SUCCESSFUL PRE-ACTION DISCLOSURE APPLICATION BY DEFENDANTS: CLAIMANTS HAD TO GIVE INFORMATION AS TO IMPECUNIOSITY
In EUI Ltd v Charles & Ors  EW Misc B7 (CC) HHJ Robert Harrison made an order that claimants give pre-action disclosure of documents relevant to the issue of impecuniosity. The practical consequences of this decision could be enormous. Given that a potential defendant can, potentially, apply for pre-action disclosure on this issue there may little justification for a would-be claimant to refuse to disclose the information. The judgment notes that attempts at premature issue in an attempt to avoid an application for disclosure could lead to adverse costs consequences.
The applicant insurer was facing actions by seven individuals whose car had been damaged in an accident . In each case those individuals had hired alternative vehicles from credit hire companies. The defendant sought disclosure of bank statements and wage slips for a period of three months prior to the hire.
The reason this was important is that a claimant can normally only claim a “basic hire rate” for the hire of an alternative vehicle. There is an exception – an “impecunious” claimant is entitled to claim the full credit hire charges not limited to the basic hire rate, provided those charges are not unreasonably high. Impecuniosity is also relevant to the period of hire. The question of a claimant’s finances is therefore often central to the issues to be determined in these cases.
THE APPLICANT’S ARGUMENTS
The applicant insurer argued that it should be able to assess if a potential claimant is impecunious in order that it could value the claim and settle it without litigation.
The judge noted that there was a two-fold requirement on a defendant: a jurisdictional threshold and a “discretionary” threshold.