missed the opportunity to apply for summary judgement?***Settlement Agreed***

[MrNumbskull]

Hi,

First post here, but lurking for a few weeks!

 

Brief outline: I have issued a claim for compensation against a car dealer. The notice has been served. After about ten days, they filed an acknowledgement of service (I know this doesn't mean anything specific will happen), but they have also notified the court of a change of address.

 

Is it likely that they have changed the 'contact' address so that if it came down to it, they would not have the bailiff in their showroom, and / or, the address is that of say their accountants, so that a bailiff cannot either remove any property as it doesn't belong to the defendant, or there's nothing of value in the registered office?

 

Thanks

[Honorsmum]

Following this with interest, as the defendant in our case has done the same - from a business address to a personal home address.

[MrNumbskull]

Hi,

I am currently at the stage in the small claims process where the defendant has filed a defence, the content of which is laughable. I have written to him several times, and quite clearly he does not understand the law, his legal obligations, and my rights as a consumer. When I quote the relevant act, either being SoGA or CPR, he completely ignores them and just says that he is "unable to support my claim".

 

I've read through his defence, and a good chunk of which he relies on is not actually true. I am able to provide written proof beyond any doubt that what he is saying is not true.

 

I'm quite happy (and almost enthusiastic) about attending a hearing for a decision to be made. Although it's more stress for all involved, he will simply not see that he is wrong, and so legal action really has been my only resort.

 

In my LBA, I offered to negotiate - as I have from the start - and followed pre-action protocol by offering independent mediation. He ignored that as well, and just wrote back saying I didn't have a valid claim.

 

So the question is, would it look bad if I refuse mediation as the claimant?

[BazzaS]

Hi,

I am currently at the stage in the small claims process where the defendant has filed a defence, the content of which is laughable. I have written to him several times, and quite clearly he does not understand the law, his legal obligations, and my rights as a consumer. When I quote the relevant act, either being SoGA or CPR, he completely ignores them and just says that he is "unable to support my claim".

 

I've read through his defence, and a good chunk of which he relies on is not actually true. I am able to provide written proof beyond any doubt that what he is saying is not true.

 

I'm quite happy (and almost enthusiastic) about attending a hearing for a decision to be made. Although it's more stress for all involved, he will simply not see that he is wrong, and so legal action really has been my only resort.

 

In my LBA, I offered to negotiate - as I have from the start - and followed pre-action protocol by offering independent mediation. He ignored that as well, and just wrote back saying I didn't have a valid claim.

 

So the question is, would it look bad if I refuse mediation as the claimant?

 

Why would you agree to mediation in your claim & then refuse it?

 

Why would you need to refuse mediation if the defendant won't engage with the process?

 

You can agree to mediation and not compromise / accept an offer lower than your claim.

Mediation isn't just about negotiating a resolution for a lower sum. One of the aims of mediation is for both sides to become aware of / clarify the issues each are putting forward.

You don't have to accept any offer put forward during mediation : what do you think you have to loose by engaging with a mediator??

[Andyorch]

All parties are expected to participate in ADR (Mediation)...its irrelevant what the outcome is.Any party not participating could face sanctions.

 

Andy

[MrNumbskull]

It's really that I think he's either expecting me to drop the claim, which I won't, or he may settle before a hearing if we get that far.

 

He's been completely unreasonable and arrogant. Now I have his defence (which I always thought was pure conjecture), he clearly hasn't a leg to stand on. But because he's caused me so much stress and been so unreasonable, I'd rather go straight for the hearing where I am 99% sure I can get a CCJ issued against him.

[Andyorch]

You can still go straight to trial...but at least give him the opportunity to settle vis a mediation

[andydd]

You don't have to agree to anything in mediation, in fact it normally fails but I'd still agree to it.

 

If the defence is as bad as you claim it may of been worth thinking of strike out or summary judgement.

[MrNumbskull]

The defence is bad in respect of its substance; there isn't anything but the statement of the defendant to corroborate the facts, whereas I have paperwork to absolutely discount his claims. Those statements are facts given to him by the salesman involved, and are untrue in the timing of events, but I'm not sure if the salesman is lying to cover himself or they've colluded to cover dealership from action. So it's laughable in terms of its weakness. In the defence pack, the defendant has provided extensive paperwork for the history of the car, but has (strangely) not included the paperwork which would completely prejudice his case (invoice / warranty certificate / HPI check). I can't understand what he's playing at.

 

But when the general manager (and until last year a director of the company) writes - verbatim - "Sales of Goods Act" and "Consumer Protection for Unfair Trading Regulations (2008)", I have to wonder what's going on.

 

Interestingly, as with the original post of mine which has been merged with this thread, the response in the defence pack now contains the original address where I sent the claim, not the one he changed it to with the AoS.

 

I have the Directions Questionnaire, proposing the small claims track. I'm not sure what happens later. I believe there's a disclosure part - will the defendant get a copy of the documents I'll be relying on before a hearing? If so, I guess he may just drop it then...

[SabreSheep]

Accept mediation on the D.Q.

Remember to file a copy to the defendant as well as the court. Recorded/signed for delivery

 

The court will then issue directions to each party. These must be followed to the deadlines.

Normally this includes an exchange of documents.

 

I would be scanning everything onto computer and creating an electronic Bundle that can be printed off for exchange when required.

 

When chasing mediation, keep chasing the mediation team and always send them emails as well asking for updates. These can be printed out and used as an example of you trying to use alternate dispute.

[MrNumbskull]

Any idea what I should write on the DQ about holding any potential hearing at my local court? The trader is nearly 100 miles away which is obviously a burden to me. Or is the question just routine as I understand that an individual vs an organisation will automatically be granted at the claimant's local court?

[Andyorch]

You are the litigant they are a Company ? All must be dealt with at the litigants local county court.

[MrNumbskull]

Yes, I am the litigant. I understand it's usually the individual's local court if making a claim against an organisation, but the DQ asks "At which County Court centre would you prefer the small claims hearing to take place and why?". So I'm assuming I have to write something as a reason?

[Andyorch]

The claimant is litigant the defendant is a company...at my local county court

[MrNumbskull]

Yes, sorry I understand now. It's a generic form. I have just written the address of my local court without adding a reason.

[SabreSheep]

You may want to add what Andy added above to spell it out to the court. leave no room for error

[MrNumbskull]

I wonder if someone could answer another question:

 

The defendant has sent their defence pack to me (as mentioned above) which just contains 'verbal statements' / opinions, and not actually anything to substantiate their case. I have a total of 4 documents with the disputed fact on it, and they probably also have copies but (they) did not include these documents in their defence pack as if I didn't have them, they would have been giving me ammunition as it rubbishes their defence. Though I am going to rely on these documents, it's my guess that they don't think I have copies any longer, so it'll be a case of one word against another.

 

I can send them the documents now, still attempting to settle before a hearing, or wait until directed to, whereby the documents become part of the 'record' and are beyond dispute. Sounds like an easy decision to make, but they are a slippery bag of eels, and I don't want them to see what I'm presenting and then give them the opportunity to create some doctored ones. They have given me doctored documents in the past relating to the service history,and even though I've told them about it, they don't seem in the least bit bothered, or simply don't care. That's why getting it to a hearing is my only choice for redress.

[MrNumbskull]

I've managed to find several references is booklets published by the OFT (now defunct) relating to the obligations of a dealer for associated costs of repairing a vehicle. So short version:

 

Bought the car from a franchised dealer. Found several faults and reported them all inside 6 months. Dealer agreed to repair them. Problem is that the dealer is about 100 miles away on horrible roads (i.e. not motorway), so it's nearly a 3 hour journey as well.

 

To get the car to the dealer - as it is a 6 hour round trip - I had to take a day off of work. Then leave the car with them for a (verbally agreed) week. This turned into three weeks. I them had to take another day off of work to collect the car from them.

 

There is the cost of fuel, plus, the dealer expected me to insure their courtesy car myself, and because of the delay of three weeks, this cost £113 in total just for the insurance.

 

I would like to claim the cost back from the dealer, but I need to know what I can claim?

 

Fuel from home and back to deliver the car?

Fuel from home and back to collect the car?

Two days total off of work for the above?

Insurance for the courtesy car?

 

Having written to them about it, and them outright rejecting my claim, they have said along the lines of "you wanted to insure the (courtesy) car yourself as you didn't like our (£500) excess on (our) insurance". That may have been true, but usually these things have a waiver, such as £10 fee to waive the excess, and at no point did they offer that to me.

 

The overriding principle here is that I have been left out-of-pocket for faults which the dealer was responsible for so why should I have to pay? The vast majority of the faults were present at the time of sale, and so if the trader had been diligent he could have fixed them before releasing the vehicle to me, and I could have avoided the cost of the return and collection.

 

He also claims that I wanted to take the car back to him as I would have been "more confident in them fixing it" (allegedly my words). The actual truth is that the rust present which was fixed under warranty could have been covered by my local Nissan dealer, but the other faults would not, as they were not warranty items. He claims in his letter that he would have paid the other dealer to fix the other bits - this is not true - and his claim is only verbal. I do not have anything in writing in which he states that he WILL pay to have the other (non warranty) bits fixed at his expense.

 

At no time did he offer to collect the vehicle from me. Apart from the courtesy car (which was too small for us as a family of 5), he did not make any contribution towards my costs.

 

Thoughts please? Thanks.

[BankFodder]

Warranty repairs which fall under the Sale Goods Act - as yours do - in this case should be completely paid for by the supplier - including any reasonable ancillary expenses.

 

Confirmed in Consumer Rights Act 2015

 

23(2)

If the consumer requires the trader to repair or replace the goods, the trader must—

(a)

do so within a reasonable time and without significant inconvenience to theconsumer, and

(b)

bear any necessary costs incurred in doing so (including in particular the costof any labour, materials or postage).

http://www.legislation.gov.uk/ukpga/2015/15/section/23/enacted

[MrNumbskull]

Thank you BankFodder. Is there anywhere I can find a reference to this specifically in The SoGA?

 

DANG! Beat me to it!

[BankFodder]

No - it's not in SOGA. Until the CRA, it has been a matter of Common Law

[MrNumbskull]

I was going to ask as this occurred in 2014, and pre the amended CPRs in late 2014. Thank you!

[Conniff]

The reason you have nothing in writing is because you are not writing to them. Stop using the phone and use email or Royal Mail.

[j66]

This is so open to whatever spin that you want to put on it.

23(2)

If the consumer requires the trader to repair or replace the goods, the trader must—

(a)do so within a reasonable time and without significant inconvenience to the consumer, and

(b)bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).

 

a) the trader has repaired the car within 3 weeks- seems a little long, but it's possible that they could have been awaiting parts or a booking with a specialist repairer. To reduce the inconvenience, they've supplied a loan car offered free of charge, all be it with an insurance excess.

 

b) They've borne the cost of the repair.

 

I can't see how the trader can be held responsible for your travelling costs and time off work, purely down to your decision to buy a car 100 miles from where you live.

[MrNumbskull]

This is so open to whatever spin that you want to put on it.

23(2)

If the consumer requires the trader to repair or replace the goods, the trader must—

(a)do so within a reasonable time and without significant inconvenience to the consumer, and

(b)bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).

 

a) the trader has repaired the car within 3 weeks- seems a little long, but it's possible that they could have been awaiting parts or a booking with a specialist repairer.

They booked the car in for the repair. They told me it would be one week. They should have made sure the parts were available - if that was the case for delay. It was a respray to the roof - not a specialist repair.

 

To reduce the inconvenience, they've supplied a loan car offered free of charge, all be it with an insurance excess.

No, you're right. I should have been more appreciative that I lost the use of my vehicle for a fault that was present at the time of sale. Which they could have corrected.

 

b) They've borne the cost of the repair.

No, Nissan (UK) paid for the repair, they claimed under warranty, the dealer paid nothing.

 

I can't see how the trader can be held responsible for your travelling costs and time off work, purely down to your decision to buy a car 100 miles from where you live.

Because they sold it with known faults. If they had corrected them before sale I wouldn't have had to take it back.

Should I have not expected so much paying £14,000 ?