Court Claim issued, Storm Doris now damaged van UPDATE

[fandabby]

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

Ok thanks will add that at the end of the letter, will post once done.

Going to use my WS for reference as will be able to work quicker from that rather than through all of the box files.

[fandabby]

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

Hi, I have done a letter in response to one received today. Is it too detailed or not enough or worded wrong ? Any recommended changes welcome please.

I have also attached the 3 letters that we received from the trader in response to all of ours (sent 14 beginning rejection last Nov up to trying to complete Fast Track DQ in April this year).

************************************************** **************************************

RE: Without Prejudice


Thank you for your letter dated 26 May 2017 to which I now respond.

I would like to clarify that on many occasions I have communicated with your Client be it; letter, email and telephone to reject the vehicle, request he collect it and invite him to examine it. Your Client refused refund and ignored offers of Inspection and Mediation.

All letters were sent recorded and known to have been signed for by your Client through Royal Mail Tracking proof of delivery.

I also offered mediation once Claim was initiated to try to resolve this issue to prevent court action. I consider all my actions to date towards your Client to be very reasonable to settle this claim amicably.

My situation has not changed somewhat and confirmed to your Client that the vehicle was driven from 19^th November from purchase back to our home, school runs (approximately 14 miles one way), food shopping and swimming lessons and parked up on 1 December until the day we moved where it was driven to our new property and parked at the bottom of the drive away from the road. Your Client was aware that this purchase was to allow us to have a larger vehicle to drive our 4 children around to include the school runs and enjoy family outings. It was whilst driving this short time that faults were noted and also picked up from the Tyre shop and since your Client refused our refund we then telephoned and sent him a letter to advise him we were going to arrange an Independent Inspection to find out what else was wrong with the van and report back to him.

The only time inspection was requested to offer a refund by him and refused by us was when your Client turned up, uninvited late at night on 20 April 2017.

I would like to outline in brief events:

1. We purchased the Vehicle 19 November 2016 having asked many occasions what faults are with the van to be told it is “a great running vehicle, nothing wrong with exception to the wiper motor – it’s a cracking van nothing wrong”.
2. Thursday 24^th November 2016 I had to buy 4 wheels and tyres as when I asked the Tyre shop to check tread as suspected some looked very low, they informed me 3 needed changing. Upon inspection, noted cracked alloy and they advised this was dangerous and since they did not offer repair I would have to purchase wheels to ensure safety.
   
   I telephoned your Client once back home at approximately 1.12pm to inform him I was unhappy that I already had to purchase wheels/tyres. I also told him concern over the exhaust smoke and the sliding window kept opening on driving. We discussed and provisionally said w/c 5 December he could look at the van and see what was causing the smoking and look at the window. He also implied that the smoking from the exhaust was because of the remapping of the engine and this to be expected. He also said he did not know how to fix the window but would take a look.
3. Husband and I noted further things going on with the van; poor start, engine fan engaging on cold engine, poor headlight setup. Due to all these extra faults we emailed your Client on Saturday 26 November asking for us to return the vehicle to his Garage for a refund.
4. 30 November 2016. Your Client responded by letter and said he will not refund but will offer to fix the van. He detailed our conversation of 24^th November mentioning alleged issues were a faulty rear window, a cracked alloy wheel and smoking from the exhaust. He also stated “When the vehicle left my possession it was in a safe condition with no notable faults and was deemed fit for purpose”.
5. 1 December 2016. A recorded letter was sent to your Client correcting him on his assumption that an additional 500 miles were driven. We clarified that we zero’d the clock on purchase and in total from ownership it was showing 555.1. The wheels were changed 24^th November 2016. We informed him since he disbelieved the condition of the van we would arrange for an Independent inspection and report back to him. Detailed all known faults to what we had noted and confirmed the van was parked up and not being driven as I was driving our Zafira due to all the faults.
6. 2 December 2016. Another recorded letter sent to inform your Client our house move did not go ahead so was able to put back on the original wheels/tyres ready for the inspection. I also detailed I was rejecting under Consumer Rights Act 2015 and detailed:
   
   Under this Act, to expect the vehicle to: Be of satisfactory quality; 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).
   
   Within this letter I included 14 photographs to show condition of the van since your Client suggested faults occurred in our ownership.
   
   I also included a copy of the Tyre Shop invoice which also noted the cracked alloy, oil leak and cv joint, 3 tyres needed.
7. 12 December 2016. Recorded letter sent to your Client to include breakdown of requested refund to include our damages and Inspection Report enclosed for him to read. Confirmed again that the vehicle was being rejected under Consumer Rights Act 2015 for a full refund under the 30 days being sold a vehicle in a poor and dangerous condition.
8. 15 December 2016. Another recorded letter sent to your client to include all previous correspondence to ensure he understood that we did not want the vehicle fixed but wanted our refund.
9. 28 December 2016. Ebay email chasing your Client for a response as we did not hear from him.
10. 29 December 2016. We received a letter from your Client confirming no refund would be issued and that he is willing to fix only. He also states after driving a further 555.1 miles on the tyres he was glad to read report said they were on the legal limits. He is unwilling to offer refund as he has not been given the chance to investigate and rectify any issues.
11. 9 January 2017. A recorded letter sent to your Client again confirming the mileage driven in total from purchase was 555 as he said again it was additional confusing us to think he thought we had driven another 555 miles since rejection. Confirmed Van was parked up and not driven. I invited your Client to come and inspect the Van, this was detailed twice within the letter to encourage him to contact us for arrangements. I also detailed:
    
    “Under the Consumer Rights Act, within the 30 days following a purchase we can reject and request a full refund should problems arise – which we did one week following purchase. Should we have not requested the refund within 30 days then the repairs and/or compensation option can be offered by you and accepted by us.”
    
    I also detailed options of ADR or Court.
12. 17 January 2017. In response to our letter dated 9 January, your Client’s offer remains the same to fix faults only and advises he sought legal advice and his offer to collect, return and leave courtesy to investigate and rectify said faults is more than acceptable for a used vehicle of this age and mileage.
13. 25 January 2017. Another recorded letter sent to your Client – “Letter before Action”. I included a link to the CRA 2015 for your Client to refer to. I also said “Under this new act we are not obliged to let you repair it since we have exercised our right to a refund.”
    
    Outlined all known faults. I confirmed the total mileage driven since ownership is now 562 since we had to drive it to our new property. I reminded him of the repeated questions at point of sale whether there were any faults, problems, oil leaks with the van to be told by him repeatedly “No, it is a great running van, no faults or problems with exception to the wiper motor”. I confirmed the inspection report indicated “in the opinion of the engineer, all above defects were present at point of sale”. Expressed willingness for ADR to prevent court action. Also asked him to recover the vehicle and refund due to our rejection within 14 days otherwise court action will proceed.
14. 23 March 2017. Sent letter to ask his availability to complete Fast Track Directions Questionnaire for me to telephone him. I again asked if he was ready to settle before the hearing and if he agreed for us to arrange mediation.
15. 27 March 2017. Your Client and I spoke on the telephone at length and discussed all the faults with the van and he said he did not want to go to court and wants to fix all the faults with the van and or sell it on and make up any shortfall. I told him I was not comfortable with him fixing it because there are too many faults and he should not have sold it in that condition and that we had trust issues. He asked me to think about him fixing or selling it on and I said I would let him know.
16. 29 March 2017. I sent a recorded letter to your Client confirming our conversation on 27 March 2017 and advising him that I was seeking a full refund. I also confirmed I would be willing to do mediation to resolve this case to prevent it going to court. I also confirmed that since ownership reverted to himself from rejecting the vehicle 26 November 2016, once we are in receipt of funds he would be required to remove the vehicle. I asked him to respond within 7 days.
17. 10 April 2017. I sent a recorded letter to your Client as I had no response from my letter I sent 29 March 2017. I said in the letter since I have not heard from him regarding refund or mediation he needs to let me know when we can discuss completing the Directions Questionnaire and offering a deadline of 18 April 2017 due to County Court Business Centre deadline. I confirmed that should I still not hear from him I will have to complete and send on the 18^th April 2017.
18. 20 April 2017. Your Client telephoned me to say he wanted to offer a settlement of £13,995 only. He said he thought about contacting me the previous week since I had sent several letters but he decided not to and now only talking to a “Trader Friend” he thought he should try and settle. I asked about my losses and he said no he will not offer any losses. I told him that this was unfair since he forced me down this route as he continually denied his obligation of refund from my rejection last November. I told him that if he offered £13,995 at point of rejection, I would have accepted. I also said that any refund should I agree needs to be the same method as I paid him, faster payments. He said he wants to pay me cash as he did not want it going through his bank account. Your Client said he wants to come now he is ready to leave. I said no, I would want an offer to include losses and he asked me to check with my husband. I said I would check but likely answer is we will not only accept van cost and that I would telephone him in the morning and to wait our decision as my husband was working very late that day.
19. Your Client turned up late at night (approximately 8.45pm) with his friend to view the van to settle. This was unacceptable having four young children and your Client knowing I asked him not to come as my husband was working late and that I would telephone him in the morning. He again offered to fix the faults with the van and we told him no, we do not trust the van and any offer had to include losses following CPR 36 rules. They left our premises.
20. 21 April 2017. I sent a letter attached to an email to your Client and then posted 22^nd April confirming I was unhappy with his actions and reported incident to the police. I confirmed any offer to be made in writing and signed in accordance with CPR 36.

I confirm that the Consumer Rights Act 2015 is clear in that I am due a full refund under the short term right to reject and the act does not prevent me claiming damages. Please refer to Consumer Rights Act 2015 Part 1 Chapters 1 and 2.

I have offered for your Client to Inspect and for Mediation to settle without having to go to court, however, your Client ignored these invitations and has thus placed us in this position. I have copies of all emails and letters between myself and your Client.

It is a pre requisite that your Client makes a mutually convenient appointment in writing to either examine or remove the vehicle, which reverted to his ownership when I rejected it.

Should your Client intend to make an offer without prejudice your client must bear that in mind.

I would also like to confirm that the mileage reading from Inspection states 140,905 miles and upon checking tonight it is reading 140, 913 and this difference is from driving the car from our old address to new when we moved on the 9th December 2016. We continued to reject and the vehicle remained parked up and not driven.

I will look forward to hearing from you shortly.

Yours faithfully

************************************************** **********************************


Please let me know how this reads and any suggested amendments.

Appreciate it, many thanks.


Sorry it's messed up line spacing, there are clear breaks between number points. Tried adjusting computer is ignoring :-(

[fandabby]

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

I have gone through my letters to Defendant and one dated 1 December confirms I was back to driving my Zafira but never specified a date from when the van was parked up,

When we rejected Saturday 26th Nov that was the last time driven. The only time it moved was to take it back to tyre shop on 2nd Dec to get the original wheels/tyres back on ready for the inspection on 8th and then again on 9th Dec to get it to our new house when we moved that day. Do I state this in the letter. Not sure how to handle this paragraph. ?

Would having driven 562 miles on van since purchase be seen by the courts a no no and should have stopped driving when complained about the smoking of exhaust, window opening when I called him on 24th, although it was 2 more days?

I think you are right he has panicked and is clutching now and I think either trying to blame me for driving it knowing about the smoking so making it worse. We never drove it once we rejected on 26th Nov and saying in their letter about the engineer's report (which he denies) or did I know these faults at point of purchase. I am no mechanic hence asking him what is wrong with the van and him saying nothing great van etc and by him now saying I have not been reasonable in letting him inspect. He never asked to inspect for refund until 20 April, before this refusal to refund and only wanted to collect for repair should it need it when investigating claims of faults. So all the letters we sent were based on please collect and refund apart from first email we wanted to drive it back for refund and then latter letters stating for him to collect after refund.

When we told him on the telephone and by letter on 1st Dec we were going to arrange an independent inspection to report the faults he never came forward and said no I will inspect but then again had he done so we probably would not have trusted him to since he sold it in that state anyway.

Sorry sounding off ......

Thanks for reading

[des8]

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

OK stop panicking.
Firstly did he actually include a Notice of Acting with your letter?
Check with he court to see if he has filed itthere as well.

Meanwhile I'll draft up a response for you.

[fandabby]

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

Thanks des8.

Yes included was a notice of change legal representation dated 18/05/2017.

It looks like the original rather than a copy. I thought early hours this morning, is it filed and I have not had nothing from the court confirming there is a change.

**** Would it be helpful if I uploaded the letters I have sent to the defendant since rejecting the vehicle ?

Thanks as always des8, appreciate your continued efforts of help.


**Rang the court and nothing is logged on their screen for notification at the moment but she said they are backed up and are 18-20 days behind and cannot check the pile of to-do. I told her I would telephone in another week so see if there is an update.

[des8]

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

Sorry for delay, but had BT engineer round to move our internet speed from less than 0.5 Mbps to a more respectable 4.5.
Wow, can watch videos again!!

Have you checked with court to see if Notice of Acting has been filed and was it actually sent to you?

If it was I would suggest a "without prejudice" letter more along these lines (I know, slightly different to some of my earlier comments!)


Dear Sir,

I am in receipt of your letter of 26 May 2017 and note your comments.

Let us be clear.
I purchased a vehicle from your client. This is not in dispute.
The vehicle was not satisfactory. (this is evidenced by the independent report) nor as described, nor fit for purpose.
I rejected the vehicle under the short term right to reject and requested a refund.
Your client refused a refund and was adamant he had the right to repair the vehicle.
The short term right to reject does not permit for an attempt at repair.

The vehicle has not been used since 1 December 2016, except for essential travel to tyre shop and relocation to a new house.
The mileage was almost all completed before rejection within the first thirty days and therefore does not constitute a change of position.
It is only in the subsequent five months and under the final right to reject that a deduction may be made for use of the vehicle by the customer.

There was no refusal (except for one occasion to which I will refer later) to allow an inspection with a view to a refund, and to the contrary in my correspondence (mail, email, 'phone &/or text messages) I invited your client to inspect the vehicle, although I was not prepared to accept a repair.
Inspections which were only linked to an offer of repair were declined as the offer of repair was unacceptable.
The one occasion on which an inspection was refused was 20 April 2017, when your client arrived uninvited at my house contrary to my express wishes and demanded to inspect the vehicle.
His attitude was intimidatory, it was dark and he appeared to have no equipment with him.
Under the circumstances he was not permitted to examine the vehicle, and the incident was reported to the police.
At the same time he was offering (subject to an inspection) to refund the purchase price in cash.
As the CRA 2015 requires the refund to be in the same manner as the purchase payment, and as my home insurance would not cover such a large amount of cash on the premises, the offer would have been declined.

It is a pre requisite that your Client makes a mutually convenient appointment in writing to either examine or remove the vehicle, which reverted to his ownership when I rejected it.
If he wishes to make an offer, he should bear in mind that I am looking for a full refund, as per the Consumer Rights Act 2015 under the short term right to reject and that the act does not prevent me claiming damages.


Regarding your comments about the court's attitude towards mediation/settlement I would welcome a discussion before the judge about your client's ignoring my earlier offers of mediation or ADR. If he had responded positively to those overtures we may have avoided a lot of extra expense and not have had to initiate court action. It appears the imminent court proceedings have forced him into taking his current action.

Yours fflly

[fandabby]

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

Thanks Des.

The notice which the solicitor included was dated 18 May. I called the court and nothing logged on claim yet but she said they are 18-20 days late with updates so since it was dated 18th they would not have got to it yet. i said I would phone again in a week so check. So no have not received notice from the court.... yet ...

Will head letter up with "Without Prejudice".

You won't know yourself with all that speed .....

Thanks again

[fandabby]

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

Just another question please, I send this recorded post rather than standard ?

Thanks Des, nice and direct, I have a tendancy to talk talk talk and this also shows in letter writing.

[des8]

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

first class is sufficient, but get a FREE cerificate of posting!

[fandabby]

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

Thanks will do.

I will also change that date for vehicle not been used since .... from 1 Dec to 26th Nov which is when we asked to return for refund through eBay messaging. It got parked up that day and I got back into our old zafira (except changing wheels back on 2/12 and getting it to new address on 9/12.)

We did do a lot of mileage in that one week as school is 14 miles away one way plus all the other driving to test van out. That shouldn't matter should it?

I'm out at moment but once back home will sort the letter and try and post tonight if back in time.

Many thanks be lost without all the help I'm getting.

Hope all this content helps others in same position obviously without bumper damage !

[des8]

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

Thanks will do.

I will also change that date for vehicle not been used since .... from 1 Dec to 26th Nov which is when we asked to return for refund through eBay messaging. It got parked up that day and I got back into our old zafira (except changing wheels back on 2/12 and getting it to new address on 9/12.) Glad to see you're paying attention & correcting as necessary!

We did do a lot of mileage in that one week as school is 14 miles away one way plus all the other driving to test van out. That shouldn't matter should it? No

I'm out at moment but once back home will sort the letter and try and post tonight if back in time.

Many thanks be lost without all the help I'm getting.

Hope all this content helps others in same position obviously without bumper damage !

****

[fandabby]

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

Have you checked with court to see if Notice of Acting has been filed and was it actually sent to you?

If it was I would suggest a "without prejudice" letter more along these lines (I know, slightly different to some of my earlier comments!)

Back home so now back to this again.

May I ask please the term used within letters "without predudice" I have googled and read

"
The use of the words "without prejudice" does not automatically prevent a communication from being used in court. If the rule is applied incorrectly, communications that were never supposed to see the light of day could end up before the Judge.

What is the "without prejudice" rule?

It prevents a genuine attempt at settlement from being put before a court or used as evidence against the party who made it and it can apply to oral and written communications.

What is the legal rationale behind the rule?

Settlement negotiations have a greater chance of success if parties are able to speak freely and make compromises without harming their legal position should the negotiations fail. The rule is intended to encourage parties to settle their disputes commercially without recourse to court proceedings which involve costs and business disruption.

So for me using the quote will offer me protection should the settlement not occur - be it trader fails to make an appointment, or if appointment goes ahead and he kicks off about bumper and make a stupidly low offer which I reject ?

Like to get it all clear in my head although I may not retain the information I will try ...

thanks

[des8]

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

"Without Prejudice" attaches to statements made during negotiations to reach a settlement agreement.It prevents those statements being used against the party making them.
One party (A) could make an offer, which being low, is not accepted by party (B).
If court then is seen to be going against (B), (B) could not then use those negotiations in court against (A)

So in your case your negotiations which could include you giving way on the damages side could not be shown to the court by the other side if negotiations failed to resolve the matter.

At this stage I would not have thought it was necessary to mark initial discussions on the possibility of negotiating a settlement as without prejudice,
BUT as the defence have started we may as well continue.



If others are following this they might well like to comment on "without prejudice" (or anything else!)
I hae vague recollections that Amethyst once wrote about the use of WP.

[Kati]

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

At this stage I would not have thought it was necessary to mark initial discussions on the possibility of negotiating a settlement as without prejudice,
BUT as the defence have started we may as well continue.

my thoughts exactly

[fandabby]

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

Thanks Des.

So here is the letter - I added in red italic - is that ok or rather leave it out ?


***********************
Dear Sir

WITHOUT PREJUDICE


RE: Claim No: XXXXXX
claimant –v- defendant T/A XXXX XXXX


I am in receipt of your letter of 26 May 2017 and note your comments.

Let us be clear.

I purchased a vehicle from your client. This is not in dispute.

The vehicle was not satisfactory, (this is evidenced by the independent report), nor as described, nor fit for purpose.

I rejected the vehicle under the short term right to reject and requested a refund.

Your client refused a refund and was adamant he had the right to repair the vehicle.
The short term right to reject does not permit for an attempt at repair.

The vehicle has not been used since 26 November 2016, except for essential travel to tyre shop and relocation to a new house.

The mileage was almost all completed before rejection within the first thirty days and therefore does not constitute a change of position.

It is only in the subsequent five months and under the final right to reject that a deduction may be made for use of the vehicle by the customer.

There was no refusal (except for one occasion to which I will refer later) to allow an inspection with a view to a refund, and to the contrary in my correspondence (mail) I invited your client to inspect the vehicle, although I was not prepared to accept a repair.

Inspections which were only linked to an offer of repair were declined as the offer of repair was unacceptable.


The one occasion on which an inspection was refused was 20 April 2017, when your client arrived with company uninvited at my house contrary to my express wishes and demanded to inspect the vehicle.

His attitude was intimidatory, it was getting dark and he appeared to have no equipment with him.

Under the circumstances he was not permitted to examine the vehicle, and the incident was reported to the police.

At the same time he was offering (subject to an inspection) to refund the purchase price in cash.

As the Consumer Rights Act 2015 requires the refund to be in the same manner as the purchase payment, and as my home insurance would not cover such a large amount of cash on the premises, the offer would have been declined.

It is a pre requisite that your Client makes a mutually convenient appointment in writing to either examine or remove the vehicle, which reverted to his ownership when I rejected it.

If he wishes to make an offer, he should bear in mind that I am looking for a full refund, as per the Consumer Rights Act 2015 under the short term right to reject and that the act does not prevent me claiming damages.

Regarding your comments about the Court's attitude towards mediation/settlement I would welcome a discussion before the judge about your client's ignoring my earlier offers of mediation or ADR. If he had responded positively to those overtures we may have avoided a lot of extra expense and not have had to initiate court action. It appears the imminent court proceedings have forced him into taking his current action.

<do i say here; I look forward to hearing from you. >?

Yours faithfully

************************************************** ****

Many thanks