Done it again - another faulty vehicle !

[fandabby]

So small claim issued and trader has defended with the following:


"
I dispute this claim because I sold the car 6 months ago in May 2018 on behalf of a third party, the claimant required a reduction from the price due to work needed to be done on the vehicle. Therefore, a £550 discount was agreed towards the cost of all repairs to be carried out by the purchaser.

After that the claimant has never rang me and there has been no direct contact from the claimant. I was first made aware of this issue from the county court letter which I received on 2nd December 2018.

The consumer has 30 days from date of purchase to ask for a full refund and it has now been over 6 months that has passed since I was made aware of this issue.

<he put his name and business trade name at bottom>
"



I have the DQ which needs to be served and arrived by 14th January.



Questions please:

1.
I never rang but sent 5 letters all of which I have certificate of posting and letter two I sent signed for which he refused and it was sent back to me.
1st letter 26th Sept so just under 4 months from purchase.
Letters started with requesting repair under CRA detailing faults then finally rejection, mentions of ADR and LBA in latter letters sent.
Is there going to be an issue here that I never rang? No response other than him refusing to sign letter 2 which it got returned with RM label stating refused to sign.
I can obviously prove I sent letters so his claim of "no direct contact from the claimant" falls down since I have proof of letters sent and one sent back to me refused.



2.
I have a copy of his advert from his website ( website now down since this dispute ) no mention of third party.


I also saved web pages of his website before it went down so if need be can put in word as screen shot for evidence and this is his about us :
<Trading name>, great deals on used cars in <town>

If you are looking for great savings on quality used cars in the <town> area, then you have reached the right place. <Trading name> are a specialist used car dealer based in <county>. We are proud to offer you a first class customer service and very competitive pricing, so please browse our stock list. At <Trading name0, we stock a range of used cars to suit all budgets and lifestyles so we are sure to have the right car for you.
If you are looking for a second hand car in <town>, then don't delay, call us today. In order to offer cars to suit everyone we make sure that we update our stocklist regularly. It is therefore always worth giving us a call, even if you don't see what you are looking for on our website.
We offer advice on vehicles and vehicle maintenance and our friendly staff will go the extra mile to guarantee that you receive the advice and support you need.
At <Trading name> we don't just sell cars, we do everything possible to get you on the road with your perfect vehicle. Why not come along to our dealership in <town>? We look forward to meeting you!




Nothing mentioned here for third party sales.



3.
His statement of "£550 discount was agreed towards the cost of all repairs..." is he trying to suggest that includes the unknown with engine failing? This discount was negotiated as the vehicle was due a service, cambelt, tpms sensor he said just needed replacing with new as tpms error was present (had sensor changed but fault still exists - part of claim for misrepresentation not as described) and wing mirror indicator light was visibly broken - so reduction was towards it not to cover it all.



4.
Should I now call him to discuss this claim and completing DQ?




I am shocked at his defence surely this has no substance, my detailed particulars which were posted to him and court noted that 5 letters had been sent and ignored with month span Sept to Dec before initiating court.
Surely he is wasting time, probably changing all his assets into his wife's name !


Thoughts welcome please and for DQ do I ring him to complete or just complete anyway and send off to him and court? Do I call and challenge him on no letters received ?


Many thanks

[ostell]

You complete the DQ and send a copy to the court and a copy to him, as per instructions on the form.

If you can show the Certificates of posting and the refused signed fors then that should hold you in good stead.

[fandabby]

Thanks ostell.

Yes I have all the receipts for certificate of posting attached to my copy of letters sent and the one which was sent signed for I have that letter back unopened with RM label indicating "refused", I have also printed off the tracking for that returned letter which also states refused.


These receipts though I only show at the hearing as exhibits for witness statement, I don't send before hand?

thanks

[ostell]

Yes, exhibits referenced in the witness statement. It will be difficult to say that you did not contact him.

[fandabby]

So the deadline for receiving completed directions was Monday 14th. I posted mine obtaining certificate of posting last Wed for court and Thur for trader/defendant.

I did not receive anything from defendant so his completed DQ not sent to me.

I've checked MCOL and it is still only showing updated 28/12/18 - DQ sent to defendant.... Does that suggest he has not sent in completed DQ as it is not showing or they just behind with updating status? Status is still showing Defence, so not transferred yet to local court.

Thanks

[des8]

Courts aren't particularly noted for being up to date with paperwork, and even if he is late filing his DQ it won't be fatal to his defence.
It's a waiting game!

[fandabby]

So I received an email from small claims mediation service mid last week to say both sides have agreed to mediation and to call to confirm a proposed date and time.

Which I did, then had to email them to ask change of date because didn't realise at the time it landed middle of school half term, not good since have to be free from distraction.

Anyhow in short have just spoken with mediation again and they tried to set up a date for next week instead. They telephoned the other side and just phoned me back to say the defence has said they do not have all the information to enter into mediation so will not go ahead.

What crap, he's had all my letters outlining all the faults which were presented to him for repair which due to ignorance on his part led to rejection leading to now court claim.

So they told me not suitable for mediation because of his reaction so will put it through to court.

He's still acting naughty and wandering now how this is going to play out in court.

I shouldn't be worried right ?

1. Lettered him within 4 months of purchase outlining faults and request repair.
2. Actually sent 5 letters in total one of which sent signed for which got refused. Have all receipts to prove have sent letters.
3. Due to him ignoring me went to reject.

I have followed protocol haven't I? No loophole which puts me in deep water.


And he's made no attempt to contact me or to request further information, as I said in one letter I can send him garage slip saying no compression in cylinder 1 for example but gave him garage contact details for him to discuss directly should he wish...


So now I start to prepare for court.

[des8]

No point in getting worried as it doesn't help.
Just stay focused.

Vehicle was deemed unsatisfactory
He was required to put it back into satisfactory state without undue delay and at no cost
He failed therefore you use your final right to reject

Don't worry but:
Rhetorical question: What can go wrong?
Cynical answer: small claims can always turn out to be a lottery and even when you win judgement might need to be enforced

[fandabby]

Thanks Des.

Will come back on when I know more.

[fandabby]

The garage where this car is have emailed this morning asking for me to remove it due to the length of time - in fairness they've had it since 26 September.

I've asked if they have towing facilities and how much to bring to our property.

Presumably I can add this to my costs ?

thanks

[des8]

Yes, but you will need the courts permission to change your statement of case as it has been served on the defendant and there is a fee to pay!
https://legalbeagles.info/forums/for...practicalities

[fandabby]

The garage have just said now it's £60+vat.

That fee to change is £155.

?
Could I try and recover this when I win the case (optimist) and produce additional costs document like I did for T5.
I'm trying to limit my losses and may not get the 60+ vat or the 155 fee back.



"Following the unreasonable behaviour of the defendant, the claimant request the court exercise its power to assess by the summary procedure and order to be paid the claimants additional costs.

Unreasonable behaviour:

1. Not responding to letters from Claimant requesting repair
2. Refusal to sign for a letter
3. Pursuit of a defence that had no merit.
4. Defence did not follow court order and send a copy of his completed Directions Questionnaire to other parties - claimant."

What do you think? Not worth I don't think paying £155 to recover £72.

Thanks

[des8]

I concur that £155 to recover £72 is a no brainer.

You can always throw it in at the end and hope... don't ask doesn't get!

Points 1 & 2 aren't classed as unreasonable behaviour

[fandabby]

Hello, I'm back.

I've had a court order and the date for small claims is in June. They have allocated his local court which we will need to allow 4 hours of travel one way.

So the order is pretty self explanatory with having to pay court fee by 17 May.
Presumably I ring the court and pay over the telephone with debit card? When is recommendation of payment date - 1 week before ?

It states that we are listed in a back to back small claims block listed at 10am and this has been done to give the earliest hearing date available and last no more than 2 hrs.
This makes sense to although it would have been better in our home town because of logistics with kids.

It says to serve documents to rely on in court on 17th May (4 wks before trial date), witness statements and any other person whose evidence is to be relied upon whether or not is it intended to call them at the hearing....
This would be mine and OH witness statements including any receipts and the RAC breakdown report which just says couldn't fix towed to garage and then the garage piece of paper saying no compression in cylinder 1?
Would I also do a skeleton which addresses defendant's brief defence claiming I never contacted him, he sold on behalf of someone and outside of 6 months for court paper arrival. ?

It then says:
Because this order has been made by the Court without considering representation from the parties the parties have the right to apply to have the order set aside varied or stayed. A party wishing to make an application must send or deliver the application to Court (with fee) to arrive within the seven days of service of this order.
What does this mean?



Many thanks in advance.

[ostell]

Why is it at his court? As he is a trader and you are a consumer it should be at the court of your choice.