PROVING THINGS 258: GENERIC WITNESS STATEMENTS RARELY IMPRESS A COURT: CLAIM FOR £50,190.24 REDUCED TO £1,197: A CAR CRASH OF A CASE

In David Wiltshire v Aioi Nissay Dowa Insurance Company of Europe [2025] EWCC 13 District Judge Lumb rejected most of the claimant’s claim for damages following damage to his car.  The claimant’s oral evidence differed greatly from his witness statement.  These differences were fundamental to the issues in the case.  The failure to adduce proper evidence proved to be expensive – for someone.

“That credit hire litigation can be characterised as bulk litigation does not excuse an overreliance on a prescribed process of precedent documents including witness statements. There is still an obligation to ensure that any witness statement complies with CPR Part 32 and the Practice Direction thereto. Blind following of a company process is no substitute for understanding these requirements.”

KEY PRACTICE POINT

Do not use template witness statements. Ensure that the statement is a compliant statement taken properly from the witness and that they understand, and agree with, the terms used.

THE CASE

The claimant’s car was damaged in an accident.  His daughter telephoned his insurers and then passed the telephone to him. The claimant believed he was speaking to his insurers, in fact he was speaking to a firm of solicitors.  They arranged the hire of an alternative vehicle. A claim was made for the losses claimed which totalled £50,194.24.

THE CLAIMANT’S EVIDENCE AT TRIAL

The damages claim progressed to trial, with a major claim for the hire of an alternative vehicle. A witness statement was signed by the claimant.  However his evidence at trial differed greatly to that in the statement.

THE JUDGE’S OBSERVATIONS ON THE WITNESS EVIDENCE

Only the claimant gave evidence.  His oral evidence differed greatly to the witness statement.

12. The only oral evidence given at trial was by the Claimant, Mr Wiltshire. There was a stark contrast between the account that he gave in his oral evidence and that in the written witness statement prepared for him by solicitors. Although aged 80 by the time of trial he was a very clear witness who was providing an honest recollection of events. The discrepancies between the written and oral evidence could not be explained as confusion of an elderly witness.

13. In modern litigation, a written witness statement is supposed to stand as the evidence in chief of that witness. There is a clear duty upon anyone who is preparing a witness statement to ensure that it is accurate and as detailed as circumstances require.

14. CPR 32.8 provides that a witness statement must comply with the requirements of the Practice Direction to CPR Part 32. Paragraph 18.1 of the Practice Direction states “a witness statement must, if practicable, be in the intended witnesses own words…”.

15. During the course of Mr Wiltshire’s oral evidence, it became obvious that his witness statement was far from being in his own words. Instead, it followed a template precedent that in the Court’s experience is almost always used by Winn solicitors. The effect of this marked inconsistency between the oral and written evidence rendered the reliability of the contents of the witness statement to be highly questionable and where there were material differences I prefer the oral evidence of Mr Wiltshire.

16. That credit hire litigation can be characterised as bulk litigation does not excuse an overreliance on a prescribed process of precedent documents including witness statements. There is still an obligation to ensure that any witness statement complies with CPR Part 32 and the Practice Direction thereto. Blind following of a company process is no substitute for understanding these requirements.

17. Mr Wiltshire explained that at the time of the accident he was on a family caravan holiday in Tenby, Wales. His car was badly damaged. The police were called to the scene and drove Mr Wiltshire’s Citroen back to the caravan site.

18. Mr Wiltshire got his daughter to ring the Accident Assist line for his insurers, the AA. It transpired that they then put her through to Winns solicitors and she handed the phone to her father. Mr Wiltshire mistakenly believed that he was talking to his own insurers, the AA. He was sure that the person that he was speaking to did not otherwise identify themselves to him. This may have been because they had already spoken to his daughter.

19. When shown paragraphs 6 to 9 inclusive and paragraph 11 of his witness statement, Mr Wiltshire was adamant that these were not his words and not his understanding. Those paragraphs in his witness statement stated as follows;

6. Following the accident, I contacted Winn Solicitors Limited (Winns) on 10 May 2023 to pursue a claim on my behalf for losses as a result of the accident.

7. Winns advised me that they would be able to deal with my claim for vehicle damage, which included assisting me with any additional services I needed including such as credit repair, credit hire and credit recovery and storage.

8. When I contacted Winns I was aware they offered a “one stop shop” and could arrange everything on my behalf with no upfront cost. This was what I wanted as using On Hire meant that I did not have to go to the expense and hassle of trying to obtain multiple quotations from other providers for similar services.

9. I was informed by Winns, both orally and in writing that the directors of Winns are also the directors of On Hire Ltd and that they have a financial interest in the company. I understood this and agreed to the use of the company. I was also told that I could use alternative companies if I preferred. I did not wish to do so and agreed to use the services.

11. I was advised that an engineer would inspect my vehicle and if it was damaged beyond repair or required repairs, On Hire Ltd could provide me with a hire vehicle if I needed one. I was informed that the services would be provided on a credit basis, which meant that I would not have to pay anything upfront. I was advised that I would be liable for the charges, but they would be claimed against the “at fault driver” as part of my claim.

20. In his oral evidence, Mr Wiltshire was clear that he believed he was speaking to his own insurers on 10 May 2023 and was making a claim under his own policy. He did not believe that he was instructing solicitors to pursue a claim on his behalf. He said that he did not know what credit hire was let alone credit repair, credit recovery or storage.

21. As he did not realise that he was speaking to Winns it is self-evident that he did not select them as a provider of legal and claims management services. The connection to Winns came during the initial telephone call by his daughter to Mr Wiltshire’s insurers, the AA, who transferred that call.

22. He denied that he was told that Winns directors were also directors of On Hire Ltd. At that stage he had never heard of On Hire Ltd.

23. He was clear that he was not offered the opportunity of approaching alternative companies as he had no reason to do so believing that he was dealing with his own insurers. Had he understood that he was going to be potentially liable for credit hire charges of £500 a day and that he was dealing with Winns as opposed to his own insurers he would have had nothing to do with the arrangement. “If I been told that they were not the AA I would have put the phone down and called someone else.”

24. There is supporting evidence within the bundle that tends to corroborate the oral account given by Mr Wiltshire.

i) Firstly, the credit agreements signed by him were only completed on 13 June 2023 over 6 weeks after the alleged hire was said to have commenced. There is no explanation provided for that delay. This is consistent with his account that at least up to 13 June 2023 he believed that he was being supplied with an alternative vehicle by his own insurers.

ii) Secondly, the only correspondence to Mr Wiltshire’s home address immediately after 10 May 2023 was a letter from Winns to Mrs Philomena Wiltshire (misspelt as Philonena Wilkshire) said to be enclosing a Conditional Fee Agreement, hire agreement, repair agreement and recovery and storage agreement together with Winn solicitors client care letter and standard terms and conditions.

Mrs Wiltshire did not provide a witness statement and did not give evidence.

No explanation was forthcoming as to why she was sent this letter and why there is no corresponding letter sent to Mr Wiltshire. One hypothetical explanation, not explored in evidence or submissions, may be that in taking the initial “telephone instructions” the call handler at Winns recorded that it was a woman they were speaking to and assumed this was Mrs Wiltshire when in fact it was the couple’s daughter. The Winns process might then have recorded Mrs Wiltshire as “the client”.

iii) Thirdly, there is also a letter of claim from Winns to Aviva (believed to be Mr Wiltshire’s insurers – possibly because the AA were agents/brokers for Aviva and not in fact his insurers as Mr Wiltshire believed) dated 24 May 2023 which states in the heading that their client is David Wiltshire and includes a sentence “please note our client will be provided with credit hire and credit repair services”. The use of the future tense implies that those services had not yet been provided and might perhaps be explained by a recognition by Winns that they had not at that time signed up Mr Wiltshire to the credit agreements. Again, no explanation was forthcoming in the evidence.

25. In his oral evidence, Mr Wiltshire explained that so far as he was concerned the only documentation that he signed at the time of collecting the replacement vehicle on 11 May 2023 was in relation to the state or condition of the replacement vehicle. Again, I accept his evidence on this. Given the date of 13 June 2023 on the credit documentation it is clear that he did not sign this on or around 10 May 2023.

26. Further details that were provided in Mr Wiltshire’s oral evidence that were missing from his witness statement included the fact that he was only provided with one replacement vehicle, a Kia Sportage, and at no time was he provided with a Vauxhall Grandland. He could only assume that the two invoices, one for each vehicle, included in the trial bundle were a mistake. He did not use a Vauxhall for two days and then the Kia for balance of the period.

27. He also explained that the replacement vehicle was provided from Milford Haven about 14 miles from the caravan site in Tenby. The provider drove to the campsite and then drove Mr and Mrs Wiltshire back to Milford Haven to complete the documentation. They themselves then had to drive the Kia to the campsite. Mr Wiltshire had not agreed to pay any delivery or collection charges for the Kia and regarded it as quite unfair that the Kia wasn’t delivered by the provider in any event but that he had to drive it back to Tenby.”

THE RESULT

The claim for credit hire was rejected. The judge awarded £1,197 in damages, primarily for damages for loss of use.

“28. Given that evidence, it is clear that Mr Wiltshire had no liability for delivery or collection charges and the claims for those heads of loss fail.

29. Further, upon considering all the evidence, I am not satisfied that the Claimant has discharged the burden of proof as to the enforceability of any of the credit agreements.

30. For the reasons which I shall set out below, the reasonable period for needing a replacement vehicle had already come to an end before the agreements were signed on 13 June 2023 and can have no retrospective effect.

31. Any agreements that might have been sent were sent to the wrong person, namely Mrs Wiltshire. That mistake is not explained anywhere in the evidence. At best, Mr Wiltshire had entered into an oral agreement for the provision of a replacement vehicle and the evidence falls far short of establishing that he had agreed to hire a vehicle on credit terms or enter into a credit repair agreement or a credit recovery and storage agreement prior to 13 June 2023.”