Unjust enrichment case - Online auction - Cause to submit strike out?

[Pezza54]

I am going to try to explain why I don't think unfair contract terms apply in this case. It is PoC 5(b) "The Claimant has the right to cancel a contract of sale at any time" is not in accordance with Copart's standard terms and conditions.

T &C 7.4 "....or the cancellation of any Contract of Sale made at or during any sale" After sale is not mentioned.
T &C 7.6 "If we cancel any concluded Contract of Sale........., though you shall be entitled to the return of any deposit or part of the purchase price you have already paid" There is no mention of return of full payment.

Copart states the bidder enters a concluded Contract of Sale with a successful bid. The successful bidder receives rights and title to the vehicle when Copart receives cleared funds in full payment. Copart appears to accept that once full payment is received the contract is completed, the buyer is the new owner and neither party can cancel the contract.

[dylan2408]

Is there a general process to update my defence or reference the newly supplied information? I'm worried the judge will only pay attention to the PoC and defence when in reality the most damning evidence that strengthens my defence came much later in their part 18 reply.

I would like to reference the reply directly in my defence as evidence to them not being party in the contract, not being out of pocket and to finally reference my costs repairing the vehicle to date that is now in excess of £30,000.

Thanks

[Pezza54]

Think seriously about amending your Defence. You would need to get either the Claimant's or the Court's permission. Your Defence was written by a barrister. Your legal rep will have the chance to argue "the claimant was not the owner" etc in court.
Your costs repairing the vehicle should be in your Witness Statement and could be significantly more than £30k when it is drafted.
Your witness statement should include everything in date order (short paragraphs with the date first).

Things you may want to include in your W.S.:

How you got carried away bidding on the internet and later realised you had bid too much and considered yourself fortunate you weren't the lowest bidder.
When and how you paid in full (The Defence does not mention this)
How the costs now stack up compared with the pre accident value and We Buy Any Car's price

Letters, bank statement etc mentioned in your W.S. should be cross referenced to evidence (exhibits) attached at the back of the document

[atticus]

Part 18 replies are part of the statements of case that the judge should see.

The procedure to apply to amend a statement of case is set out in CPR 17. I am not certain that amendment of your Defence will be necessary.

[Pezza54]

Big fire at Copart's Rochford scrapyard. Can Dylan account for his whereabouts last Friday evening.

PoC paragraphs 10 and 12 do not tally. 10 states the car was relisted on a "Make an Offer" basis and Dylan made an offer (all incorrect).

12 states the car was advertised on a Buy it Now basis and Dylan agreed to pay the advertised price (the correct version)

This case if it reaches trial will be in open court and because of its nature is likely to be reported in the national newspapers. I am convinced that Copart will drop their claim when they realise the bad publicity and potential loss of customers and trade that may follow if they carry on to trial.

[dylan2408]

Hi everyone,

This is still ongoing, only just received a hearing date set for 10th of October.

I would be happy to put this case in Alternative Dispute Resolution, I'm pretty confident Copart having admitted now to not being the owner of the vehicle and having at every step conducted myself inline with my contractual obligations until completion (paid in full and collected vehicle) that Coparts argument is very weak if not non existent.

Ideally if anyone can point me in the right direction to have someone independent look at the facts prior to it going to court and dragging on for another 8 months I would really appreciate it.

The one thing I don't want to come up in Court is Copart allude to not being aware of my personal expenditure on the vehicle prior to the hearing date and that somehow affecting any costs / counterclaim I should be entitled to.

I have just gone through direct access and am currently awaiting a barrister to take the case.

Thanks

[Pezza54]

Is there anyone on the forum with the legal knowledge who can confirm Copart are probably in breach of the Unfair Contract Terms Act Chapter 50
7 Miscellaneous contracts under which goods pass
3(A) and 4(b) assurance of quiet possession to a person taking goods.
Dylan had paid in full and taken possession of the car before Copart asked for the car to be returned and the contract cancelled

I still believe Copart will not risk adverse publicity about this case if it reaches final hearing. If Dylan applies for summary judgement he would be taking a bigger financial risk than continuing with his witness statement.

[atticus]

Have the parties given disclosure of their documents and exchanged witness stsatements?

I think going back to the direct access barrister is a good idea.

[dylan2408]

Some strange recent developments in this case.

During standard disclosure, deadlines met both exchanged correctly. I provided as part of the exchange all copies of the documents. They did not, which was fine and took 9 days to give me copies when asked (deadline 7 days mandated by court). Didn't complain too much pretty trivial and they gave a fair reason.

Once I received the documents and after reading their disclosure list it was immediately clear the email servers will contain lots of communications regarding the sale of the vehicle. This includes employees listed by name in other documents disclosed and also the seller of the vehicle Axa insurance, nothing has been disclosed from their employess or the seller Axa at all.

I requested in the court mandated deadline the further documents, listed the employees by name, any communication with the original buyer that did not want the vehicle before I won it and communication with Axa regarding this sale. It has taken 3 emails and 22 days to get a response and its still not a yes or no just saying they are confused as they already disclosed documents not acknowledging the email body had asked for specific missing communications and documents they still have.

To further muddy the waters at this point in litigation the witness statements were due to be exchanged Thursday 28th March at 4pm, That day at 10am I received an email "We are unable to proceed with the witness statements exchange today. We propose rescheduling the exchange to Friday 5 April 2024, by 4pm."

No reason given for the 8 day delay and when I responded (at 10:15am) asking for a reason why they are unable to exchange documents at the court mandated deadline I received no response. I called the court, filed my witness statement and sent a password protected pdf statement to Copart at 3:45pm making clear I will provide the password when I receive their witness statement:

" hope this email finds you well.

I am writing to follow up on my previous communication regarding the request to extend the exchange deadline, which I have not heard further about from your legal department. As per the court-ordered deadline dated 1^st February 2024, I have filed my witness statement with the court.

Attached to this email is my witness statement. I kindly request that you refrain from opening it until you have sent your own witness statement to me. Additionally, should the file be password-protected, I will provide the password upon receipt of your witness statement.

Since I did not receive a response to my email sent at 10 am, concerning your request to extend the deadline without providing any reason, and considering my prior request for documents 18 days ago which went unanswered, I suggest that you make the application to the court on the basis that you did not have my permission to extend this deadline. Please attach a copy of this communication for reference.

In the interest of maintaining clear communication between us, I kindly ask that you inform me of any court directions regarding the late submission. Furthermore, for future requests to extend deadlines, please provide a reason in advance, ideally not on the day of submission.

Thank you for your attention to this matter. Your cooperation is appreciated."

Now after the bank holiday weekend I receive an email from Copart stating they have not received my witness statement as their email "as it has been removed by our email system" and "PLEASE DO NOT RESEND YOUR WITNESS STATEMENT – THESE NEED TO BE EXCHANGED SIMULTANEOUSLY."

Also advising they are in a position to exchange Friday at 4pm.


My question, What is going on here? My witness statement was served and filed with the court, I have also advised the court via email about what is going on, I'm pretty stuck on what to reply to Copart I don't beleive for a second their email system has deleted the document this would be retreivable still in the system if in fact it had removed it from the email. I have clear proof from my sent email it contained the witness statement and their email server has exchanged many many documents between us until now without a single issue.

Any ideas of an appropriate way of dealing with this it feels pretty unprofessional from their end.

[atticus]

How did they know to send an email asking you not to resend your email if your email had been "removed" by their system?

[atticus]

CPR 32.10:

Consequence of failure to serve witness statement or summary

32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

[dylan2408]

Exactly what I thought, weird approach to have. Even if their email server did remove it from their inbox, their email server will still hold the email and documents for them to retrieve it.

I'm in 2 minds if I attach the witness statement again in my reply, to be honest I'm confused if the court needs to agree to the new deadline or if I agree to it, notify the court and tell them they need to make their own application for relief from sanctions - Or If I directly apply to the court to have sanctions added.

I'm pretty sure they are supposed to be exchanged simultaneously but the situation they put me in asking but no agreement meant I did the right thing by serving them and filing with the court by the deadline.

This is my first draft response:

Hi,

Thanks for getting back to me regarding the absence of documents, I'll point out in my original request sent on the 10^th of March I had acknowledged receipt your disclosed documents however requested that you disclose other materials that are related to the vehicle. In particular no search of your email server was carried out and your disclosed documents made reference to requests and dealings with in this sale by various staff members up to and after purchase of the lot. They are listed by name in my request. Furthermore there has been no disclosure of communications with the seller of the vehicle (Axa).

In addition to your most recent email regarding witness statements, I served you with my witness statement at the court mandated deadline after receiving no response on Thursday 28^th March. This was on advisement and the only course of action I could have taken to adhere to the courts deadlines in the absent of a reply to my email that morning. My witness statement has also been filed with the court. I will not object to any application made to the court however I have been put under the impression that absent of any agreement between us prior to the deadline, that you will now need to make application to the court.

As previously mentioned the witness statement was sent absent of yours on the 28^th March at 15:45 before the 16:00 deadline. The witness statement is password protected and the password will be provided at the time when you are able to serve me with your witness statement.

I look forward to your response in resolving this, I will be seeking further clarification from my appointed barrister.

Thanks,
Dylan

[atticus]

Mind you, if your statements were served in a password protected file, and you have not supplied the password, CPR 32.10 applies equally to you. Try not to be too clever!

[dylan2408]

Password protected was the only way I could put the witness statement in their physical possession so they can read it at a later date without giving me any opportunity to modify / change anything between the serving date and the date in which they decide to send the theirs.

I was going to host it somewhere but I had read other case handled similar problems the same way, I can't be expected to give them full access to my witness statement knowing from their earlier communication they had no intention of meeting the court deadline and as a result would mean they have a full week to draw on anything I mentioned to strengthen their statements. Or is that not how the court would see it?

I'm a little at a loss on how to deal with this without giving them the opportunity to strengthen their case even as they behave with almost contempt towards court deadlines.

I have filed with the court and at least in my view with the claimant, do you recon my draft response is adequate and is there anything more I should be doing at this stage?

[atticus]

If the claimant cannot read your statements now, then whatever your view may be, you have not served them. You have put them in a securely locked box and have not given the key.

You could agree to exchange statements on Friday, and no later. Do you have a hearing date?