The burden is (usually) on a claimant to prove a loss. There is an interesting discussion on the need to prove “need” in the decision of District Judge Read in Frankland -v- U.K. Insurance Ltd (10th August 2015) which was subsequently upheld on appeal. It highlights the danger of a claimant failing to put forward evidence of “need”.
(Both decisions are attached to this post. District Judge Read here frankland v uk insurance.template.040715 and HH Judge Armstrong here Frankland v UK Insurance judgment.final)
“In case anyone thinks that my use of the word “possible” connotes a prospect of success that might be more than purely capable of being argued, I think that such a possibility lies inside the realms of fantasy, and is detached from any realistic prospect of success.”
“While neither CPR Part 16 nor the Practice Direction set out any requirement to plead or even mention General and Special damages separately where both are claimed, if the pleading reveals that only one is claimed, it cannot be presumed that the other is claimed additionally or in the alternative. Accordingly, because General Damages are not pleaded as a head of loss in any sense known to law or practice, there is no claim made for them. Therefore, having given summary judgment on the special damages claim, there is no surviving general damages claim raised in these proceedings to go forward to trial”.
The claimant was driving a Ferrari which was damaged in a road traffic accident. The claimant subsequently hired a number of vehicles for the time his vehicle was off the road. The total hire charges came to £236,724.00 over 219 days.
THE DEFENDANT’S APPLICATION FOR SUMMARY JUDGMENT
The defendant discovered that the Ferrari was one of five vehicles that the claimant owned. Also the claimant’s insurance policy limited him to 1,000 miles per annum. The vehicle was restricted to social, domestic and pleasure use. It was not listed for commuting to work.
When the claimant issued proceedings for the hire charges the defendant sought summary judgment, arguing that the claimant could not prove a “need” for the vehicle.
The interesting aspect of this case is that the claimant did not adduce any evidence at all. The claimant’s case was that he did not need to.
THE JUDGMENT OF THE DISTRICT JUDGE
So far as the legal point on “need” is concerned, I make no comment on the alleged shortcomings of the state of the law in terms of defining the concept of “need”, because I think it is adequate to decide the issue here.
In particular, I do not accept the submission by Mr Vickers that the motorist in question has to be, in some way, incapable of needing the car because of physical incapacity, or being overseas, or some other reason of the same kind (which used to be called eiusdem generis), by reliance on the words of Lord Mustill. While Lord Mustill made it clear that “need” does not import a requirement of it being essential, to do as Mr Vickers suggests would impose an artificially tight restriction: Lord Mustill stated that there is still ample scope for the defendant in an individual case to displace the inference of need which might otherwise arise. To follow Mr Vickers’ interpretation would mean that “ample scope” is a misdescription.
I note that the authorities before Singh were dealing with cases where the vehicle in question was the only one available to or owned by the claimant. That much is apparent from the use of the singular instead of the plural in the two levels of decision in Giles. Steyn LJ’s apparently relatively easily discharged burden of showing reasonable need that must be assessed in the light of the lack of availability rests on that, as did Lord Mustill’s view. That alone, in my reckoning, provides an important distinction from the present case.
Showing that the Claimant acted reasonably would need to take account of all relevant circumstances, including having other vehicles available. That was the stance taken by Pill LJ at  in “Need” is a simple English word with a simple meaning, to be construed in those terms: what it means depends on an assessment of the relevant circumstances.
That moves me on to consider the factual aspect of “need”. This case might be different to the typical run of such cases because of the comparative wealth of evidence which the Court is, in my view, entitled to accept at face value for summary judgment purposes.
In particular, it is really beyond dispute that the Ferrari was limited to 1000 miles per annum, and was restricted to social, domestic and pleasure use, with it not being listed for commuting to work: and the Claimant had 4 other vehicles on risk. In support, there is strong evidence to show that the first credit hire company refused hire because the Claimant admitted that the Ferrari was a second car, and did not “need” a replacement. Then, the Mitigation Questionnaire was verified by a signed Statement of Truth (this I think is significant, and has the force of an unopposed witness statement for present purposes), in which the Claimant stated that he did not have access to another car for commuting, for business and for social and family commitments; and that he did not have access to another suitable vehicle.
None of this evidence is yet challenged (or more relevantly, explained), despite the ample opportunity to do so under the Protocol, and in response to Mr Bate’s statement. It may be just theoretically possible that a judge might accept an account given by the Claimant in cross-examination that successfully reconciles all of those statements which are inconsistent with a reasonable need for a replacement Ferrari. In case anyone thinks that my use of the word “possible” connotes a prospect of success that might be more than purely capable of being argued, I think that such a possibility lies inside the realms of fantasy, and is detached from any realistic prospect of success.
I think it can be found, as the basis of a summary judgment, that the inference of need is strongly displaced by the documents attached to the witness statement: all the evidence and accompanying circumstances effectively and wholly rationally show that the Ferrari was plainly an occasional hobby, a spare-time indulgence for a well-off man. It cannot be imagined sensibly to be “needed” as a business or commuting car. Inference may confidently be made that Mr Frankland had at least one other suitable and adequate car available for everyday use, and the chances of that inference being displaced by need for a different, credit hire, vehicle being shown through the trial process are I think fanciful. For the Court to be able to find otherwise, given those documents, would involve the Claimant damaging his credibility on oath so badly that he could not be believed on anything. He told Kinderton’s he had a second car, then he either told falsehoods in the Mitigation Questionnaire, or had been driving the car without valid cover.
In coming to this finding, I am reflecting the situation Potter LJ had in mind in ED&F, in that there is no real substance in the factual assertions made by the Claimant, as they are contradicted by contemporary documents. The issues which are dependent upon those assertions are susceptible to disposal now, to save the cost and delay of trying an issue the outcome of which is inevitable.
NO OTHER CLAIM PLEADED
The claimant argued that summary judgment should not be granted because there was a more general claim for damages. However the district judge rejected this on the basis of the pleaded case.
As a subsidiary point, Mr Vickers for the Claimant argued that even if I were against him on the “need” point, his client’s claim remains valid as a claim for general damages for loss of use of his car while it was being repaired. Even if the special damages claim for credit hire is dismissed summarily for want of need, he says, there is still a claim remaining for general damages for his client’s deprivation of use. The Defendant even acknowledged this, by way of a concession in this regard in the penultimate paragraph of page 2 of its Mr Whyte’s letter of 18/04/13 – that being long before proceedings began, though.
I would agree with Mr Vickers’ submissions were it not for the following fact. A close examination of paragraph 6 of the Particulars of Claim, and the language it uses, reveals nothing except a claim for special damages for credit hire – indeed, the opening sub-paragraph appears expressly to restrict the damages claimed to the recovery of hire costs. It claims “loss and damage including for loss of use of a motor vehicle in respect of which a claim is made for hire of alternative transport” [emphasis added].
Next, the following sub-paragraphs giving particulars on impecuniosity, hire mitigation, and special damages, do nothing to displace that. Neither the prayer nor the Claim Form give any clue to a claim for general damages, whether as well as or instead of special damages. Just stating that “damages” are claimed, in the context where only special damages are particularised or even mentioned, does not in my view amount to even a vaguely but adequately pleaded claim for general damages. No wonder – they would be relatively trifling compared to the Hire Charges claim, and can hardly have been uppermost in the pleader’s mind.
Accordingly, the application by the Defendant for summary judgment succeeds in full.
While neither CPR Part 16 nor the Practice Direction set out any requirement to plead or even mention General and Special damages separately where both are claimed, if the pleading reveals that only one is claimed, it cannot be presumed that the other is claimed additionally or in the alternative. Accordingly, because General Damages are not pleaded as a head of loss in any sense known to law or practice, there is no claim made for them. Therefore, having given summary judgment on the special damages claim, there is no surviving general damages claim raised in these proceedings to go forward to trial.”
The claimant appealed for permission to His Honour Judge Armstrong. That judgment contains a detailed consideration of the principles relating to summary judgment. The judge refused to give permission to appeal.
DECISION OF THE CIRCUIT JUDGE (REFUSING PERMISSION TO APPEAL)
“Issue 1 – the need for a replacement vehicle – whether the District Judge was wrong in law
In my judgement the District Judge correctly identified the legal requirement of the need for a replacement vehicle to be established in order to found a claim for special damages by way of hire charges. Further he correctly interpreted the authorities referred to him as establishing that “need” is to be decided on an assessment of the relevant circumstances in a particular case. I do not find that he wrongly decided that the existence of an available alternative motor car necessarily or automatically precluded a Claimant from establishing possible need. Each case is fact specific. It is open to a Claimant even where an alternative vehicle is available to put forward reasons why a replacement vehicle may be necessary. The fact that the car in question could be described as a luxury points neither to nor away from the question of need. In Bent, supra, the Claimant was able to establish the need to replace one expensive sports car with another despite (as Mr. Vickers was able to inform the court as he appeared in that case) the fact that the Claimant had another vehicle available. In that case the Claimant was able to put forward cogent reasons for the specific need for the replacement vehicle in question. It should be remembered however that the claim is for the loss of use and not for the loss of pleasure of owning such a vehicle.
The only matter in the District Judge’s judgment with which I might take issue is his description that the evidence showed that the Ferrari was “plainly an occasional hobby, a spare time indulgence for a well-off man.” To many car enthusiasts, after the E-type Jaguar, Ferraris are the most beautifully designed and desirable of motor cars. It may well be that the acquisition of such a motor car fulfils a childhood ambition and may be the result of careful financial management. Whether the Claimant was well-off or not is not a relevant consideration for the purposes of the application. I am however of the opinion that the description by the District Judge of the Claimant’s Ferrari as “plainly an occasional hobby” was justified on all the evidence and that the decision of the District Judge did not turn on the question of the Claimant’s wealth or otherwise. Impecuniosity and the reasonableness of hiring a Ferrari California convertible as a replacement vehicle, the length of time, and the cost thereof, are again not relevant considerations and properly did not form part of the District Judge’s deliberations.
Issue 2 – the need for a replacement vehicle – whether the District Judge was wrong on the facts
In my judgment the District Judge having considered all the evidence in the case was entitled to find that the inference of need was strongly displaced by the documents attached to the Defendant’s witness statement. On the evidence he was entitled to find that the Claimant was able to use an alternative vehicle. Putting it another way I am equally satisfied that in the light of the history of the case and the Claimant’s clear failure to comply with the provisions of the Pre-Action Conduct Practice Direction and the other evidence obtained by the Defendant the District Judge was entitled to find that the Claimant had failed to present a cogent case of need for a replacement vehicle and had no real prospect of being able to do so. The District Judge correctly identified the evidence in support of his findings and did not take into account anything irrelevant on this question.
Issue 3 – whether the District Judge correctly applied CPR Part 24
It seems to me to be clear that the District Judge entirely properly considered and had in mind the provisions of Part 24 and the requirements of an application for summary judgment. He was clearly aware of the necessity of not entering into a “mini trial” and in my judgment he did not do so. I am also of the opinion that in accordance with ICI v. TTE and ED& F Patel, supra, the District Judge rightly decided that he had sufficient evidence before him on which to be able to make a judgment under Part 24 and that it was appropriate and in accordance with the overriding objective to decide the issues at the preliminary stage reached in the proceedings. Having found that the Claimant had no real prospect of being able to establish a need for a replacement vehicle the District Judge was entitled to enter summary judgment for the Defendant on the issue of the claim for special damages by way of hire charges.
Issue 4 – whether the District Judge correctly decided the pleading point
Having effectively dismissed the Claimant’s claim for special damages the only remaining issue was whether the District Judge was correct in deciding that because of the way the claim had been pleaded there was no surviving general damages claim to go forward to trial. Whilst his decision might have the effect of affording the Defendant tortfeasor a “windfall escape” from any further liability for the consequences of his negligent act, I am unable to say that the District Judge failed to take into account any relevant matters nor took into account any irrelevant matters but considered the arguments on both sides carefully and came to a decision which was within his power to make. I would be unwilling to say that it was a decision which no reasonable District Judge could make. Accordingly the District Judge was entitled to enter summary judgment for the Defendant and dismiss the Claimant’s claim in its entirety.
My conclusions therefore are that I do not consider that an appeal against the order of District Judge Read entering summary judgment for the Defendant would have a real prospect of success nor is there some other compelling reason why the appeal should be heard. Accordingly permission to appeal cannot be and is not given. The Claimant’s application for permission to appeal is therefore dismissed and the District Judge’s orders are confirmed.”
(The paragraph numbering in these judgments has come askew when being copied to the blog. The correct numbering can be seen in the attached decisions).
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Evidence, damages and a solicitor’s goodwill
- Highwaymen, evidence and damages all on the menu
- Evidence: proving damages and interest on damages.
- Witness statements and proving Loss of Earnings
- Striking out schedule of damages because of absence of evidence in witness statement
- Litigation, evidence, mitigation of loss and “black holes” in the evidence
- Make sure your witness statement proves your case