PROVING THINGS 60: PUTTING SEAWEED OUT OF THE WINDOW: THE ABSENCE OF EVIDENCE AND THE JUDGE WHO WAS EVEN-HANDEDLY OFFENSIVE:
The Court of Appeal judgment in McBride -v- UK Insurance Ltd  EWCA Civ 144 has been covered widely on the issue of the appropriate rate for car hire charges after an accident. However less widely discussed is the fact that, in one of the cases at least, the parties did not really bring any effective evidence to court. This led to the trial judge getting irate (however there were good reasons for that irritation). It is an example of the parties failing to adduce cogent evidence at court. Some of the trial judge’s observations as to the position he was in as a result are trenchent, but correct. They apply to many situations in which a party has to prove (or disprove) a claim for damages.
THE CLAYTON CASE
The appeal concerned two cases, the second, Clayton -v- EUI Limited, involved a dispute about the appropriate rate of hire as an alternative to a 1973 Ford Mustang. In these cases the parties serve reports of the “basic hire rate” (“BHR” evidence). However:
- The claimant served evidence of the rates in York (the claimant lived in Colchester).
- The claimant produced a report on Colchester rates “at the last minute before trial”. No evidence was adduced in support of an application for relief from sanctions.
- The defendant served evidence of rates for much longer periods of hire. (The period of hire being a highly relevant factor in the hire charges).
- The shorter period of hire point only arose in re-examination. However the judge held that the defendant should have anticipated this in any event, the burden being on the defendant on this issue.
THE JUDGMENT IN THE COURT OF APPEAL
Both parties served BHR evidence. Unfortunately, apparently due to a “postcode error”, the claimant’s evidence, in the form of a report from APU Limited did not relate to cars available for hire in Colchester but in York, more than two hundred miles away. The claimant decided not to use this evidence and at the last minute before trial produced a report of rates for hire in Colchester. At the fast track trial before District Judge Mitchell in the Colchester County Court, he held that the claimant needed relief against sanctions under CPR 3.9, but had failed to produce any evidence in support of an application for relief against sanctions as required by the Rules. He refused to admit this Colchester evidence on the basis that it was too late. This meant that there was no BHR evidence from the claimant.
The defendant produced a witness statement from Mr Andrew Gadd, a rates surveyor from UK Rate Services Limited. He produced evidence of hire rates for comparable vehicles to those hired by AEL to the claimant, from four national car hire companies in the Colchester area. These were all rates for a 28 day period of hire. One of these, from Thrifty, for a BMW 330, was not for a comparable car to the ones the claimant hired from AEL, which left three rates, all for Mercedes. Europcar had a basic hire rate for 52 days of £7,158.37 (excluding VAT) for a Mercedes E350 Cabriolet with an additional charge of £14 per day to reduce the excess from £1,250 to nil (although this excess reduction provision excluded ‘damage caused to the vehicle hitting a bridge, car park barrier or other overhead object or damage caused by driver/renter negligence’). Avis Prestige had a basic hire rate for 52 days of £5,784.23 (excluding VAT) for a Mercedes E250 Sport Cabriolet with an additional charge of £15 per day to reduce the excess from £1,500 to £750. Hertz had a basic hire rate for 52 days of £7,391.43 (excluding VAT) for the hire of a Mercedes E250 Sport Cabriolet with an excess of £2,000. No reduction or elimination of that excess was available. Accordingly, two of the three companies would not provide a nil excess.
Mr Gadd did not produce any figures for a 7 day rate, or a 14 day rate in addition to his evidence about a 28 day rate, presumably because he focused on the actual length of hire of 52 days. Prior to the trial before the district judge, the claimant did not suggest either in his pleading or in his witness statement that a 7 day rate was the appropriate rate because he had only expected to be without his car for a short period of time. However, in re-examination of the claimant, who gave evidence at the trial, counsel asked him what he had thought the timescale for the repairs would be. His evidence was that he was hoping it would be done very quickly, in hopefully about a week. That evidence seems to have been the genesis for the submission that the appropriate basic hire rate to compare with the credit hire rate should have been a 7 day rate (which would of course have been higher than a 28 day rate).
As appears from the transcript of the proceedings, the judge clearly had a sense of anger and frustration about the fact that, despite having been given ample time following case management directions, the parties had not settled the dispute and about what he saw as inefficiency by the solicitors on both sides. However, his conduct of the hearing was not judicial: he went beyond being robust, and was hectoring and offensive and expressed views about credit hire and the insurance industry generally that he would have been better keeping to himself. Apart from what he said about 7 day rates, which I refer to below, it is not necessary to cite specific instances of what he said. My firm view is that, despite his intemperate comments, he did not show any actual or apparent bias against the claimant or in favour of the defendant. It might be said that he was even-handedly offensive.
Of more concern for present purposes is what the judge said during the course of submissions about the evidence or lack of it in relation to the 7 day rate. Because the judge had refused permission to the claimant to adduce the APU Colchester evidence (which was of 7 day rates, apparently in line with APU’s usual practice) and because there was no evidence from Mr Gadd of anything other than 28 day rates, the judge had no evidence of 7 day rates. In those circumstances, counsel for the claimant, Ms Beaulieu, invited the judge to take judicial notice of the fact that the rate is very different if you hire for one day or if you hire for 7 days, in which case the rate goes down, or if you hire for 28 days in which case the rate goes down again.
Counsel for the defendant, Mr Bailey, submitted in relation to the evidence available of the 28 day rate, that assessment of rates is always a rough and ready exercise, to which the judge responded, why should it be, given that the onus was on the defendant to produce evidence of comparable rates. He said: “without any evidence from you as to what the rate for seven days is, you are sunk, are you not?” A little later he said: “You had your chance: one day, seven days, 28 days. You put in 28 days. The onus is on you to disprove. How do you do it?“ Counsel said that there were sufficiently comparable rates to consider and that, even if the judge did not agree with that, this was an assessment process. The Court had very broad powers to assess what the basic hire rate was, to which the judge’s response was: “Like that?” raising his finger in the air. Counsel pointed out that the Court had some rates and referred the judge to what counsel described as the “sanguine” approach which should be adopted to rates set out by Jacob LJ in Bent (No 1) (to which I will return below).
The judge then said, with evident sarcasm: “What exercise should I be taking? If I find that no, this is not comparable, should I just say ‘Well, with my extensive experience of hiring Mercedes 350E Cabriolets, I know that if you go for seven days instead of 28 days, you pay 25% more? Or 50% more? Or 100% more? What should I be doing then?” Counsel suggested that the judge could either take judicial notice of the fact that if you hire a car for 52 days, as here, you generally end up with a 28 day rate or take the rates he had and apply them because they are relatively comparable. If not satisfied with the 28 day rate, the judge could apply a percentage uplift such as 20%. The judge asked why it would be 20%, to which counsel said the Court had broad assessment powers. The judge’s response was: “Which is actually putting a bit of seaweed out of the window to see if it is raining, is it not? You want me to guess?” Counsel said he did not want the judge to guess but to take a sanguine approach to stripping out what the courts have said are irrecoverable benefits (another reference to Bent (No 1)). He also pointed out that the point about the 7 day rate was not pleaded and only emerged in re-examination of the claimant that day. The judge suggested that was a risk that the defendant took by running the case to trial.”
(The Court of Appeal upheld the decision of the District Judge).
RELATED POSTS: THE PROVING THINGS SERIES
- 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”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
- Proving things 31: witnesses tend to remember what they want to remember.
- Proving things 32: Damages claim struck out as unsustainable: application to amend refused.
- Proving things 33: causation and the burden of proof in claims against solicitors.
- Proving things 34: There is no primer for scuttlers: when your ship doesn’t come in.
- Proving things 35: Reconstruction, documents & memory.
- Proving things 36: credibility and contemporaneous documents.
- Proving things 37: An approach to damages that was “fundamentally deficient throughout”.
- Proving things 38: Proving inability to pay on a security for costs application.
- Proving things 39: You can spend £10 million in costs and still not prove your case.
- Proving things 40: No evidence – no loss.
- Proving things 41: Proving damages – you are not going to get a second bite of the cherry.
- Proving things 42: silence does not prove inducement.
- Proving things 43: How the Court decides: a Primer.
- Proving things 44: Findings of Fact, Walter Mitty and Witness Training.
- Proving things 45: If you can’t prove loss the defendant is going to get summary judgment.
- Proving things 46: Late theories advanced by experts rarely help.
- Proving things 47: Fire in the loft: it wasn’t the mouse man at all.
- Proving things 48: valves, floods, models and causation.
- Proving things 49: it is difficult to prove damages when the opinion evidence in your witness statement has been struck out.
- Proving things 50: to prove breach of contract you first have to prove that there was a contract.
- Proving things 51: No evidence of loss – no damages
- Proving things 52: Solicitor’s negligence action fails on all counts: no negligence and no loss.
- Proving things 53: dishonesty some of the times doesn’t mean dishonesty all of the time.
- Proving things 54: getting £2 in damages after claiming £15 million.
- Proving things 55: I’ll say it again: No evidence – no damages.
- Proving things 56: A judge will not speculate when things could have been proven.
- Proving things 57: Lease said soonest mended: claim for substantial damages fails (and guess the reason)
- Proving things 58: Failure to prove causation leads to award of nominal damages.
- Proving things 59: To get special damages you have to plead them and prove them.