Verbal agreement to support an out of warranty repair

[weliantwobin]

I think I'm of the feeling that I don't really have anything much to gain right now by acceding and making offers right now in a rush before Thursday vs doing so afterwards providing they don't win the strike out argument which as you said is probably unlikely (my risk is that it just does go t*ts up and get nothing) I am surprised I still can't make a request for at least the fixed court costs as sanctions for their unreasonable behaviour (I incurred that cost as a result of their lack of response to the letter before claim). I'm thinking I should forget the skeleton argument stuff too, just take it with me on the day, I've literally done nothing else except essential living for the past 2 days (and consumed more than 50% of my waking time for the past 2 weeks) and it's too exhausting.

 

In the case it proceeds to trial and their potential for costs mount up it gives a bit more time to amend claim etc, but I think I'm in the same position as I am now - I can then make the very same argument and offers in a phone call when I'm a bit more relaxed about redirecting their future costs to a settlement instead, in return for withdrawing the claim.

 

Hope that makes sense. I've been in your shoes (on other things) - giving advice to others is very easy when you're not directly involved in executing the advice so I appreciate it probably being flipping frustrating for you too when reading stuff like this.

 

Thanks again, I'll probably be back for more gruelling reality checks in the very near future if you're willing to have me.

[BankFodder]

It's up to you of course but I think that you need to win over the goodwill of the judge and so you need to do the skeleton argument and also concede the damages relating to distress and announced to the judge that regardless of the decision, you will be amending your claim to address the cost of repairs and that's it.

That may attract goodwill.

[weliantwobin]

Rather than orally on the day and plead utter laymanship (clearly am!)?

 

Should I even bother with any of the arguments around negligence, limitations and potential verbal contract stuff or is it just too sh** (I don't see what I'm left with then though). I need some more guidance around that given the issues in the case.

 

I'm just going to go through my document which I based on https://hallellis.co.uk/write-skeleton-argument/ and try to two column type approach it considering your skeleton argument 'statement of case' too on the npower stuff - should there not be a summary as to what you want the court to do?

 

Should I state the causes of action first (remember this is where they claim solid defence on limitations so raising this directly gives them confirmation so I think I need to be right on the money there, and if there's any potential for breach of verbal contract as I still don't think I got an answer on that one). Remember the defence stated 1987 CPA as you pointed out and 11A of 1980 LA and I'm saying 14A of LA as latent damage.

 

If not:

 

Should I completely scrap the (verbose) skeleton argument I did and address it as per existing particulars of claim, can attribute what the defence says about each on the right column and what I rely on (like the inspection reports) underneath.. Again if it comes to cause of action I think I'm struggling.

 

I'm ok with the concession of distress damages and saying I will amend claim.

 

probably no point restating that I would be open to mediation as presumably would get asked on directions questionnaire.

[BankFodder]

Well if they succeed on the point that you are beyond the limitation period then that will amount to the strike off.

I don't think the issues in the case are particularly complicated.

You detected damage in your car – they said there was no defect in the car's manufacturer.
By 2018 it was clear that the problem was serious and far more than simply stone strikes.
You obtained an independent expert report found that the problem was caused by a manufacturing defect.
Therefore you brought a claim in negligence on the basis they breached their duty of care to you. It was completely foreseeable that the car would eventually be bought by a customer and so the duty of care was owed to you as you were that customer. The consequences of the unnecessary interior sound baffle holding water was foreseeable. You have evidence that it has happened on at least one previous occasion and you would like them to state for the benefit of the court that your case and the other one of which you aware are the only cases which have ever happened. (You should get screenshots of the other case – and if possible get a statement from the person if you can get in contact with them)

once you have raise these issues – then the matter of whether it is statute barred will be discussed. You will have to say to them that it was only in 2018 that it became evident that the problem was far more than merely fair wear and tear. In effect that's what Jaguar was telling you that it wasn't a defect and it was simply the natural deterioration of the vehicle. They were experts and they expected to be believed and trusted and that's what you did. It is only in 2018 that the problem became so serious that you started to realise that they were probably misleading you and so you started consulting your own expert who confirmed your fears. It is from that point that the latent damage could reasonably have been recognised and understood and therefore you are within the three-year limitation period granted by the latent damage act.

You are a litigant in person and you realise that you could have handled things better and that you also now realise that distress and inconvenience are not recoverable heads of damage therefore you propose to the court that they dismiss the application for the strikeout – and also the set-aside application – but if the court is minded to grant the set-aside application then you would respectfully ask that the court orders that you be given (let's say) three weeks to file and serve an amended particulars of claim and the defendant be given four weeks to prepare a defence.

Because it is clear that the necessity for a set-aside application was completely fault of the defendant, they should be required to bear the costs of the application in any event – but the general costs of the action – the claim fee and the hearing fee should follow the event.

I don't think I can say any more. You will have to formulate the story in a way that you think you can deal with – but you better understand that the courts don't want anything convoluted. They want it recently quick and to the point. They don't want to hear your life story all about your troubles. They just want to hear the arguments in a reasonably bullet pointed way, reach a decision and then move onto the next case.

 

[weliantwobin]

Apologies for delay... I had to step away from it all for my sanity.

 

Thank you... I will bear all the points in mind and you clearly have a knack of getting the point across quickly far better than me! It feels that some of that could be written and submitted or equally just orally on the day.

Just to mention, there are two other cases I am aware of, only one I know they fixed though... I attached screenshots and photos to the original claim (and pre-claim action). also attached was a letter of support from the owner of the one that was fixed. I think the evidence speaks for itself.

 

Their main defence is that they have no liability in tort for damage to the vehicle itself as it is pure economic loss.

 

I still think they have dug a small hole when they offered to support in the phone call in late 2018 and think thats worth exploring too. 

 

I can probably just say they offered to support it in a phone call, leave it at that and not get bogged down as to if it forms a contract or not.

 

I tried to write a summary of case with at least the first points (as the rest feels more oral) and perhaps about the dismissing of strike out and set aside as you aptly point out that I could forward to the court (and I guess must go to the defendant too) by 10am tomorrow (Weds).

 

Please see attach.

 

Yes I have practically just rewritten what you said for the main - it was so pointy down to 2 pages is better isn't it. and now I'm going to try to get some shuteye.

casesummary1_Redacted.pdf

[BankFodder]

I haven't read through your document.

If you are correct that they say that they have no liability in tort for damage to the vehicle because it is pure economic loss – then that is nonsense. It is clear that the economic loss will be the cost of repairs caused as a result of the damage. The direct injury caused by their breach of duty – their failure to take reasonable care – is the damage to the vehicle. That's what you are claiming for. If they are really saying that they have no liability because you are only claiming for pure economic loss than they are idiots.

Also, if their defence is predicated on the principle of economic loss – then that necessarily means that they have already conceded the point that they were negligent.

I gather from what you are saying is that they agree that they were negligent – but their negligence caused economic loss and no physical damage.

Good luck with it all – keep us updated. You are tenacious if nothing else

[weliantwobin]

5 minutes ago, BankFodder said:

I gather from what you are saying is that they agree that they were negligent – but their negligence caused economic loss and no physical damage

 

Yes they claim that 1987 Consumer Protection Act (oh the irony) excludes damage to the article itself. But in any case that common law is well established that negligence can only be claimed for injury to person or damage to other property, except in negligent misstatement issues where economic loss is recoverable in .eg. 'financial advice' cases.

 

They have engaged Counsel on their side so that's what I'm going up against tomorrow.

 

Parties on an equal footing, my a***

 

 

[BankFodder]

But you haven't alleged any breach of the consumer protection act – have you?

[weliantwobin]

No, I didn't actually state any laws on my claim as you know, only the issues I was raising, amounts and reasons to why they owe me

 

I am very tenacious when it comes to something that feels so wrong, and they essentially employing bullying tactics and clearly they have a very legally astute barrister or similar on their side

 

Hence and I come to it again, I have to try to rely on everything that could possibly be in my favour... if they have a rock solid defence on the negligence (it reads that way and my reviews of case suggests so)

 

I am less sure on the legalities of that phone call "agreement to support" so can I claim that as breach of contract? it could be another spanner in the works for them but want to be sure.

 

[BankFodder]

Well if you didn't raise the issue of the consumer protection act – and you certainly shouldn't have done – then I think that you can say to the judge immediately that anything they have to say about that is not relevant and you don't understand why they have raised it because it simply confuses the issue and wastes the time of everybody including the court.

So far I haven't seen anything the suggest that you had a contract with them on the telephone that they would give you support. I think that you have to be very clear that they promised you on the phone that they would definitely repair the problem if you met certain conditions. You need evidence to support this.

You will be best off going into court only dealing with your very clear and winnable points. Don't start arguing things which you are unlikely to win. It will only we can you overall and damage your credibility.

Don't forget, that this is only a set-aside application – and the real issue is one of limitation. This is not the full hearing.

I can imagine that if you win on the issue of limitation then even if the claim is set-aside, that you will suddenly find that they are interested in negotiating with you. It's at that point we will be able to help you

[weliantwobin]

Ok thanks... as this is "their" hearing for 3 actions (set aside, strike out and/or summary judgemnt on the claim)...

 

What do you think the order of the day will be (it's an hours hearing)? When will I get my turn(s) to speak etc? I'm still wondering if I should send that case summary document or not. Please can you have a look?

 

Are you feeling any better today btw?

[BankFodder]

They aren't asking for summary judgement on the claim. They are asking for the claim to be struck out summarily.

It is a claimant who would ask for a summary judgement.

 

New should have made a familiarisation visit and you would feel more comfortable. They are the applicant so they will go first. Make sure your papers are completely in order. Have you looked at the advice that I have given about preparing your court bundle?

[weliantwobin]

Quote

They aren't asking for summary judgement on the claim. They are asking for the claim to be struck out summarily.

they most certainly are in their application:

 

 

 

Quote

What order are you asking the court to make and why?

 

1. That the Judgment be set aside because the Defendant has a real prospect of successfully defending the claim and/or
because it appears to the Court:

(a) that there is some other good reason why the Judgment should be set aside or varied; or
(b) that the Defendant should be allowed to defend the claim.

2. That the claim be struck out because the claim is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceedings.

AND/OR

3. That the claim be dismissed summarily because:

(1) the Claimant has no real prospect of succeeding on the claim; and
(2) the Defendant knows of no other reason why the claim should be disposed of at a trial.

The Defendant will rely upon Sections 2, 5, 11 and 11A of the Limitation Act 1980 and Section 5 of the Consumer Protection
Act 1987.

The Claimant’s notice is hereby drawn to CPR 24.5(1), which provision states:
“If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –
(a) file the witness evidence; and (b) serve copies on every other party to the application, at least 7 days before the
summary judgment hearing.”

 

[BankFodder]

Numbers two and three are the same – they have just set out different reasons. Dismissal and striking are really just variations of each other although on a strikeout I suppose you could have liberty to restore with an amended particulars of claim whereas a dismissal would normally mean the end of the action

A defendant does not ask for summary judgement.

[weliantwobin]

they have different meanings I think given the rules in the CPR and their last paragraph, stating summary judgment

 

Can the defendant rely on law that differs from the law I am referencing to dispute the claim, if the shoes were on the other foot, would you?

 

15 hours ago, BankFodder said:

I think that you have to be very clear that they promised you on the phone that they would definitely repair the problem if you met certain conditions. You need evidence to support this.

 

This was in my original skeleton argument doc (clearly as per the new doc which you haven't read I'd put "The Claimant was told that it would be supported in a phone call." but the detail is :

 

I received confirmation that the case would be supported if it was the same fault as the previous case, in a telephone conversation which was transcribed, the relevant part: “I’ve sought the advice from our technical team and they’re saying they don’t believe it is that, if they thought it was, they would support it because that’s what we would do as a manufacturer.” “If you take it to an independent and if they do believe it to be coming from the inside out then if they can provide supporting documentation then we’ll happily take a look again for you”

 

I considered this an offer, which was accepted on consideration given to the action of supplying third party evidence to support the claim. The Defendant also gave me further assurances that they were looking for confirmation of a manufacturing defect. The evidence was provided and immediately Defendant reneged and dismissed claiming it was wrong to ask.

 

I have a single party consent recording of the above telephone call and would seek to bring into evidence with permission of the Court.

 

[BankFodder]

Have the other side heard the recording?

[weliantwobin]

no

[BankFodder]

I think it would be improper to have let them have a transcript of it.

[weliantwobin]

but it was essentially transcribed on the particulars on claim surely effectively same as writing notes. the actual recording hasn't been shared (hence request court permission).

 

finally if I send this document in the next 30 minutes, I wasn't really happy with the last para 9... i've added 'for the points above' so it doesn't look like I'm asking the court to dismiss the defendants application just because I'm a LiP and acknowledge can't claim for distress which may discredit me...

 

How does this look

 

"The Claimant is a litigant in person and realises that the claim could have been handled differently, now realises distress is not a recoverable head of damage, and for the points above therefore proposes to the Court to dismiss the application for the strike out and application for summary dismissal - and also dismiss the set-aside application – but if the Court is minded to grant the set-aside, Claimant respectfully requests that the Court orders that he is given say three weeks to file and serve an amended particulars of claim and the Defendant be given four weeks to prepare a defence."

 

That's saying I'm looking to amend claim in any case if the judgment is set aside - I presume that's a good thing ?

 

I feel I should add that the defendant failed to respond or properly investigate on multiple occasions

 

"The Claimant made every effort to avoid court proceedings and the Defendant did not."

 

sent it... now for the hearing.

 

16 hours ago, BankFodder said:

if you didn't raise the issue of the consumer protection act – and you certainly shouldn't have done – then I think that you can say to the judge immediately that anything they have to say about that is not relevant and you don't understand why they have raised it because it simply confuses the issue and wastes the time of everybody including the court.

 

Was just thinking about this... Is that a risky strategy?? Could they equally fire back saying "you didn't specify what you were relying on so we had to guess" (and pick the one that suited us best - probably why they raised it).  Although they did cover common law negligence and deny that too.

 

Got lots of notes to refer to now, just need to be sure to be able to get to them quickly to make each point. I think the bar to resist strike out is fairly low one from what I've found out, may already have it covered with the statement of case sent this morning.

 

Just found something else which could help,. a British Institute analysis of product liability (drafted 2004) - https://www.biicl.org/documents/267_overview_uk_-_aug_2004.pdf - particularly B)1)g) 'Damages' pages 8-9  - ambiguity in tort law for defective incorporated components which I think fits:

 

Quote

Pure economic loss (i.e. diminution in the value of the defective product itself, as opposed to damage to other property owned by the claimant) is not actionable in negligence. There is ambiguity where a defective component causes damage to property: whether that constitutes recoverable property damage (to the property in which the defective component is incorporated) or irrecoverable pure economic loss depends upon the degree of incorporation.

 

As this was only just found I've printed off 3 copies and got the yellow highlighter out, and a post-it sticky index tab and will ask for permission to share if the need arises - I may not even need to at this stage if the bar is truly low enough by excluding the CPA 1987 assumption.

Edited March 4, 2020 by weliantwobin

[dx100uk]

if the set aside is successful.....should you wish - you as the claimant are more than entitled to request a new hearing date.

all a successful set aside achieves for a defendant is it resets the whole process back to as if they have only just received the initial claimform, it is down to you to decide if you wish to keep the claim alive..

 

I only poke my nose in as far as it appears a somewhat rare specimen (sic) jaguar for its age

For want of clarity ...I have read the OP's posts but none of the uploads. so nicely blind. ….but that's to my advantage.

 

to skip the dribble ..just read the red at the bottom..

 

in 2017 a close associate inherited from the original at new owner, a uprated jaguar S-Type, 2004/5 cross over, one of only <200 exactly the same, whereby certain customisable special spec options could be selected upon order for an additional price and lead-in time. <13k on the clock.

 

I shall leave it's past there other than to say the story was...it was never out in the rain, always garaged, serviced by the selling sole jag dealer and not used since 2013.

 

to say it was an extension to the deceased persons nose, (insert real body part) is an understatement. money was no object concerning the vehicles' upkeep.

 

Another part of the Will (yes i'll get to the relevancy soon...) stipulated that it must be restored to full factory condition at a jaguar recommended establishment at whatever cost, that cost would be met as part of the will.

 

the Will was actioned....

 

during the process it was discovered that the front doors were rusting inside to out. (lead to this was that both door mounted control panel were inoperable and showed tarnish on all rocker switch spring flappers).

 

investigation by the restoration firm concluded that the acoustic material in the door panels was porous and holding water.

jaguar replaced FOC the fitting of two complete new doors and the colour match process inc new gel coats to the whole car..i was told it cost them some £7500!

 

sorry!

 

dx

 

 

 

 

 

[weliantwobin]

8 hours ago, dx100uk said:

investigation by the restoration firm concluded that the acoustic material in the door panels was porous and holding water.

jaguar replaced FOC the fitting of two complete new doors and the colour match process inc new gel coats to the whole car..i was told it cost them some £7500!

 

Wow. I must just not have ever reached the right person, and it's not like I went in shouting and blazing to get their backs up, they just dismissed it all from the start (perhaps I was too nice and they thought I'd just accept their word, but surely after the 4th/5th/6th pushback they'd realise I wasn't going to - clearly not).

 

I don't know how much trouble your associate went to to get that outcome, but I would imagine nowhere near what I'm experiencing!

Edited March 5, 2020 by weliantwobin

[dx100uk]

sadly I've had no meaningful contact with said close associate for almost 2yrs now due to them somehow thinking I diss'd his father, but you know what families can be like i'm sure....

 

however, I do remember that there was no real issue from jaguar at all, the specialist restoration lot sorted it all themselves, merely informing the close associate of this during the updates of the restoration project .

 

the only other possible useful piece of information I know was that, be it through my close associate or the restoration people themselves, there was and remains a very close link to the 'jaguar breakfast club' group.

[weliantwobin]

Just back from hearing... Struck out, no claim in negligence for damage to the article itself, despite trying to say the law is a little uncertain when it comes to defective components causing damage.

 

Judgment came pretty quickly, I thought there may have been a 'has everything been said' moment.

 

Only slight moral victory is that everyone in the room knew I was right on the money with the facts, and didn't have any criticism on the way i brought the claim, but the Judge had to apply the law and that's that. Oh and no costs order so Jaguar have to pay 8K to the lawyers - I guess they're the only winners here (and the courts with the fees)!

[BankFodder]

Well I'm very sorry. That means that the judge made the decision based on the Consumer Protection Act and not the issue of negligence which is what you claimed in your particulars.

On that basis it sounds extremely unfair and the other side's lawyers were able to divert it to a completely different issue.

Although it may be moral comfort, £8000 is peanuts to Jaguar – they don't care.

Thanks for the update. Come here first next time