Keoghs and AND-E have secured a huge saving in Wiltshire v AND-E, where the claim for credit hire was reduced from £48,000 to just £1175.
The case starkly highlights broader issues around the way litigation is all too often run by the commercial credit hire entity stood behind an individual claimant and has already generated considerable debate and attention.
Following an accident on 9th May 2023 in which his vehicle was written off, Mr. Wiltshire contacted his insurer (the AA) to report the accident. Unbeknown to him, he was transferred to Winn Solicitors at some point during the call. He was offered a replacement vehicle and arranged its delivery, mistakenly believing that he was dealing directly with his insurer. In fact the vehicle was being arranged by On Hire Limited. Mr. Wiltshire was provided with a Kia Sportage on 11 May 2023.
However, the credit hire agreements were only signed on 13 June 2023, over a month after the hire commenced. Furthermore, for reasons that were not entirely clear, the documentation was sent addressed to his wife, Mrs. Wiltshire.
A claim was subsequently brought by Winn Solicitors on behalf of Mr Wiltshire seeking a total of £50,190.24, primarily for credit hire charges of £47,925.60, plus recovery, storage, and delivery/collection fees.
At trial, it became apparent that there were significant discrepancies between Mr Wiltshire’s oral evidence his written witness statement, which appeared to be a standard template prepared by his solicitors.
Key points from his oral evidence included his belief he was dealing with his insurer, his lack of understanding of the credit hire arrangement, and that he wasn't informed of the solicitors' financial interest in the hire company or offered alternatives; all of which was in direct conflict with the contents of his witness statement. Mr Wiltshire’s evidence was that much of what was contained in his witness statement was not his words nor his understanding, and in fact, if he was made aware that he was speaking to anyone other than his insurer when arranging the vehicle, he would have terminated the call.
He also confirmed signing the documents much later than the hire started and disputed delivery charges entirely, as he collected the car himself.
DJ Lumb highlighted the obvious inconsistencies between the written and oral evidence of Mr Wiltshire, noting that rather than being in Mr Wiltshire’s own words, the witness statement “followed a template precedent that in the Court’s experience is almost always used by Winn solicitors.”
Cautioning against this approach, he continued: “That credit hire litigation can be characterised as bulk litigation does not excuse an overreliance on a prescribed process of precedent documents including witness statements. There is still an obligation to ensure that any witness statement complies with CPR Part 32 and the Practice Direction thereto. Blind following of a company process is no substitute for understanding these requirements.”
Ultimately, DJ Lumb ruled that the credit hire, recovery, and storage agreements were all unenforceable. This was due to the significant delay in signing, the fact that documentation was initially sent to the wrong person, and Mr. Wiltshire's lack of informed consent at the outset, given that he believed he was dealing with his own insurer.
Consequently, the claims for credit hire charges, recovery/storage, and delivery/collection were dismissed. Instead, the court awarded damages for "loss of use", for a period of three weeks from the accident date. This was on the basis that the claimant had established a need for the vehicle but was not impecunious, meaning that steps could have been taken to look for a replacement vehicle almost immediately following the accident given that his own vehicle as clearly a write off. The daily rate for loss of use was based upon the defendant’s BHR evidence.
Gary Herring, Head of Credit Hire said:
“This is another example of an all-too-common feature of modern credit hire litigation, of self-serving evidence being put forward to suit the interests of the hire company, irrespective of its truth. Far from being a triviality, this is a serious issue which we are pleased has been highlighted so starkly by DJ Lumb. The irony is that these are the same commercial organisations who continue to attempt to evade costs consequences of unsuccessful litigation, arguing that they are not the ‘real party’. We hope that this judgment prompts a swift change of approach by the Winn Group, as well as serving as a warning to similar entities.”
Jan Martin, Head of Third Party Claims at AND-E said:
“The case illustrates how policyholders can be misled in the credit hire process. We felt it was critical to send a clear message on behalf of the insurance sector that unfounded credit hire claims will be challenged for the benefit of policyholders. In particular, we wanted to highlight the broader issues around the way litigation is all too often run by the commercial credit hire entity stood behind an individual claimant.
The claim was handled by Vanessa Neal, Technical Supervisor in Keoghs Complex Credit Hire Team.
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