High Court Decision Highlights Importance of Impecuniosity Evidence in Credit Hire Claims

Citation: [2023] EWHC 3314 (KB)
Judgment on

Introduction

In the case of Steven Probyn v Sahr Noordin, the High Court examined an appeal against the decision of Recorder Boyle in a personal injury trial concerning a road traffic accident. The case delves into issues of personal injury, credit hire, impecuniosity, and the sufficiency of pleadings and disclosure in supporting legal arguments.

Key Facts

The appellant contested Recorder Boyle’s awarding of personal injury damages following a road traffic accident on fast track. During the initial trial, though the personal injury element was dismissed, the claimant succeeded in recovering substantial credit hire charges. The appellant’s appeal, in the High Court, revolved around three main grounds, focusing primarily on the claim of impecuniosity—a determinant for the recovery of significant credit hire charges.

Impecuniosity and Recovery of Credit Hire Charges:

  • Claimants seeking to recover the higher credit hire rates must demonstrate impecuniosity, meaning they are not in a financial position to pay for the standard hire rates upfront (Lagden v O’Connor [2014] 1 AC 1067, Zurich Insurance PLC v Umerji [2014] EWCA Civ 357).
  • The burden of proving impecuniosity lies with the claimant, requiring a clear pleading and disclosure to outline the claimant’s financial incapacity to afford standard hire rates (Diriye v Bojaj [2021] 1 WLR 1277).

Adequacy of Pleadings and Disclosure:

  • Pleadings must clearly set out the case, and any major departure from this may cause prejudice unless remedied by an amendment (Charles Russell Speechlys LLP-v- Beneficial House (Birmingham) Regeneration LLP [2021] EWHC 3458).
  • An ‘unless order’ requires compliance with its terms, and failure to do so typically results in a debarring of the non-compliant party from the contested issue, unless relief from sanctions is granted (CPR 3.9).

Relief From Sanctions:

  • Judicial discretion is applied when considering relief from sanctions, which should not lightly be interfered with on appeal (Chartwell Estate Agents Ltd v. Fergies Properties SA [2014] EWCA 506).
  • An appellate court should rarely disturb a trial judge’s findings unless there was a procedural unfairness or an exercise of discretion outside reasonable limits.

Basic Hire Rates VS Credit Hire Rates:

  • In absence of a claimant’s impecuniosity, the appropriate damages would be the basic hire rates (BHR) instead of the higher credit hire rates.
  • The burden of proof lies with the defendant to establish the BHR, which must account for the age and circumstances of the claimant, as well as the availability of equivalent vehicles (Bent v. Highways and Utilities Construction [2011] EWCA Civ 1384).

Outcomes

The court held that the Recorder erred by allowing the claim for impecuniosity to proceed despite a breach of the debarring order and without proper compliance to the order in terms of detailed pleading and full disclosure. As such, the claimant was not entitled to recover the credit hire rates. Instead, the basic hire rates for a defined period - granted based on the concession made by the defendant’s counsel - were awarded.

Conclusion

The High Court in Steven Probyn v Sahr Noordin highlights the crucial need for clear pleadings and strict compliance with court orders. The judgment outlines the consequences of failing to meet the standard of disclosure necessary when asserting key arguments such as impecuniosity. The court’s dismissal of the inflated credit hire claim reaffirms the established legal principles governing claims of this nature—namely, the need for claimants to provide full and transparent evidence to support claims of financial incapacity, and for the pleadings to accurately reflect the case to be argued. The decision also signifies the significant discretion held by judges in managing cases and granting reliefs from sanctions, while emphasizing the boundaries of said discretion.

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