CCJ from VWFS (Car Finance)

[Unknown2023]

Okay, so my strongest defence seems to be the definition of a deposit and I should put that as my first line of defence as there is a chance they may judge it before it goes to a hearing. Understood.

I'm going to speak to their solicitor tomorrow and give them this week to come to a decision otherwise I will draft my own set of directions.

One last thing, it seems I'm now at the point where a no win no fee solicitor could step in and take a percentage of the final claim at this point. Would you suggest it might be a good idea to start contacting a few, or do you have any you can recommend?

Rob I can't thank you enough for all you have done and continue to do regarding this, I wouldn't have had a clue on my own!

[R0b]

Okay, so my strongest defence seems to be the definition of a deposit and I should put that as my first line of defence as there is a chance they may judge it before it goes to a hearing. Understood.

The advance payment/deposit would be your strongest, followed by your deposit of £1000 and then the improper exeuction point but that's tied to the first and second. You need to be clear in your reply that you are relying on both the definitions not just the deposit definition, so a carefully crafted paragraph or two setting this out and possibly the inclusion of those definitions will help make things clear in terms of rebutting VWFS' defence. As I mentioned previously, the onus would be on them to somehow explain how the discount does not fall into either of those definitions.

Just to let you know my time is limited this week so I may nto be able to respond properly if you have any further questions or if you upload your reply for comment, it may be the weekend before I can get to it.

As for reaching out to the no win no fee solicitor, you could try and see what they think, though be mindful a lot of law firms are risk averse and even more so when litigation has already started. Typically you will see around 25-30% success fee (the amount payable to the solicitors) of the overall compensation but if it's more riskier to them you could see it increase to a higher amount.

[Unknown2023]

I still haven't heard anything back from VWFS legal team. I sent them an email along the lines of what you said, suggesting that we come to a set of mutually agreed directions and that I'm happy for them to take the lead on it. It looks as though I'm going to have to draft my own set now, which is going to conflict what they send and we are both going to look like mugs.
In the meantine I've uploaded my reply to the defence for you to take a look at if you wouldn't mind. It's laid out in bullet points at the moment with the information I wish to get across and the points I dispute in their reply.
If you think I've covered what I need to and it reads okay I will draft it into the correct format ready to send to the Courts with the directions

https://file.io/jz5V4sbg0VCA

[R0b]

Are you able to re-upload the reply and defence to counterclaim to see what the paragraphs are talking about?

[Unknown2023]

Yes of course, apologies I didn't realise it had expired.

https://file.io/iunJLX8KXL74

I need to re check my sums again, I can't for the life of me get to the figures we first calculated on the HP calculator and included in my Defence and Counter Claim. Hence why I have kept them in red for now

[R0b]

Sorry when I click the link it says the file has been deleted. Let me know once you have uploaded a version and I'll have a look

[Unknown2023]

Honestly these file sharing sites are a nightmare.

Hopefully this works now, please see both files attached with redacted specifics

https://jmp.sh/sss1BLQK

[R0b]

Thanks I have a copy now. I will have a look at what you've suggested and see if there's room for improvement but be aware, what I upload is purely guidance and example and is likely to be a series of points you could argue but it doesn't mean you have to include all or any of them. There's no hard or fast rule about drafting a reply because as I said before, you do not need to answer every point since it is not deemed as an admission of liability if you fail to do so.

I'll have a look over the next couple of days and see if I can put something up.

[Unknown2023]

No problems, appreciate all your advice as always.

I have also received the directions from the other side this morning. I was going to fill in the proper directions questionnaire which was on one of the links you sent me, and ask for a settlement stay on there but it seems they have just drafted it up in their own way and very quickly by the looks of it. How do I now disagree with this and try to change it from the fast track route etc?

[R0b]

I have uploaded some example responses in reply to their defence for you to consider using the starting point you had drafted. They are intentionally longer in some places but they do not need to be and could be cut down if you think is necessary. Remember, the reply is merely a response to the points not addressed previously in the particulars of claim or for clarification purposes, and should not be seen as a legal argument document.

I've struck out some of the responses you made because personally I don't feel like they add anything materially, though you are free to disagree. Please make sure to check the capitalised definitions as I can't remember if they are accurate or not as well as the paragraph numbering. Also, to be clear, do not under any circumstances should you share any documents or evidence as part of your reply, it is not needed or necessary as this forms part of your document disclosure list and witness statement.

As for the directions order, I would simply mark up anything in the proposed order in tracked changes that you disagree with. I've listed below some points you made wish to add or amend to the draft order they have prepared. Be mindful that if you include something like stay of proceedings below, you would need to update the other dates around disclosure and witness statements in the order by 30 days.

You may be asked why you think the claim is appropriate for the small claims track which I can pull some things form the CPR if questioned but may be worth seeing what their response to that is. Again, if you cannot agree you will need to file your own version of the draft order to the court and the other side (along with the reply to the defence to counterclaim) and it may be that the judge will arrange a case management conference to discuss before making a decision, either in person or telephone or other means.

1. The Claim is allocated to the Small Claims Track.

2. A preliminary issue will be tried between the Claimant and the Defendant as to whether or not the "Scrappage Discount" of £7,000, being the amount assigned by the Claimant to the vehicle that the Defendant had part-exchanged as part of the hire-purchase agreement, was an "advance payment" or a "deposit" or both within their respective definitions under the Consumer Credit (Agreements) Regulations 2010 and the Consumer Credit Act 1974.

3. The Claim and Counterclaim shall be stayed for a period of 30 days to allow the parties to consider the statements of case and during such period the parties must try to settle the the case or narrow the issues. By 4pm on .............................. 2024 the Claimant must notify the court in writing of the outcome of negotiations (without disclosing any matters which remain subject to ‘without prejudice’ terms) and what, if any, further directions are sought by either party. Failure to comply with this direction or to engage properly in negotiations may result in the application of sanctions. If settlement has been reached, the parties must file a consent order signed by all of them.

Hope this helps.

[Unknown2023]

That more than helps, this is brilliant work and makes a lot more sense to me now that you have amended my points in the correct format. I have made some changes to their directions and sent them back, waiting on a response now but may need some of those points from the CPR regarding the small claims track ready to fire back at them as no doubt they will question this. I have included the part regarding the stay and added 30 days onto all other dates that were noted. So if we cannot agree to a mutual set of directions then they will just file their own and I will do the same before 20 February? And then of course at that point I will include the reply to defence and counterclaim.

[Unknown2023]

Hi Rob I hope you're well. I just wanted to share some excellent news that the judge decided the claim should be allocated to the small claims track, without a hearing. I have been given a set of directions by the courts and have a date for the trial.

I will upload the directions for you to have a read of, all that is left now is for me to prepare heavily for a 3 hour long trial

[R0b]

Great news on the claim being allocated to SCT, did you submit your own version of the directions in the end?

Just a heads up, as the decision was made without a hearing, they could make an application to request be re-allocated to the fast track. They will need to provide compelling reasons why it should be but arguing that value alone, is not a good enough reason in my view. On the flip side, they may choose not to do that because they know aware of your response in the reply, which means if they lost, you could claim back your costs of defending that could add a few hundred or thousand to the costs. You should of course have an opportunity to oppose if that happens.

What is also interesting is the judge has allocated 3 hours to the trial. I wouldn't read too much into it but based on the issues raised, I would have thought that half a day at least if not a full day may have been allocated for arguments, cross-examination of witnesses etc. It may be that a judge has already formed an opinion and though the case doesn't require more than 3 hours to decide so the focus might be on legal arguments and interpretation.

Assuming the case stays on the SCT, you might find that VWFS now decide to come to the table to make offers of settlement based on the commerciality of the case and to mitigate their costs if they lose (or win).

[Unknown2023]

I did, I sent both the Claimant and the Courts a set of my own directions as we could not agree a set of directions, along with the reply to defence you helped me draft.

Thanks for the heads up on that I did not know that they can appeal at this point. I will keep an eye out but I have already contacted them with an offer to have a phone discussion regarding settlement out of Court. I know that they were determined for it to be fast track so they will be very bothered by this!

I thought 3 hours seemed about the normal time so good to hear from your perspective that you feel it is a short trial.

Just one point from myself regarding witness statements, I will now need to take one from my partner regarding the police stop at the side of the road, and gather statements from the police regarding the stop too, or is that no longer relevant? And I also need to submit my own, do I use the initial one from the CCJ set aside hearing or write a whole new witness statement?

[R0b]

Think it might be best for you to upload the directions so we can see what exactly the court has ordered then we can go from there but yes you will need new witness statements, ideally they should have been done as early as possible to relieve you from some of the weight all this prep can take but should hopefully be doable if you have enough time in advance of the hearing.