Steven Probyn v Sahr Noordin

A claimant seeking credit hire charges at enhanced rates must plead and prove impecuniosity. Where an unless order requires all supporting facts and financial documents, a bare assertion and incomplete disclosure do not permit the issue to emerge for the first time in oral evidence. The court must either refuse relief from sanction or allow a properly remedied case to be tried fairly. It cannot permit the breach to remain unremedied and rely on cross-examination to clarify the claimant’s case. In assessing impecuniosity, the court must consider contractual arrangements relevant to the claimant’s access to a replacement vehicle and continuing financial obligations. Where impecuniosity is unavailable, the claimant may recover only reasonable basic hire charges for the period proved necessary.

The claimant’s vehicle was damaged in a road traffic accident caused by the defendant’s admitted negligence. He claimed £16,686.62 for a 56-day credit hire period. The claim did not plead impecuniosity, and an unless order required a detailed reply and financial disclosure before that issue could be advanced.

The County Court found the reply deficient but permitted the claimant to rely on impecuniosity, accepted late oral evidence, and awarded the full credit hire claim. The defendant appealed on the sanction issue, the finding of impecuniosity, and the failure to determine the basic hire rate evidence. The central issues were whether impecuniosity could properly be advanced and, if not, what reasonable basic hire award should be made.

1. Appeal allowed. The claimant should not have been permitted to advance impecuniosity. A claimant relying on impecuniosity to justify enhanced credit hire rates must plead and prove it. Pleadings define the issues and must set out the material facts relied upon.
2. The reply substantially breached the unless order, which required all facts supporting impecuniosity and specified financial documents. The witness statement and disclosure did not remedy the breach. The undisclosed salary-sacrifice agreement with the claimant’s employer was directly relevant because it concerned both his continuing obligation to pay £310 per month and his access to a replacement vehicle.
3. The Recorder could refuse relief from sanction or grant relief on terms allowing a fair trial. He could not leave the breach unremedied and permit the claimant’s case to develop through late oral evidence. That approach exposed the defendant to trial by ambush and fell outside the proper exercise of the discretion under CPR 3.9.
4. The finding of impecuniosity was therefore unsustainable. The court also noted that the claimant’s evidence about his employer’s inability to provide a replacement vehicle was unsupported by documents and had not been properly foreshadowed.
5. Without impecuniosity, the claimant remained entitled to reasonable basic hire charges. The evidence showed that he obtained a replacement vehicle within a few days. The appropriate basic hire rate was the rate supported by Mr Bowley’s evidence. The court confined the claimant to the defendant’s concession of 28 days at £62.65 per day and substituted an award of £1,754.20.

The parties were directed to agree and prepare a draft order.

• High Court (King's Bench Division) — On appeal from the order of Recorder Boyle dated 18 November 2021, the court allowed the appeal and substituted an award of £1,754.20.
• Milton Keynes County Court — The Recorder awarded the claimant £16,686.62 for credit hire charges and costs after permitting reliance on impecuniosity.