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Editorial: Credit Hire Mock Trial - Aidan Ellis, Temple Garden Chambers

30/04/19. On 8 May 2019, I will be participating in a credit hire mock trial in Manchester. I would like to thank the organiser, the Credit Hire Organisation, for allowing me the opportunity to indulge my judicial fantasies. More importantly, this is a valuable event because it will allow us the opportunity to demonstrate how credit hire arguments play out in the Court room.

In credit hire litigation, the relatively low value of the majority of cases combined with the geographic spread of cases means that the file handlers rarely get the opportunity to come to Court and see how cases are actually presented and determined. But understanding the practical dynamics in the court room is an important component of evaluating the risk in any individual case.

In relation to impecuniosity, for instance, it may appear to the Defendant that it has identified some unexplained transactions in the Claimant’s accounts or a potential source of funds. However, in the court room, once the Claimant is challenged on that, he or she may turn out to have a clear explanation in relation to the specific transactions. He or she may give compelling oral evidence about their financial hardships more generally. On other occasions, the Judge may simply be concerned about the extent to which it is realistic to expect the Claimant to recall the detail of transactions by the time of trial.

Alternatively, in relation to enforceability, whilst the difficulty for a Defendant in establishing that a credit hire agreement is actually unenforceable is well known, the Claimant should not overlook how unattractive the arrangement may appear to a trial Judge – particularly if the Claimant says in evidence that he thought it was a courtesy car. Although the Defendant may be unable to succeed on enforceability, the impression that the Court forms of the overall background may affect the Court’s approach to other issues such as period or rate.

On many occasions, the simple truth is that an argument that appears strong on paper does not survive contact with the witnesses or the Court. Assessing the risk and making appropriate settlement offers requires an understanding not only of the law but also of how the legal arguments are likely to play out in Court. That is what we will hope to illustrate in the mock trial next month.

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