Nicola Morgan-Rowe v Laura Woodgate

In a credit-hire claim, impecuniosity depends on whether the claimant could reasonably have been expected to pay ordinary hire charges without making unreasonable sacrifices. The assessment is made at the time the decision had to be taken, rather than with hindsight. Savings earmarked for mortgage payments and other essential bills may properly be treated as unavailable for this purpose, even where using them would have left a modest balance.

An appellate court should not interfere with a first-instance assessment of impecuniosity merely because another judge might have reached a different conclusion. A new point on appeal will generally be refused where it would require further evidence or would have changed the conduct of the trial, particularly where the relevant issue was expressly conceded below.

The appeal arose from a road traffic collision in which the Claimant recovered damages, subject to 50% contributory negligence. The principal quantum issue was whether she was impecunious and therefore entitled to recover credit-hire charges rather than only basic hire rates.

The Recorder accepted that the Claimant had approximately £12,000 in an ISA, but found that it was earmarked for mortgage payments and bills and that using almost all of it for hire would have involved an unreasonable sacrifice. On appeal, the Defendant challenged that conclusion, relied on alleged disclosure failures, and sought to argue that the vehicle repairs should have taken only two weeks. The central issues were whether the Claimant should have been debarred from relying on impecuniosity, whether the new repair-period argument could be raised, and whether the Recorder’s assessment was open to him.

1. Appeal dismissed. The Recorder was entitled to find that the Claimant had complied with the disclosure order and was not debarred from relying on impecuniosity. The undisclosed bank account and credit card belonged to the Claimant’s husband. They were not documents within the Claimant’s control for the purposes of Civil Procedure Rules 1998, CPR r 31.8. The Defendant could have sought third-party disclosure under CPR r 31.17, but did not do so.
2. The proposed argument that repairs should have been completed within two weeks was a new point raised in the appeal skeleton argument. It was absent from the grounds of appeal, required permission to amend, and contradicted the express concession at trial that the repair period was accepted. Under the principles in Singh v Dass and Hudson v Hathaway, the point was refused. If raised at trial, it would have required further factual evidence about the repair process and would have changed the shape of the trial.
3. The relevant appellate test under CPR r 52.21(3) was whether the decision was wrong or unjust because of serious procedural irregularity. The Recorder’s assessment involved evaluative judgment. Following Henderson v Foxworth Investments Ltd, intervention was justified only if the conclusion could not reasonably be explained or justified.
4. Impecuniosity meant inability to pay ordinary hire charges without making sacrifices which the claimant could not reasonably be expected to make, applying Lagden v O’Connor. The assessment had to be made when the claimant decided how to respond to the accident, without hindsight. The uncertain duration of the hire, the possibility of further emergencies, and the fact that the ISA was earmarked for mortgage payments and bills provided a rational basis for finding impecuniosity.
5. The Recorder’s conclusion was reasonably open to him. The appeal was therefore dismissed.

• High Court (King’s Bench Division): appeal from the judgment on damages of Mr Recorder Swirsky in the Croydon County Court. The appeal was dismissed.