A costly lesson: The fallout from inconsistent evidence
The recent case of David Wiltshire v Aioi Nissay Dowa Insurance Company of Europe [2025] EWCC 13 heard by District Judge Lumb can be considered to be an example of how the lucrative business of providing credit hire services can go awry. The case has been causing waves within the insurance industry due to the large sums sought, the minimal amounts recovered, and a poor claimant in the middle of a process who didn’t seek involvement nor understand what was happening. It once again opens the door to this aspect of motor claims which is divisive in nature.
The claim: What was sought and what was questioned?
The claimant in the matter, Mr Wiltshire, pursued a claim for losses following a road traffic accident when the defendant’s insured reversed into his car. Losses included £47,925.60 of credit hire, £144.00 of delivery/collection and £2120.64 of storage/recovery. Mr Wiltshire was provided with the credit hire and credit storage/recovery via On Hire, and his instructed solicitors were Winn Solicitors, who admitted that they share directors and have a linked financial interest with On Hire. Liability was admitted but quantum disputed.
The defendant’s sought to challenge the recoverability of the hire, whether the period of hire was reasonable and the recoverable rate.
A witness statement that didn't hold up
The claimant served a Witness Statement as evidence in support of his claim. Within this he stated that he had contacted Winns Solicitors and they had advised that they could deal with vehicle damage and provide services such as credit hire and credit storage/recovery via On Hire. The claimant stated he was told that using one entity for all aspects of his claim would avoid shopping around for quotes. The statement also contended that he had been advised of the financial link between the companies and, whilst he was told he could use another provider, he still opted for On Hire.
However, his written statement did not correlate with the oral evidence. His evidence was such that there were material differences, and it was clear that the statement was not in his own words as required under the Civil Procedure Rules.
Gaps in consent: Was the claimant properly informed?
Within the claimant’s oral evidence, he confirmed post-accident that he called the assistance line of his insurers, the AA and he was not aware he had instructed Winns. He advised he had no idea what credit hire or credit storage and recovery actually were. And as he was not aware that he had been speaking to Winns, he did not select them, and they did not tell him about the relationship between them and On Hire. He also confirmed he was not told about the daily rate or his liability and that if they did so he would have ended the call.
The judge commented on the significant variation in the oral evidence and the statement. He confirmed that credit hire was bulk litigation with a significant proportion of civil cases in the county court including credit hire. However, that was not an adequate excuse for an over reliance on precedent documents. The judge found that the variation in accounts called into question the reliability of the evidence.
Documentation failures and procedural oversights
The documentation adduced by the claimant showed that the rental agreement was not signed by the claimant until six weeks into the hire. This supported the claimant’s belief that he wasn’t aware he was in a hire car from the outset. There was evidence that a letter was sent to his wife including a Conditional Fee Agreement, client care letter and various credit agreements, but nothing was sent to him. The claimant’s evidence was that the only document signed on delivery of the car was to confirm its state. The claimant additionally gave evidence which cast doubt on the provision of any delivery/collection.
Having considered the evidence the judge found he could not be satisfied that the claimant was liable for either the credit hire or storage and recovery. As his assessment of the recoverable period fell below six weeks then there was no signed agreement in place. The only possible agreement would have been an oral one but the evidence he had heard was inadequate to make that finding. He additionally dismissed the delivery/collection following hearing the claimant’s evidence.
From credit hire to loss of use: A shift in recovery approach
Whilst the claim for credit hire and storage and recovery were dismissed, the judge then went on to consider the alternative pleading of loss of use in general damages. As DJ Lumb was satisfied the claimant needed a car then loss of use was recoverable. Based on Bee v Jensen [2007] EWCA Civ 923 this would be quantified based on the applicable market rate. The defendant had adduced basic hire rate and the claimant had provided rebuttal evidence as to it. However, the court directions did not give permission for rebuttal evidence. Whist the claimant criticised the BHR evidence as it did not cover the claimant (who was 79 at the time of the accident) and had limits on the mileage, the judge found that assessing the market rate was rough and ready only and as he was assessing a loss of use award the expectations as to the evidence were less stringent. The claimant had not contended to be impecunious, and the court directions confirmed this was pertinent to both rate and period. The judge therefore found that the extent of the damage was such that the claimant would have know from the outset that his car would be a total loss and it would have been reasonable for him to use his funds and replace his car straight away. He ought to have sorted himself within three weeks meaning only three weeks loss of use was recoverable. The judge applied the defendant’s BHR evidence and allowed three weeks only which totalled £1199.97
A warning to the credit hire industry
All in all, the claimant was awarded a sum which was less than 2.5% sum of the sum claimed. The judgment is a stark lesson in the importance of accurate statements based on the case specifics. It is also a message to the credit hire industry that, as the sums recoverable increase, the forensic analysis of claims will ramp up as to whether the claimant acted reasonably and has properly understood the processes. The hire companies should note that if they seek to recover such significant sums then their business model needs to ensure claimants are properly informed of what they are signing up for.
The case is also a reminder to those assessing credit hire that if the written hire agreements do not correlate with the start of hire, then there needs to be evidence of an understanding by the claimant as what they have been provided with before there will be an oral agreement binding them to pay the hire charges.
Implications for Claimants, Insurers, and the Wider Industry
This case is one of two findings by DJ Lumb which have been making headlines, including reporting by BBC, and drawing people’s attention to a world which is largely unknown beyond the insurance sector. During these unstable economic times with claims inflation contributing to increased insurance premium, the ordinary motorist is seeking to understand the factors behind increase. It will be interesting to see if such judgments put people off going into a credit hire car and whether such high-profile cases create any traction for further reform in sector. It certainly seems that some of the judiciary think it could be time for change. Indeed, DJ Lumb within his judgment commented:
“…They may also question why the courts have not intervened in this industry which, given the figures involved paid out by the insurers of the culpable motorists, must surely have an impact on rising motor insurance premiums. The answer to that may be that the Senior Courts have exhausted the arguments at Common Law and only new legislation by Parliament could alter the position. Whether that will happen remains to be seen.”
For further guidance, contact our motor insurance lawyers.
- Motor team
