When you attend a credit hire trial (well, any trial) you desperately hope that you and your opponent can reduce the number of issues that remain in dispute. Most of the time there can be little to no agreement. When an issue is no longer in dispute, either because a party is debarred from relying on it or it has been conceded, it allows you to draw a line in the points you must challenge and raise at trial.
As an advocate you can be taken aback if your opponent tries to argue or deal with an issue previously conceded. At a recent credit hire trial I had to metaphorically rise and raise the point that my opponent was cross examining the Claimant in respect of the validity of the agreement when the defendant was debarred from doing so for failing to address it in the defence.
Now imagine you’ve succeeded at trial but the Defendant was not only seeking to appeal the decision, sought to raise different points of appeal without permission of the court and, to add extra salt to the wound, raised a point that was conceded before the trial began.
That is what True Solicitors LLP were faced with in the case of Morgan-Rowe v Woodgate [2023] EWHC 2375 (KB).
This is an interesting appeal because not only does it give clarity or confirmation two points on impecuniosity (erroneously stated before as “in bikini ah city” – don’t dictate a post and then not proofread), it also demonstrates how you should not try to change your appeal midway.
First instance before Recorder Swirsky
The matter had been allocated to the fast track but like many fast track trials these days, it was listed before a circuit level judge (Mr Recorder Swirsky), no doubt due too judicial unavailability of district level judges.
The Recorder was required to determine liability and quantum, consisting mainly of credit hire charges and repair costs along with some smaller sums as well. After hearing from the witnesses and hearing submissions the Recorder found that both parties were liable and the proportion was 50/50.
The total sum being claimed by the Claimant was £25,830.72 for credit hire and repair costs of £10,022.24 (plus the excess and removal costs). The Claimant was pleading impecuniosity to rely on the credit hire rates. It is of relevance that in the Defendant’s trial skeleton argument, the period of 72 days had been conceded.
As with many credit hire cases, there had been a directions order which included a requirement for our reply to defence and for specific documents within the Claimant’s control relevant to her financial position during the relevant period of hire.
At trial, the Defendant made the following submissions:-
- The Claimant should be debarred from relying on impecuniosity because there had not been a Full disclosure of financial records. In particular there was a payment to a credit card from the joint account (owned in party by the Claimant’s husband) and money had been paid into the joint account from a separate account not disclosed.
- There was a cash ISA that held £12,000 which the Claimant could have used to pay for the hire and therefore was not impecunious
The Recorder was satisfied that the claimant was impecunious because, after hearing the Claimant’s evidence, he found that:-
- The credit card and additional account belonged to the husband of the Claimant, not the Claimant herself. Therefore the Claimant had complied with her disclosure obligations.
- He accepted the Claimant’s evidence that the £12,000 in the cash ISA were earmarked for mortgage payments and bills and that without knowing precisely how long the repairs would take and that penury did not equate to impecuniosity. The Claimant would have run the risk of running down her capital to almost nothing, leaving her with no sufficient funds to cover any further issues that may arise
The evolution of the appeal
The Defendant’s appeal began life as set out in the Grounds of Appeal, arguing that:-
- The Recorder’s conclusion was perverse and/or an error of law in respect of the finding of impecuniosity regarding the £12,000 ISA.
- The Claimant’s suggestion that the ISA had been earmarked for mortgage payments and bills was neither in her statement nor was it cooperated by documents
The trial was heard on the 12th April 2021, the grounds of appeal were dated 23rd of April 2021 and by the 1st June 2023 the Defendant’s skeleton argument had changed the premise of the appeal.
Counsel for the Defendant was now arguing that the Recorder was wrong for finding that the Claimant was not debarred from relying on impecuniosity due to disclosure failures and that the Claimant Should not have been allowed the full period of hire as the repair could have been done within a couple of weeks. This was despite the trial Counsel’s concession that the full 72 day period should be allowed.
Mr Weir KC, for the Claimant, argued that the Defendant should be held to the case set out in the grounds of appeal, rather than the skeleton argument (stating that the High Court was not the ‘wild west’ and was governed by rules). The appeal Judge declined to entertain the arguments that were not in the skeleton argument, but nevertheless gave decisions (in case he was wrong).
The appeal
Was the Recorder wrong not to debar the Claimant from relying on her asserted impecuniosity by reason of a disclosure failure ?
The appeal judge found that the Claimants evidence was that the credit card and separate account were that of her husband. If accepted, which the recorder did, it could not have possibly fell within the Claimant’s control as per CPR 31.8. Even the disclosure direction was about financial records in the Claimant’s own control.
This could never have been intended to include the husband, neither would it be because she would have had no control or right to them. It would have been open to the defendant to make a third party disclosure application in accordance with CPR 31.17. The appeal judge speculated as to why the defendant chose not to make such an application, but nevertheless there was no none compliance by the Claimant in respect of the disclosure order.
The appeal judge also found that the Defendant’s complaint regarding absence of evidence that the mortgage payments and bills for which the ISA was earmarked (which they say emerged only at trial) was unsubstantiated because it was directly referred to in the Reply to Defence.
The Defendant’s argument that the period of repair should be limited to two weeks and she should have funded the repair costs herself
The appeal judge was quite satisfied that the Defendant was not permitted to raise this argument because they had failed to seek permission of the appeal court to amend its appeal notice.
Secondly, the Defendant did not contest the repair because it had expressly conceded in the Defendant’s trial skeleton argument that need and period were accepted.
Thirdly there was no evidence to support the proposition that a repair time would have been quicker if the claimant had funded it herself. I refer to paragraph 63 of the Judgment which I found to be a fantastic:-
The Defendant faces the further difficulty that there is absolutely no evidence to support Mr Roberts’ suggestion that the repair could have been done ‘in a couple of weeks’. As Mr Weir said, the repair, ‘took as long as it took.’ I commented in argument that garages work to their own schedule; parts have to be got; and in this case Christmas and New Year intervened. Mr Roberts’ figure seemed to me to have been simply plucked from the air. He advanced no coherent basis for his suggestion that if the Claimant had gone to a ‘mainstream garage’ (his words) the repair would have been done more quickly than it was. Mr Roberts did not explain what the difference was between a ‘mainstream garage’ and Custom Coachworks of Burgess Hill, which actually carried out the repair.
The appeal judge referred to Singh v Dass [2019] EWCA Civ 360 to also consider whether the Defendant could raise a new point on appeal which was not raised at the first instant trial. In particular the point that an appellate court will not generally permit a new point to be raised on appeal if that point would necessitate new evidence or had it been run below it would have resulted in the trial being conducted differently with regard to the evidence at trial. The appeal judge concluded that this alone would have led to the dismissal of the point.
Was the Recorder wrong to conclude that the Claimant was impecunious despite having had c. £12,000 in a cash ISA available on the date of accident and her own witness’ assessment that the spot hire charge would have been c. £9,000, thus leaving c.£3,000 ?
This was dismissed on being raised in the Grounds of Appeal but not the skeleton argument. However the appeal judge continued to say that even if he was wrong, it was not a decision that was not reasonably open to him. Notwithstanding that that as per Irvnin v Morgan Sindall PLC [2018] EWHC 1147 (QB) it would be rare for an appellant court to interfere with a Judgment on the issue of impecuniosity reached at first instance, Lagden v O’Connor [2003] UKHL 64 was not with the Defendant.
The Recorder was tasked with determining what would have been reasonable for the Claimant in December 2019 in the circumstance which she found herself in. The Judge accepted the ISA money was earmarked for mortgage payments and other bills, to pay for the hire of a car for an uncertain period whilst her own car was undergoing major repairs. This is where Defendant’s case failed. It was about what the Claimant would have done at the time, not with hindsight.
The Defendant had argued that if the ISA money was for family emergencies (which the Defendant submitted needing to hire a car was) then this is what should have been used. She would have had £3,000 left based on the BHR evidence. The Recorder did reach a conclusion that was reasonable for him to find because if the Claimant used the ISA money, then she would not have any sufficient money for any other emergency. With no certainty as to how long the repairs would proceed for, along with mortgage payments being the biggest financial obligation, the Recorder’s decision was proper and rational.
“To give up almost all her savings, leaving herself nothing to cover further issues, would be making a sacrifice the Claimant could not reasonably be expected to make”
Recorder Swirksy
The appeal was dismissed in full.
Commentary
Well where do I begin? I’ll start with the disclosure point.
Specific disclosure would have been a non-starter for the same reasons Julian Knowles J gave. I experienced this issue in holiday sickness litigation. The Claimant would provide disclosure (such as bank statements to see if the Claimant ate outside the hotel) and the Defendant would threaten a specific disclosure application. Unsurprisingly not a single Defendant made an application.
There is also another consideration with the third party disclosure application. The Defendant has to pay the third party’s costs and cost of complying with the action. Of course, that’s the presumption which can rebutted as per CPR 46.1. I suppose if the possible costs benefit is worth it then.
It is one thing if the Claimant could have had access or a right to inspecting a document, but can no longer access it (due to time or something else) but failed to acquire a copy. If a Claimant is not entitled to another person’s bank or credit card statement, then it’s never going to be sufficient to challenge a Claimant’s reliance on impecuniosity.
Then I come to the impecuniosity argument. Whilst I understand that £12,000 in cash ISA that can be accessed and with no evidence of mortgage payments, it was quite the risk to ask an appeal court to overturn the finding of impecuniosity. If the repair and hire costs were much lower I expect the Recorder would not have found the Claimant to be impecunious.
I think the argument that the Claimant couldn’t be holding onto the money for emergency because she would have used it for hire was actually a good argument. I recall, when I worked in Comet, that I would offer the extended warranty for a TV and the customer’s rebuttal would be “I have a home insurance for that”. In response I would say “so.. why aren’t you not using the home insurance for this replacement TV?”. The customer would be unable to respond.
However it does make sense that if there was an option to defer payment for hire and ensure you had plenty of cash available for ‘other emergencies”, it would be a preference. Many credit hire cases are fact sensitive but no doubt many litigators and advocates will look to apply the principles from any case they can to assist their client’s position.
It is of note that a usual cross examination technique is for the Defendant to put it to the Claimant that they were expecting hire to be more than 7 days (to justify weekly rather than daily rate). The argument being it is not based on the Claimant’s hindsight. It would therefore be “wanting to have it’s cake and it eat” to argue the Claimant ought to have considered the potential length of hire to determine why here they could justify the costs up front.
We will of course never know the reason the appeal was changed mid way, but the failure to seek to amend the Grounds of Appeal and address all grounds in the skeleton argument meant the appeal was subject to a red card before it began.
Information
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From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.