Court Claim issued, Storm Doris now damaged van UPDATE

[fandabby]

Hi guys

Though it easier to post in separate thread as now an extra problem.

Original threads for van issues:
http://legalbeagles.info/forums/show...otor-Ombudsman
http://legalbeagles.info/forums/show...usal-of-Refund


The update:
As I have said the van since rejection, 26 Nov 2016 has not been driven with exception of getting original tyres/wheels back on and driven to our new home when we moved on the 9th December. Van was too big for garage so parked up at top of drive and has stayed there since.

This morning walking round to get kids in Zafira for school run at 8.30 this morning, the whole front bumper and lower grille has been completely blown away by storm winds and also damaged drivers front wing where it has been ripped away.

I have reported to the police to get a crime number for incase it was theft instead of storm damage but you can see it's been ripped out. I will try and include image of van how it is supposed to look like and what it looks like now.

Question:
What now with the claim? How am I supposed to handle this? Is it Force Majeure and claim can continue? Do I need to update court? Am I supposed to fix?

Any advice gratefully received.

One very unhappy person right now.

Many thanks

[fandabby]

Re: Court Claim issued, Storm Doris now damaged van

Any advice ?

My instinct is to leave it alone and see what happens in court. I will have to pay out more money to get this fixed and it was parked by our house well up the drive. So we attempted to keep it safe.

Police came and they think it looks deliberate and not storm damage as there is no trace of it anywhere, walked for miles. They have updated their file that I have a court case active just to ensure it is logged should we end up in court.

Any thoughts anyone, appreciate it. thanks

[Amethyst]

Re: Court Claim issued, Storm Doris now damaged van

The front bumper and whatnot blew off in the wind? Blimey !

[fandabby]

Re: Court Claim issued, Storm Doris now damaged van

Police came by and looked and in their opinion deliberate damage not storm damage. Co-incidence that the court claim got served and he would have received Monday and now have damage to van.

It was ripped out and small part still on van so not like a thief could use it now if it was person/s and not the storm....

If storm would it not have bounced off other cars on drive and would it not of got caught up in hedge/tree/some neighbours garden. No other damage anywhere apart from this and no trace of the very large part anywhere.

I have a suspicious mind but no cctv so will never know

[Amethyst]

Re: Court Claim issued, Storm Doris now damaged van

I doubt very much it would have blown off down the road never to be seen again. Have the police taken a report, and are they investigating your suspicions (if you told them what was happening with the Van) ? You'll likely need that and the pictures of the damage etc during the court hearing. (sorry, yes you have done)

[fandabby]

Re: Court Claim issued, Storm Doris now damaged van

They have noted on their file I have an active court claim recently issued and that he is the only one we have upset.

The community officer said she was going to contact his local police station to see if they have any information on him as it does look suspicious but because there is no witness or cctv they can't investigate only log it on file as suspicious circumstances. Where we live is classed as very low crime so they are surprised this has happened and to get past a vehicle parked directly behind the van and van was parked outside garage next to house. We didn't hear anything which is the odd bit.

Do you think we don't claim on insurance to fix it and leave it alone since we are faultless in this and did have it parked up by the house. (did not fit in garage too long, old garage). Whoever did this came on private property and necky enough to get up the top to do it.

Also will this affect our claim and it be reduced because it is now damaged?

Many thanks

[ostell]

Re: Court Claim issued, Storm Doris now damaged van

I'm thinking along the lines that you have rejected the vehicle and it is in fact his property and he failed to collect therefore responsibility lies with him. You took good care of it.

Would be interesting to see if damage is mentioned by him in the court case.

[fandabby]

Re: Court Claim issued, Storm Doris now damaged van

Yes I thought I could maybe take that view too. He should have collected vehicle when rejected and we wouldn't be in this situation now.

We have covered van with tarpaulin as suggested by Police so if he does mention it in court then how we he know as it was covered up after the incident.

At this stage, I wait until 7 March to see how he is going to respond to the claim, am I supposed to be informing the court there is now damage to the van or do I not and it all comes out in court? Not sure if I am obliged to update the circumstances? If anyone can let me know I would appreciate it.

Many thanks

[des8]

Re: Court Claim issued, Storm Doris now damaged van

I would report the incident to your insurers, but advise them you are not making a claim as yet.
Explain the situation.
This will keep your options open should things go awry.
Although it can be argued the garage are technically the owners and you are an involuntary bailee, some smarta**e might successfully argue that your duty to take reasonable care includes insuring the vehicle as your are currently the registered keeper.

[fandabby]

Re: Court Claim issued, Storm Doris now damaged van

I have updated my insurer now but for notification purposes and explained our situation. They gave me a claim number should I want to use it at a later stage.

So if this fella does nothing in terms of respond to the claim, by the 7th March, to either myself or updating MCOL with his defence, can I on this same day request a default judgement or have do to it the day after?
What happens for default judgement, will I automatically be awarded and he then owes me the debt from the claim - which is a total amount inc the court fee of £16,155.27.

Just trying to prepare for what comes next, it's only next Tuesday so week to wait now. Heard nothing so far and checking MCOL daily for updates.

I am wandering if he will ignore and think I will drop claim if he is aware of the vehicle damage and van is covered and has been since day after incident so that would be strange wouldn't it.

Thanks to everyone for input/advice, really appreciate it....

[fandabby]

Re: Court Claim issued, Storm Doris now damaged van

UPDATE

The trader has filed a defence on MCOL and what he wrote is making out I have been completely unreasonable.

He says that all my costs are unreasonable my choice to have left it insured and taxed whilst on drive.
He also says about the wheels/tyres I had to buy because I mentioned at point of purchase that I was going to buy winter wheels/tyres anyway for winter driving
He says the Dekra report in his opinion is either falsified or it's due to progress wear and tear for age of vehicle.
He also says that I have been unreasonable and not let him look over the van and just kept demanding refund before collection of vehicle. I have in many of my letters to him said I do not want his repair and reject the vehicle because of all the faults which were not disclosed, the van needed to be collected because the Dekra engineer said it was not roadworthy and dangerous and that because he took it I would need the refund in place. I also offered for him to come and inspect at our address because it cannot be driven and he ignored it.
He also mentions the tyres and that I had driven a further 555 miles on them and that is rubbish which I corrected him on in letters as the mileage was done on the new wheels/tyres because I had to change them.
He is making me out to being totally unreasonable.

What happens now?

Will I receive information through the post, questionnaire, and this now goes to court?
Will the judge read all correspondence to and from me and trader so they can see I have been patient and reasonable but standing my ground that I did not want him to pick van up and fix but give me a refund under the CRA 2015.

Talk about setting self doubt in.

Any comments appreciated.

Thank you

Here is his defence:

On 19.11.2016 the claimant purchased VW transporter XXX XXXX 2006
model with 140350 miles. They were given plenty of time to view
the van and took it for a test drive. I advised them to go away
and discuss the van prior to purchase which also gave me time to
look over the van. They did this and returned to purchase the van.
On 24.11.2016 the claimant rang me stating she had a few issues
with the van. I asked her to return the van so I could look it
over and rectify any said faults. She was happy to do so and we
agreed on the 5.12.2016 after their house move. On Saturday
26.11.2016 at approx 8:30pm I received an eBay message stating
that she was no longer happy for me to look the van over and that
she wanted a full refund immediately. She wrote 'monies to be
refunded before vehicle is collected'. I replied that I was
unhappy to issue a refund and that I would collect, leave a
courtesy vehicle and return van at no further expense or
inconvenience to themselves. I have continued to offer this at
every correspondence.
I then received an independent engineers report which at first in
the conclusion appeared very damning but his conclusion/opinion
was contradicted by his findings. On reading the report thoroughly
I felt that many of the issues noted were either falsified or due
to 'progressive wear and tear'.
Claimant claimed the tyre's were illegal the engineers reported
noted they were at legal limit and this would have been after a
further 555 miles from purchase.
Irrelevant issues noted were :
- oil and coolant levels below maximum, doesn't state if below
minimum a vehicle of this age and mileage would use a slight
amount of oil,
- engine under tray missing, not all VW transporters have an
under tray from new this one didn't,
- alloy wheels not VW branded, the claimant knew this on purchase
and its common for vans to have upgraded wheels. They were still
load rated and safe for the vehicle,
- exhaust condition poor, then stated it was gas tight and secure
??irrelevant comment,
- handbrake position altered due to swivel seats, goes on to
state secure and operated correctly ??irrelevant comment
Other faults reported were noted to be minor and probably caused
from 'progressive wear and tear' due to age and mileage of
vehicle.
There is nothing in his report that suggests this vehicle is
dangerous and unroadworthy and that couldn't be easily rectified
had I been given the chance.
In my 12 years of trading as XXXXX I have never gone through
this experience and have found it very stressful and completely
unnecessary had I been given the opportunity to rectify any issues
as offered on many occasions. I did not sell this van as new or as
in excellent condition. I sold this as a used vehicle in an
acceptable condition you would accept for its age and mileage. I
believe the legal route for returning anything is to return the
item to be inspected prior to a refund being issued. The claimant
has been adamant that she wanted the 'monies to be refunded before
vehicle is collected'. I feel I have been more than reasonable in
my offer of collecting and returning the van so the claimant
incurs no further expense or inconvenience and that it is unfair
that I haven't been given the opportunity to look at this van at
any point. I also feel that the excess costs the claimant is
quoting are unjust. It is the claimants decision to not use the
van and to keep it taxed and insured whilst sat on her drive. The
report is unjust as I offered to inspect this van from the start.
The cost of the winter wheels and tyres is also unjust as the
claimant stated on purchasing the van that she was going to buy
these immediately due to her concerns about the weather and
country roads, especially as in a letter dated 12.12.2016 she
writes 'however should you not wish to refund the wheels/tyres we
will keep them'.
I am looking forward to putting an end to this stressful
situation.


My letters in early stages were all about rejecting and refund which is why we never took him up on collecting it to fix. I told him on 26th Nov that I no longer was comfortable with him fixing initial faults found because more had come to light and this was unacceptable so that is when van was rejected. I then suggested in later letters that he inspect for himself that the Dekra report is accurate but he ignored this offer. I corrected him on 555 miles as they were not driven on existing tyres but mostly on new. He fails to include cracked alloy, missing caliper clip which rendered the vehicle dangerous and not roadworthy.

Does this look like he has a strong defence? Am I going to need a solicitor now to help win this case - esp because of the damage caused last week?

When the questionnaire comes do we ask for small claims or fast track. It is over £10k?

Mind in turmoil. Any ideas how long these type of cases go on for? Fancy saying the Dekra report falsified, WOW really.

Thanks to everyone, appreciate feedback please.

[fandabby]

Re: Court Claim issued, Storm Doris now damaged van UPDATE

This is the update on MCOL

Claim History
You submitted a claim on 15/02/2017 at 12:30:08
Your claim was issued on 16/02/2017
A bar was put in place for Mr x x T/A x on 03/03/2017
Mr x T/A x filed a defence on 03/03/2017 at 08:01:58
DQ sent to Mr x T/A x on 06/03/2017


Do I not receive the directions questionnaire ? Bit confused. What am I supposed to be doing now?

Any feedback appreciated.

Many thanks

[des8]

Re: Court Claim issued, Storm Doris now damaged van UPDATE

You should be receiving from the court a copy of the defence plus a directions questionnaire.
Check position again tomorrow, and if uncertain phone court

[fandabby]

Re: Court Claim issued, Storm Doris now damaged van UPDATE

Thanks des8.

What point do I need to disclose the damage to the van? Should I be now informing trader before this goes to court?

Does this damage now complicate this case that I will now need a Solicitor to get a better chance at winning without having to pay for repairs?

Thanks

[des8]

Re: Court Claim issued, Storm Doris now damaged van UPDATE

IMO you do not need to advise the trader about the damage at this stage.

You rejected the vehicle sometime ago, at which point ownership reverted to the dealer.
He is disputing your right to reject the vehicle.
If you win it is his damage, not yours.
If you lose it is your damage (and insured)

If you win and his ownership is confirmed, he may try and claim against you for the "storm" damage as you were an involuntary bailee and caring for the vehicle.
At that point you refer his letters to the vehicle insurers.
If they decline the claim, you could always then pass it to your legal liability insurers (probably a section in your household policy)
However as an involuntary bailee you only have to take reasonable care of the property and it is a moot point as to whether or not that includes insuring it.