Keoghs Insight

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Gary Herring

Gary Herring

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CPR Changes

AWARE27/07/2020
Credit Hire Aware | July 2020

The recent amendments to CPR Practice Direction 16 that took effect from the 6 April 2020 are of particular interest to those involved in credit hire litigation; for the first time introducing mandatory requirements to plead within a Statement of Case certain matters specifically in relation to any credit hire claim. There are also new provisions in relation to statements of truth and witness statements.

The need to plead

The current Practice Direction [PD 16 - 8.2(8)] simply states that a claimant must specifically set out in the Particulars of Claim “any facts relating to mitigation of loss or damage” where he or she wishes to rely on them in support of the claim. Whilst this is often argued to apply to claims for credit hire, the vague nature of the provision in reality means that it is rarely observed, usually with no consequence.

In some quarters it has been argued that the wording of PD16 8.2(8) was flawed in suggesting that the claimant should be required to plead to a failure to mitigate that might not yet have been pleaded by the defendant.

The amendments

The amendments are designed to clarify any confusion caused by 8.2(8) and in addition set out a number of specific matters which must now be pleaded in credit hire claims.

The new Practice Direction 16 paragraph 6.3 and 6.4 read as follows:

Hire of replacement motor vehicle following a road traffic accident

6.3 Where the claim includes the cost of hire of a replacement motor vehicle following a road traffic accident, the claimant must state in the particulars of claim—

(1) The need for the replacement vehicle at the relevant time;

(2) The period of hire claimed (providing the start and end of the period);

(3) The rate of hire claimed;

(4) The reasonableness of the period and rate of hire; and

(5) Impecuniosity (if the claim relates to credit hire).

6.4 In paragraph 6.3—

(1) “Relevant time” means at the start of the hire and throughout the period of hire;

(2) The obligation to state the matters there set out includes an obligation to state relevant facts.

In order to address this possible confusion 8.2(8) is amended to read as follows:

Matters which must be specifically set out in the particulars of claim if relied on

8.2  The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:

(8) any facts relating to a claim for mitigation expenditure.

This wording makes clear that it is aimed at the Claimant’s mitigation case (the obligation on the Claimant is to plead to the steps that they have taken to mitigation loss), for example paid for vehicle repairs, or hired an alternative vehicle etc.

Witness Statements and Statements of Truth

The form and content of the statement of truth has also changed and now includes a warning as to the consequences of stating facts without an honest belief in their truth. The new wording is as follows:

“I believe that the facts stated in this [particulars of claim/witness statement, etc] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

The new wording applies to all documents that are currently required to be verified by a statement of truth, so will affect both claimants and defendants.

The wording is not strictly “new” in that it simply restates the existing sanction for improper verification, but is designed to spell this out in the actual Statement of Truth at the time of signature.  We have seen some cases where the old statement of truth has been used which we have raised as being defective.

In addition, there are amended provisions in relation to witness statements. In particular, the requirements for witness statements where the witness speaks a foreign language will become much tighter.

The existing requirements required the Court to make directions concerning foreign language statements, where the new provisions apply to any case where a statement is prepared in anything other than English or Welsh.

The main requirements are as follows:

  • The body of the witness statement must contain details as to “the process by which it has been prepared: for example, face-to-face, over the telephone, and / or through an interpreter” (PD32 18.1(5))
  • The witness statement must not only be the witnesses’ own words but be in the witnesses’ own language (PD32 18.1)
  • The statement of truth must be in the witness’s own language (PD22 2.4)
  • Where a witness statement is in a foreign language, the party wishing to rely on it must have it translated, filing both this and the foreign language witness statement with the court. The translator must sign the translation to certify that it is accurate (PD32 23.1)
  • The date of the translation is required (PD32 17.1(6))

We had an appeal case heard in Central London County Court in July 2020 where the Claimant appealed a District Judge’s decision to strike out the Claimant’s claim due to the Claimant’s statement being in English, a language which the Claimant did not understand. This was prior to the April rule change. At the appeal HHJ Saggerson refused the appeal and referenced the new rules stating “The need for a witness to give a statement in his own words being in a language in which he is comfortable was as obvious before the 2020 rule change to the wording of CPR PD 38.18(1) as it is now.” 

Keoghs Comment

The amendments to the requirements for pleadings in credit hire cases represents a long-awaited outcome from the Civil Procedure Rule Committee (CPRC) consultation on model directions, which closed back in June 2017. Whilst the intended purpose of that consultation is still yet to come to fruition, these amendments to the CPR certainly represent a positive step forward. The Courts’ approach to directions should be affected by the quality of the pleading by both parties.

The amendments should assist in addressing the vague and generic templated documents commonly put forward on behalf of credit hire Claimants, and ensure that these are now more readily capable of being penalised. Whilst there is no automatic sanction for failure to comply with these requirements, the use of the word “must” denotes that they are mandatory.

Further, PD 16 (6.4) states that “relevant facts” must be stated in relation to the matters which must be set out in the particulars of claim; thus mere assertions should not be sufficient. This is commonplace as things stand, particularly in relation to impecuniosity, where the pleading will often simply say that the claimant is impecunious without any facts in support as to financial circumstances. From the 6th April claimant solicitors will be required to do far more to ensure compliance with the new provisions, with the effect being that proper instructions will need to be obtained as to a Claimant’s particular circumstances before proceedings are issued.

If the new provisions are not complied with, then a defendant will have grounds to argue that any credit hire issue which is not adequately pleaded should be excluded from consideration by the court (I.e. a ‘debarring’ order), or even that the Particulars of Claim should be struck out for failure to comply with a practice direction. At the very least a Claimant in default will be required to give further and better particulars and carry a cost sanction for noncompliance, with the threat of debarring for further non-compliance.

That said, it does remain to be seen to what extent “relevant facts” have to be set out and how much detail a claimant is required to give in order to comply. Similarly, there is no guidance as to the types of facts which might be “relevant” in relation to each of the matters. These are issues that will no doubt be tested in due course.