Small Claim soon, Defendant has large court costs

[Amethyst]

@AMETHYST

This site https://www.dft.gov.uk/vosa/apps/rec...2575F900375FA7 is the recall that was carried out to my product in 2010, and the symptoms and resulting loss of braking is exactly what re-occurred in 2018 apx 12 months after I had purchased it 2nd hand.

Ahhh that was a good guess then xxx

[waxthedog]

Timeline.

I submitted a small claims online in April (particulars detailed above - understand it lacks detail)

Defendant decided to defend claim.

Defendant representatives requested an order for claim to be struck out in July as it was "bound to fail" as Tort law projects the manufacturer, we had no contract, out of time for parts etc.

I then completed directions questionnaire for small claims track

In August the court sent me an order that my claim be struck out as it " disclosed no cause of action against the defendant", but said I could appeal against this. I sent in an appeal with details about the issue, previous recall, new repair instructions, evidence of similar issues from a forum, DVLA braking requirements.

On 1st October i was asked to provide particulars of claim. specifying fault, case of fault, sums claimed

Also dated 1st oct is a letter informing me of the Notice of Hearing of Application (to set aside) for later this month.

[R0b]

Sounds like you are trying to claim against the manufacturer under the Consumer Protection Act 1987.

Which? have a simplified explanation of the the Act and under what circumstances you can claim - might be worth a read.

https://www.which.co.uk/consumer-rig...ction-act-1987

Also, if it is a claim under this Act where you are trying to hold the manufacturer to account, I'm not so sure that a court would allocate it to a small claims track as at the very least you need expert evidence with technical discussions.

[waxthedog]

Brief Details of Fault;

Hard brake pedal when force applied, increased stopping distances for the same pedal effort on Land Rover Discovery 3, vehicle registration KXXXXXX

Date of Occurrence

2^nd April 2018

Cause of Fault;

Failure of servo assisted brakes caused by migration of engine oil into the brake booster as verified by Land Rover approved Master Technician.
Land Rover internal documentation suggests oil enters the brake booster from the vacuum pump as detailed by Land Rover LBT00736

Impact of Fault / Affect on Operability;

Fault led to reduced braking efficiency. This manifested itself initially as a hard brake pedal which offered very minimal downward movement when operated normally. This resulted in a small and undesired effect on the reduction in vehicle speed.

It was necessary to increase the force on the pedal to a considerable force (driver lifting out of seat as result of applying force). Overall the resultant stopping distance was considerably increased from what would be considered acceptable from a normal product inline with the highway code and the safety margin distance between the vehicle in front was removed almost entirely.

The unexpected force required by the driver in order to stop vehicle and increased stopping distance when fault occurred also led to occupants (driver and passenger) with emotional distress at the time of fault occurring.

Land Rover dealership stated that this fault rendered the vehicle unsafe to drive.

Fault lead to irreparable damage of the braking system components, requiring replacement with new components in order to return vehicle to a condition that was safe to drive.

Vehicle was unsafe to drive for 2 months whilst Claimant tried to amicably resolve the fault directly with the Defendant. During this the Claimant was economically deprived of the benefits of vehicle tax.

Particulars the Consumer Protection act and Negligence under Safety Regulations

1. Consumer Protection Act 1987 Section 3, Defect. The defendant provided a defective product in the form of repair instructions to its authorised dealers for a recall to be carried by its authorised dealers as part of the recall in circa 2010 that subsequently lead to a fault in the Claimants product occurring leading to damage to the Claimants property during the Claimants ownership. The defendant product; repair instructions, become defective when the defendant issued new repair instructions in 2015 leading to the claimants property becoming damaged in 2018 as work had been carried out to a circa 2010 recall standard.

1. Consumer Protection Act 1987 Section 3, Defect. The defendant instructed defective products to be installed as part of its recall campaign that subsequently lead to failure of the product compromising safety that a person is entitled to expect.

1. The defendant was negligent/in breach of the statutory duty owed under The General Product Safety Regulations 2005, Part 2 Obligations of Producers and Distributors. Section 7. Paragraph 1.

• Did not afford the Claimant knowledge that there were revised repair instructions issued after the recall detailing that additional components were required to be replaced to rectify the fault before it occurred
• Did not allow the Claimant to take precaution against risk prior to the fault occurring.

The Claimants seeks costs equal to the market cost for rectifying the described fault inline with the Defendants current repair instruction such that the Claimants property is returned to a standard that the Claimant is entitled to expect.

Sums Claimed;

Repair
Investigation £26.00
Pump repair kit £21.23
Vacuum Hose £6.20
Vacuum Hose £26.62
Brake Booster £103.99
Vacuum Pump £502.19
VAT £137.25

Legal Fees
Small Claims fee £60.00

Vehicle Tax
2x months £97.12


Total
£980.60 (inc. VAT)



Statement of Truth

I believe that the facts stated in these particulars of claim are true.

Full Name

Signed

[Amethyst]

Is that what you filed with court ( & served on claimant ) following the order on 1st October ?
Have they filed any kind of defence / witness statement in response? ( or just sent you the costs schedule ?)

[waxthedog]

Yes, I filled that with the court and defendant on 1st Oct as I was asked. Today I received the cost schedule and their original defence again that they submitted in July that gave reason for the claim to be thrown out. They also sent me all the documents I had file.

Believe the court wants me to submit my evidence again via email 3 days prior, and defendant can this 1 day prior. I have nothing new to add beyond that provided to court and defendant back in August when I appealed

[Amethyst]

You have a further order from the court with Directions ? ( be useful to post that up )

[waxthedog]

Reason for Appeal

• I wish to accept the courts offer for a no fee appeal and for my claim to be heard, with the supporting information I present.

• On submitting my initial claim online via the MCOL process, I was unable to provide / submit supporting information to the detail that I believe is required to support my claim and offered no other opportunity to do so prior to the initial judgement. Therefore I was unable to provide information to the Court and the Defence that I feel supports my claim.

• I am in no way familiar with the legal process and have no prior knowledge of the small claims system prior to this claim. I am unclear on the formalities of the issuing of the N244 application made by the defence on 4^th July 2018, however the physically signed document that I received just after 4^th July 2018 did not contain a witness statement, I was unable to review this.

Reason for Claim

• I believe there to have been a fault with my Product; Landrover Discovery 3, that compromised the safety that I was entitled to expect and that the cause of the fault is very similar to a previous safety recall by Landrover who are aware of this “known issue and that it is subject to the original recall” [Page 27]

• I believe Landrover should have offered financial assistance in rectifying the safety issue to current standards.

Claims Total

• I wish to claim for the cost of the repair to the vehicle such that the safety meets the 2015 technical bulletin standard. (Latest Landrover standard)

• I wish to claim for the vehicle tax that I paid for but was unable to enjoy using whilst trying to resolve the costs involved with the repair. (I.e. vehicle was not safe to drive)

Details of Claim

• My vehicle; Land Rover Discovery 3, vehicle registration XXXXX Chassis XXXXXXXXXXX, suffered a fault on 2^nd April 2018. Essentially it was hard to apply force to the brake pedal and there was an increased stopping distance. V5 for landrover [Page 6]

• Following this event I researched the issue online and found there had been a recall for similar symptoms in 2009. On 3^rd April 2018 I took the vehicle to Landrover Dealership as I believed the issue could be safety related and connected to the previous recall.

• Landrover Dealership informed me that LTB00736 need to be completed [Page 7].

• LTB000736 defines the cause of this to be “oil migration to the brake booster” [Page 46]

• The same symptoms associated with the fault had been previously associated with a Vehicle recall by Landrover on 22^nd September 2009. Ref: R/2009/073, Symptoms of the recall in 2009 are recorded as ‘oil is collecting in brake booster’ (servo) [Page 30-43]

• Landrover Dealersip ‘Marshalls’ confirm that the recall was completed in 2010 [Page 29]

• Following an investigation on what was needed to repair the vehicle to make it safe to drive, the dealership made aware that Landrover had produced a technical bulletin that now instructed a different means of rectifying faults associated with the reported fault symptoms in 2015. Ref LTB000736. [Page 45-61]

• LTB000736 requires the addition of a vacuum pump and a change to a primary port spigot of vacuum pump [Page 58].

• Recall R/2009/073 [Page 31-42] only required a modified brake vacuum pipe and valve in Secondary port of vacuum pump. [Page 44]

• Dealership tried to resolve the cost of the repair with Landrover on my behalf, there did look to be an indication that Landrover would honour the cost, but this has not forthcoming. [Page 25]

• Dealership stated that the vehicle was unsafe to drive.[Page 23]

• Landrover Customer Relation Centre informed me to discuss technical matters relating to the recall with the dealership.[Page 13]

• I tried to resolve after the Dealership, via the Landrover Customer Services who decline to make a good will gesture to repair, and state their obligations were met in 2009.[Page 12 – 22]

• I instructed the repair at my cost. I present the costs of the repair and the cost of road tax that I have paid. [Page 62-65]

• I made VOSA / DVLA aware of the issue following advice from the Ombudsman [Page 9-11]

• I am not aware that Landrover have informed the relevant authorities (VOSA / DVLA) of their 2015 Technical Bulletin.

[waxthedog]

So above is my Skeleton Argument, I also included reference to all the documents & emails that I had received whilst trying to resolve the issue with the manufacturers customer service team prior to making the claim. I show the instructions for the previous recall and the instructions for the current repair process for the same symptoms as the recall - the repairs are different.

I have also noted in Bundle that I received from the Defence that there is a draft order from the Defence to the court. It is not dated, or signed.

Upon the Defendants application 1) to strike out, and or / 2) for summary judgement

It is ordered that:
1) The claimant's claim against the Defence be [struck out / dismissed]
2) [Provisions for cost, if appropriate]


I have never received the order, I contacted the Defences legal team. They said they sent it via 1st class post to me on 9th October. Hand on heart I have never received this document from either the Defence or the Court. The 1st time I saw this 23rd Nov, just a matter of days before the hearing. Again the copy I have in the bundle is not signed or dated. Does this matter?

Clearly I am in no financial position to pay for their 'costs' and would probably have changed my mind back in October about proceeding.

[waxthedog]

Too add to the above....



Legislation relied upon

I am in no way versed in this legislation and offer it following research online and with guidance from VOSA / DVLA

• The General Product Safety Regulation 2005 states that the producer and/or distributor have the responsibility to inform the consumer of the event of a serious risk

• The General Product Safety Regulation 2005 states that no product should be placed on the market in an unsafe condition – this extends to used product

• DVSA Code of practice for Safety Recalls (manufactures guide for recalls) suggests the producer should notify the DVSA of an Alleged safety issue. Jaguar Landrover are a member of several trade bodies that are signed up to this code of practice.

• Consumer Protection Act 1987, the provisioning of a safe product that a person is entitled to expect with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.

[R0b]

I have to admit, I'm really struggling to understand all of your posts, its a mess going backwards and forwards I don't know what is and what isn't!

1. Did the defendants make an application to strike out your claim and/or apply for summary judgment without giving notice to you? What I mean by that is, did you attend a hearing for the application?

2. Have you submitted your skeleton to the court and the other side? I'd be a little concerned that your skeleton argument contains at least 46 pages of documentation and I'm not entirely sure your skeleton addresses the issues it should do. You are asking the court to set aside the strike out/dismissal and I think that you need to focus on why the claim should not be struck out. There could be a number of points you raise such as:

1. The claim was issued via the moneyclaims online website which is limited to 1,080 characters therefore detail on the particulars of claim is severely restricted.

2. If the application to strike out was made without notice, then there ought to have been good reason why it was made without notice. There isn't any good reason why a standard strike out / summary judgment should have been made without notice. In any event, there is a duty to give full and frank disclosure on an application made without notice. This includes matters of fact and law which may or may not be adverse to the applicant - failure to do so would be a breach of duty and the general rule is that such orders must be discharged/set aside.

3. The decision to strike out the case was a draconian measure and it is well established that strike outs are intended to be used as a last resort and in this case the decision to strike out / dismiss the claim without having the opportunity to remedy the issue, which could have been remedied without affecting or delaying any court timetable since it was at the very early stage, was unfair. The more appropriate measure would have been to make an order to provide detailed particulars within a certain timeframe otherwise the case would be struck out.

Unfortunately, your argument that you didn't know the legal process or understand the rules is not going to wash with the courts. Litigants in person are not afforded any special treatment when it comes to commencing legal proceedings - you are treated like everyone else. If you decide to issue legal proceedings without knowing or understanding the legal process, then that is the risk you take. There is lots of information about court processes and procedures generally and if youdid a bit of googling, you would have gained a lot of knowledge on how to go about things. The Civil Procedure Rules also explains how to start proceedings although you do have to do some reading.

Just my piece but of course its your application and its up to you as to how you go about it. As the application is not subject to the small claims rules, you should be entitled to claim back costs at a rate of £19 per hour, which is the litigant in person rate. YOu would be wise to submit that 3 days in avance of the hearing if you want any chance of recovering costs if successful.

If, however, the judge decides that the claim should stand as struck out, then you could argue that their costs are disproportionate and shouldn't be awarded the full amount or at least subject to detailed assessment.

[waxthedog]

Thank you for your help

1) There was no hearing to strike out. I was sent an order by the court for it be struck out on the basis that is discloses no course of action against the defendant. The order said I could appeal as there was no representation from the parties. The appeal is this Friday.

2) I filed the skeleton earlier today via email to the court and defence. The 3 days is basically from mid-night tonight (or was maybe 5pm today if the court has a time). I thought I had done the best I could explaining why it should not be struck out. I had done a lot of Googleing. I am clearly wrong and probably in for a lesson !

Can I change / update my skeleton?

Could you explain about claiming costs back please? How does this work / help. £19/hr is a lot of hours against the defences £1000's.

Thank you

[R0b]

Probably a bit late now to update/change your skeleton now, but maybe when you attend court you want to consider making the points I suggested above.

Regarding the issue of without notice and duty of full and frank disclosure, you might want to read this article and case law that sets out the relevant points (http://www.civillitigationbrief.com/...lems-occurrin/). That said, I think you ought to push the question why the defendants had decided to submit a without notice application and not affording you the opportunity make your case. Also worth pointing out that they never raised the issue of no cause of action and appear to have simply tried to take the tactical advantage knowing you are a litigant in person.

Presumably you now have a properly detailed particulars of claim which you can point to the court and presuming you already filed that with the court and defence you should then ask that the order be set aside for the above reasons.

You submit a costs schedule and it lists the time spent on the application and associated work which is usually done in 0.5 hour increments. For example, preparing the N244 application would be one, as would any witness statement, skeleton argument etc. and then you calculate the time spent based on the number of hours.

There is an example of a costs schedule in the link in my signature and you probably need to delete the bit highlighted in yellow as its not applicable to you. If you are successful in setting aside you can ask the court to make an order of costs with the general principle that the successful party is entitled to recover costs. The costs schedule should have been submitted 3 days in advance and since that was today there is no guarantee that the court would accept it, but you can try and better late than never. The schedule also needs to go to the other side too.

Quite frankly, everything seems to be all over the place so I think you need to really plead to the judges better side in trying to get this overturned and set aside but I couldn't say there's a guarantee even if using the arguments above.

[waxthedog]

Well I revised the skeleton around 10:30pm, cut down in size considerably. I apologised profusely in my email for sending a long document earlier in the day and requested the revision was accepted. No guarantees and this may make me look like a bigger plum. My revision detailed your points of appeal in my own words, I would not use the word draconian (had to look it up). If re-submitting is wrong so be it.

I have drafted verbal words to accompany the skeleton to explain the details at the hearing incase my revision is not acceptable.

Particulars have been filed with full details.

I am not interested in recovering my legal costs / time from the defendant - if I get my £90 road tax back I will be happy. If by some miracle the costs to repair my car are met then I will be very happy. This has made me incredibly stressed and I cannot face anymore.

At this point, I would simply be over the moon to take any path open to walking away with no costs incurred against me and close this matter. Best I can hope is to put this aside.

Again, you have been very helpful.

[R0b]

All I can say is good luck and let us know the outcome whichever way it goes.

If you do manage to get the strike out set aside I would suggest you take a step back and look at your options. If you do something hasty like discontinuing your claim after it is set aside, you might still end up landing yourself with costs.

Focus on one step at a time.