Since the leading decision of Lagden v O’Connor ([2003] UKHL 64), parties in credit hire actions have been locking horns on whether a claimant hirer had the means to hire a replacement car from an ordinary provider rather than utilising credit hire companies. The issue of whether a pursuer or defender is required to prove whether a pursuer is, in the Dickensian vernacular, “impecunious” has never been clear. However, a significant decision from Glasgow Sheriff Court has given the strongest indication yet as to the position which may be adopted by the Scottish courts.
In Walker v Cheasapeake Hillington Ltd (2011 Rep. L.R. 16) Sheriff Mitchell held that the onus of proving “impecuniosity” rested with the pursuer. Whilst defenders have argued this point for some time, it is a view that has historically been resisted by pursuer agents. Acceptance of such a position would require pursuer agents to obtain and exhibit a wealth of personal financial information from clients often distinctly detached from the court action.
Sheriff Mitchell went on to say that a pursuer cannot leave the issue to proof, but instead requires to give fair notice in his written pleadings as to how he intends to demonstrate he could not afford to hire a car from an ordinary provider. In the past, pursuer agents have often simply stated in their written cases that their client was “impecunious at the material time”. They would then leave it to the defenders to go about recovering evidence to disprove this, often at contested court hearings.
bto has successfully employed Sheriff Mitchell’s comments (despite them not being binding) in a number of cases to date. The additional pressure which is placed on pursuer solicitors in the face of such a convincing argument invariably facilitates more favourable and swifter settlements often avoiding a full hearing being fixed, with all the inherent costs which that entails.
Contact:
Scott Manson
Posted 12.10.11