Court Claim issued, Storm Doris now damaged van UPDATE

[fandabby]

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

Ok so I have put together a letter to send to trader as a result of yesterday's excitement.

Here it is:
~
Dear defendant

With regard to our telephone conversation yesterday with you offering to settle for only the value of the van sale and me telling you I would need to call you with my answer either very late or next morning since my husband was working late, I do not appreciate you turning up unannounced last night with your friend knocking on my door at 8.45pm. This incident has been reported to the police.

I have a court claim which is now processing in the Fast Claims Track against you and we both know this can end up with a costly bill for the losing party. We have followed the law and rejected the vehicle within 30 days under the new Consumer Rights Act 2015. This van has cost us money which forms part of the claim which we are entitled to. Should you have honoured our refund at point of first rejection we would have accepted £13,995 and wore our losses, however since you failed to do that and forced us months later down this route we will only accept an offer of £16,155 + the delivery charge of £220 to have the van transported back to you.

If you do not agree and we go to court then I will be pursuing all additional costs as a result of this to be met by you.

Any offer made by you in writing and signed in accordance with CPR 36. I will accept a lump sum payment, not instalments, and paid within two weeks of offer accepted via Faster Payments.

Please refer to: https://www.justice.gov.uk/courts/pr...l/rules/part36

I do not give you or any of your associates permission to enter my property, and once payment in full is received I will arrange the return of your vehicle.

My bank details for the payment are as follows:
Name:
Sort Code:
Account Number:

If an offer is not made by you, the court action proceeds.

I will look forward to hearing from you in due course.

Yours ...

Is this letter ok to send?

Can I send this to his email address detailed on the defence form or rather post it ?

I am awaiting more quotes for flatbed delivery so that price may change if can get cheaper...

Any opinions welcome please, many thanks

[des8]

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

seems fair enough to me
i prefer snail mail, but that is a reflection of my age!!

[fandabby]

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

Thanks.

Have printed and will post tomorrow can't get to post office today but in meantime will email a scanned copy also. Fingers crossed this will come to a settlement now.

Many thanks

[fandabby]

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

I emailed the letter to defendant/trader yesterday and posted today.

Police have spoke with me this afternoon to say he had telephoned them this morning but could not tell me what he said. He asked me what happened so holly knows what the trader said. They are telephoning the defendant back to tell him he can't just turn up unannounced and to only schedule an agreed visit otherwise it's breaching the peace since we are in a civil matter.

I have also had a security guy here today to see what he can do about installing an alarm system to include those beams to trigger alarm if someone enters front or back of property to protect the van. He seems to think that the trader and/or his mate would have already had a look or run hand along front over the tarp before knocking and trying to get us to admit there is damage to lessen his payout or muddy it to say I have had an accident and that is why I am rejecting and refuse to pay or make a ridiculous offer. Seems to think by him turning up he's getting desperate because I have not offered up what happened day of Storm Doris and trying to muddy the case by catching me out. My brother on the other hand thinks he'll come back and maybe damage more (if it was him in the first place, may not have been) or attempt a theft, like they'd get far with no bumper, wing hanging out and non starter oh and not to mention a trail of thick smog from the exhaust plus the fact the tyre will probably blow since the alloy is cracked. Never mind all the others stuff going on with the van.
Anyway, getting a quote in next 24 hours and installing as priority for incase he comes back !

I have also had a letter this afternoon from the defendant's local court to say that "As a result of an order made on 13 April 2017, this claim has been transferred to my local court" - so my request must have worked but from the Small Claims DQ as they would have only got Fast Track DQ, as otherwise it would have remained in his county court town.

Onward we go. So I now assume the next step is wait and see what directions we get from the Judge and in meantime keep updating my witness statement, OH and Engineer.

On my statement do I now say "In the <my home town> County Court"

I see I have had views on my statement uploaded earlier this week but no comments yet about it. If anyone can please advise what they think over the coming weeks; is it detailed correctly, layout, information provided etc I would be grateful. Don't want to chance it being wrong and Judge not allowing it in.

Many thanks

[des8]

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

Haven't forgotten about or ignored you WS.
Just very tied up with my own matters at the mo.
There is no great urgency as it will be sometime before it is required.

[fandabby]

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

Hello everyone

I have an update from the County Court:

Received letter which states:

Upon reading the papers filed in these proceedings

IT IS ORDERED THAT

1. Claim is listed for an allocation hearing on 20 June ..... with time estimate of 30 minutes when you should attend.

2. Hearing is required for court to consider:

i) whether it is suitable for the small claims track notwithstanding the amount of damages sought
ii) whether or not expert evidence should be obtained
III) what further directions are required


I do have some questions please:

Do these allocation hearings happen in the main court room or in the Judge's chamber ?

Point 2 ii) whether or not expert evidence should be obtained - do I tell the Judge that I have already got an independent report from Dekra which Defendant has copies of (as sent twice) or is this more linked with the Defendant saying in his defence that he feels the Dekra report was falsified and a lot of the stuff mentioned is irrelevant. Not sure what angle this is aimed at ..

What do I need to do now to be prepared for this hearing and should I take anything with me ?

Tips on handling the allocation hearing very welcome.

Many thanks

[des8]

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

Most likely the hearing will be in a side room, but you can never be certain, and it doesn't really matter
Just make sure you are very familiar with your case and your arguments .E.G.the value of your claim, the amount in damages, the number of witnesses

The case is simple in that the dealer refused to comply with the requirements of the CRA 2015.

So especially make sure you are up to speed with the provisions of CRA 2015.: short term right to reject and requirement that refund is in the same manner as payment (and therefore his eventual cash offer was unacceptable)

I would take all my case papers, on the basis "just in case"....
Wasn't the Dekra report mentioned in your claim? The court are probably already aware of its existence, (but do not refer to it as an experts report)


CPR 26
6.5 A legal representative who attends an allocation hearing should, if possible, be the person responsible for the case and must in any event be familiar with the case, be able to provide the court with the information it is likely to need to take its decisions about allocation and case management, and have sufficient authority to deal with any issues that are likely to arise.

[fandabby]

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

Hi, thanks for replying des8.

I will take the claim particulars with me and have a sheet with all the breakdown of costs and the suggested witnesses are myself, OH and Dekra engineer ?

I will read and read and read the CRA 2015, Chapters 1 and 2 as you have suggested before. Will pick out what I think is more relevant to my case and post here to ensure I have the points I should know covered and then can have those specific parts on a sheet of paper separate to take with me for reference along with the full chapters too.

No the Dekra report wasn't included in the claim details BUT the Defendant mentioned it in his defence. Here is the info on the claim particulars:

http://legalbeagles.info/forums/show...otor-Ombudsman
Post no 7 and 8

and his Defence:
within the thread - post 11.

The Dekra report - shall I just refer to it as Independent Dekra report should I be asked about (refraining from term expert)?

At least this case is moving forward.

What will happen if he doesn't show for this? He probably will since he was cheeky enough to turn up at my house late the other week but one can hope he doesn't show for this allocation hearing ...

Many thanks

[des8]

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

The report is just an independent report ordered by you the claimant that will be introduced as witness to the unsatisfactory condition of the vehicle.

The courts have wide powers to sanction anyone who doesn't comply with its orders, even going so far as to strike out the defence in this case
Here's an article dealing with the subject "http://hugginslaw.co.uk/cs/Satellite?blobkey=id&blobwhere=1302542702381&blobh eader=application%2Fpdf&blobheadername1=Content-Disposition&blobheadervalue1=inline%3B+filename%3D failure-to-comply-with-court-orders-and-directions-0.pdf&blobcol=urldocument&blobtable=UXDocument&mod date=2014-06-11%2002:14:31"

[fandabby]

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

Hi

I have looked at the CRA 2015 and picked out what I think is relevant to my case and have these detailed in a separate sheet for quick reference.

Do you think all this is relevant ?

I included damages in the claim and not sure where this comes under or where it is detailed, have I overlooked it in the CRA or is it detailed elsewhere ?

Cost on claim:
£13,995 Van purchase
£1189.89 – this covered the 4 wheels/tyres I had to purchase due to cracked alloy and 3 worn tyres, I allocated only 6 months tax and insurance (thought court would be over by then, how wrong was I), Inspection report and stamp cost for the early letters leading upto claim trying to get him to accept rejection and LBA.
Then the interest detailed separately.

My head hurt from reading this and trying to pick out what I think I need to have covered.

Please let me know what you think.

Many thanks


Sorry looks like it's messed up the relevant numbers for each part I pulled, sorry.




PART 1
CONSUMER CONTRACTS FOR GOODS, DIGITAL CONTENT AND SERVICES

CHAPTER 1
INTRODUCTION



1 Where Part 1 applies

1. This Part applies where there is an agreement between a trader and a consumer for the trader to supply goods, digital content or services, if the agreement is a contract.

1. It applies whether the contract is written or oral or implied from the parties’ conduct, or more than one of these combined.

2 Key definitions

1. These definitions apply in this Part (as well as the definitions in section 59).
2. “Trader” means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
3. “Consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.
4. A trader claiming that an individual was not acting for purposes wholly or mainly outside the individual’s trade, business, craft or profession must prove it.

CHAPTER 2
GOODS

What goods contracts are covered?



3 Contracts covered by this Chapter

1. This Chapter applies to a contract for a trader to supply goods to a consumer.

1. It applies only if the contract is one of these (defined for the purposes of this Part in sections 5 to 8)—

1. a sales contract;

1. a contract for the hire of goods;

1. a hire-purchase agreement;

1. a contract for transfer of goods.

(4) A contract to which this Chapter applies is referred to in this Part as a “contract to supply goods”.

1. Contracts to supply goods include—

1. contracts entered into between one part owner and another;

1. contracts for the transfer of an undivided share in goods;

1. contracts that are absolute and contracts that are conditional.

5 Sales contracts

1. A contract is a sales contract if under it—

1. the trader transfers or agrees to transfer ownership of goods to the consumer, and

1. the consumer pays or agrees to pay the price.

1. A contract is a sales contract (whether or not it would be one under subsection (1)) if under the contract—

1. goods are to be manufactured or produced and the trader agrees to supply them to the consumer,

1. on being supplied, the goods will be owned by the consumer, and

1. the consumer pays or agrees to pay the price.

9 Goods to be of satisfactory quality

1. Every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory.

1. The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory, taking account of—

1. any description of the goods,

1. the price or other consideration for the goods (if relevant), and

1. all the other relevant circumstances (see subsection (5)).

1. The quality of goods includes their state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of goods—

1. fitness for all the purposes for which goods of that kind are usually supplied;

1. appearance and finish;

1. freedom from minor defects;

1. safety;

1. durability.

(8) In a contract to supply goods a term about the quality of the goods may be treated as included as a matter of custom.

(9) See section 19 for a consumer’s rights if the trader is in breach of a term that this section requires to be treated as included in a contract.

1. Goods to be fit for particular purpose

1. Subsection (3) applies to a contract to supply goods if before the contract is made the consumer makes known to the trader (expressly or by implication) any particular purpose for which the consumer is contracting for the goods.

(3) The contract is to be treated as including a term that the goods are reasonably fit for that purpose, whether or not that is a purpose for which goods of that kind are usually suppled.




(6) See section 19 for a consumer’s rights if the trader is in breach of a term that this section requires to be treated as included in a contract.


11 Goods to be as described

1. Every contract to supply goods by description is to be treated as including a term that the goods will match the description.

(3) A supply of goods is not prevented from being a supply by description just because—
(a) the goods are exposed for supply, and

(b )they are selected by the consumer.



What remedies are there if statutory rights under a goods contract are not met?



19 Consumer’s rights to enforce terms about goods

1. In this section and sections 22 to 24 references to goods conforming to a contract are references to—

1. the goods conforming to the terms described in sections 9, 10, 11, 13 and 14,

1. the goods not failing to conform to the contract under section 15 or 16, and

1. the goods conforming to requirements that are stated in the contract.

1. But, for the purposes of this section and sections 22 to 24, a failure to conform as mentioned in subsection (1)(a) to (c) is not a failure to conform to the contract if it has its origin in materials supplied by the consumer.

1. If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, or if they do not conform to the contract under section 16, the consumer’s rights (and the provisions about them and when they are available) are—

1. the short-term right to reject (sections 20 and 22);

1. the right to repair or replacement (section 23); and

1. the right to a price reduction or the final right to reject (sections 20 and 24).

(11) Those other remedies include any of the following that is open to the consumer in the circumstances—

1. claiming damages;

1. seeking specific performance;

1. seeking an order for specific implement;

1. relying on the breach against a claim by the trader for the price;

1. for breach of an express term, exercising a right to treat the contract as at an end.

(13) In this Part, treating a contract as at an end means treating it as repudiated.


20 Right to reject

1. The short-term right to reject is subject to section 22.

1. The final right to reject is subject to section 24.

1. The right to reject under section 19(6) is not limited by those sections.

1. Each of these rights entitles the consumer to reject the goods and treat the contract as at an end, subject to subsections (20) and (21).

1. The right is exercised if the consumer indicates to the trader that the consumer is rejecting the goods and treating the contract as at an end.

1. The indication may be something the consumer says or does, but it must be clear enough to be understood by the trader.

1. From the time when the right is exercised—

1. the trader has a duty to give the consumer a refund, subject to subsection (18), and

1. the consumer has a duty to make the goods available for collection by the trader or (if there is an agreement for the consumer to return rejected goods) to return them as agreed.

1. Whether or not the consumer has a duty to return the rejected goods, the trader must bear any reasonable costs of returning them, other than any costs incurred by the consumer in returning the goods in person to the place where the consumer took physical possession of them.

1. The consumer’s entitlement to receive a refund works as follows.

1. To the extent that the consumer paid money under the contract, the consumer is entitled to receive back the same amount of money.

(15) A refund under this section must be given without undue delay, and in any event within 14 days beginning with the day on which the trader agrees that the consumer is entitled to a refund.

(16) If the consumer paid money under the contract, the trader must give the refund using the same means of payment as the consumer used, unless the consumer expressly agrees otherwise.

(17)The trader must not impose any fee on the consumer in respect of the refund.



22 Time limit for short-term right to reject

1. A consumer who has the short-term right to reject loses it if the time limit for exercising it passes without the consumer exercising it, unless the trader and the consumer agree that it may be exercised later.

1. An agreement under which the short-term right to reject would be lost before the time limit passes is not binding on the consumer.

1. The time limit for exercising the short-term right to reject (unless subsection (4) applies) is the end of 30 days beginning with the first day after these have all happened—

1. ownership or (in the case of a contract for the hire of goods, a hire-purchase agreement or a conditional sales contract) possession of the goods has been transferred to the consumer,

1. the goods have been delivered, and

1. where the contract requires the trader to install the goods or take other action to enable the consumer to use them, the trader has notified the consumer that the action has been taken.

23 Right to repair or replacement

1. A consumer who requires or 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).
   
   **** added this for my reference as did say in very beginning he could look at the smoking but then went onto reject when all the other faults came up. Time of rejection, purchased 19 Nov 2016, provisionally agreed trader to look at van 24 Nov 2016 for w/c 5 Dec, then emailed him for return for refund due to all the other faults which became known 26 Nov 2016. Further letter for rejection 12 Dec 2016 which included the Inspection report detailing condition of van. All well within the 30 days ****
   

[des8]

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

You include damages as 19 (11) 1 permits it.

I doubt in the event that you will need to refer to all that detail, but it is as well to prepare thoroughly as one never knows what the other party might dispute.

For the head pains some would prescribe aspirin, I prefer a single malt!

[fandabby]

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

Hi

So do I panic now:

Just received this letter, attached ….

Purchased 19th Nov
We asked to return to him for refund 26^th Nov

Van did not get driven from 2^nd Dec , got parked up on roadside for Engineer’s inspection on 8^th Dec. it then got driven to our new home when moved on 9^th.



This paragraph was detailed in letter sent 2^nd Dec to Defendant:

I am aware of my rights and under the Consumer Rights Act I can reject a vehicle and request a full refund within 30 days. I have done this in 7 days when I rejected and requested a refund through the EBay Message because there are too many faults. But, for clarification I do reject this vehicle for being misled and misold to me and want a full refund.

Under this Act, “to expect the vehicle to:

• Be of satisfactory quality (taking into account its age and mileage)
• Meet any description given to you when you were buying it (whether in the advert or in discussions prior to sale).
• Be fit for purpose (for example, to get you from A to B safely).

Does this not clarify “the provisions of CRA 2015” – their letter states I fail to state which provisions. ?




Paragraph detailed in letter to defendant 9^th Jan:

“You are welcome to come and inspect the van for yourself and you will find that everything we have said from the beginning and more which the Engineer picked up is very real and not just appear from our usage.”

then towards end of this letter, again:

“We wanted to write to you again to give you the opportunity to see for yourself the state of the van in which it was sold to us. Should you choose to do this then please contact <OH> on XXXXX XXXXXXX so he can arrange a convenient day/time for you to visit and carry out your inspection.”





Stated in other letters “The vehicle in its present state is not fit for purpose and is in a dangerous condition”.




This was also detailed in the last letter which was letter before court action:

“Aside from the fact this vehicle was sold to us in an unfit condition and is classed as dangerous from a safety aspect there is also in question:

• potentially a misrepresentation for giving false information.
  and
• By selling a vehicle in an unroadworthy condition you are in breach of Road Traffic Act 1988 Sec 75.
  This is a criminal offence and should be reported.
  Please refer to http://www.legislation.gov.uk/ukpga/1988/52/contents
  
  

If you do not recover the vehicle – it cannot be driven as it is unfit and dangerous – and give us a full refund within 14 days of this letter, more than reasonable since I have been requesting refund since 26^th November 2016, I will take you to Court to recover my money including any additional losses I incur under the Consumer Rights Act and possibly the extra two points I mention above.”

This letter was ignored along with some others previously we had sent him.

How do I handle this now ? What about bumper ?


They keep going back to this 555 miles driven, Defendant kept going back to that in the very few letters (3) we received from him - are they trying to angle during that 555 miles we did the faults ? However, alloys got changed out on 24th Nov so not all on the original wheels/tyres to have caused the cracked alloy. We drove back from his Garage so that would be some 70 miles and then school runs 26 miles (there and back) twice a day. Obviously drove it to see what what going on with it for the week and bit before we parked it up. Original alloys/tyres got put back on 2nd Dec ready for the inspection so from this date not driven except to new house when moved,

We have never prevented him inspecting apart from his turn up on our doorstep over easter break late at night !

He never once offered to come and inspect for looking at refund as refused to refund. He offered to repair faults if necessary by collecting and bringing it back.

I obviously have to respond in writing and not sure now what to write them. Need help please.

Many thanks

[des8]

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

You do not panic!!
The defendant has panicked and gone to a solicitor who is now trying to salvage his client's position.
The solicitor is trying to frighten you by using such comments as "...the Court may find that you accepted the vehicle in the condition you allege when you purchased the vehicle".
Absolutely meaningless in the context of your claim, unless he is now saying that he told you of the faults.

You reply (heading letter "without prejudice" to the solicitor detailing the times you wrote, 'phoned, emailed his client rejecting the vehicle, requesting he collected it and inviting him to examine it.
You tell him the only time inspection was refused was when he turned up, uninvited late at night.
It is a pre requisite that he makes an appointment to either examine or remove the vehicle, which reverted to his ownership when you rejected it.

Point out that CRA 2015 is clear in that you are due a full refund under the short term right to reject and the act does not prevent you claiming damages.
If he intends to make an offer (part 36 or simply "without prejudice") his client must bear that in mind.


The dealer has suddenly realised he is on to a loser and has gone for advice.
The solicitor has written a scary letter.
If the trader is as broke as he claims it is quite likely the solicitor will not represent him in court, as the sol. will quite likely want paying up front to make sure he gets his money.
I would not be surprised to find this is just scare tactics.

Regarding the bumper, we discussed this earlier.
Either it is the dealers responsibility as the vehicle had been rejected, and you were an involuntary bailee and therefore only have to take reasonable care
OR you are found to be responsible in which case it was insured and you progress your insurance claim

[fandabby]

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

Thanks des8.

Taking depth breathes.

I will compile letter and post here for you to read if that is okay please. Treading very carefully now he has a Solicitor involved.

Within this letter once I have detailed your suggestions above, do I invite him for inspection?

Arghhhhhhh ok I'm still breathing

[des8]

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

I would not invite an inspection, but only tell him he will need to make a mutually convenient appointment in writing to collect or inspect the vehicle.