CCJ from VWFS (Car Finance)

[Unknown2023]

Yeah it was 66 pages so I guees that's why. You'd think common sense would prevail and they would do 50 then 16 pages. I'll get it sent today 1st class.

My witness statement was long too so I'm hoping that has been accepted!

I have no idea, I guess they are trying their luck? It's all costs of sending emails, phone calls, solicitors fees at 155ph for drafting documents but surely this can't be claimed in small claims Court?

Only for unreasonable behaviour or if the contract states costs are to be recovered as far as I can see?

Otherwise small claims allows you to claim back the court fee and that's about it right?

Its been sent to Court too! They are going to look so foolish

[R0b]

The starting point, is that costs are limited and legal fees are not recoverable under the small claims track.

Exceptions can be for unreasonable behaviour but the bar is so high on this and I highly doubt a court is going to award costs for unreasonable behaviour when you have a valid counterclaim (at least you should argue that). Nothing in your conduct has suggested you have behaved unreasonably, and defending a claim is not unreasonable behaviour, but part and parcel of litigation. It would be up to them to argue what behaviour exactly do they consider to be unreasonable.

A contractual term is another exception but the court still retains discretion to award those costs. You can try to argue why they shouldn't be awarded e.g. it was buried in the small print and not brought to your attention at any time etc. Otherwise you need to look at the clause carefully as to whether they can claim any legal costs or other costs they are trying to recover.

Quite often a clause will say they can recover reasonably incurred legal costs in connection with the breach. So worst case, even if you did lose, you could potentially argue their costs may not be reasonable:

1. If the clause they rely on in the contract says costs in relation to your breach and recovery of a debt, then I would argue that any costs in relation to defending the counterclaim are not covered, because that is an entirely separate issue to the breach. Therefore they would have to split out the costs incurred in spending time on the claim as opposed to the counterclaim.

2. Question whether they have charged everything out at £155 p/h. Does it require a qualified solicitor to write a standard pro-forma letter or could that have been done by a paralegal at a much reduced rate? Same applies to emails, phone calls etc.

You are going to have to check whether they have a clause to recover all fees or what fees they may be able to rely on. But you should focus on the strength of your arguments as I do believe that there are strong grounds for arguing the financial documents are defective and they unlawfully repossessed the car!

[Unknown2023]

No I do too, you've put an awful lot of work into my case and also consulted with lawyers that you know. I wouldn't have got to this stage if you didn't believe that I had a good case to fight and the sloppiness of the other side has only played in my favour. I trust your judgement with it all I've shown you everything that they and the Courts can see.

Is it worth me replying to the statement of costs, just to say something along the lines of thanks for sending this over but just to remind you this is a small claims case?

[Unknown2023]

Annoyingly the bank holiday weekend has messed the post up which means I have no way of getting my case summary and supplementary trial bundle to the Court by tomorrow (in hard copy)

I have emailed them over my case summary again with a request that it is added to my file for the judge to see, being as that part of it is only 2 pages.

Do you think that it will be acceptable for me to print off 3 copies of the supplementary trial bundle and hand one to the usher for the judge to read first thing Tuesday morning? That means I can have one and the other side can also have one to refer to. I know it's not ideal, but it's how I got my witness statement to the judge for the set aside hearing, as I had emailed it ahead of the hearing but again it wasn't filed for the judge to see.

The trouble is I have no idea which of my documents, if any, are making it through the email system and in front of the judge now.
I really want him to read my case summary before he reads the other sides

[R0b]

Should be fine. Find the usher in the morning to know which court room you are in and also let them know you submitted by email the case summary but not sure if it was put on the court file and can he/she put it with the file for the judge to read.

Failing that, you can at the start of the hearing mention to the judge that the case summary submitted by the Claimant is not agreed and you have a copy of your own case summary and the issues to be determined if he would like to take a copy to read. Most judges should be fine with that.

If that doesn't work, weave it into your oral arguments when you get your turn. You may want to start off to briefly explain your counterclaim, something like:

Judge, the the counterclaim against the Claimant raises 3 issues:

First ......

Second ......

Third ......

It is the Defendant's case that the Claimant has no claim for the sums alleged because [Summarise each of the 3 issues you intend to argue e.g. the vehicle part exchanged was an advance payment or deposit etc.]

If you know how long you might spend on each issue it may be worth giving the judge heads up so that he or she is aware. Bear in mind it is a 3 hour hearing so you are time limited. I would anticipated 1 hour worth of arguments, 30 minutes of questioning from either the other side or the judge.

[Unknown2023]

Good to hear, the ushers are usually very helpful in all fairness.

Sounds like there is a lot of standing and presenting my case to the Court, public speaking has never been my strong point so I hope I can present the case properly but the judge was lovely in my set aside hearing.

That only takes up an hour and a half so what would the other hour and a half be allocated for? Do you have any other tips on how best to perform on the day?

[R0b]

For small claims cases, standing is not necessary and usually everyone is seated. The court will usually allocate equal time to both sides so the other 90 minutes will be for the other side to argue their case and answer questions. That's the best case scenario but it's entirely possible that things could spill over 3 hours but I wouldn't rely on it and it's also possible the judge might take the lead on things.

I'll cobble together some tips and things that you can read through over the weekend to prepare yourself, probably going to be tomorrow or Saturday at some point. difficult to give you all the tips in such a short space of time by hopefully it will be enough for you to understand.

In the meantime, the Litigant's in Person Handbook is a good starting point, check out Chapter 15 and 16. If there's anything else I can add I will.

One thing that has changed recently is referring to a judge. It used to be ok to say sir or madam, but now you can address the the judge as 'judge'. See links below.

https://www.judiciary.uk/guidance-an...-call-a-judge/

https://www.judiciary.uk/wp-content/..._in_Person.pdf

[R0b]

Here you go, a few further tips and other general information that might help in the uploaded PDF. I've also uploaded some ways in which the hearing might be structured, usually at the discretion of the judge.

Couple of things I forgot to add to the tips:

1. when you finish each submission/point, you can tell the judge that you are finished on that one and now moving on to the next one and explain what that is, offer the judge an opportunity to ask questions. For example:

Judge, that is the end of my submission, unless you have any further questions I would like to move on to the next submission which is ....

2. Once you have made all submissions/points, summarise them all at the end. For example:

Judge, that is the end of all my submissions. To summarise my claim/defence/counterclaim [brief summary of each of the key points/submissions]. Unless you have any further questions, I have nothing further to say.

[Unknown2023]

Thank you so much for all your efforts. Tomorrow is the big day and I feel prepared thanks to your support. I know that I have a lot of factual information backed up with evidence, all the Claimant has is their word for a lot of the arguments. I'm praying it works out in my favour I can't afford to owe them that money plus the court fees on top.

One last question I had on my mind. Will there be any mention regarding settlement talks? Am I allowed to discuss that I attempted to settle with the Claimant? As it was all done on a no prejudice basis.

I also realised we forgot to add S69 of the consumer rights act 2015 to the bundle, I've printed a copy for my reference to take in tomorrow but it is too late to add in now. Not that it should matter too much when it all comes down to it

[R0b]

One last question I had on my mind. Will there be any mention regarding settlement talks? Am I allowed to discuss that I attempted to settle with the Claimant? As it was all done on a no prejudice basis.

No, do not mention any settlement or discussions you have had during proceedings or you may cause the hearing to be adjourned at your own expense. Settlement discussions are not relevant unless there is a question of costs and unreasonable behaviour, which is discussed at after the judge has made their decision.

Discussions on a without prejudice basis should not be mentioned at all as they are confidential between the parties. 'Without prejudice save as to costs' can, as suggested, be mentioned in relation to costs.

Good luck tomorrow, hopefully the judge will see sense. Be sure to get your point across that because of the defects, the agreement is not only defective and improperly executed, but that the claimant wrongly terminated the agreement due to those defects and as such cannot benefit from its own breach of recovering the amount it is seeking to claim.

[Unknown2023]

Wow there's nothing like receiving the Claimants skeleton argument on the morning of the hearing!

Its more waffle. They are basically just saying I'm wrong but not using any factual evidence to back it up. Just that the Defendant is misguided in his arguments.

They argue that the car was not taken in part exchange and the dealer did not benefit from the scrappage scheme, more that the car was used in negotiations in order to create a discount off the full price of the car. Again no evidence added other than the HP agreement and witness statement from their partner manager.

In my eyes that still falls under the category of a deposit under the CC(A)R 2010 but we will see what the Judge says I suppose

[R0b]

I agree. As I mentioned before, it's the substance, not the form. When you are parting ways with your car in exchange for a monetary value to be used against a new vehicle, that is the very definition of a part exchange. Irrespective of that, like you say, the CC(A)R defines the exchange of a car for monetary value in connection with a HP transaction and this was a HP transaction - you simply can't get away with that.

It may also be worth arguing that the scrappage scheme is their own devised scheme rather than a legally mandated one by governmnent in order to entice customers to buy a new car by offering a discount. Therefore it doesn't matter if the scheme wasn't of benefit to them because they are hound by the definitions of CC(A)R but also, they ultimately benefited because they were able to sell a brand new vehicle and no doubt make a commission from the financial creditor on the sale since it was financed on a hire purchase basis. There was, therefore a commercial benefit to them in some shape or form.

EdiT: Also I believe the scheme was primarily because of the dieselgate emissions scandal that plagued VWFS so it was a means to remove the old cars whilst boosting sales, assuming you took it out around the time that all kicked off.

[R0b]

Also don’t forget the definition of deposit in the CCA under s189 as that is also classed as an advance payment!

[Unknown2023]

The Judge has asked for an hour to consider his verdict. It's not going my way though currently. He is refusing to accept the car as a part exchange and saying that the 7k is not attributed to the value of the car

[R0b]

Really surprised at the judge's response, I'm not sure how you can construe it any other way. If the £7k is not attributed to the value of the car then what is the purpose of exchanging your car?! In order to arrive at that amount, the car must have had some value in it, otherwise you are effectively giving it away for free.

If it doesn't go your way, suggest you request permission to appeal, on the grounds that the judge has got it wrong about the part exchange. But also the fact it is a form of a deposit within the definition if not a part exchange wihtin the definition of advance payment - plus anything else you think the judge has erred on.