in his opinion, good enough to enable the stripping out exercise to be carried out; but he agreed with Guy’s “pandemic” argument and therefore concluded that D had not discharged the burden of proof on rates and awarded the credit hire in full.
I suspect this might cause TCF Corporate some major headaches because their evidence is produced at the time of instruction, rather than at the time of hire. Consequently, any evidence produced since 23 March 2020 is susceptible to the above argument and counsel should be made aware of the failure in any forthcoming hearings where the hire started before lockdown.
The arguments around the pandemic were rehearsed in the recent impecuniosity webinar.