Court Claim issued, Storm Doris now damaged van UPDATE

[des8]

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

Most important one there: H costs: as a litigant in person you can claim costs of £19 per hour for the time you spend on researching your case.
On top of that you have a pile of printing and copying coming up, plus postage.
You start calculating the time you have spent researching, and from now on keeping a written record of all time spent and expenses paid! you'll be surprised at how it mounts up.

I'll respond on the other bits tomorrow.

When and if going through mediation do remember this is essentially a simple claim.
You used your short term right to reject which the defendant refused to recognise.
The short term right does not allow him the right to opt to repair.
If he refuses mediation or offers a silly amount just point out he is going to be picking up your costs which include your issuing fee plus a hearing fee of £545

[des8]

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

Thanks des8.

I have lettered Trader today asking for dates/times convenient to call to discuss the questionnaire and to ask if we could mediate to settle this before trial - although asked in previous letter to settle through ADR which was ignored.

Looking now at the DQ may I ask some questions please for understanding how to approach conversation with trader for completing.

A - Settlement.
1. I will discuss with him about trying to settle before hearing, should trader say no do I then say No on this or Yes?
2. If Yes do I request one month stay?
3. reasons if No for point 1 ?
If the defendant declines an attempt to settle you answer "NO" and explain in 3 that the defendant refuses to engage

B Court
B1. (High Court Only)
The claim has been issued in the High Court. Do you consider it should remain there? YES OR NO
If YES in which Division/List?

Not sure what this means?
Ignore, your claim was issued in County Court

B2. Trial (all cases)
Is there any reason why your claim needs to be heard at a court of hearing centre? YES OR NO
If Yes, say which court and why?

Can I request my home town and reason because sorting out childcare?
Yes.. but you may not be suuccessful!

C Pre-action protocols
You are expected to comply fully with the relevant pre-action protocol.
Have you done so? YES or NO

If you have not complied, or have only partially complied, please explain why

I have speed read this and from what I have read, I have lettered the trader several times outlining the faults, have also sent twice the Dekra report, listed all expenses including evidence like receipts, suggested ADR previously, each time allowing 14 days - does this sound I have complied fully or partially?
yes

D Case management information
D1. Applications

I say NO because I have not made any applications in this claim?
Correct


D2. Track
If you have indicated in the proposed directions a track attached which would not be the normal track for the claim, please give reasons below for our choice.

Do I leave this blank?
Yes leave blank


D3. Disclosure of electronic documents (multi track cases only)

Do I ignore this?
Yes .. ignore D3


D4. Disclosure of non-electronic documents (all cases)
What directions are proposed for disclosure?

Do I say here already disclosed and posted twice Dekra Report?
Insert "standard disclosure"
For all multi-track cases, except personal injury

Do I ignore this section?.. yes, ignore


E. Experts

Do you wish to use expert evidence at the trial or final hearing?

Have you already copied any experts' report(s) to the other party(ies)?

Do you consider the case suitable for a single joint expert in any field?


What do you suggest here? Is this still no as I bring in the Dekra Report and their witness statement in my witness statement?
or
Do I say Yes and Yes as already sent two copies and what for last question?

IMO (others might disagree) you complete this as a "NO" "NO" & "NO"
The defendant admits there were faults on the vehicle, so you do not need an experts testimony


E Experts (continued)
This asks for Expert's name
Field of expertise
Justification for expert and estimate of costs

Do I complete this?
No


F Witnesses
Which witnesses of fact do you intend to call at the trial or final hearing including, if appropriate, yourself?
Witness name
Witness to which facts

No sure what I put here?
I would include 1) your husband witness to relevant facts
2) your engineer witness to relevant facts of vehicle mechanical status
3) yourself .. witness to relevant facts

The attendance of 1) & 2) can be withdrawn later, as at the moment the court is only looking for a general idea so they can plan the trial


G Trial or Final Hearing
How long do you estimate the trial or final hearing will take?
Less than one day ? hours
One day
More than one day - state number of days

Presumably this is a straight forward case? Would I suggest less than one day and if so how many hours is reasonable for this kind of case?
less than one day...4? hours
Are there any days within the next 12 months when you, an expert or an essential witness will not be able to attend court for trial or final hearing?

If I am saying yes to Expert then will need to find this information out
Do I only include my OH's witness statement brought in from mine or do I call him as a witness
Just put in the times you cannot attend... the other witnesses aren't really essential and you should be able to work of their written statements.


H Costs

I ignore this as do not have solicitor ?
See yesterday's post....ignore the question but keep a note of your time spent & expenditure (postage receipts etc)


I Other information

Do I intend to make any applications in the future? YES or NO

What other applications could I make?
answer "no"..it's asking if you intend to make application for eg an injunction or for preservation of documents

In the space below, set out any other information you consider will help the judge to manage the claim

Do I say anything here about having a report done and sent and trader only offering a fix although I have exercised my right for short term rejection ?
No .
You could say along lines "simple case regarding remedy due to consumer under Consumer Rights Act 2015 following rejection of goods under short term right to reject. Defendant acknowledges vehicle faulty and incorrectly claims right to repair"

Thanks, I feel tired just thinking about all this let alone having to have a conversation with the trader to discuss all this and agree what gets logged down.

Appreciate your assistance, many thanks

I have just noted (having done a complete back reading of your posts!) that you initially agreed to return the vehicle to the dealer for him to "look at the excessive smoke" and attempt a repair on a non functioning window.
Under CRA 2015 23 (6)" A consumer who .... agrees to the repair of goods cannot require the trader to replace them, or exercise the short-term right to reject, without giving the trader a reasonable time to repair them (unless giving the trader that time would cause significant inconvenience to the consumer)."
So you might have to argue that 1) he had not agreed to repair, but only look at the faults
or2) you had only agreed to the repair of certain faults and the discovery of many subsequent faults reinstates your short term right to reject.
I doubt your trader will come up with this nugget, but thought you should be forwarned

[fandabby]

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

Thanks for the tip des8, I will create a worksheet and start logging. My husband has asked can I back date or do it from now? Also does that include my time on this forum seeking advice? or rather reading up all the court papers and guidelines etc.. ?

I read on a different thread somewhere that a person in a position similar to mine was seeking right to reject with a dealer and a comment on the thread was that the vehicle was being kept on the drive whilst sorting it out so charge the trader. Can I put a daily charge together for having this van parked on our drive and if so from when can I do that? I still have the tax and insurance running, I know van is now damaged (out of our control) but we do not intend to fix it as this trader should have recognised his obligation and picked it up. We do not want to claim also because it will affect all our insurances on other vehicles for the next 5 years and that simply isn't fair. Do I cancel the tax and insurance, bearing in mind now this case could go passed purchase date 19 Nov 2016 which is when it got insured. Not sure what to do?

Many thanks for your continuing support.

Most important one there: H costs: as a litigant in person you can claim costs of £19 per hour for the time you spend on researching your case.
On top of that you have a pile of printing and copying coming up, plus postage.
You start calculating the time you have spent researching, and from now on keeping a written record of all time spent and expenses paid! you'll be surprised at how it mounts up.

I'll respond on the other bits tomorrow.

When and if going through mediation do remember this is essentially a simple claim.
You used your short term right to reject which the defendant refused to recognise.
The short term right does not allow him the right to opt to repair.
If he refuses mediation or offers a silly amount just point out he is going to be picking up your costs which include your issuing fee plus a hearing fee of £545

[fandabby]

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

I have just noted (having done a complete back reading of your posts!) that you initially agreed to return the vehicle to the dealer for him to "look at the excessive smoke" and attempt a repair on a non functioning window.
Under CRA 2015 23 (6)" A consumer who .... agrees to the repair of goods cannot require the trader to replace them, or exercise the short-term right to reject, without giving the trader a reasonable time to repair them (unless giving the trader that time would cause significant inconvenience to the consumer)."
So you might have to argue that 1) he had not agreed to repair, but only look at the faults
or2) you had only agreed to the repair of certain faults and the discovery of many subsequent faults reinstates your short term right to reject.
I doubt your trader will come up with this nugget, but thought you should be forwarned

Ok thanks.
Yes we had at the start agreed for us to drive it back for him to look at smoking and window but from 5th Dec as we were moving. Then we realised the van had extra problems a couple of days following that conversation so on 26th Nov we did request to return for refund which was one week after purchase as more faults were found. He said no only fix if necessary alleged faults and then on 8th Dec the Dekra Engineer picked up other faults too and we told the Trader now more faults are found we still want to reject and request refund as are not comfortable for him to offer a potential fix. This all took place under the 30 days. I guess I need to argue based on your point 2 as the only mention from him was he would investigate the alleged faults and fix if necessary the smoke and window. He also suggested in his letter that we had done faults in ownership and feel we regret the purchase and cannot be held responsible for buyer remorse. He also stated that he did an hour rigorous check and when it left his possession it was in a safe condition with no notable faults and was deemed fit for purpose. The cracked alloy he said could have happened anytime.

We changed our mind about the fix as the list got longer CV boot split, missing front caliper clip, engine fan operates when not supposed to, engine oil soiling, engine misfiring, beam headlights not setup properly so told trader in light of all the extra issues we are not comfortable with him fixing and want to reject under the 30 days for refund. The conclusion from Dekra that all faults were present at point of purchase.

The trader defended the Dekra report in his defence of full claim saying progressive wear and tear for age and mileage for a lot of the comments or not relevant but surely that doesn't matter, he should sell a vehicle fit for purpose and a cracked alloy and missing caliper clip renders the vehicle in a dangerous condition and how could we have damaged the alloy within days of ownership let alone the other faults.

In the beginning we offered to return the vehicle to his garage to get the refund but he only kept offering a potential fix should it need it which is why we did not drive down there because he was refusing the refund. After our request for refund he offered to collect, leave courtesy, repair if need be and return. We kept saying no too many problems we want to short term reject under CRA 2015. We then scheduled Dekra engineer to report on it's condition to give him the proof there are faults as he wasn't interested in investigating to refund. Sent him report and so on.

When the Dekra did his inspection and said it was dangerous and cannot be driven any distance - we told him we were moving and he said just drive it carefully to the new house and park it up when we move. At that point we told trader it cannot be driven so now needs to be collected for the refund and money to be refunded before he leaves with the vehicle.

Does that sound like we covered ourselves? I hope so...

Many thanks

[des8]

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

You have already lodged your claim, so if you want to add storage charges you would need to apply to court to amend your PoC andthat coes with a further cost and more form filling!

I'd certainlycancel the tax, but the insurance is a different matter bearing in mind that damaged bumper. If you cancel the insurance they won't pay out for he bumper if it becomes necessary.
Ask the insurers if they will reduce cover to "laid up", ie remove third party section.

[fandabby]

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

Thanks des, I will sorn the vehicle.

Just as well leave insurance for now, each time I amend it costs £60 admin fee. We do not intend to claim under insurance though as it will affect all vehicle insurance premiums for 5 years. Even though have protected NCB they will likely increase insurance premium anyway. That is another bridge to cross at the time when this case is sorted.

[des8]

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

Ok thanks.
Yes we had at the start agreed for us to drive it back for him to look at smoking and window but from 5th Dec as we were moving. Then we realised the van had extra problems a couple of days following that conversation so on 26th Nov we did request to return for refund which was one week after purchase as more faults were found. He said no only fix if necessary alleged faults and then on 8th Dec the Dekra Engineer picked up other faults too and we told the Trader now more faults are found we still want to reject and request refund as are not comfortable for him to offer a potential fix. This all took place under the 30 days. I guess I need to argue based on your point 2 as the only mention from him was he would investigate the alleged faults and fix if necessary the smoke and window. He also suggested in his letter that we had done faults in ownership and feel we regret the purchase and cannot be held responsible for buyer remorse. He also stated that he did an hour rigorous check and when it left his possession it was in a safe condition with no notable faults and was deemed fit for purpose. The cracked alloy he said could have happened anytime.

We changed our mind about the fix as the list got longer CV boot split, missing front caliper clip, engine fan operates when not supposed to, engine oil soiling, engine misfiring, beam headlights not setup properly so told trader in light of all the extra issues we are not comfortable with him fixing and want to reject under the 30 days for refund. The conclusion from Dekra that all faults were present at point of purchase.

The trader defended the Dekra report in his defence of full claim saying progressive wear and tear for age and mileage for a lot of the comments or not relevant but surely that doesn't matter, he should sell a vehicle fit for purpose and a cracked alloy and missing caliper clip renders the vehicle in a dangerous condition and how could we have damaged the alloy within days of ownership let alone the other faults.

In the beginning we offered to return the vehicle to his garage to get the refund but he only kept offering a potential fix should it need it which is why we did not drive down there because he was refusing the refund. After our request for refund he offered to collect, leave courtesy, repair if need be and return. We kept saying no too many problems we want to short term reject under CRA 2015. We then scheduled Dekra engineer to report on it's condition to give him the proof there are faults as he wasn't interested in investigating to refund. Sent him report and so on.

When the Dekra did his inspection and said it was dangerous and cannot be driven any distance - we told him we were moving and he said just drive it carefully to the new house and park it up when we move. At that point we told trader it cannot be driven so now needs to be collected for the refund and money to be refunded before he leaves with the vehicle.

Does that sound like we covered ourselves? I hope so...

Many thanks

I think you acted correctly and just pointed out the CRA clause in case it is brought up by the otherside, and you weren't taken by surprise.

[fandabby]

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

Thanks des8

SO if this is argued in court, I can say we only agreed for him to look at issues with exhaust smoking and faulty window. Since that discussion, more faults arose so we decided in light of that our decision was to short term reject?
Is there a specific clause in the CRA I can quote and have ready to argue?

Will the judge say we should have driven it and left vehicle at the garage anyway even though the trader was saying he was not willing to refund? Just thinking how we could get tripped up in the hearing ?

thanks

[des8]

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

Thanks des8

SO if this is argued in court, I can say we only agreed for him to look at issues with exhaust smoking and faulty window. Since that discussion, more faults arose so we decided in light of that our decision was to short term reject? Yes
Is there a specific clause in the CRA I can quote and have ready to argue? Not really.. you'll have to play it by ear, but it is unlikely to arise.

Will the judge say we should have driven it and left vehicle at the garage anyway even though the trader was saying he was not willing to refund? Just thinking how we could get tripped up in the hearing ? No If rejecting the dealer is resposible for collecting the vehicle CRA 2015 20 (7)

thanks

Responses in red

[fandabby]

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

So the trader called me this afternoon, as I was setting out to get kids from school so couldn't talk properly told him I would phone him back.

He does want to settle out of court and I asked is he then prepared to refund and he said no, his offer to fix is what he wants and for age and mileage that is good as he will be spending money on it to fix. He said he and Chris (the previous owner who he sold van for through his garage) are stressed out and going to court he said I could lose. He said sounds like he's trying to convince me now but then said he may lose too.

I said I couldn't talk as going out door and would discuss it later but said I want a refund, there are lots wrong with the van and how did he not know that. I reminded him that I asked lots of times what is wrong with the van etc and he said nothing except what we knew which was the wiper blade motor as this screeched when used (was raining that day).

So I will call him back when OH home so it can be on loud speaker with both of us talking. I said I didn't trust the van and want refund he said no offer of a fix stands. This conversation will carry on but if I can talk him around to refund and point out CRA to him, at what point do I mention the damage?

If he still says no refund and we go to court I still keep quiet unless asked directly in court?

many thanks

[des8]

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

You don't want the vehicle, sostick to your guns and tell him his only option is refund, and when clearedfunds are in bank he can collect vehicle.
If he refuses he will lose in court as he has already admitted the vehicle was faulty, and he did not have the option of repair.
To lose in court will cost him your court fees and interest and engineers report etc etc (it might be worth letting him off the "extras" if you can persuade him to make a full refund, if you feel it is worth it!)

I would not mention the additional damage. This is his problem as when you rejected the vehicle ownership passed back to the dealer, and the damage occurred after rejection.

[fandabby]

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

I spoke with trader tonight and he has offered to repair all faults which he says are minor. He also said he spoke with a solicitor and was told it could go either way in court. He said that he spoke with other dealers and one had recently gone to court because a customer asked for her money back because the brakes needed replacing and the judge said to her why didn't you just let the garage fix them, asked the dealer how much to fix and he said £200 so awarded her £200 to get them fixed. I told him brake wearing and all the faults with this van are not the same. He went on to say all faults including the caliper clip which is missing can easily be rectified and simple to do. He said he's been collecting parts to sort everything out.

He also said he has no money and even if I won he doesn't have the money to give me.

He also asked me to think about him selling van on and giving me the money once sold. I said oh like what you did before and he said no he would fix all the faults first before selling and if he didn't get the 14k for it he would make up the difference.

Told him I didn't trust him to fix and he asked us to think about it and get back to him....

[fandabby]

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

Thanks for response Des, you message came up when I posted my last update.

Yes my OH and I are of the opinion he's realising now his situation but definitely don't trust him to fix and sounded like he was taking parts of other vehicles so not new parts he was collecting !

Shall I letter him to try and convince or telephone you think ?

[des8]

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

If you don't trust him .....nothing I say will change that.
But it certainly appears that he is realsing he is on a losing wicket.
And I would completely discount his stories about other cases as you don't know the full story of any of them, even if they are true!

What if you have the vehicle repaired (if that is possible seeing the wear that has been highlighted) by a trustworthy third party garage.
Would he agree to pay that?

My concern is his claim of not having the assets to refund you £14,000.
Possibly true.

If you think it worthwhile you could have the repairs done, and if he refuses to pay up you could sue him for your damages.
Whilst he may not have sufficient to pay for a total refund, you may obtain a lesser amount, & still have the vehicle

I would not phone.
Keep everything in writing, and if there is a phone conversation confirm it and te content in writing.
Keep copies, 'cos if it goes to court you will be able to show you tried to settle out of court

[fandabby]

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

I will write up a letter confirming our conversation to send him.

I could go along to a VW third party garage and ask for an estimate but that probably would be hard for them to do without checking it over. From what the Dekra engineer said he recommended I got rid of it and not keep for repair because it was in such a poor state, quite literally a lot falling apart so to speak.

I have had a verbal estimate of around £1500 +I provide the bumper which I costed at £360 like for like to put the damage right for the bumper so we would already be short that much. Hard to know what to do for the best. Since van is stood still, loads of rust has appeared scattered all over as well and upon closer inspection you can see where it has been patched up so overall he sold us a dog of a van and presumably that got covered up too and has now worn off. Day we viewed it was throwing it down and van was wet so hid a lot of the imperfections. I haven't even bothered mentioning that to him.

May be he's trying to scare us and may be we should call his bluff, he buys and sells, he must have funds somewhere