Court Claim issued, Storm Doris now damaged van UPDATE

[fandabby]

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

Thanks.

What stage should this damage come out? During the court hearing or when I have won (should I win) and he comes to collect. Then he probably will not refund because of the damage.

[des8]

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

You'll have to play it by ear, but I would be inclined to wait until you have judgement in your favour and he comes to collect.
He may have paid up by then!
The question of damage, and liability for it, is seperate to the matter being decided in court.
He does not have the right of set off against an amount the court may have ordered he pays.

If he holds you liable for the damage he will need to initiate a court action against you if you (or your insurers) dispute his claim!

[fandabby]

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

Thanks.

Since this claim is for £16,155.27 when the questionnaire arrives do I select fast track as it is over £10k so too much for small claims court?

Am I best now to get a Solicitor since he has disputed full claim and now will go to court? I have emailed some Solicitors in my area who handle Litigation to see if they offer fixed fee for this type of case but still waiting to hear. Not many Solicitors in my town handle litigation matters so not sure how this is going to work out.

[des8]

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

The court selects the track, and as your claim is for an amount exceeding £10000 it wil almost certainly be fast track.

Whether or not you need a solicitor depends on how confident you are in your abilities.
Although a defence has been filed, it does not actually defend the fact that he sold a vehicle that was unsatisfactory.
Under CRA 2015 he does not have the right to repair the vehicle if it is rejected under the short term right.
That the vehicle was unsatisfactory you have the report, and he actually agrees with it in that he says there is nothing that "couldn't be easily rectified
had I been given the chance."
You don't have to give him the chance!
Vehicle unsatisfactory, not fit for purpose..... rejected.... refund. End of!

From the wording of the defence I doubt he is using a solicitor.

If you haven't been to court previously, you might like to go to your local county court and sit in on a case or two to see what it is like.

[fandabby]

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

This is the first legal experience I/we have had.

Good idea about sitting in on a case, problem is we have a 2yr old at home with me and no childcare (that's me), older siblings at school. I would think Court would not like youngsters in their courtroom. Can I nominate my husband to attend the court hearings on my behalf, he would then need to take time off work but he has a calmer head, I just freak out.

[des8]

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

This is the first legal experience I/we have had.

Can I nominate my husband to attend the court hearings on my behalf,.

If you are the claimant, you need to attend.
You can't "nominate" another lay person to represent you.

[fandabby]

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

Ok that is a shame.

If we did get a solicitor to handle this and we win, does the judge add our solicitor costs on top automatically or is that a loss for us ?

My husband is worried if a question may be asked in court about current condition being same as sold to us, in which case we would need to declare the damage and then the case getting complicated, he's not confident we could handle the legal spin on that, but at that point could we not use Force Majeure from Storm Doris, out of our control? It was logged with police that we initially thought it was the storm but then suspicion came in that it was deliberate because no bumper/skirt anywhere apart from one small mesh piece lying on the floor by van which we still have. Police came by and thought it looked like deliberate damage where it was torn off and bent back the driver wing to rip it out. They then updated their report that it looked deliberate especially as no trace of it anywhere and the only grievance is with Trader so they said it was suspicious as damage now caused after claim would have been received but no evidence as lacking CCTV. ?

[des8]

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

Regarding costs, there are fixed recoverable costs (and limited extras that can be added at the discretion of the court) as per CPR45.
If you employ a solicitor he will ensure you don't miss out!

IMO the present condition of the vehicle shouldn't be introduced.
If the defendant does, you will need to ask why he is questioning it, as presumably you haven't told him about the damage.
In any event you can argue that the criminal damage will be covered by insurance, and produce the police report.
The court will draw their own conclusions.

Anyway it might never reach a court hearing. He could surrender prior the hearing, or even just not turn up!

[fandabby]

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

Ok so I have made contact with some Solicitors detailing in brief our case and asked can they act on no win no fee or fixed fee or is it hourly. Responses to date they are not in a position to take this case on.

What happens if i cannot find a Civil Litigation solicitor in my area to take this on? Can I go further a field and how far or is that just not sensible and do need to try and get someone in my area?

[fandabby]

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

I have received post and opened letter from the court.

Pinned to the front is "Notice of Proposed Allocation to the Small Claims Track" and the Directions questionnaire (Small Claims Track).

Bit confused as thought due to claim being over £10 would have been allocated Fast Track.

What are benefits of Small Claims, should I agree to this? There is an option to say no and why...? Will I get all my costs back on winning if heard in small claims?

Not straight forward is it!

[des8]

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

The allocated track is always at the court's discretion, and in this case they obviously think that while the amount claimed is in excess of the normal lmits, the legal arguments will fall within the remit of the small claims track......OR someone has made a mistake.

As it is small claims, you will not be expected to use a solicitor, whose costs you could not recover even if you win.
Likewise if you lose you will not be landed with the other sides solicitors costs.

Recoverable costs in small claims are basically limited to court costs & some travelling expenses. (CPR 27.14)

Procedures in small claims are more relaxed and angled to the litigant in person, so certainly agree to it!

[fandabby]

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

Thanks des8, with it being small claims track will they throw out the losses which made up the total claim and only accept the van value?

The van is £13995
Then the £1189.84 is losses which includes Dekra Report, wheels/tyres, postage of recorded letters I have sent and 6 month of tax and insurance (thinking this was reasonable and not claim full 12 months). Then on top was the interest which I ticked yes for and the court fee of £695.

Other questions I have please:
The trader lives in Wales, about 1hr 40 mins from me am I allowed to request hearing court in my own town?
Will I need help with directions questionnaire or is this fairly simple to complete?
There is a question on mediation, shall I just say no as i have already tried to reason with him over 7 letters and it didn't work, he has Dekra report and still refuses refund so mediation is unlikely to change his mind?
Also am I supposed to ring the trader to discuss this directions questionnaire with him or just complete and send copy to him and original to court? I have to return questionnaire to court by 23rd so should get it done quickly so I know it's in time.
I range Dekra for cost of court witness in case the engineer is called as I will say yes for asking permission for expert evidence being the Dekra Report, they quoted me £450 plus travel plus accommodation if needed. Would this be refundable if it went down that route. The trader slated the report in his defence so it could go this way where the engineer has to defend his report?

Sorry for all the questions, I am finding this forum very helpful and the 8 solicitor firms I contacted already they said either they no longer handle litigation or they have no time for new cases, but as you said small claims would not expect solicitor anyway.

Thanks again for all your input, really appreciate it.

[des8]

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

Thanks des8, with it being small claims track will they throw out the losses which made up the total claim and only accept the van value?
Should not! CRA 2015 19 (11) allows you to claim damages

The van is £13995
Then the £1189.84 is losses which includes Dekra Report, wheels/tyres, postage of recorded letters I have sent and 6 month of tax and insurance (thinking this was reasonable and not claim full 12 months). Then on top was the interest which I ticked yes for and the court fee of £695.

Other questions I have please:
The trader lives in Wales, about 1hr 40 mins from me am I allowed to request hearing court in my own town? You can ask, but probably won't be granted as thedefendant is also an individual and not a company. However you can add travelling expenses to your costs.
Will I need help with directions questionnaire or is this fairly simple to complete?Easy enough, but always free to refer here
There is a question on mediation, shall I just say no as i have already tried to reason with him over 7 letters and it didn't work, he has Dekra report and still refuses refund so mediation is unlikely to change his mind?No. You should agree to mediation as you want to show the court you have tried to solve the dispute without involving the court. It is carried out by phone through a court mediator. You do not speak directly to the other side
Also am I supposed to ring the trader to discuss this directions questionnaire with him or just complete and send copy to him and original to court? I have to return questionnaire to court by 23rd so should get it done quickly so I know it's in time.Just complete DQ and send to defendant and court
I range Dekra for cost of court witness in case the engineer is called as I will say yes for asking permission for expert evidence being the Dekra Report, they quoted me £450 plus travel plus accommodation if needed. Would this be refundable if it went down that route. The trader slated the report in his defence so it could go this way where the engineer has to defend his report?
As this is now small claims you almost certainly won't be given permission to call an expert witness. The maximum costs recoverable for experts in small claims is £200 (I think!)
CPR 35 deals with Experts

Sorry for all the questions,(no problem) I am finding this forum very helpful and the 8 solicitor firms I contacted already they said either they no longer handle litigation or they have no time for new cases, but as you said small claims would not expect solicitor anyway.

Thanks again for all your input, really appreciate it.

Have you sorted your witness statement yet?

[fandabby]

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

Thanks again for feedback on my questions.

You asked at end have I sorted witness statement yet. That is not detailed on this questionnaire. So answer is no. D3 I was thinking of logging my husband as Witness as he was there at point of sale/purchase so asked condition along with me several times and heard trader say it was a good running van with only windscreen wiper motor to either oil or change. This was dislosed because it was raining and wiper blades were screaching on us. We then asked again this is a problem what else iw wrong. His response nothing it's a lovely running van nothing to fix.

Do I need to prepare a statement for him?

I was going to say yes for D2 and state as why - his credentials as listed in report and area of expertise.

I will go through questionnaire properly tomorrow and will list here what I am completing for each section to get feedback if that's ok. 4 kids will not put hold on my time. Stress well can't believe in this nightmare. My husband is worried I can't handle and also worried trader might win.

Thanks Des8

[des8]

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

Here's some bedtime reading for you! https://www.judiciary.gov.uk/wp-cont...+web+FINAL.pdf

You wouldn't normally take a witness to a small claims hearing, as you would rely on his witness statement.
I was only asking about your witness statement as a warning that it will eventually need writing (plus OH's) and it might take longer than expected to get it right! So start thinking about them now!

Expert witnesses aren't normally used in small claims, and permission may not be given.
If you want to use an expert you need to say so and also explain what his evidence will deal with and whether you wouldlike the expert to give evidence in a written report, orally at the hearing, or both.

I know the thought of court is daunting, especially when a large sum of money is at stake, but try not to get too stressed about it. Small claims are relatively relaxed affairs.