Court Claim issued, Storm Doris now damaged van UPDATE

[fandabby]

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

Thanks des8, I started to read and fell asleep. Will continue reading and re read to understand everything.

My witness statement is what I would read out, in terms of events from purchase to date when asked about the claim from the Judge. ? That makes sense as better to have it written down and read from that rather than chuffling through the letters.

What I will do today is work on the questionnaire and post on here if that is ok what I intend to answer for each question - if you don't mind please correct if necessary.

I have already copied all letters and placed in date order mine and traders - I can work off these to start my statement. I would like to pass this by you too if that is ok please. Would it be better to post my witness statement here or to private message it to you ?

I have meetings at the school this morning so will be working on questionnaire when I get back.

Many thanks

[des8]

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

Hopefully the judge will have read the witness statements before the hearing and you shoudn't have to recite it in court!

Do post up anything you want checked, and do it on open forum.
There is no point trying to hide it from the other side as all papers are exchanged before the court hearing, and if you were to PM me and for whatever reason I was unable to reply, no one else would know what was happening.
If on open forum, you will also get better input as we quite happily correct each other!

[fandabby]

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

Thanks for checking and giving input on my thread.


This is what I was going to put on the Directions questionnaire (Small Claims Track)

A1
Yes


B
Complete sections all my contact details



C1
Yes


D1
X (my home town). I am the carer of our 4 children aged 10 down to 2 and it is hard to find childcare. My husband will attend Court with me so I will need to make arrangements with someone who can look after them whilst in attendance at Court

D2
Yes
DEKRA Expert: Mr X. Inspection date 8 Dec 2016 and cost £199 (paid) for written report of inspection carried out - included in the damages section in claim. Mr X is a Motor Engineer with 23 years of experience in the motor industry. Mr X has various qualifications and experience and has worked as a DEKRA Vehicle Inspections Engineer since Aug 2009. If called in person to defend his inspection report, cost would be £450 plus travel plus accommodation expenses.

D3
2

(This would be me and my husband as he did the test drive and spoke directly to trader about the vehicle as well as all my questions I asked him)

? Do I make this 3 to include DEKRA engineer? I only want to submit his inspection report as that is what proves to the trader there are faults with the vehicle ?

D4
Yes

Other essential witness (husband) – I will list dates he is on a course for a week in April 2017

Expert –I gather here I will need to speak with DEKRA expert so they can contact the engineer to ask of dates unavailable for next 6 months?

Using an interpreter
No


? Mediation = yes
The sheet says to have some flexibility to want to achieve a settlement through negotiation. Does that mean I need to lessen my claim against trader and only take refund of van and not claim any of the extras ? Is that what they mean about negotiation.?

Also do I still keep quiet here about the damage should this mediation call take place ?



Many thanks for input, want to get this right…

[des8]

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

fine, except re witnesses and expert.

The expert's overriding duty is to assist the court, not the individual who instructs them.
You have his report about the condition of the vehicle and this should be sufficient.
Have him write a properly drafted witness statement confirming the report and you will be able to include it in your bundle as part of your evidence.
I doubt there is any point having him called as an expert, even if the court grant permission.

What do you think @R0b (me seeking another opinion!)


Re negotiation it is worth having some flexibility.
Yuo are seeking £15000 which is cost of vehicle plus expenses.
If you were offered a lesser sum say £14000 you would have to balance that against the risk of losing in court.
You would also be removing the stress.
You need to consider what would be your lowest settlement figure, and negotiate accordingly.

[fandabby]

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

fine, except re witnesses and expert. - so for D3 I would put 1 (which is me) ?

The expert's overriding duty is to assist the court, not the individual who instructs them.
You have his report about the condition of the vehicle and this should be sufficient.
Have him write a properly drafted witness statement confirming the report and you will be able to include it in your bundle as part of your evidence.
I doubt there is any point having him called as an expert, even if the court grant permission.
To get a witness statement from Dekra Engineer and my husband which I can use as evidence ? List dates unavailable under me.

What do you think @R0b (me seeking another opinion!)


Re negotiation it is worth having some flexibility.
Yuo are seeking £15000 which is cost of vehicle plus expenses.
If you were offered a lesser sum say £14000 you would have to balance that against the risk of losing in court.
You would also be removing the stress.
You need to consider what would be your lowest settlement figure, and negotiate accordingly.
Is it a good idea to bring up the damage and reduce the figure accordingly say by £1500 (which was quote from bodyshop) for negotation so claim amount is £16,155.27 and try and negotiate £14,655 or £14,500 with an agreement he does not come back to me for further compensation for damage (which isn't my fault)?

or do I still not mention damage at this stage?

Many thanks, appreciate feedback.

[R0b]

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

Are you asking about the Expert and whether or not he should attend? I've had a quick skim through the thread and it seems the trader is denying some of the comments made out on the report. The Trader may want to cross-examine him as to what he has stated on the report and also the court may also want to ask questions too, so I'd imagine it would be prudent if not err on the side of caution to have this person attend as a witness. But equally, if you want to rely purely on the expert's written evidence up to you, it could get the court's back up as the trader has no opportunity to question the expert.

[des8]

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

So R0b is suggesting you have him attend
If you want him as an expert witness you needte courts permission.
You could have him attend as a witness for you, in which case court's permission not required


Re claim figure, you have already set that.
I'm just suggesting that when it comes to mediation you need to calculate a figure below which you will not agree, and be prepared to bargain down to it.

[R0b]

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

[MENTION=39710]des8[/MENTION]

Permission still required anyway which the court will presumably give on the allocation notice. He wouldn't be able to attend as just a witness because he wouldn't be able to talk about the report he conducted, and assuming that was his only role, there'd be no point adding him as one.

[des8]

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

[MENTION=71570]R0b[/MENTION] but if the engineer gives the claimant a witness statement reporting the examination of the vehicle, can he not attend in case the defendant wishes to examine him?

Not that I think it will go this far anyway.
The court have already sussed it is a simple(?) case and in spite of the amount allocated it to small claims.
Vehicle purchased... no dispute
Faults found and confirmed by engineeer, a member of the leading vehicle inspection company in Europe
Vehicle rejected short term right
Refund refused as trader wants right to correct faults (some of which he denies)
No such right exists!

[fandabby]

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

I can see there is a discussion here.

So for clarification please do I:

still say yes for expert evidence in writing.

3 for number of witnesses, which is me, husband and engineer.

List unavailable dates for all 3.

Have 3 witness statements ready


Lastly do I still keep quiet unless specifically asked about current van condition about damage done on 23 Feb? Through mediation if this takes place and/or court room.?

Just want to be clear on best approach.

Many thanks des8 and R0b.

[des8]

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

This is the advantage of open forum... you will receive alternate views.

I would only include the engineer's report and your husband's evidence in written witness statements.
The judge will then have to decide how much reliance he can place on the statements without questioning the witness.
IMO the qualified engineer's would probably be taken at face value.
If they are present for questioning by the trader it could muddy the waters.
This has been allocated to the small claims track, and the time allowed will be short.
I would list witnesses present as 1, (but you will eventually need a witness statement from all 3)

Regarding the van's current condition you must be truthful.
However that doesn't mean you have to volunteer the information, unless asked.
IMO it is not part of your case, but is a seperate issue which may need sorting later


PS Are you aware of the format of witness satements? https://www.justice.gov.uk/courts/pr...ess-statements
Not strictly necessary in small claims, but doesn't harm your prospects to do it properly.

[des8]

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

One other oint to beconsidered:
The court is indicating they are minded to place this case in the small claims track.
If you request permission for an "Expert" witness you might find this case is relocated to the fast track.

[fandabby]

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

I think for me to have a good chance of winning case I need to include the Dekra report which is classed as expert witness isn't it?

Because the trader kept refusing to refund and would only offer a fix, he never inspected as he only wanted to fix. We were moving house which trader knew and could not do anything until w/c 5th Dec, he still refused to refund. That is when we got the Dekra engineer to inspect and report on it, which we sent to trader as evidence the van is in poor condition and at that point because it is missing a brake caliper clip along with the cracked wheel (as well as all the other faults noted), it rendered the vehicle dangerous and not roadworthy which is why we had to ask trader to collect vehicle because it would not be able to be driven back to him some 1.5 hrs away - and to still refund under CRA 2015.

We purchased 19 Nov
24 Nov I rang to complain about the things we had noted wrong and at that time did not know about the CRA rules. We did say he could fix but after 5th Dec as thought that was our only option. Then two more days passed and more faults became apparent on top of what we had already told him about and knew this was not right. I googled it and came across the CRA rules so on 26th Nov that is when I sent him an email outlining our previous conversation listing what was said and then went on to inform him we have found more faults and in light of that, we lost faith and too many faults to fix which were not acceptable for a £14k vehicle and told him we no longer wanted vehicle and requested a full refund. From here we did Dekra for proof, which we sent to trader twice along with letters outlining CRA rules and he still refused to refund.

So based on that quick recap, our only proof of faults is the report so I will need to ask permission for it to be included ?

[des8]

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

The Dekra report is not considered an "expert" witness report.
Expert witnesses provide technical analysis to assist the court in making its judgement. Essentially their duty is to he court and they are neutral.

What you have is a report by an independent qualified engineer supporting your claim that the vehicle was unsatisfactory, not fit for purpose etc.
You do not need permission to include it.
When you write your witness staement you will say eg "on such & such a day I instructed XYZ to inspect the vehicle"
"on such & such a day I received from XYZ a vehicle inspection report (exhibit no ?)

You will need a witness statement from the engineer stating that he carried out the inspection on your instructions, and that this is the report.

[fandabby]

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

Thanks des8

Just looking at the questionnaire:

so for D2 Expert Witness I say NO
and
D3 Witness - 3
This covers me, husband and Dekra Engineer.
I get 3 witness statements.

Would these be requested pre hearing ?

Do I have to make arrangement for engineer to be there or should it just be written so he is not there to be questionned - in previous post so not to muddy the waters...

It will cost me 450 plus his expenses should he attend.

Many thanks des8