Customer issued court proceedings against us (small family run garage)

[Emz0305]

My dad owns a small car repairs garage established over 40 years

and has just recently been issued with a County Court Claim for bad workmanship.

 

Brief explanation.

 

Customer comes in with intermittent rattle noise coming from fan belt area.

 

My dad spent 45 minutes trying to diagnose the problem with the customer present.

 

Couldn't pinpoint the exact fault without further investigation

but customer didnt want to spend the money on a strip down

so my dad explained that it could be the fan belt tensioner.

 

The customer agreed to have it replaced and also a new fan belt.

The customer also knew that this may not solve the rattle.

 

Job was carried out and car tested and rattle had appeared to be cured.

Customer was happy and paid their bill (£40 labour) the rest parts and VAT.

 

Few days later customer returned to say rattle had returned so

 

my dad asked him to have a look on the internet forums to see if that could throw anything up

(my dad would of done this himself, but being 55, he is not very computer literate).

 

The customer made it clear from the start that he didn't want any large expensive labour costs

so this was my dads way of saving the customer money

and not losing the use of his car.

 

The customer was happy with this and went away.

 

My dad never heard from the customer again until almost

 

6 months later when he phoned to say he had broken down and could my dad tow him in.

 

My dad has a transporter but couldn't use it due to new regulations

something to do with taco graph or something???

 

Advised customer to bring the car to him on Monday morning.

 

Customer never shown, but came to the garage a few days later with a box of vehicle parts

accusing my dad of carrying out a botch repair 6 months earlier.

 

This is to cut a very long story short,

he wanted my dad to pay for his costs of repairing his engine.

 

The cam belt had apparently snapped causing damage.

My dad was no way going to pay him money just from seeing a box with a few parts in for a job he done 6 months earlier.

 

The customer was very confrontational and wouldn't let my dad see the car.

 

Next thing my dad is receiving letters from this customer again accusing him of the damage,

then accusing my dads apprentice of the damage

and telling my dad to take the cost of his repairs from the apprentices wages then sack him.

 

He admitted in one of his letters that he carried out the work by himself with the help and guidance of 2 mechanic friends.

He also admitted that the rattle, had disappeared several weeks after the initial repair.

 

My dads defence is that he did not let my dad know that he was unhappy with the initial repair 6 months prior to the engine failure,

and that he at no point asked for a refund,

even though in his letters he lies and says that he did,

 

nothing until after the engine failure was ever put in writing.

 

After the engine failure, he never gave my dad the chance to see the vehicle,

only a box of parts which could of came off any car.

 

He also hasn't supplied any other garage estimates or engineers reports.

 

After him serving the claim on us in December,

my dad foolishly didn't acknowledge service after being confused by the notes for defendants in the claim letter.

 

A default judgement was made in the claimants favour,

but I have just had an application to have that judgement set aside

as the particulars of claim have still not been served on my dad.

 

Sorry for the long winded post, and believe me, this is the short version LOL.

 

Has this man really got a case?

[Emz0305]

Sorry for typos, oh my bad :/

[PaulW922]

I think probably not but as you have rightly identified it is important not to disregard proceedings. From the basis of what you say there are no grounds to link what your father did with the breakown and I think I may leave my defence at that initially, should it be necessary.

[renegadeimp]

Defend in full. Its pretty obvious its not your fathers fault. More likely to be a botched self repair and he's blaming you guys for it.

[ploddertom]

As a Court Claim has been issued I have moved this to General Legal Issues.

[Emz0305]

Thanks for the replies

[renegadeimp]

Could you give us the POC's in the claim please?

[andydd]

I'd say its not obvious that the man has no case as no-one here has looked at the car and we cant tell what work was done or needed doing but a few lines in your first post.

 

But bear in mind that it will be upto the claimant to prove that your father was negligant, this to me would be very difficult to prove, and would no doubt need some sort of experts report, not just the word of the claimant vs your father.

 

Clearly your father was foolish to ignore the initial court claim, but lets hope it can be set aside, and then a proper defence put in. The fact that 6 months has passed will not help the claimant at all as anything could of happened in that period.

 

What does the initial claim say ?. If it really is devoid of any legal argument or facts it maybe possible to have it struck out early on (possibly be using a summary judgement application) although this does carry some costs risks.

[Emz0305]

Sorry, I didn't make it clear that we were successful in getting the default judgement set aside. As for the particulars of claim, they were not included with the claim when it was served on my father originally in December and stated POC to follow. These should of been served on my dad within 14 days of the claim, but they were not. This is where my dad got confused because on him reading the 'Notes for Defendant' section, it stated that if POC were to follow then he didn't have to take any action. This is why he didn't send away the AOS and this was his reason for getting the judgement set aside.

 

The judge has now ordered that the claimant serves his POC by 26th Feb.

 

Its all a bit messy. Not sure what is going to happen now. Completely new to small claims and the procedures etc.

[king12345]

From what you wrote I understand that your father replaced the fan belt.

6 months later the cambelt snapped.

What has this got to do with the fan belt?!?!

They are 2 different belts and changing the fan belt won't affect the cambelt whatsoever.

I bet this guy never had the cambelt done (recommended every 60-80K or 4 years whatever comes sooner), destroyed his engine and is now trying to blame your father.

Take him down when you go to court.

Take simple schemes of how engines work pointing out that the cambelt and fan belt are not the same thing

[Emz0305]

From what you wrote I understand that your father replaced the fan belt.

 

6 months later the cambelt snapped.

 

What has this got to do with the fan belt?!?!

 

They are 2 different belts and changing the fan belt won't affect the cambelt whatsoever.

 

I bet this guy never had the cambelt done (recommended every 60-80K or 4 years whatever comes sooner), destroyed his engine and is now trying to blame your father.

 

Take him down when you go to court.

 

Take simple schemes of how engines work pointing out that the cambelt and fan belt are not the same thing

 

 

 

 

Well it was actually the fan belt tensioner that he replaced along with the fan belt. In the letters from the claimant he accuses my dad of using spurious parts, nuts an washers apparently, and has photos etc but like the box of parts that he shown my dad, none of it is backed up by independent reports etc. His numerous letters to my dad made many accusations, saying that he wouldn't let my dad see the car because he'd try and cover up his shoddy workmanship, basically accusing him of being dishonest, which my dad isn't and hasn't run a rural garage for 40 years by being a crook and ripping people off. In fact I'd say he was too honest and always goes that extra mile for his customers. If he can save them money he will, ringing around for second hand parts etc if they can't afford to spend on new. Always trying to keep the costs down for them. This is why in 40 years he has never had any trouble from trading standards or other court claims. He always tries to satisfy the customer. He was never really given the opportunity with this guy, quite a nasty man who sent several letters to my dad with an aggressive tone, using phrases like 'ignore at your peril' etc.

 

Oh god sorry to rattle on, just really upsets me knowing how hard he works to have this stress hanging over him.

[Mike_hawk]

Sorry, I didn't make it clear that we were successful in getting the default judgement set aside. As for the particulars of claim, they were not included with the claim when it was served on my father originally in December and stated POC to follow. These should of been served on my dad within 14 days of the claim, but they were not. This is where my dad got confused because on him reading the 'Notes for Defendant' section, it stated that if POC were to follow then he didn't have to take any action. This is why he didn't send away the AOS and this was his reason for getting the judgement set aside.

 

The judge has now ordered that the claimant serves his POC by 26th Feb.

 

Its all a bit messy. Not sure what is going to happen now. Completely new to small claims and the procedures etc.

 

In hindsight you could have applied to have the claim struck out if served via the bulk centre. By applying for set aside you have provided the claimant with a second chance to serve, keep an eye on the dates though and read the following regarding 4 month longstop, para 27 may assist with the rule

 

http://www.bailii.org/ew/cases/EWHC/TCC/2013/1242.html

[Emz0305]

Update.

 

Today we received a Notice of Hearing of Application. The claimant has applied for the last judgement to be set aside. He still has not served his POC. He had until yesterday to serve them but because he applied for this set aside apparently it now cancels out the order for him to serve them by 26th Feb. Find this very unfair considering he had 14 days from the date of service of claim which was back in December.

[Emz0305]

Could someone explain about the 4 month longstop please? I've read it and read it and still don't understand. Why does the court say 14 days if they're actually allowed 4 months? Have I got that right?

[Emz0305]

Help, I've just read on the Justice.gov.uk page that.

Period for filing an acknowledge of service.

 

10.3

 

(1) The general rule is that the period for filing an acknowledge of service is-

 

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

 

 

So, can someone please tell me why a judgement in default was allowed to be entered finding with the claimant when we hadn't even been served POC???

 

and still haven't been served POC??

 

Help, can I get something done about the original default judgement as claimant is now trying to get a set aside and have the original judgement reinstated.

[andydd]

I'm finding this a bit hard to follow, has the case been allocated to your (or perhaps other sides) local court or is it still in Nottingham bulk centre ?

 

If locally you should visity and ask, they are normally quite helpfull, ask if as other side havnt returned POC as required you can get claim struck out as he hasnt complied with direction as per CPR 3.4, applying for summary judgement is also another related issue but Im not sure if its suitable at this stage.

 

I cant see how it could hurt to ask for strike out under CPR 3.4 though.

 

If case isnt allocated yet you can still phone nottingham and ask the question.

[Emz0305]

Case is allocated to local court yes. How can a judge enter a judgement in default for defendant not acknowledging service when defendant didn't have to acknowledge service until after particulars of claim were served? Surely they entered the judgement without even following their own procedures? This is what I want to know and can anything be done about it? We've already spent £80 applying to set that default judgement aside when really, the judgement shouldn't have been made in the first place.

[andydd]

From reading this, No, I dont believe there is anything you can do.

 

You should of asked the court to strike out the claim when the POC's didnt arrive, or let it go to court and win as the other side would have no evidence.

 

What you did was do nothing and the other side got defualt judgement, which was correct in my opinion.

 

You appear to be saying that you made your mistake (not replying) because the other side made a mistake (no POC) but thats not the correct way of looking at it, you shouldnt of ignored their mistake and done nothing but gone for a strike out.

 

Thats my view of it, let me know if Ive got something wrong.

 

If you havnt got the POC then surely the other side will still have no leg to stand on come the court date.

 

Im confused about the set aside application, you say the claimant has applied ?, why has he ?. I thought he already had default t judgement against you and its you that is asking for set aside ?

 

I really do suggest popping along in person, court staff are often very helpful, they cant give legal advice but can advice on general admin and cpr.

[Emz0305]

We applied for a set aside to default judgement and the claimant was ordered to serve particulars of claim by 26th February, but in the mean time, the claimant has applied to get that judgement set aside and has now been given a further 14 days to serve particulars and has also been given a hearing date to have his application heard.

 

Sorry but I'm confused because according to the justice website it says that until claimant serves particlars of claim then the defendant doesn't have to acknowledge. There was no advice in the claim pack as to what to do should the claimant not serve particulars within 14 days. How can the claimant get a judgement by default if he hadn't even served particlars?? Wouldn't he need a certificate of service for this? Which is only given once particlars are served? It seems that what it says on the courts own website hasn't happened here. Don't forget that this is the first time we have ever seen a claim form and have no experience of it whatsoever. We even spoke with a solicitor over the phone when we first received the claim and he advices that we do nothing until served with particlars.

[steampowered]

I'm afraid this is one area where the court system has traps which litigants in person (and some qualified lawyers) fall into. The rules are a little bit different for MCOL. You are not the first nor the last person to fall into this. I hope the set aside is granted, it sounds like the judge is sympathetic.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07

6.4 Where the proceedings are not transferred under paragraph 12.1 or 12.2 and remain at Northampton County Court, the claimant is not required to file the particulars of claim at that court unless ordered to do so.

12.1 Where the defendant is an individual and Northampton County Court is not their home court, the court will transfer the claim to the defendant’s home court –

(1) under rule 13.4, if the defendant applies to set aside or vary judgment;

(2) under rule 14.12, if there is to be a hearing for a judge to determine the time and rate of payment;

(3) under rule 26.2, if a defence is filed to all or part of the claim; or

(4) if either party makes an application which cannot be dealt with without a hearing.

[Emz0305]

We had our set aside granted, it's the claimant who's now applied to have that judgement now set aside.

[steampowered]

Good news. I can't imagine the claimant will have much success in attacking the judge's decision on this. Its difficult to see how they could challenge the set aside decision.

 

Presumably the claimant now has to file his POC within a certain time limit and the case will go from there?

[Mike_hawk]

We had our set aside granted, it's the claimant who's now applied to have that judgement now set aside.

 

 

Is that even possible? On the face of it it gives the appearance of abuse...... do you have a copy of the previous order [yours] and the other sides application you could post on here, is there any supporting witness evidence in the form of a statement?

 

 

The original judgment would be regarded as irregular due to no service of particulars and no acknowledgement in absence of same..... to be frank, the court could and should have set the judgment aside without a fee as it acted in error

 

If the claimant is attempting to set aside the latest order he is in effect requesting his abuse of the rules to stand........... really can't see any district judge being too pleased with the application.

[Andyorch]

"The original judgment would be regarded as irregular due to no service of particulars and no acknowledgement in absence of same..... to be frank, the court could and should have set the judgment aside without a fee as it acted in error "

 

Quite Mike.

[Emz0305]

Ok I'm happy to post anything you want to look at, how do I do that?