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

[Mike_hawk]

Would these witnesses in order to be summoned already had to have gave a witness statement?

 

I would think it's going to be difficult to summon an unknown witness

 

Mike, I'm just typing up the defence and just need some help with this bit.

 

11. No Particulars are offered in relation to how the Claimant has mitigated his averred loss or calculated the quantum claimed. Further and pursuant to CPR 16.4 & 16.5(4), it is expected that the Claimant set out the basis of his claim and prove the allegation that any money is owed. The Claimant is therefore put to strict proof to show:

i........

ii........

iii........

 

What do I need to be asking for here? Things like Garage receipts etc? Wasn't sure?

 

Put him to proof of his loss

 

Loss of income..... did he have the opportunity to hire a car, van, taxi etc... all well and good trying to claim a consequential loss but if he hasn't mitigated that loss or at least attenmpted to the court isn't going to grant him relief for being lazy

 

Subsequent repairs....... labour and parts, vat element etc

 

Lots of questions that should be asked, I'm sure you'll come up with a few once you've had a think about it

 

and where can I slot in about the claim being vexatious?

 

Within paragraph 10 would be as good as anywhere, in effect you're repeating the statement that you believe he has no cause with a slightly stronger term

[Emz0305]

Thanks Mike, I'm trying to think of things to ask, but I appear to be suffering severe mental block, and I'm supposed to be taking part in a charity quiz night tonight. I think by the time I get there my brain will be well and truly exhausted.

 

I've asked for Claimant to provide proof of mileage, especially in the 6 months between work and failure, proof of servicing to timing belt and pulleys etc but I put these in part 7 of the defence.

 

Does everything that we wish to use in court have to be documented or mentioned in this defence? or can that all be mentioned later with exchange of witness disclosures docs evidence etc?

 

Going to put the file away for a few hours now as I've got hundreds of invoices to enter onto sage and bank reconciliation to do

 

Will check back later

[Mike_hawk]

Thanks Mike, I'm trying to think of things to ask, but I appear to be suffering severe mental block, and I'm supposed to be taking part in a charity quiz night tonight. I think by the time I get there my brain will be well and truly exhausted.

 

I've asked for Claimant to provide proof of mileage, especially in the 6 months between work and failure, proof of servicing to timing belt and pulleys etc but I put these in part 7 of the defence.

 

Does everything that we wish to use in court have to be documented or mentioned in this defence? or can that all be mentioned later with exchange of witness disclosures docs evidence etc?

 

 

It doesn't have to be exacting so long as you at least touch on the subject matter that you may need to rely on later............ if you look at para 10 of the draft defence it mentions many allegations within documents xx and xx, no need to list every single one, the fact that you refer to them is enough to make use of the issue as the case progresses.

 

Take a couple of days off from it and try again when you can think clearly, you've got a while yet....... post back on here when you've come up with something and we can take another look

[andydd]

I second mikes comments, I can't sit down and create a full court doc, instead I write some basics and return to it every few days adding and changing little bits until I'm happy with it.

[Emz0305]

Here is what I've got so far, please have a look through and if you can, help me re-word it better like the rest LOL Will do a final bit of tweaking 2moz. Please tell me if I've said too much in it.

[andydd]

Looks fine to me, you could perhaps add some more to P2., and point out that many of the docs don't appear to have a proper signed statement of truth as required by Practise Direction 16. Paragraph 11.2. and thats another reason to strike out. (As per CPR 22).

 

Youve done your best to simply explain some faults in P5, the Judge may or may not fully understand this, but its a lot clearer than the claimants ramblings, and its upto him to pursuede the Judge.

 

Overall the fact your Defence is well written and laid out (compared to the Claimants) should certainly help.

 

I dont know ehether the court will siuggest some sort of experts report, its prob something both sides will wish to avoid if possible due to the extra cost.

[Emz0305]

To be honest, I'm not quite sure how an experts report would be worth the paper it's wrote on now that the car has been repaired. How can anyone prove exactly what caused the fault when it wasn't seen by an independent person? If I got my mate to fix my tv that has just broke down 3 months into warrantee wouldn't any warrantee become void? I really not sure how without seeking estimates etc from another garage etc he's got a case?

[andydd]

Yes..I thought of that just now, given the length of time, I cant see much point in one.

[Emz0305]

So if I just add that bit in that you mentioned Andy do you think it's good to go? Do I have to fill out the defense form that came with the original claim?

[andydd]

I cant think of anything else, its hard to understand the claimants claim at all.

 

Dont thinkj there is a need to fill in a specific defenec form. I'd just hand what you have done into court.

 

Add a cover page and the statement of truth at the end.

 

Ive attached mine so copy that format if you want.

[Emz0305]

I cant think of anything else, its hard to understand the claimants claim at all.

 

Dont thinkj there is a need to fill in a specific defenec form. I'd just hand what you have done into court.

 

Add a cover page and the statement of truth at the end.

 

Ive attached mine so copy that format if you want.

 

Thanks Andy

[Emz0305]

Andy, I've mentioned about the lack of a signed Statement of Truth in paragraph 1, what do you think? I was struggling finding a place in paragraph 2 where it could go? If you think it would be still be better in paragraph 2, could you give me an idea where the best place to put it? Not sure if I've worded it right either?

 

 

1. References made herein are in response to the Claimants variously titled documents (Particulars of Claim, Statement of Truth and Amended mechanical data and facts) served on 18th March 2014. The defendant would also like to point out to the court, that these variously titled documents mentioned above, do not appear to be verified with a correct statement of truth as required by Practice Direction 16, paragraph 11.2 and therefore the Defendant would like to ask the court that these documents be struck out as per CPR part 22.2 (2).

[Mike_hawk]

How about something like..........

 

1. References made herein are in response to the Claimants variously titled documents (Particulars of Claim, Statement of Truth and Amended mechanical data and facts) served on 18th March 2014. The defendant contends, absent his response to those matters he understands may be relevant to this case, those titled documents which fail to be verified by statement of truth pursuant to Practice Direction 16, paragraph 3.4 should not be granted relief to stand in this case.

 

Don't forget you'll need 3 copies of your defence, 1 for the court, 1 to serve on him and one for your files

 

Not sure that I'd include all of para 5 of your defence, you really don't want the judge asking why it wasn't possible for you to investigate the possible pulley failure last March

[Emz0305]

Mike, the alternator pulley is no ordinary pulley, it has a one way ratchet mechanism built into it and when it fails, there is no apparent or visible failure, even when you remove the alternator, physical inspection reveals no sign of failure. The failure is seizure of the ratchet mechanism and it is apparently that that causes the noise and bounce in the belt. After investigating this fault online we have came across loads of information and it was always the tensioner changed first as a process of elimination.

 

Not sure what to do now based on this, what do you think?

[Emz0305]

Do you think I should add what I just explained to you to para 5?

[andydd]

You want to try and avoid anything too technically complicated, I found it hard to follow Para 5 and I believe the Judge may too, so try and explain it in the simplest terms but again you dont need to explain how it all works, you just need to answer points raised by the claimant you dont need to explain anything more, its upto the claimant to persuede the Judge.

 

I fail to see how the claimant could persuede anyone, his documents are rambling, unclear and don't comply with the CPR's.

[Emz0305]

yes I totally agree it's too long winded LOL...I would like to mention about the fault though so how about this as a shortened down Para 5

 

5. Paragraph 3 of document marked 'Particulars of Claim' is admitted, the Claimant did not seek to instruct further diagnosis and bear cost of same. It was put to him that should he wish to instruct further works based on his own diagnosis after investigations on vehicle internet forums, this would be effected with pricing to be agreed prior to commencement. The Defendant has since researched this vehicle and found that it has a common fault with failure of the alternator pulley. This fault on visual inspection would not be apparent or visible, even when you remove the alternator, physical inspection reveals no sign of failure, the failure is seizure of the ratchet mechanism built into it and it is this that causes the noise and bounce in the belt.

[Mike_hawk]

Hi Emz

 

It really should be a response to the allegation/s and a brief reference to anything you wish to rely upon......, anything more than that which stretches to technical issues and subtleties of how a diagnosis is/was made will likely leave you with more questions to answer

 

I suppose what you don't want is to come across a judge who happens to be a car nut and find that this case makes his day.

[Emz0305]

Mike I think last post might have cross posted with yours, what do you think of the shorted down para 5? We wanted to bring attention to this common fault as it is a very common cause of the timing belt failure in the renault scenic.

[Mike_hawk]

Mike I think last post might have cross posted with yours, what do you think of the shorted down para 5? We wanted to bring attention to this common fault as it is a very common cause of the timing belt failure in the renault scenic.

 

 

Looks better, perhaps work something in to settle any misconceptions regarding the source of the data....... 'The defandant has since researched this vehicle, and whilst he is unable to establish the veracity of internet published data without subsequent inspection of the vehicle, he believes this vehicle to be the subject of a forum averred fault..........etc etc'

[Emz0305]

Thanks Mike

[Emz0305]

Sound better?

 

5. Paragraph 3 of document marked 'Particulars of Claim' is admitted, the Claimant did not seek to instruct further diagnosis and bear cost of same. It was put to him that should he wish to instruct further works based on his own diagnosis after investigations on vehicle internet forums, this would be effected with pricing to be agreed prior to commencement. The Defendant has since researched this vehicle and whilst he is unable to establish the veracity of internet published data without subsequent inspection of the vehicle he believes this vehicle to be the subject of a forum found fault with failure of the alternator pulley. This fault on visual inspection would not be apparent or visible, even when you remove the alternator, physical inspection reveals no sign of failure, the failure is seizure of the ratchet mechanism built into it and it is this that causes the noise and bounce in the belt.

[Mike_hawk]

Tinkering [again], back in a mo

[Mike_hawk]

Emz,

 

I have to confess that it were me I'd be saying less than this but if you want to add the details without admission you could try the following:

 

 

5.

 

i. Paragraph 3 of document marked 'Particulars of Claim' is admitted, the Claimant declined to instruct further diagnosis works and bear cost of same. It was settled that any additional works instructed were to be based on the claimants own investigations and diagnosis sourced from internet forums and would be effected with pricing to be agreed prior to commencement.

 

ii. The Claimant has failed to plead the exact nature of the averred engine failure, to assist the court the Defendant has undertaken additional research and whilst he is unable to establish the veracity of internet published data absent any subsequent inspection of the vehicle he believes it possibly the subject of a forum averred failure of the alternator pulley. It being contended the failure relates to seizure of the ratchet mechanism built into it which can lead to noise and bounce in the belt. It is further averred that such failings would not be apparent without allowing a full in situ and bench inspection of mechanical parts, the Claimants actions persist in declining the Defendant relief to investigate further.

[Emz0305]

Thanks Mike, I'll go with that. I think I'll leave posting until 2moz now. First class recorded should be sufficient to get it to the court by Tuesday shouldn't it?