Rates and litigation post StevensStrategy Discussion

2

Parental Guidance

3

Neil Forsyth – Morgan Cole

4

Neil Forsyth – Morgan Cole

5

Anyone remember Autofocus?

6

Six years on; they’re all at it again…

7

The culprits

Company Share

TCF 39%

WhichRate 19%

SG 19%

UK Rate Services 8%

Surveyorship 8%

Ravenstone 4%

TCS 3%

8

General Observations

• Very few reports are Stevens (or Bent 2) compliant;• Very few contain proper comparators;• Some reports are close to being dishonest (more later);• Most of them need rebutting;• A coherent strategy, individually and as an industry, would

serve us well;• We should practice what we learned in the Autofocus era

(only do it bigger and better).

9

What they have to evidence

• The rate or rates for the hire, • In the claimant’s geographical area, • Of the type of car actually hired by the claimant on credit

terms…• By a mainstream supplier (or a reputable local supplier

IF a mainstream supplier is not available) • To a reasonable person in the position of the claimant.

(para. 36 and 39).

10

And don’t forget Bent 2

• It is also clear from the way that Lord Hobhouse addressed the question at 407B-D that he regarded the correct exercise to be to calculate the difference (if any) between the actual credit hire rate for the replacement car hired and what, on the evidence, the judge concluded was the BHR for that model of car (para. 74).

• So the exercise that HHJ Plumstead should have conducted was to find, as best she could on the evidence, what was the BHR for the Aston Martin DB9 that was actually hired on credit hire terms (para. 80).

11

The type of car is important…

• The judge had figures for BHRs of Aston Martin DB9s in 2007... Those figures were taken from archived copies of the home pages, tariff pages and terms and conditions of three car hire companies… The judge also had evidence that a “main stream” car hire company, Guy Salmon, was advertising an Aston Martin DB9 V12 coupé in 2007 at a “seven day” rate of £470 a day.

12

Post Stevens priorities

• Look at your rates and the influence of excess waiver and think about regional commercial rates;

13

Post Stevens priorities

• Look at your rates and the influence of excess waiver and think about regional commercial rates;

• Obtain contemporaneous evidence of local mainstream rates at the start of the hire – understand your risk;

14

Post Stevens priorities

• Look at your rates and the influence of excess waiver and think about regional commercial rates;

• Obtain contemporaneous evidence of local mainstream rates at the start of the hire – understand your risk;

• Monitor insurer behaviour – are they settling some groups in the GTA but not others – if so consider your litigation strategy;

15

Post Stevens priorities

• Look at your rates and the influence of excess waiver and think about regional commercial rates;

• Obtain contemporaneous evidence of local mainstream rates at the start of the hire – understand your risk;

• Monitor insurer behaviour – are they settling some groups in the GTA but not others – if so consider your litigation strategy;

• Pick your solicitor and counsel with care;

16

Post Stevens priorities

• Look at your rates and the influence of excess waiver and think about regional commercial rates;

• Obtain contemporaneous evidence of local mainstream rates at the start of the hire – understand your risk;

• Monitor insurer behaviour – are they settling some groups in the GTA but not others – if so consider your litigation strategy;

• Pick your solicitor and counsel with care;• Understand the tribunal.

17

Litigation strategy

1) Consider Defendant rate evidence first. If they wont share it then send a pre-issue letter requesting it;

2) After issue have your solicitors revisit the early disclosure of evidence (subject to impecuniosity) raising the issue of the over-riding objective;

“CPR 1.3. This imposes a duty on the parties to help the court to further the overriding objective. This is a duty and not an exhortation. Breach of duty is a significant matter which is directly relevant to costs issues.”David v Forrett & ors [2015] EWHC 1761 (QB)

3) Obtain directions allowing rebuttal evidence;

4) Witness summons their witness;

5) Rebut (if appropriate/possible);

6) Brief counsel properly and think about the tribunal.

18

Generic points

1) Rates for the wrong vehicle;

19

Generic points

1) Rates for the wrong vehicle;

2) Rates for the wrong period;

20

Generic points

1) Rates for the wrong vehicle;

2) Rates for the wrong period;

3) Availability;

21

The gaps in the evidence

22

The gaps in the evidence

23

The gaps in the evidence

24

Generic points

1) Rates for the wrong vehicle;

2) Rates for the wrong period;

3) Availability;

4) Distance in time by public transport (not just miles);

25

Generic points

26

Stephen Turner

“Perhaps I have under-stated it. But the fact is that the court’s focus is on the range of locally available rates and you have to pick from them. Could I also make a point that, if guidance is to be given it should be stressed that it is locally available rates that are relevant because it is very easy for claimants, I suppose the defendants could do the same with low rates, to distort the range or the average by including rates which, although some distant car hire company may have given a quote to deliver a car to the other end of the country, in reality would they really?

I would urge upon the court that there should be some mention of the fact that local rates should be truly local rates because, when the hypothetical person looks at the local market, it is highly unlikely that they are going to go to Central London from Dorset to hire a car. It is a factor common, from my experience of doing these cases, to see attempts to skew the results by including within the results hires or quotations obtained (I should put it that way of course because there are no actual hires, these are database quotations obtained) from companies in which no-one in the local market in reality would think of hiring.”

27

Generic points

1) Rates for the wrong vehicle;

2) Rates for the wrong period;

3) Availability;

4) Distance in time by public transport (not just miles);

5) Age, experience, excess;

28

Generic points

1) Rates for the wrong vehicle;

2) Rates for the wrong period;

3) Availability;

4) Distance in time by public transport (not just miles);

5) Age, experience, excess;

6) Terms and conditions and other useful items;

29

Generic points

1) Rates for the wrong vehicle;

2) Rates for the wrong period;

3) Availability;

4) Distance in time by public transport (not just miles);

5) Age, experience, excess;

6) Terms and conditions and other useful items;

7) Transcripts of conversations;

30

Generic points

1) Rates for the wrong vehicle;

2) Rates for the wrong period;

3) Availability;

4) Distance in time by public transport (not just miles);

5) Age, experience, excess;

6) Terms and conditions and other useful items;

7) Transcripts of conversations;

8) Opinion evidence;

31

Generic points

1) Rates for the wrong vehicle;

2) Rates for the wrong period;

3) Availability;

4) Distance in time by public transport (not just miles);

5) Age, experience, excess;

6) Terms and conditions and other useful items;

7) Transcripts of conversations;

8) Opinion evidence;

9) Questor and other insurance excess reduction products.

32

Generic points

33

Generic points

Even if he were authorised by the FCA to advise on a regulated insurance activity, his claim at paragraph 10 that he has identified an ability whereby “exposure to vehicle ‘Excess’ as applied by the vehicle hire company can be effectively reduced by a maximum of £4,000 to zero” would be in breach of the obligations in ICOBS 5.3 which provides:

“In taking reasonable care to ensure the suitability of advice on a payment protection contract or a pure protection contract a firm should:

(a)  establish the customer's demands and needs. It should do this using information readily available and accessible to the firm and by obtaining further relevant information from the customer, including details of existing insurance cover; it need not consider alternatives to policies nor customer needs that are not relevant to the type of policy in which the customer is interested;

(b)  take reasonable care to ensure that a policy is suitable for the customer's demands and needs, taking into account its level of cover and cost, and relevant exclusions, excesses, limitations and conditions; and

(c)  inform the customer of any demands and needs that are not met.”

34

Don’t forget the CMA

In the Annex to the report they identified that

19% of the complaints that they investigated related to lack of clarity on the rental terms and conditions and price transparency concerns;

7% related to concerns over fuel and waivers and insurance;

56% related to disputes over vehicle damage, deposits and unexplained payments taken and failure to refund, and

18% relating to the consumer not being supplied the vehicle they had booked/reserved or no vehicle being supplied at all and vehicle safety and mechanical issues.

Source: CMA analysis of Citizens Advice Consumer Advice Service data ‘Car Hire’ 1/4/2012 – 30/05/2014

35

Specific points

The hardest to defeat BUT

• They just exhibit tariffs so may not display the car hired – do your own research to defeat it and argue about the engine size not proving a match;

• Criticise the fact they had the screen shots but didn’t make any telephone calls to confirm availability – makes them look wanting;

• Play the CMA point – headline prices, no certainty about drip-pricing and the ultimate liability at the end of hire;

• Use Enterprise rental terms (they always exhibit them) to show the excess waiver is not the excess waiver and the liability is not what it seems;

• Use that failing to raise doubt about the other quotes they have (especially with Thrifty) and

• Play the FCA Questor argument.

36

Specific points

Easier to defeat because

They assume the role of experts and use opinion a lot – dismiss it;

They use historic WhichRate records for excess and old quotes (without adducing any evidence) – use Wayback to show out the errors on excess levels and point out that they have not proved the standard excess;

Historic enquiries were never researched by the witness – goes to reliability and so ask for details of how they were collected, by who, when, what was discarded, what the selection criterion was etc;

Judicious use of Thrifty – easy to eliminate on availability;

Make the CMA and FCA points.

37

Specific points

The most prolific – they cost £300 a pop;

Usually quotes from yesterday and increasingly morphed to limit information to prevent attack (Thrifty);

They never include all terms and conditions which often knocks a quote out;

Usually geographically poor and include easycar, rentalcars and other rental brokers where the quote is ‘today only’;

Note how many branches they miss before they get their quote;

Now also doing separate report for Questor et al using Google;

38

39

Specific points

Son of Autofocus

Historic or current reports;

For historic ensure you ask for transcripts – the calls often don’t support the notes;

They disclose terms and conditions selectively – too selectively sometimes;

They play the Questor card.

40

Specific points

Gareth May and Andrew Gadd – in my sights

Small loss adjuster – no real threat;

Not as prolific as they used to be

Rates only

Some insurers just send in tariffs with no statement

41Thank you