Hunts motors Bedford - Faulty Car cambelt failed - i won by default/sent HCEO's - they paid in full - now set aside as court errored - new Hearing

[FTMDave]

Open.

[FTMDave]

Well done on your victory! 

[FTMDave]

I would change "It was their responsibility to check with the court that the case had been dismissed or was still ongoing" to "It was their responsibility to inform the court of a change of address".  You could also add there "I cannot believe that a professional company did not set up a mail forwarding service or did not check their previous address for mail".

 

As half of what a judge considers at a set aside hearing is if the defendant has a realistic chance of defending the claim in court, beef up your last bit "As a consumer I was entitled to a repair or to return the car for a full refund under the Act.  The Defendant simply has no defence".

[FTMDave]

You also need to number your points and refer formally to the case and the parties.  It'll take you a couple of minutes.  Look at Witness Statements on the site.

[FTMDave]

To grant a set aside, a judge has to be convinced of two things.

 

That the defendant genuinely didn't have a chance to defend the claim.  So maybe put a sub-heading THE COURT CLAIM and list your points that they knew full well a claim was progressing.

 

Secondly, that the defendant has a chance of successfully defending the claim,.  If their defence is rubbish there's no point setting aside judgement if they'll just automatically lose again.  So another sub-heading THE DEFENDANT's DEFENCE and put a couple of points about them having no real defence.

[FTMDave]

On 09/04/2023 at 15:26, FTMDave said:

So maybe put a sub-heading THE COURT CLAIM and list your points that they knew full well a claim was progressing.

So another sub-heading THE DEFENDANT's DEFENCE and put a couple of points about them having no real defence.

Is there a reason you decided not to do this?

[FTMDave]

OK, when you get a moment post up a revised draft.

[FTMDave]

The individual points are superb, but I think you've got them in an order that doesn't make sense.

 

Work calls now but I promise to try to reorder when i knock off this evening.  I'm afraid I have Night Owl habits!

[FTMDave]

I think it runs more logically in this order.  I've cut out your points 10 and 11 which are repetition.  In red there are a few added words.  I think in (8) it should be "marked E".

 

I've knackered the numbering (temporarily!)

 

Hang on for a day or so and see if any of the other regulars have comments.

 

 

1.     This witness statement is made by the claimant in response to the defendant's application to the court for judgement to be set aside. "I refer to the [N244 Application notice] which is now shown marked A".

 

2.     The defendant is applying to vary a judgement or suspend enforcement.

 

3.     The defendant maintains that they were “totally unaware of judgement as they did not receive notification about the hearing.”  The defendant maintains that they received no communication from the court after May 2022 and had also changed their address.

 

The Court Claim

 

1.     The Claimant issued a claim against the defendant on the 11.05.2022:

 

a.     The claimant requested a repair or full refund of the purchase price of £2900 on the grounds that the goods were not of satisfactory quality under the Consumer Rights Act 2015.

 

b.     The defendant refused to repair and/or refund the cost stating that they only offer a 3-month warranty and were not going to address the issues.

 

c.      The defendant totally disregarded the Consumer Rights Act 2015.

 

2.     Mediation between the parties was scheduled for the 8^th June 2022. I refer to the [email correspondence dated 20^th May 2022 timed at 10:00] which is now shown marked B".

 

2.     The defendant states that they moved premises so did not receive any correspondence from the court.

 

3.     The defendant’s new address is in the same town an around 12 miles from their previous one.

 

4.     The claimant does not believe that a business would move premises without arranging to have mail forwarding in place.

 

5.     Despite the move, the defendant participated in mediation on the 8^th June 2022 and as no resolution was reached, they were fully aware that the case was moving to a hearing.

 

6.     On the 26.07.2022, the court ordered that the claimant ‘re-serve’ an updated form N225 to the defendant. This was posted by Royal Mail special delivery on 2^nd September 2022 and signed for by ‘ALI’ who the claimant believes to be an operative of the defendant’s business - Hunts Motors LTD on 5^th September 2022 at 10:54am. "I refer to the [Royal Mail proof of delivery certificate dated 5 September timed at 10:54] which is marked C".

 

7.     On the 14^th November 2022, the claimant informed the court by telephone and confirmed in writing that the defendant had changed address. "I refer to the [email correspondence dated 14^th November 2022 timed at 18:19] which is now shown marked D".

 

8.     On the 1^st December 2022 The claimant received email confirmation from the court that Judgment had been entered and the order was posted and received by both parties. "I refer to the [email dated 1^st December 20:22 timed at 07:29] which is now shown marked E".

 

9.     The Claimant states that following a phone call to the court they were informed that their new address was only updated in January 2023.

 

12.  The claimant received the notification of the judgement in January 2023 and instructed the HCEO.

 

13.  The claimant does not believe that the defendant received no notifications from the court either by post or by email; even if this was the case, the defendant had been corresponding with the court regarding their defence and during the mediation process.

 

14.  It was the defendant’s responsibility to check with the court that the case had been dismissed or was still ongoing.

 

The Defendant's Defence

 

15.  The defendant has requested a new hearing to set aside judgment and “defend themselves” the claimant does not believe that another hearing is required.

 

XX.  Even if the court were to accept that the defendant really had not received court orders, the fact is that the defendant would have no chance of successfully defending the claim.

 

16.  The defendant did not adhere to the law as stated clearly in the Consumer Rights Act 2015 and refused to repair or offer a full refund of the purchase price on the grounds that the goods were not of satisfactory quality and not fit for purpose.

 

17.  As a consumer, the claimant was entitled to a repair or to return the car for a full refund under the ACT which was refused by the defendant.

 

XX.  The defendant simply has no defence in law.

 

18.  The court has already looked at the case and made judgement for the claimant.

 

 

[FTMDave]

A couple of things.  In (7) and (9) are you stating that you, twice, contacted the court about the business's move?  Or in (9) is there a typo and you mean the defendant called the court?

[FTMDave]

I'm thinking you should cut the parts out about you informing the court of the change of address.  If you point out that the court was told of the change of address but the court billed up, that will help Hunts Motors.  Don't make their case for them.  Just leave it that it was their responsibility to inform the court of a change of address.  I would go with - 

In the XXXXX County Court

Claim number XXXXX

BETWEEN                          

XXXXX   Claimant

and

XXXXX   Defendant                  

Witness Statement of XXXXX

 1.     This witness statement is made by the claimant in response to the defendant's application to the court for judgement to be set aside. I refer to the [N244 Application notice] which is now shown marked A.

 2.     The defendant is applying to vary a judgement or suspend enforcement.

 3.     The defendant maintains that they were “totally unaware of judgement as they did not receive notification about the hearing.”  The defendant maintains that they received no communication from the court after May 2022 and had also changed their address.

The Court Claim

 4.     The Claimant issued a claim against the defendant on the 11.05.2022:

a.     The claimant requested a repair or full refund of the purchase price of £2900 on the grounds that the goods were not of satisfactory quality under the Consumer Rights Act 2015.

b.     The defendant refused to repair and/or refund the cost stating that they only offer a 3-month warranty and were not going to address the issues.

c.      The defendant totally disregarded the Consumer Rights Act 2015.

 5.     Mediation between the parties was scheduled for the 8th June 2022. I refer to the [email correspondence dated 20th May 2022 timed at 10:00] which is now shown marked B.

 6.     The defendant states that they moved premises so did not receive any correspondence from the court.

 7.     The defendant’s new address is in the same town at around 12 miles from their previous one.

 8.     The claimant does not believe that a business would move premises without arranging to have mail forwarding in place.

 9.     Despite the move, the defendant participated in mediation on the 8th June 2022 and as no resolution was reached, they were fully aware that the case was moving to a hearing.

10.     On the 26.07.2022, the court ordered that the claimant ‘re-serve’ an updated form N225 to the defendant. This was posted by Royal Mail special delivery on 2nd September 2022 and signed for by ‘ALI’ who the claimant believes to be an operative of the defendant’s business - Hunts Motors LTD on 5th September 2022 at 10:54am. I refer to the [Royal Mail proof of delivery certificate dated 5 September timed at 10:54] which is marked C.

11.     On the 1st December 2022 The claimant received email confirmation from the court that Judgment had been entered and the order was posted and received by both parties. I refer to the [email dated 1st December 20:22 timed at 07:29] which is now shown marked D.

12.  The claimant received the notification of the judgement in January 2023 and instructed the HCEO.

13.  The claimant does not believe that the defendant received no notifications from the court either by post or by email; even if this was the case, the defendant had been corresponding with the court regarding their defence and during the mediation process.

14.  It was the defendant’s responsibility to check with the court that the case had been dismissed or was still ongoing, and to inform the court of any change of address.

The Defendant's Defence

15.  The defendant has requested a new hearing to set aside judgment and “defend themselves” the claimant does not believe that another hearing is required.

16.  Even if the court were to accept that the defendant really had not received court orders, the fact is that the defendant would have no chance of successfully defending the claim.

17.  The defendant did not adhere to the law as stated clearly in the Consumer Rights Act 2015 and refused to repair or offer a full refund of the purchase price on the grounds that the goods were not of satisfactory quality and not fit for purpose.

18.  As a consumer, the claimant was entitled to a repair or to return the car for a full refund under the Act which was refused by the defendant.

19.  The defendant simply has no defence in law.

20.  The court has already looked at the case and made judgement for the claimant.

Statement Of Truth:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Edited August 11, 2023 by dx100uk
Extra info added

[FTMDave]

I've added the bureaucratic bits at the start and the end.

 

Tomorrow e-mail it to the court.  Make sure you put in the subject line "Opposition to set aside application" + claim number + the names of the parties.  Obviously request a return receipt.

 

I don't know how you've been communicating with Hunts.  if by e-mail simply copy them the mail.  if not print out their version with exhibits, send by 2nd class post, and get a free Certificate of Posting from the post office.

 

 

[FTMDave]

Yes, Andy, it was a default judgement.

[FTMDave]

Take Andy's advice too.

[FTMDave]

Can you please upload what they have sent?

[FTMDave]

Sorry to hear this.

 

Surely in any rematch the fact they collected the car, repaired it and sold it has to count massively against them (make sure you keep proof of all this).  They can hardly claim they have the right to sell the car to two different customers and keep two sums of money!

 

What did the judge decide about you paying the money back?

 

And who ended up paying the costs of the hearing?

[FTMDave]

Well that makes the decision even more bizarre.  If the judge really accepted that the court had messed up and sent paperwork to the wrong address after Hunts had informed of the move, then they should have had their costs refunded.

 

Anyway, good that they've had to fork out £275.

 

When the court order arrives please post it up straight away, the devil is likely to be in the detail.

[FTMDave]

Use  https://www.ilovepdf.com/compress_pdf

 

[FTMDave]

That's not bad at all.  There's a bit of repetition and a few bits that aren't relevant, but these can be seen to.

But an immediate question.  Why are you complicating things with "I , xxxxxx of xxxxxx, have been given the authority to act on behalf of my son xxxxxx who is the Claimant in this claim"?  Why doesn't your son simply put his name on the WS and sign it?

[FTMDave]

I haven't got the detailed legal knowledge of Bankfodder or Andyorch, so I'm not sure exactly how "bad" it would be, but immediately a red flag shot up.  A claimant going into court with a Witness Statement not actually written by the claimant is a gift to the other side.  They're bound to cast doubt on its accuracy, saying a person not involved in the dispute has written the thing.  It's better and easier not to give them this gift.

Plus, you know he has to be in court, right?  There are ways of accompanying someone to court, but he has to be there and to be prepared to answer questions from the judge and from Hunt's.

11 minutes ago, Doingmybest said:

I'll take another look through and tidy it up.

I need to send it off tomorrow.

I'll help this evening if the others don't pop in.

[FTMDave]

OK, let's look at the latest version.

I haven't followed this thread as closely as some of the other regulars, so check any ideas for accuracy.  IIRC you won by default but then Hunt's managed to get judgement set aside.

If you possibly can, wait until Bankfodder or Andyorch have had the chance to look in before sending it off.

A lot of it is repetition or irrelevant.  A new judge won't give a toss as to why the default judgment was set aside.  The judge will only be interested if your case is better than Hunt's.

The first part from 1 to 8.

In (2 c) I would quote the part of the Act you are relying upon.

In (3), if you have any written evidence from the RAC or the independent mechanic, it needs to be included as an exhibit.  The exhibits have to be given numbers and referred to in your WS, e.g. " An independent mechanic was called to assess the car and they confirmed the fault after examination (Exhibit 2)". 

In (5) again attach an exhibit.  Make the point that if there really was no problem with the cambelt, then why change it?

(6) & (7) are completely irrelevant to this new hearing.

The second part from 4 to 14.

This whole lot is either repetition (4) or completely irrelevant to the new hearing (5-14).  The matter of the set aside has already been adjudicated upon.  A new judge won't give a monkey's.

The third part from 15 to 19.

(15) & (16) again irrelevant.  The rest superb.

[FTMDave]

There is no reason for the WS to be massively long.  The case is clear cut.

They say you are lying about the cambelt (an appalling choice of words which will seriously unimpress the judge).

You have evidence that the cambelt was knackered.  That's what you need to emphasise.

Beef up the bits you can -

3 hours ago, FTMDave said:

In (5) again attach an exhibit.  Make the point that if there really was no problem with the cambelt, then why change it?

Change " The Defendant's Defence" title to "Conclusion".

Surely you have receipts at least for the RAC and the independent mechanic?

 

I've found these excellent points from the first page of your thread -

Proof of full service history not provided as indicated in the advert and promised by the dealer.

He did not receive evidence of full service history.

He has a partial history with last stamp being 2014.

Also the dealer again informed us that the car had a full service at time of sale.

AA called out to car on 07.04.2022 and informed us that the timing belt has gone and possibly caused damage to engine.

I wrote to the dealer twice with no response until I sent letter before action:

they refused to do anything

said that there was only a 3 month warranty.

My son did around 2000 miles.

Apart from the dealer saying that they had serviced the car there is no evidence that the car has had a service since 2014 or cambelt change.

Ford have informed me that the belt should be changed every 8 years or 100,000 miles -which ever comes sooner.

as this failed within 6mts of ownership and was sold very close to the cambelt change date and they claimed it had a full service history, under cra 2015 you have a very good chance. the 2k miles and 5mts ownership is in your favour too.

[FTMDave]

Pernickety, but instead of A, B, C, etc, it should be Exhibit A, Exhibit B, Exhibit C, etc.

In (2 x) there are some words to cut out.

You need to tweak the numbering in "Conclusion".

Are "timing belt" and "cambelt" the same thing?  Forgive me, I'm the world's worst for being ignorant about what goes on under a car bonnet.  If so, change "timing belt" in (2 iv) to be consistent.

Apart from these tiny things, it looks fine to me - well done.

It's quite a simple case for a judge.  Was the cambelt knackered or not?  If so, were your CRA rights respected or not?  Anything you emphasise on these points is important.  And you have done so repeatedly.

In (6) add - "Clearly there was a serious problem with the cambelt as I have maintained all along, otherwise the defendant would not have replaced it".  Your exhibit here needs to be numbered and added to the list.

Any proof you have of the AA and the independent mechanic need to be included.  I know you have no report.  But anything to back up your story would be good.  Receipts?  Phone records?  Name of independent mechanic?