CCJ from VWFS (Car Finance)

[Unknown2023]

I just don't see how he can argue against legislation. I am about to go back in, will ask about my grounds to appeal if it doesn't go my way. Will post up shortly

[Unknown2023]

I've lost the case. He read through all the legislation including the definitions of a deposit and an advance payment. He then decided that the part exchanged car did not fall under a deposit and that it was indeed a negotiated discount between myself and the dealership.
Because I signed the HP agreement without disputing it, the definitions within the terms and conditions of the agreement therefore stand, he deems the advance payment to be correct and also the agreement to be enforceable and properly executed.

I've also been charged 5k in costs because although it was small claims the costs still stand due to there being a contractual agreement.

Plus the CCJ which I set aside is now back in place.

However I did go up against a barrister today so I'm quite pleased with my performance.

I also didn't get a chance to ask about an appeal

[R0b]

Sorry to hear you didn't win, you can still make an application for permission to appeal, though there is an additional cost at £120 if you think there are grounds of appeal. I should also congratulate you on doing this because it isn't easy and can be quite unnerving if you are new to it all.

Just some questions from me so I understand, and possibly make you consider if an appeal is worth it.

1. To clarify the judge accepted the car was part exchanged in return for the discount?

2. Did the judge explain why the car did not fall within the definition of a an advance payment?

- If he accepted it was a part exchange, then surely the discount must have been the value attributed to the car otherwise it couldn't have been a part exchange, notwithstanding calling it a discount. The definition of advance payment further refers to antecedent negotiations, so even if it was a negotiated discount, it seems to me it was nevertheless an advance payment against the price of the car.

By the way antecedent negotiations are defined in Section 56 of the CCA which includes negotiations conducted by the credit broker i.e. the dealership in relation to goods sold to the creditor before forming a HP agreement. It also section in (2) that negotiations with the debtor in a case falling within subsection (1)(b) or (c) shall be deemed to be conducted by the negotiator in the capacity of agent of the creditor as well as in his actual capacity.

- Similarly for a deposit, the definition explicitly refers to a sum payable that discharged by way of transfer of goods, which is what you did by transferring your car in return for £7k off.

3. The fact you didn't dispute the agreement or the terms it is neither here nor there. They are standard terms on a take it or leave it basis, so it seems the judge is suggesting the onus on the consumer to compare the contract with the rules and regulations before signing, which is a nonsense. Also, section 173 says creditors cannot contract out of the CCA or the regulations, so in my opinion that part of his decision is flawed without further explanation.

4. Reading between the lines, the judge appears to be saying there were two contracts, one for the discount of the part exchange and then the other with part on behalf of the creditor. That doesn't make sense at all to me. Hire purchase agreements is a three way arrangement. The formalities are that dealership sells the vehicle to the creditor and simultaneously acts/negotiates on behalf of the creditor to complete the HP transaction and in turn the creditor then hires the car out to you.

So if there is a contract for a discount due to the part exchange under the scrappage scheme, how can that discount be applied to the HP agreement when the dealership is not party to the HP contract and you are not party to the dealership/creditor sale. The only way I can fathom what the judge was saying, is that the dealership would have effectively used your discount against the sale contract between the dealership and the creditor and then in turn the creditor and then the creditor passes through your discount. That seems deeply flawed as well.

I feel that the judge is trying to make something fit that isn't really there. The fact of the matter is that the CCA and associated legislation was introduced to protect the consumer from what is typically and can be complex matters to figure out. The onus is on the creditor to ensure it has the right things in place and it may be that the judge has been sucked into persuasion of the barrister's arguments.

At the end of the day, only you can tell how good or bad that barrister was, what evidence they had to back up their position and whether or not you think the judge made any errors. Grounds for appeal can be made on errors of law and also particularly where the judge has failed to interpret the law, failed take into account any evidence and other reasons. Of course, there may be a risk of further costs if VWFS decide to defend an appeal and that is something you need to weigh up as worth fighting. County Court decisions are not a precedent and quite often county court judges do get overruled on appeal where mistakes or errors have happened, but there is no guarantee that you will be successful, even at the permission stage.

[Unknown2023]

Thank you I appreciate your feedback. The judge did commend my evidence and the way it was laid out and I have you to thank for that.

I'll try and summarise the above points.

1. The judge acknowledged that the car was used to form part of the agreement, in the sense of a discount off the value of the new car. However it was flawed in his opinion on the following points:

The car had no real value, in that the £7,000 was just a negotiated term that the dealership had provided as a way to discount the new car.
I had no receipt to show the true value of the car, as in reality the car was probably only actually worth around £500. Further to that he was leaning on the fact that different values were provided dependant on which model car I was buying. For example if I had been purchasing an Audi A4 I would have only received £4,000 towards the new car etc.
The agreement specified that the car was a discount and not a deposit or a part exchange, which in his opinion is correct.

2. There was no explanation of why it was not counted as an advance payment. He read out the definition of an advance payment, and the definition of a deposit.
However, the HP agreement had a very vague definition of an "advance payment" included which only stated that advance payment is to be taken as the figure under the advance payment section of the agreement, in this case £401. The Judge believed this to be correct because despite me paying £1,000 in cash, £599 of this was used as the payment for MAP insurance which left me with a credit of £401 to use as an advance payment.

3. The onus was very much put on me to have read the terms and conditions of the HP agreement as I was bound by them, despite me arguing that nobody sits and reads these fully when purchasing a car. But because I had signed the agreement I was held liable for it, period. I also used S69 of the Consumer Rights Act 2015 to argue that the contract should be found favourable to the consumer but this argument failed.

4. The judge interpreted the new vehicle invoice as an invoice between the Retailer and the Delaership, correctly I believe. His argument was that the dealership discount and scrappage scheme were of no benefit to the retailer, and so there would be no reasoning for them to keep a second hand car. In essence, the car had no value and was essentially scrap, so it should not be treated as a part exchange which would serve some value to the Retailer, rather it was more of a bargaining tool and was immediately disposed of and therefore it's value could not be included.

Your interpretation of the discount passing between the retailer and dealership is correct and this was also an argument by the barrister.

The judge spent an awfully long time deliberating over the bundle, the hearing was nearly an hour late due to him reading the documents and then another hour to come up with his verdict. What has really let me down is I had a different judge today to the one I've been dealing with since September who has aided me the whole way through. The judge today did not understand the dispute or the application of the Cca1974 and all other legislation. While he acknowledged that legislation exists and that the Creditor bound by it, he then formed his own opinion of the transaction regarding the part exchange and from what I can see, has completely disregarded the legislation. So what is the point in having legislation in the first place?

The barrister was persuasive in his arguments, I was questioned on the whole situation for over an hour and he clung onto everything which I responded with, even the questions I managed to not answer directly. His whole evidence was reliant on the new vehicle order form and vehicle invoice. I questioned the witness but in hindsight I could have challenged a lot more of the witness statement, so I let myself down there. I did even challenge the witness on her figures regarding the total payable amount in the agreement, which she had gotten wrong as she listed the vehicle cash price as the total amount payable. However this was not taken into account either and she was allowed to change her statement.
Despite this, I could not stress any further how the part exchange had to be included, and even failing this the £1,000 absolutely could not be ignored as the total of the advance payment, but the judge had formed his own opinion. My argument regarding the reconstructed vehicle order form was ignored and I feel that the judge cherry picked information he was given in order to support the agreement being properly executed.
I was even told by the barrister that the two case law examples I had included were irrelevant, as they detailed different situations regarding the default notice and the 1/3 rule and were not applicable to my dispute. The judge agreed.
And that S90 was not breached because the police did not recover my car, the police repossessed the car and the finance company arranged recovery of the car, where it was then sat in an impound for 4 days. The judge agreed with this too and so dismissed a breach of S90.

Overall a very frustrating experience.

[Unknown2023]

I think it's also worth me saying, the argument was twisted by the barrister that I was someone who owed money and was attempting to abuse the system and try to recover money which never belonged to me. Furthermore, I was not credible and I was never entitled to the £7,000 which was discounted off the value of the car, rather I was attempting to claim money which I never owned.

The judge bought this completely, and for this reason I think an appeal would most likely be unsuccessful. I don't want to sit in Court and be ridiculed like that again

[R0b]

Well, there seems to be grounds for the possibility of appeal but I can understand why you might not want to take it further.

What strikes me is that the judge seems to have accepted the part exchange/transfer of the car forms part of the HP agreement and once that has been accepted, then it has to follow that the transfer of the car amounts to an advance payment or deposit. It seems like the just disregarded everything else under the legislation. The £7k was conditional upon the exchange of the car, so in the eyes of the law, the £7k was the attributable value.

As for the market value of the car and the varying discounts applied to new orders, the dealership is free to overvalue or undervalue the car as it chooses in order to attract a sale, but that does not detract from the point that whatever value the dealer decides to offer in return for the car, that value is deducted from the amount payable. If the £7k was simply a negotiated term (was it negotiated?) as a means to discount the car, then why was the exchange of your car necessary, the dealer had the choice of offering the discount without accepting the car.

The other point I am struggling to wrap my head around is the transfer of the discount to the HP agreement if there was a separate contract with the dealer. Since you were never going to purchase the car directly from the dealer, how can it be said that car was under a contract of sale with the dealer and not VWFS. If the transfer of the car was with the dealer, the VWFS doesn't benefit from the discount and you wouldn't be able to use the discount because it only applies to a sale contract between you and the dealer. The facts don't support this position and completely re-writes the history of hire purchase. The facts do support the dealer acting as an agent of VWFs when negotiating the deal hence the discount being added to the HP agreement and backed up by the section on antecedent negotiations per my comment above with the dealer deemed to be acting as agent of the creditor.

Low value cars are part exchanged all the time as part of a HP transaction with creditors, they just go to auction as finance companies are not in the business of buying/selling cars, they make their profits lending money and recouping interest. That's a very poor argument/decision in my view.

That's not taking anything away from the barrister as no doubt the arguments were persuasive and valid points, though I can't help but feel there are quite a few things that don't quite add up or make sense, with the judge deciding to fill in the missing gaps on behalf of VWFS.

If you are ruling out an appeal, then this will be the end of the legal road. I am not sure what steps VWFS will take in terms of enforcement but I am happy to answer any questions I can if you have anything further.

[Unknown2023]

Thanks again Rob. I have uploaded the Claimants skeleton argument if you fancy a spot of late night reading.

As you have said that there may be grounds to appeal, for the sake of £120 I am toying with the idea to at least request permission to appeal, but I would need to understwnd fully what grounds I would be relying on as the Judge will not take kindly to me attempting to undermine his decision and there would need to be a blatant mistake made in order to be accepted for an appeal.

The judge and barrister were very friendly with each other, the barrister regularly turned his back on the judge to speak to confer with his witness. Emails were sent back and forth to each other during the session which were openly discussed. And the questions posed to the witness by the barrister were leading questions, like he was trying to help her out.

At no point did the barrister sit in the witness box and take questions from myself either, is this procedure? And I was regularly spoke over and interrupted. I can't help but think there is more at play than meets the eye, almost like the judge couldn't allow me to win against a London barrister.

The judge did accept that a vehicle was transferred, but as I said above he concluded that it was nothing more than a discount off the total vehicle price, and could not be included as a deposit despite my pleading regarding the Cca1974 and in particular the definitions of a deposit and advance payment.
Further to this there are some talks in the skeleton argument which you will see, where the discount is seen to be applied correctly because it was not subject to contractual interest and that I did not borrow a further £7,000 from the Claimant.

Yes and no to the negotiated price of the part exchange vehicle. Yes negotiations were had in the sense of which car do I purchase in order to achieve the most cost effective discount. But no in the sense that 7k was the price for that car against an A6 and that was it, there was no movement on that price.

I did argue this very clearly to the judge, that the old vehicle simply had to be recognised as a part exchange, otherwise why did I trade it in and not just receive a discount of 7k withoit handing over my car? I stressed this a few times but it wasn't taken into account.

I believe the next steps of enforcement are to reinstate the CCJ and I am to pay the Claimant by this means, subject to income and expenditure. I am disappointed that the small claims track did not play to my favour in this instance, since I have been subject to all legal fees in the end anyway.

If I am to take this any further I feel I need to be represented by a lawyer who specialises in vehicle finance and knows enough that they can persuade the judge that legislation must absolutely be followed, it simply can't just be ignored at the opinion of a district judge. What are your thoughts on this?

https://jmp.sh/s/GFEpTbHejraONnmGTzpl

[R0b]

Of course you are always going to get the best representation with a lawyer and that would be the ideal situation, if you can afford it. It may very well turn ou that an appeal is dismissed but this is a novel argument and not something that is widely reported with authorities.

Looking at the skeleton, para 17. stick out as wrong. You didn't negotiate with the retailer, you negotiated with VWFS. mentioned earlier about section 56, which relates to antecedent negotiations and not sure if this was raised in the hearing but here's the relevant sections.


Screenshot 2024-05-07 220711.png
Screenshot 2024-05-07 221409.png

I know its late but, I having tried to find some authority to contradict the judge's position I come across a case which I have linked below. The case discusses section 56 CCA and confirms that there is effectively a statutory agency when it comes to negotiations conducted by the supplier in relation to goods to be sold before forming a debtor creditor supplier agreement (which is a type of agreement that HP agreements fall under i.e. Dealer sells > VWFS buys > VWFS hires to you . The case also discusses another case called Forthright Finance but unable to find the full judgment, but this case does explain relevant parts as to my line of thinking.

It's therefore wrong to suggest that the negotiations were with the retailer, they were with the creditor and the dealer acting as agent. By the same token, it would also be wrong to say the scrappage discount was offered by dealer as section 56 and the Forthright case implies those negotiations were in fact by the creditor. Whether the scrappage scheme is of no relevance to VWFS is neither here nor there, those negotiations are being done as if it were the creditor, for the purposes of the CCA and the HP agreement.

Worth reading paragraphs 31-37 and then 50-53.

https://www.bailii.org/cgi-bin/forma...ght+finance%22)

If that could be established, then it falls back to the definition of deposit and advance payment. The discount was conditional on transferring ownership of your existing car over to the creditor (through the dealer as agent). Its a relatively straight forward argument and simple yet difficult to understand how the discount completely falls outisde those definitions despite them being drafted very broadly.

[Unknown2023]

I will take a look at these in more detail shortly and throughout tomorrow, very helpful thank you.

I am going to seek further legal advice and see if I can find a finance lawyer who would be willing to represent me if an appeal was successful.

If you could stir me in the direction of what grounds my appeal would be based on it would be much appreciated. I'm guessing the fact that legislation has not been abided by?

Funnily enough I just looked up the other sides barrister. He prides himself in specialising in understanding and upholding the CCA1974

LOL

Anyway it's been a long day, will chat more tomorrow. Thanks for all your support

[R0b]

Appeals would fall into 3 categories: errors of law, errors of fact and exercise of the court's discretion. Within those categories there are sub-categories of reasons, but I would think your appeal would revolve around an error of law. Sub-categories under the error of law ground may include:

Misinterpretation of the law
Reaching a decision where there is no support of evidence
Giving weight to immaterial matters
Acting in an unfair way from a procedural standpoint
Failing to give adequate reasons for their decisions.

As I was not there, I can't say whether there are one or more of these categories that apply, but certainly a misinterpretation of the law is your primary point. If I understand correctly based on what you said, the judge misinterpreted the law because:

- he accepted that the transfer of the car formed part of the HP transaction, but then decided that the scrappage scheme was a separate contract falling outside the negotiations between you and the creditor. I assume because VWFS argued that the scheme was of no benefit to them and no relevance. However, as per secton 56 of the CCA, the case linked above and referring to the Forthright case, it is confirmed that the dealer is acting as a statutory agent of the creditor from the moment those discussions and negotiations start about a potential sale on hire purchase. The judge erred because he was wrong to say there was a separate contract for the discount with the dealer, instead that discount offered by the dealer was also the same offer by the creditor through the dealer acting as agent.

- He failed to explain why the scrappage discount did not fall within the definition of an advance payment or a deposit for the purposes of the HP agreement other than simply saying that it did not apply.

- The argument on s90 deserves further attention because the decision if it were to stand drives a coach and horses through s90 effectively rendering it null and void since every creditor in a civil dispute will simply lean on the police to circumvent the statutory protection that parliament intended to give to a hirer. I previously mentioned, police do not get involved in civil matters and as such there is a difference between a police officer having a suspicion of a criminal offence and a company knowingly reporting the car as stolen when it is subject to a civil contract and the jurisdiction of the civil court to potentially avoid a breach of s90.

This is just a summary of my thoughts but to make you aware, you only have 21 days from the date of judgment to make an appeal. It is not necessary under small claims cases to purchase a transcript of the judgment but it would be good practice when challenging a decision so the appellate court can review how the judge arrived at their decision. That is an extra cost but to give you an idea, for up 30 minute transcript of a judgment it is usually less than £100, think I paid £75 or thereabouts for a similar amount of time.

There's a bit of form filling but the intention is not as formal as you might expect in higher courts. Still, you need to give the senior judge a reason to grant permission to appeal.

[Unknown2023]

Brilliant. As you have suggested, I would definitely say the Judge failed on the following points:

Misinterpretation of the law
Reaching a decision where there is no support of evidence
Failing to give adequate reasons for their decision

And your second point regarding him not explaining his reasons for not including the scrappage car as a deposit or an advance payment. He stated that it was "his opinion" that the car did not fall under either of these categories. He also used the definition of advance payment as described under the terms of the HP agreement (which I need to send you actually) to rely on, as it was under a signed agreement and in his eyes this took residence over the Cca1974.

The transcript was around half an hour so I think it would be worth including with the appeal as you say.

At least that way if the court of appeal refuse permission to appeal the case then I know the Judge has made a correct decision in their eyes and I can stop focusing on the case, although I would find it difficult to believe they would back his decision based on the decision that was given.

Do I need to also inform the other side of my intent to appeal?

[Unknown2023]

The definition of advance payment which was laid out in the terms and conditions of the HP agreement was the following:

“Advance Payment”…mean[s] the figures so described under the sections headed ‘Financial Details” and “Payment” on page 1 of this Agreement

Which I argued forms no real definition of the term advance payment at all, however the barrister dismissed my argument and so did the judge.

To me that term in the agreement is absolute waffle and suggests by that logic that you can write absolutely any old figure in that box and it will stand as correct because the agreement says so

[R0b]

It seems like a strange judgment but obviously the judge found the barrister to be convincing in his arguments and sounds like he went with the majority of what the barrister said whilst disregarding a number of points you raised. Decisions by judges do not need to be chapter and verse especially in small claims cases but they need to be sufficient in terms of the reasons for the decision.

Sounds like the judge substituted the definition of advance payment/deposit with his own version, again, possibly to make it fit but ti does obviously depend on what you did or did not say on the day. The definition of the advance payment is irrelevant by virtue of Regulation 3 and Schedule 1 of the CC(A)R since it stipulates the requirement to include an advance payment and how it should be calculated.

Simply relying on the definition in the agreement as opposed to the definitions in the CC(A)R as the reason why the discount did amount to a deposit or advance is obviously wrong in my opinion. I suppose one could say the judge may have addressed that already by saying the discount did not meet the definition because that was a separate transaction/contract to that of the creditor. But then you say that he accepted that the transfer of the car formed part of the agreement, so his reasoning seems to be unclear.

We could scrutinise the decision for days on end here, so I think maybe the best thing for you to do is to take a couple of days, clear your mind and enjoy the good weather, then decide whether you think it is worth the extra time and effort to make an appeal once it has sunk in. There is some effort involved and you only get one shot at permission so your grounds of appeal and reasons why the judge was wrong have to be concise and clear for them to understand and be persuaded that the judge got it wrong such that there is a reasonable prospect of success.

Once you have decided next steps, I will try to collect everything that has been said into a post that is easy to read. I also do recommend you consider looking at some legal advice to see if an appeal is worth pursuing with legal representation.

[Unknown2023]

Thanks again Rob. I can't tell you enough how much I appreciate your efforts. In all honesty I read the crib sheet almost verbatim which I know the judge won't have liked but I felt I had enough of a back story and legislation on there to provide a strong submission. You mentioned the words "formed part of the agreement" and I'm now trying to remember if he used those words specifically. Will have to wait for the transcript on that one as I had too many emotions flowing.

I've contacted the court today to request the transcript and had some free legal advice from a vehicle finance law firm.

I'm getting married on Friday so I will take a few days off and speak to you next week some time.

Enjoy the rest of your week and weekend

[R0b]

Congratulations on your wedding, just a shame it hasn't come after a good note. Glad you managed to get some free advice, hopefully it was useful. there is no shame if you choose not to take things further and appeal as litigation is stressful and can be very exhausting so I understand if you decide to leave it as is and work through what have been dealt.

Have a good wedding day and enjoy the weekend.