The High Court’s judgment in Holt v Allianz Insurance Plc [2023] EWHC 790 (KB) has been hailed as a landmark decision within the credit hire sector. The appeal concerned an application by Allianz for pre-action disclosure of impecuniosity documents. Edward Ramsay of 12KBW appeared on behalf of Allianz in the appeal and in the proceedings below (led by Jonathan Hough KC on appeal and instructed by Gary Herring of Keoghs).
The pre-action disclosure application
Mr Holt (in practice, his credit hire provider, Auxillis) brought a claim for credit hire charges (only) arising out of a RTA on 16 July 2020. The claim was presented to Allianz pre-action in a form that will be familiar to all credit hire practitioners. In response, Allianz provided BHR evidence and asked Auxillis to say whether Mr Holt claimed to be impecunious and, if so, to disclose some basic supporting documentation. Auxillis refused to provide a response to those queries at the pre-action stage.
Allianz issued a pre-action disclosure application against Mr Holt which came before His Honour Judge Harrison at Cardiff County Court on 18 October 2021. In a reserved judgment dated 3 December 2021, HHJ Harrison granted Allianz’s application for disclosure of Mr Holt’s bank, credit card and savings account statements covering the period of hire and three months prior to it, as well as wage slips or other proof of income covering the same period. Auxillis applied for permission to appeal.
The appeal
Auxillis were refused permission to appeal by HHJ Harrison and by Steyn J on the papers, but at a renewed oral application in the High Court, Bourne J granted permission. He did not consider that the appeal had any real prospect of success but judged that guidance from the High Court on this issue would be useful in the face of “a divergence of practice between different [County] Courts.”
The appeal was heard by Baker J on 22 March 2023, and judgment was handed down on 4 April 2023.
Law on pre-action disclosure
The legislative basis for pre-action disclosure applications is set out in s.52(2) County Courts Act 1984 (County Court proceedings) and s.33(2) Senior Courts Act 1981 (High Court proceedings). Both provisions are governed by CPR 31.16. The rule essentially requires a two-stage approach. First, the jurisdictional requirements must be satisfied. If the requirements are not met, the court has no power to award disclosure. These requirements are:
- The respondent is likely to be a party to subsequent proceedings;
- The applicant is also likely to be a party to subsequent proceedings;
- The documents sought would fall within standard disclosure if proceedings had started;
- Pre-action disclosure is ‘desirable’ in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings, or save costs.
The second stage is to consider whether the court should exercise its discretion to make an order.
The leading case on pre-action disclosure applications is Black v Sumitomo Corporation [2002] 1 WLR 1562 which clarifies some of those conditions. Conditions (a) and (b) were held to require only “likelihood” in the sense that the applicant or respondent “may well” be a party in subsequent proceedings. It is not necessary to show that it was ‘probable’ or ‘more likely than not’ that proceedings would be issued or that the application or respondent would be a party. As for condition (d), the notion of ‘desirability’ was construed as connoting only that there be a “real prospect in principle” that ordering the pre-action disclosure would have at least one of the stated outcomes.
Outcome of the appeal
Prior to the application hearing on 18 October 2021, Auxillis had filed a witness statement dated 22 September 2021 from a solicitor at Principia Law addressing the issue of whether any proceedings commenced by Mr Holt would be brought against Allianz or against their insured driver. The statement confirmed that, in general, “where intervention is not raised […] we would have no reason to choose the insurer over the individual and therefore can say with certainty that the [insurer] is not likely to be a party to proceedings.” The statement went on to say that, with respect to this particular claim, the file handler considered that future proceedings would be brought against Allianz’s insured (only).
HHJ Harrison considered nonetheless that Allianz were sufficiently likely to be party to proceedings that the requirements for ordering pre-action disclosure were satisfied, and he went on to order pre-action disclosure, as outlined above. On appeal, Baker J considered that this was technically wrong, given the evidence of the solicitor with supervisory conduct of the claim, who had stated that Allianz was not going to be sued in this claim and whose evidence had not really been challenged [70].
However, Baker J also considered this to be only a ‘technical’ objection which “could readily have been overcome by Allianz’s insured being named as a co-applicant.” [74] As a result, he considered it would be useful to consider the merits of the other aspects of the appeal and lay down firm guidance to be applied by courts in similar future applications.
Guidance on future pre-action disclosure applications
Baker J went on to give guidance on several key questions which will be of relevance to practitioners in this area who are considering whether to make a pre-action disclosure application, faced with such an application, or merely requesting voluntary pre-action disclosure of any such documents.
Do impecuniosity documents fall within the scope of standard disclosure?
Auxillis’ argument on this point was that such documents would only fall within the scope of standard disclosure if and when impecuniosity was asserted by the Claimant (ie in his pleadings). Baker J summarised this contention as Auxillis seeking to avoid pre-action disclosure by refusing to indicate explicitly the Claimant’s position on a key issue which had been raised in pre-action correspondence, where on consideration of that correspondence it seemed probable that that issue would be an important issue in the case [77].
The court concludes that all that was necessary for impecuniosity documents to fall within standard disclosure was a likelihood (in the above sense of ‘it may well be’) of impecuniosity being an issue in the claim. The argument that impecuniosity might not be an issue in this case because the BHR evidence might be challenged only on alternative grounds, such as due to its use of 7-day rates, was considered by the court to be “contrived and invalid.” [81] Where impecuniosity has not explicitly been ruled out and where no other basis why a BHR should not apply had been advanced, the only sensible inference was that BHR was very probably going to be disputed on the grounds of impecuniosity [82].
Was pre-action disclosure ‘desirable’ in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings or save costs?
Baker J considered this condition to be ‘straightforward’ [83]. The test to be applied was whether ordering disclosure offered a real prospect in principle of achieving one of those outcomes and that test was satisfied in the present case [84]. The fact that pre-action disclosure may reveal personal financial information does not affect whether this condition is satisfied though it may affect the court’s exercise of discretion [86].
It was contended by Auxillis that it was “entirely proper and reasonable” to leave consideration of impecuniosity and its potential effect on the claim until after proceedings have been commenced. Baker J agreed with HHJ Harrison that, where pre-action correspondence suggests that impecuniosity ‘may well’ be an important issue in the claim, it is “contrary to the letter and spirit of the Practice Direction [on Pre-Action Conduct] not to give serious consideration to it at the pre-action stage.” [88]
It was also contended by Auxillis that the pre-action disclosure was unlikely to dispose of the claim without litigation, or to save costs, because there was a range of other issues. Baker J agreed with HHJ Harrison that the pre-action correspondence “left no sensible room for the conclusion that impecuniosity was anything other than a central issue” and probably the key issue in the claim [89]. It was also important to bear in mind that this condition required only “a real prospect in principle” of achieving one or more of the aims, not certainty or probability of achieving those aims [90].
Was the court correct to exercise its discretion to order pre-action disclosure in this case?
It was acknowledged that the court should be cautious about requiring pre-action disclosure of personal information but that the risk of intrusion on the Claimant’s private financial affairs was “outweighed by the beneficial impact of pre-action openness as to the issues and an exchange of sufficient basic information and evidence to enable a meaningful assessment to be made of them, in keeping with the overriding objective and the Practice Direction.” [92]
HHJ Harrison had also considered that it would be wrong to endorse Auxillis’ stated policy of not even asking their clients about their financial means before commencing litigation, even where those means are likely to be central to the question of what they might be properly entitled to recover [92].
Baker J agreed with HHJ Harrison’s exercise of discretion. He considered that the concerns regarding privacy and confidentiality were “misplaced” because the Claimant had “invited and required” intrusion into his financial affairs by asserting a claim for credit hire charges that appeared likely to be six times higher than the applicable BHR. By making that claim, he also implicitly indicated that he was impecunious in the relevant sense [93]. Limited and focused pre-action disclosure would disturb his confidentiality only to a very limited extent given that it would have been provided, in confidence, to the party against whom he was making a claim, with a view to avoiding litigation which, if it proceeded, would have meant that the same information and more would have to be provided in public. The suggestion that the protection of the Claimant’s privacy weighed against giving pre-action disclosure, which was designed to avoid public litigation, was described as “in truth somewhat bizarre.” [94]
Conclusion
In summary, Baker J concluded that the appeal must be allowed on a technicality, but if the application had also been made in the name of Allianz’s insured, he “would have dismissed the appeal and endorsed every aspect of HHJ Harrison’s decision to grant the pre-action disclosure sought.” [96]
In dealing with the costs of complying with the pre-action disclosure which had been ordered, Baker J observed that “HHJ Harrison was entitled to form the view he did that Auxillis had adopted, applied, and chosen to stand their ground on, a wrongheaded policy of refusing even to consider, before intimating a claim and threatening litigation, the obviously central issue of their client’s means and what, if any, case of impecuniosity they would assert as a result” [111].
Comment
This case will be of significance to all credit hire practitioners. In order to comply with the Practice Direction on Pre-Action Conduct, parties claiming credit hire charges should endeavour to confirm their impecuniosity status at an early stage and provide prompt pre-action disclosure of impecuniosity evidence if requested. Parties defending such claims will no doubt retain the comments of Baker J in their arsenal when making requests for such confirmation and disclosure. In appropriate cases, defendants to credit hire claims where inadequate pre-action information and disclosure have been provided should consider making a pre-action application in order to resolve disputes and save costs.
This case summary was prepared by Peter Hale
12KBW’s expert team of credit hire barristers, including Edward Ramsay, who acted on behalf of Allianz in this appeal, are always available to act in and advise on credit hire litigation. Enquiries should be directed to clerks@12kbw.co.uk.
