Showroom dealership damaged car

[Legal7319]

Only an initial letter:

[R0b]

So just to be clear, car has been collected or not? and if not, why not?

[Legal7319]

Yes, the car has been collected a while ago now.

[R0b]

In that case, I think a relatively short response is needed to that solicitors letter. You can set it out along the lines of the below.

1. First of all, the Pre-Action Protocols do not require to address the core legal and evidential issues rather you only need to give a concise statement of facts to enable the defendant to understand the claim and allegations. There's already sufficient information set out in your letter of claim but for any avoidance of doubt, the claim being put to the defendant is that it took possession of your car and had an obligation to take reasonable care whilst it was in their possession. The defendant parked it under a tree and resulted in damage to your car, of which you hold the defendant responsible - the before and after damage report when compared, shows damage that was not there at the time of handing over the car.

2. At no point in your letter have you alleged or suggested in any way has there been any fraud and to be clear you are not alleging fraud at all. The claim is centred around the defendant's negligence and breach of duty as a bailee to take reasonable care of the car. You should ask them to point out where in the letter(s) sent have you alleged fraudulent activity. Whether their client wishes to claim for costs is entirely their prerogative but you are confident that their basis for seeking the same is totally without merit.

3. You could invite their solicitor to consider making an offer of settlement wihtin the next 7 days, after which you will issue proceedings without further notice.

[Legal7319]

I agree that the case is straightforward enough not to warrant any of the legal issues or evidential aspects they are referring to. The claim relies upon two pieces of evidence, the before and after damage report. I cannot see anything else that is complex or anything that is based on any legal underpinnings beside damage to property. However, I want to entertain any questions at this stage before things progress as it becomes a costly endeavour for both parties (in the case of time for me since I'm representing myself).

I think the fraud allegations are rooted in the possibility that the dealer didn't do proper initial checks (or they might have done?) and the fact that more damage was reported on the damage report sheet makes them feel that we are taking advantage of this situation, and thus they are concluding this as fraud.

Can I pursue my costs from their side?

If the matter progresses, what can I expect the dealership or the solicitor to produce as defence?

[R0b]

Difficult to say what they might pull out of their hat aside from the usual defence and witness statements. As for costs, claims under £10,000 are usually allocated to the small claims track which limits costs to application fees, a capped travelling expense of around £70 and that's it. To claim time and expense beyond that you need to prove unreasonable conduct and the bar is a high one.

As for your point about fraud, the legal definition of fraud in contract law which, by the way, is actually called deceit - is a deliberate or reckless act with the intention to benefit from another who suffers loss or damage. That does not come up here, this is a straightforward case of negligence and the duty to take reasonable care as a bailee (someone in possession of another's property).

If you do commence legal proceedings, all you need to do is simply state at the beginning of your particulars of claim is that this is a claim for negligence and breach of duties under a bailment arrangement or words to that effect. Clearly then, the case will focus on that and not fraud as their solicitor suggests.

In terms of defence points, I can't see much that they can dispute given you have evidence of the damage report before and after which I suspect they would have to admit. However, they might to try to argue that the damage was not their fault so causation is in issue, and the general rule is the 'but-for' test. But-for their actions or conduct, the car would not have been damaged. If the loss would have happened in any event, there can be no claim against them.

Remember, its all based on a balance of probabilities, so you only need to persuade a judge 51% in your favour. It is not necessary to have the dealer capitulate, but enough evidence and argument to show doubt and that their case is weaker than yours.

[Legal7319]

Thanks for the advice and guidance.

I will start by drafting a response to their latest letter and take it from there. Depending on what they come back with after I've mentioned the above, they may review their stance.

[Legal7319]

I'm just wondering whether I should mention the fact that the dealership replaced a few worn out parts on the car free of charge which may have suggested they were in the wrong (and thus thought it might help them in winning us over to retract the claim)?

We also have a friend who witnessed the visit to the branch when they were unable to give us the keys to collect the vehicle which then prolonged the car under their possession. Is adding this worth mentioning to satisfy their 'core legal and evidential issues'?

[Legal7319]

I have prepared a draft, see attached.*

[R0b]

I think up to the point where you say that there is firm evidence to attest to this which you have reviewed is fine. The rest of it isn't actually necessary and comes across slightly if your intention is to scare, probably aint going to work when up against a solicitor or legal firm. However, you may want to add something afterwards like:

I trust the above information clarifies the case against your client.

If, however, your client insists on making an application - although it's not clear what application is intended but I presume that it would be a strike out application, then I must warn you that it will be my intention to resist such an application. If successful, I will seek a costs order against your client in respect of the same which, I am sure you are aware of, would be subject to the normal rules about costs.

Your client is invited to make an offer of settlement within the next 7 days after which we will issue proceedings without further notice.

[Legal7319]

What is a strike out application? And would they be able to seek any costs via an order against me too?

[R0b]

If they were successful then yes they could. Costs relating to strike out applications don't fall under the small claims costs rules.

[Legal7319]

If they were successful then yes they could. Costs relating to strike out applications don't fall under the small claims costs rules.

Wouldn't this need be approved via the judge first? Otherwise I cannot see why any defendant who finds themselves in the courts to pursue costs from the other side via this method.

Also, wouldn't it be possible to get a court order to simply recover costs without the court hearing or going through the application process?

[R0b]

If they make an application to strike out the claim and are successful, costs will be summarily assessed at the end of the hearing. Seeking an order without putting the other side on notice is dangerous and the general rule is that the other side should always be given notice of an application unless there are exceptional circumstances.

[Legal7319]

I see. So in other words, I can submit the application, if it is a strike out, I can pursue a court order for costs. If it progresses to a hearing and I lose I should be open to the likely possibility that the other side may pursue costs from me via a court order which means I would have very little option.

Isn't informing the defendant to pay within a set time frame, with failure to do so giving them enough notice that I could pursue them via a court order? I'm just thinking of ways in which I can safeguard the possibility from being liable for costs without having to submit an application to court for a hearing.