Jim Walker v. Chesapeake Hillington Ltd, Sheriff Mitchell, Glasgow Sheriff Court, 11 October 2010

In this action, the defender had enrolled a novel motion, “ordain the pursuer to state whether he was impecunious or not within a period of 7 days on the basis that the pursuer has been repeatedly asked to confirm whether he was impecunious or not and has failed to do so". Due to its unusual nature, the Sheriff sought to be addressed on it, although the motion was unopposed by the pursuer.

The pursuer had brought a personal injury action against the defender, following a road traffic accident which took place in June 2008. The sum sued for was £31,974.70, which included claims for solatium, wage loss, loss of services and inconvenience. It also included the total cost of hire of a replacement car vehicle, £13,066. The defender submitted that the motion had been enrolled to determine whether the pursuer was impecunious at the time when he was provided with the hire vehicle. In Lagden v O'Connor [2004] 1 A. C. 1067, it was held that only if it was shown that the claimant's impecuniosity was such that he would have been unable to obtain a replacement car had he not used a credit hire company, the reasonable additional charges of that company would be recoverable as damages, it being reasonably foreseeable that there would be some car owners who would be unable to obtain a replacement car other than by use of a credit hire company. The defender submitted that "impecunious" signifies an inability to pay car hire charges without making sacrifices the plaintiff could not reasonably be expected to make.

It was submitted by the defender that it was unsatisfactory and unfair to leave this head of claim to be determined at proof, when it was unsupported by any relevant pleadings of the pursuer. The Sheriff agreed with this submission, noting that while there was no relevant Scottish authority on this point, the law had been settled in Lagden. If the pursuer seeks to recover more than an amount equivalent to the spot hire rate of hiring an alternative vehicle then his impecuniosity at the material time requires to be established. The Sheriff held the defender was entitled to fair notice of the pursuer's claim, and whether this aspect of it could be properly maintained, based upon whether or not he was impecunious at the relevant time. The Sheriff held that the burden of proof lay on the pursuer to prove he was impecunious at the relevant time.

The Sheriff also drew attention to a defect in the personal injuries procedure, whereby there was no other way to deal with this straightforward issue, except by enrollment of a motion. There was no other pre-trial way to resolve this issue of legal relevancy of a head of claim, amounting to a significant proportion of the pursuer's overall claim for damages. The Sheriff noted that there are sound reasons of public policy for motion procedure to enable parties to a personal injuries action proceeding under personal injuries procedure at an early stage to ascertain whether all, or at least some, of the issues between them can be resolved with a minimum of expense.