Scottish Sheriff Court Decisions

Glasgow 11 October 2010 Sheriff Mitchell

Act: Stevenson

Alt: Wilson

The Sheriff, having heard parties' procurators, on the pursuer's unopposed motion Continues consideration of the defenders' motion, number 7/1 of process, to a further hearing on 5^th November 2010 at 10:20am to enable the pursuer's solicitors to obtain further information in respect of whether the pursuer was impecunious when was provided with a hire vehicle during the period averred on record; thereafter, Grants the pursuer's unopposed motion, number 7/2 of process, and in terms thereof, Allows the diet of Proof previously allocated for 4^th February 2011 at 10am to be assigned.

Sheriff

Note:

[1] The defenders' motion is to "ordain the pursuer to state whether he was impecunious or not within a period of 7 days on the basis that the pursuer has been repeatedly asked to confirm whether he was impecunious or not and has failed to do so". As a motion in those terms was novel to me, I sought to be addressed upon it even although it was not opposed. It was enrolled prior to the end of the adjustment period.

[2] The background to the motion is that the pursuer has brought an action of damages against the defenders arising out of a road traffic accident on 5 June 2008. The sum sued for is £31,974.7, which includes claims for solatium, wage loss, loss of services and inconvenience. The pursuer's vehicle was "a total loss" and the total loss valuation, recovery and storage cost is stated to be £11,269.62. The pursuer avers that he was provided a hire vehicle by Angel Assistance from 6 June 2008 until 4 August 2008. The total cost of this hire was £13,066. The action has been brought as a personal injuries action and is proceeding under personal injuries procedure in terms of the Act of Sederunt ( Ordinary Cause Rules Amendment) (Personal Injuries Actions) 2009. It is being defended both in respect of liability and damages.

[3] Ms Wilson for the defenders accepted that the motion was unusual but submitted that it was not incompetent. It had been enrolled to ascertain whether the pursuer was impecunious at the time when he was provided with a hire vehicle. Reference was made to the decision of the House of Lords in Lagden v O'Connor [2004] 1 A C 1067 where it was held by a majority that although only an amount equivalent to the spot hire rate of hiring an alternative vehicle would normally be recoverable by a claimant who, deprived of the use of his car by the negligence of the defendant, had used the services of a credit hire company, if it was shown that the claimant's impecuniosity was such that he would have been unable to obtain a replacement car had he not used a credit hire company, the reasonable additional charges of that company would be recoverable as damages, it being reasonably foreseeable that there would be some car owners who would be unable to obtain a replacement car other than by use of a credit hire company. As appears from the speech of Lord Nicholls of Birkenhead at paragraph 9, "impecunious" signifies inability to pay car hire charges without making sacrifices the plaintiff could not reasonably be expected to make.

[4] Ms Wilson recognised that there was conflicting authority in England as to where the burden of proof lay in respect of a plaintiff's impecuniosity. She stated that there was no authoritative Scottish decision. The pursuer had no pleadings to the effect that was impecunious at the material time but under the new personal injuries procedure there was no provision for a legal debate as to the relevancy of the pursuer's claim in respect of car hire costs, which represented a significant proportion of the total sum sued for. It was unsatisfactory and unfair to leave this head of claim to be determined at proof when it was unsupported by any relevant pleadings.

[5] Mr Stevenson for the pursuer stated that he accepted that the onus lay upon the pursuer to aver that he was impecunious at the material time. He recognised that this placed the pursuer in some difficulty for the proof (allocated for 4 February 2011) as there were no averments or productions for the pursuer which were capable of supporting impecuniosity.

[6] In my judgment, it is unsatisfactory for an issue like this to be left to the proof. The law in respect of what was recoverable by way of car hire charges was settled in Lagden. If the pursuer seeks to recover more than an amount equivalent to the spot hire rate of hiring an alternative vehicle then his impecuniosity at the material time requires to be established. The defenders are entitled to fair notice of the pursuer's claims for damages. Here the pursuer's claim for car hire costs can only be relevant if he was impecunious at the material time. In order to form a view on the proper valuation of the pursuer's claim, the defenders require to know if the pursuer's claim can properly be maintained. The pursuer's averments suggest that he was not impecunious and it was conceded that there was no averment or production to claim otherwise. There is no authoritative Scottish decision as to where the onus of proof lies but here it was accepted, correctly in my judgment, it lay on the pursuer.

[7] It might be thought that that concession would justify me in refusing this motion as being unnecessary but, of course, it is always open for a party to seek to amend and also to withdraw a concession in law at a later stage. Very properly, the pursuer's solicitor sought time to obtain more information regarding this head of claim and at the next hearing it can be confirmed whether this head of claim is being insisted upon and, if so, upon what factual basis.

[8] In my judgment, as the onus of proof is upon him and his financial position at the material time is fact peculiarly within his own knowledge, the pursuer must sufficiently aver the factual basis upon which he claims to have been impecunious if he states a claim for car hire charges beyond those normally recoverable on the authority of the decision in Lagden. In my judgment, although the pleadings under personal injuries procedure are in shortened form as compared to ordinary cause procedure, the responsibilities of a pleader are not altered or diluted.

[9] There is no provision for a legal debate under the personal injuries procedure and for a relevancy issue to be determined at a legal debate the personal injuries procedure would require to be disapplied and the action proceed as an ordinary cause under OCR 36.F1. This would have required a motion within 28 days of lodging defences. However, this course seems to me to involve unnecessary court procedure and expense to resolve a straightforward issue of fact. Except by enrolling the present motion there does not appear to be any pre-trial method under personal injuries procedure by which to resolve this straightforward factual issue relating to the legal relevancy of a head of claim, which amounts to a significant proportion of the overall value of the pursuer's claim for damages. However, the effect of the defenders' motion is, in practical terms, to seek to introduce, prior to the end of the adjustment period, a discussion of the relevancy of the pursuer's pleadings, which would be in effect a debate without pleas-in-law or a record. I should record that in the intervening period between the motion being enrolled and the motion being heard the adjustment period ended and a record was lodged. In my judgment, there are sound reasons of public policy for motion procedure to enable parties to a personal injuries action proceeding under personal injuries procedure at an early stage to ascertain whether all, or at least some, of the issues between them can be resolved with a minimum of expense. This can include the relevancy and factual basis for a head of claim of damages. As this motion is unopposed and I am confident that the issue it raises will now be addressed, it is unnecessary for me at this stage to do more than draw attention to the problem which led to this motion being enrolled.