Accident Exchange - hire car charges after accident

[Feelingdownandout]

Ganymede how do we take action against the driver of the van?

[Ganymede]

please confirm who are named as the Claimant and Defendant in the current Court proceedings.

[Feelingdownandout]

we haven't seen the court papers, we are going to request a copy today

[SuperVillain]

As the Claimant it is a general point of tort law that you have a duty to mitigate your losses. This means if you could have done anything reasonable to reduce your losses then you should take that action.

 

The case law surrounding this aspect in relation to credit hire claims is (now) Bent v Highways. It says that where the Claimant could have afforded to hire a vehicle under their own means at cheaper rates than credit hire rates, only the cheaper rate is recoverable. This case concerned a footballer hiring an aston martin but the principals are the same. He could have afforded to pay for hire at non-credit hire rates and was therefore wrong to take the more expensive option. There were lots of provisos - including that where the credit hire rate fell within the range of reasonable rates it was recoverable, even if it was at the expensive end of the range. There was also comments about the additional benefits provided by credit hire and much else, and its a long complicated judgment which I won't go into here.

 

You've already said before that you couldn't have afforded a hire so collect and provide the financial information that PCJ need and it will show the credit hire rate is recoverable.

 

The way I see it the other side may be arguing that the car you got was not like for like and was better than your own. Obviously without seeing the credit hire agreement I don't know what daily rate AE are charging. It is likely that whilst they provided you with a bigger car, AE are only charging the rate for a like for like car. But this could be one dispute.

 

When it comes to repair delays Claimants are given a lot of leeway by the Courts. The delay is not your fault and there is little you can do about it when the garage has your car. The Courts recognise this and are rarely likely to hold a Claimant responsible for the garage's (or even your insurer's) delay. The other side may try and argue the toss but if it gets in front of a Judge - unless it transpires you've done something to delay the matter - you'll be in the driving seat on that dispute. If the other side claim the garage or your insurers are liable for delays they need to start a part 20 claim to get contributions from them for the hire.

 

You say the third party insurers offered you a car and you declined it. So they will be disputing the credit hire rate saying they should only have to pay the rate their hire company would charge as you have failed to mitigate your loss by not taking their offer. The refusal of their offer has to be unreasonable. The leading case is still Copley v Lawn - my question to you is, how did the third party insurer's put their offer for hire to you (by telephone, in writing) and did they tell you the daily rate they would be incurring? AE's daily rate should be on your hire agreement, however if the other side didn't give you their's how can you know if its a reasonable option to take. I'm guessing you were never provided with such information. Even then, the issue of having to take credit card details may be enough by itself to push this into the realms of being a reasonable refusal.

 

Without seeing the Claim Form it is highly unlikely that anyone other than the van driver will be the Defendant, unless the Claim is being made against the insurer under The European Communities (Rights against Insurers) Regulations 2002.

 

Having said all of that however, I still think this matter will be settled before it reaches the disclosure/exchange of documents stage of the claim.

 

If you're super worried about the possibility of having to pay out, approach PCJ to provide details of this insurance which they say covers 9/10 claims, and see what the terms and conditions are for you to be one of the 9...

[Feelingdownandout]

**UPDATE**

 

Hubby has just found a copy of the court papers - the defendant is the insurance company. With regards to the offer from enterprise, they contacted by telephone and demanded credit / debit card details, there was no discussion regarding rates or charges. I am waiting for hubby to bring the court papers and will also post up the agreement from AE.

 

All such a mess. As I said, I have no idea who instructed Enterprise to contact us, to this day we still don't.

 

p.s. Super worried isn't the word...

[unclebulgaria67]

As has been said, Enterprise may have wanted the credit card for identification/insurance excess purposes.

If you read many hire company conditions, they ask for a credit card or if that is not available a debit card, plus several documents showing your home address.

It could well have been the case that the third party insurers would have paid for the Enterprise car hire. But because you don't appear to have been given an explanation about the need for a credit card, you went through AE for a credit hire car, which the third party insurers won't pay for.

You may get to the end of the process having to pay the difference between the cost of a reasonable hire car from Enterprise and the cost of the credit hire car through AE. Or you may get lucky as Ganymede suggests and AE just write off the difference, so you have to pay nothing.

Just fight your corner and see what happens. If you do owe something, it may be months before you get invoiced the amount and you can still enter into a dispute about it.

[Feelingdownandout]

feels like we are having our arms forced up our backs....

have docs, will post up

[SuperVillain]

AE should already have an invoice/payment pack addressed to OP but they will have sent it to the other side after the hire ended to press for payment.

To ensure that the credit they provide falls outside of the Consumer Credit Act (meaning AE don't need a consumer credit licence to operate) the invoice will be payable in full within a year of the date of the hire agreement. This is in the T&Cs of the hire agreement.

Not that they will necessarily chase OP for this payment - just needs to be in their T&Cs.

[Feelingdownandout]

struggling to upload docs - any advice on how?

I have been rereading some of the posts, and I have interpreted them correctly, it would seem that we are on a highway to nowhere with this?

[unclebulgaria67]

I don't think so. You have a third party driver who admitted liability.

It is just a case of how much the third party or their Insurers is willing to pay towards your hire car.

[Ganymede]

Not at all where are you getting that from?

Liability is admitted and there is a dispute over the rates and duration of hire. This is standard and happens with every credit hire claim as a matter of course.

The two solicitors will argue and negotiate for a while before settling the claim.

Please could you help by telling us exactly who is named as Claimant and Defendant on the Court forms?

[Feelingdownandout]

Hello all, have attached some docs, I would appreciate any comments. I am just very scared Ganymede.

Ganymeade I have attached the docs, the persona details have been blanked out. my hubby is named as claimant. thanks

[SuperVillain]

I agree with unclebulgaria and Ganymede above this will get settled.

 

Actually having now read those particulars (which are pretty standard to be honest - I have a pile of them on my desk!) I think this will definitely get settled sooner rather than later, particularly with the admission of liability. £1.5k... not worth the effort in the small claims track.

[Feelingdownandout]

So should we be worried about the costs and us having to pay them?

[SuperVillain]

In my opinion no.

[unclebulgaria67]

If you are looking for someone to say that you won't have anything to pay, this is not possible. You may have to pay something, but you won't know this until the negotiation has finished and decisions are made by AE.

I am not sure it is worth repeating comments already made. If I were in this position, I would think about writing a recorded delivery letter to AE Solicitors asking what they intend to do to negotiate a full settlement of costs with the third party and what assistance they require from you to achieve this outcome. Then see how they respond.

[Feelingdownandout]

Ganymeade mentioned something about us making a claim against the driver of the van? The driver is not named as the defendant on the court papers, are we able to make a claim aginst him?

[Ganymede]

no you can't. There is already a live claim for the same cause of action and there would be no point anyway as his insurers will pay out, it's just a matter of when and how much.

I assumed (wrongly I'm sorry) that the driver would be the Defendant but it make no difference to the end result.

Bog standard PoC.

Nothing untoward there.

[Feelingdownandout]

It is wise to write a letter to PCJ sols to ascertain what their plans are? or just wait?

 

also on the question of bank statements, do we provide these or wait?

[Ganymede]

It can't hurt to ring/write to the solicitors if it will help you feel a bit calmer about the situation.

I would co-operate as much as you can and provide the information requested.

[Feelingdownandout]

just home to find the witness statement has arrived.

To my horror they want 6 months bank statements and 6 months payslips!

I am also not sure that I like that there is a reference to a like for like car being supplied....

that wasn't the case, we were given what was available apparently....

not to mention we told AE this, as we struggled to run it....

I am beginning to feel like our private lives are being looked into, and that this is now getting personal?

advice on the bank statements would be much appreciated?

[Ganymede]

I told you that wages slips, bank statements and credit card statements would need disclosing. 6 months is a bit longer than normal but not uncommon.

You are the Claimant and so the burden of proof is on you. You must prove that you were impecunious, I.e. you couldn't afford to pay upfront to hire a car yourself, by disclosing the documents requested.

Also who is the witness statement from?

[Feelingdownandout]

its from PCJ, I was expecting to have to provide some info, but 6 months I excessive?

also, what are they looking for in our accounts? we are a normal family living a normal life? we spend what we earn, cant afford to save?

[Ganymede]

Just send 3 months prior to the accident and covering the period of hire and see what they say.

I've explained already you need to prove that you were impecunious. That means disclosing you financial records.

[Feelingdownandout]

its all very scarry. does this mean that a judge has already seen these papers and has requested more info? as the letter refers to the fact that they wont be able to comply with the courts direction until these docs are received?

also I am concerned about the point saying that AE provided a like for like vehicle.....they didn't really.....