CCJ from VWFS (Car Finance)

[Unknown2023]

Thanks Rob. I've got about two months to prepare so I think it should be okay as long as I get on with it now.

This was served on 4th March and each party had 7 days to apply to set aside the order, I've not seen anything from the other side suggesting they have done this so will assume that they haven't applied to have it set aside or re allocated to the fast track

Please see attached images

https://ibb.co/j3D3NGN
https://ibb.co/1fs60Dt

[Unknown2023]

I've also sent an email to the other party requesting to talk settlement figures and they have agreed to have a telephone discussion about it next week! Is there anything I should be aware of when speaking to them or a certain format of how the discussion should go? Do I need to capture anything in particular in writing? Also what kind of percentage of the full claim should I be looking to settle on?

[R0b]

So first of all, regarding your witness statements, you will need to prepare a fresh one but you can re-use most of what you have drafted in previous witness statements as your starting point. What you will also need to include in your new witness statement is the additional evidence you've gathered from the police and anything else that you want to rely on at the hearing e.g. the confusing invoice/sale documents, bank statements confirming deposit amount etc.

The format is the same and you simply run through the chronology of events leading up to the hearing, but omitting any settlement discussions as you can't talk about that until after the judgment.

In terms of approach to discussing settlement, there is no particular way to go about it as it depends on how those discussions go. That said, I've put together some pointers below that might help you shape your discussions.

1. Do not agree to settlement terms over the phone. First and foremost, you need to be aware that settlement agreements can be made verbally as well as in writing. The moment you say words to the effect of 'I agree' then that settlement becomes legally binding. So if you accept an offer presented over the phone which includes an agreement to pay VWFS' legal costs and you didn't realise the consequences, tough luck. It would be sensible and wise to say at the beginning of the call and any follow up calls, to clearly state that any settlement that may be agreed on the call is subject to the parties agreeing and signing a consent order and until then, no settlement is agreed. you should also clarify that these discussions are on a without prejudice basis which allows both sides to speak freely.

2. Be prepared to explain the prospects of your defence and counterclaim. At some stage of the call, there will ultimately be a discussion by the other side trying to figure out your claim and what you might be seeking to argue at the hearing. Try not to give anything away that hasn't been stated already.

For example, you may wish to be perfectly blunt and up front and explain that you are very confident in your defence and counterclaim and as far as you are concerned, VWFs has cocked up by failing to include the part-exchange as an advance payment or a deposit per the definitions in the CCA and the Regulations, and you believe the judge will agree with you. Because of their failure to record this and then proceeded to seize the vehicle unlawfully. Section 90 of the CCA is engaged and therefore under s91 you are entitled to all sums paid.

Don't be put off if they try to rebuff or rubbish your defence and counterclaim saying it has no prospect or you don't know what you are talking about. This is all psychological and intended to make you doubt yourself and if they get a whiff of you sounding unsure then they will absolutely take advantage of that and put more pressure on you. Stick to your guns, don't let them get to your head and repeat what you've said. Ultimately, these are settlement discussions so if they have only agreed to the call to tell you how crap your defence and counterclaim is then there is no point talking further - tell them that if you have to and try to steer them towards those discussions.

3. Work out your top / bottom settlement figure. Your starting settlement figure should be the refund of all monies as that has been calculated already in the CCA. However, these are settlement discussions so you should expect some give and take on both sides, otherwise what is the point of talking if you are not going to move from your starting position? When working out your bottom figure, you should make sure you factor in the fees you have paid for your counterclaim, don't be out of pocket with that.

You need to think about what is the lowest figure you are prepared to settle this dispute, and you may agree to settle for no financial value and that is entirely up to you, but what you should not agree to is being in a worse off position. Whether that bottom figure is 50% or 2/3 or 1/3 of the amount you are claiming, stick to it and don't feel pressured into going below that. Obviously if you are only a few hundred quid apart from where you both want to be, see if they will split the difference or you may agree to that figure if they have agreed to everything else you wanted to settle on.

4. Are there any non-financial drivers you want from the settlement? It may not sound that obvious but you should consider if there are any other non-financial terms you want included in the settlement, which might justify accepting a lower settlement figure. For example, if you have any adverse entries, defaults or late payment markers on your credit file, you may find that having those removed is more beneficial to you in the long run than receiving a higher sum of money. VWFS may say they cannot do that but that's not true and they can of course do that. You could reiterate that if they remove all adverse entries and mark the account as closed, you will accept a lower sum.

5. If terms are agreed, repeat that settlement is subject to these terms being signed in the form of a consent. As you know, it is very difficult to argue something that was said or done verbally, so everything should be put in writing. Therefore even though you may have mentioned this already at the beginning of the call, make sure to repeat this again is it may likely be forgotten about when you start getting into discussions/negotiations.

6. If in doubt, walk away. As already alluded to earlier, do not feel pressured into doing or not doing something on the call. If you are unsure, take a moment to pause before you respond or if you need a little more time to think about it, say so, park that point and move on to something else. Worst case, if you are getting absolutely nowhere and discussions are not productive, just walk away. Depending on how those discussions go, you may agree to further telephone discussions or you may say moving forward all future settlement discussions need to be in writing if the discussions were really hostile or unproductive. Whatever happens, keep open the option to settle.

7. If you leave an offer open for them to discuss with VWFS, put a time limit on it. Many litigants in person forget that if you make an offer, it will be deemed an open offer which could be accepted at any time unless you revoke it. That offer may not be as favourable the closer you get to the trial, so be sure to put a reasonable time limit. 7 or 14 days is typically considered a reasonable time but make sure if they haven't accepted the offer by confirming in writing by that the time the offer period expires, then your offer is automatically revoked.

8. Whatever the outcome of discussions, follow up what was discuss/agreed in writing. This is very easy to forget but it helps you and the other side to understand what was discussed in the call, what was or was not agreed, and then you can use that as a baseline for further settlement talks if appropriate.

Finally, if I were going into these discussions, I would consider the following approach:

a. Make it absolutely clear from the outset that any settlement terms must include a term that each party bears their own legal costs, and this would be a non-negotiable for me. This should be reinforced by the fact that the claim has been allocated to the small claims track and they would not be recoverable if it went to trial.

b. My first offer may be in the region of about £15k, which would be a few thousand cheaper than the amount you are claiming for. Just make sure to list all your settlement terms at once, not piecemeal as that will annoy them. You can then discuss each of them in turn.

c. Have VWFS remove all adverse entries removed from all credit reference agencies the agreement has been reported to, mark the account closed and give their undertaking not to report any future adverse entries or make demands for payment of the alleged debt. If this was accepted,I may agree a reduced settlement sum of £10k instead of the £17k or so you should be entitled to. You could go lower than this though I wouldn't go too low, but it depends on how badly you would want those adverse entries removed.

d. If they wanted a confidentiality clause, I would ask for £2k for the privilege. I expect them to say this is a standard term for settlement agreements but I would argue that would be the case if this was a high profile case with a significant amount of money involved i.e. six or seven figures. Here it is a modest amount in question and in any event, the parties are free to agree whatever terms of settlement they like. If they want to gag you from talking about the settlement, pay for it.

I am no fan of those clauses because more often than not, it's the creditor/claimant who causes the problem and now they are trying to protect their position by gagging you. If you want to agree to a confidentiality clause, then you should ask for more money for the privilege. You could start off with a high amount and then that will either put them off and not include one, or they may counteroffer.

e. If nothing comes of the discussions, I would tell them that you are open to further settlement discussions, but the more time you spend working on the dispute such as gathering your evidence, preparing witness statements, trial bundle etc. then the more likely you are going to be wanting settlement closer to that £17k figure you would be entitled to. It's therefore in everybody's interest to settle sooner than later.

If you do agree settlement terms, feel free to post up a draft of the consent order and we can give you our thoughts.

[Unknown2023]

This is so helpful Rob as always, thank you. I had no idea of the extent of the terms which would be needed for the call so this has been a great eye opener in preparation for the settlement talks.

As I see it, the sum of all monies that I paid into the agreement is in the region of £19k which is what I am counter claiming (I don't want to write exact figures on here for obvious reasons)
On top of that is the 5% court fee which I had to pay in order to Counter Claim, plus the initial cost to set aside the CCJ, and legal costs involved for myself in the form of defending the case which I think we worked out at around £19 per hour? Which means I could be looking at a touch over 20k if I won in Court.
The trial cost is for them to pay so as I see it there is no further legal costs to myself, unless I have forgotten something?

Therefore by your recommendation I will start at the figure I would expect to receive if I were to win the case (which I feel is potentially quite likely unless they drop an absolute bombshell at the document disclosure stage, although I don't see how they can now)

Plus the 2k roughly for the confidentiality clause, it's always very helpful to have a rough figure for that in preparation for the talks - I would not have had any clue what cost to put in place for that.

As my adverse entries are coming up to 4 years old they aren't really affecting my credit too much, in terms of applying for a mortgage or further credit yes it will boost my score but realistically it's only anything within the last 2 years that would cause a major concern with that. So whilst it would be a nicety and a bit of a bargaining tool, it's not really something I would seek to push for desperately.

I think I have a good idea in my head now of the price I would take with open arms and run with, and the price I would say no thank you see you in court to. Obviously going to Court has it's risks and I know that any underperformance by myself on the day could lead to the case being either struck out or won by the other side, no matter how strong my actual defence is.

On that note, in your opinion what would be the chances that the other party would purposely miss the next deadline in order to have the case struck out? As in my eyes this seems to me like the most logical thing to do in their shoes, they have missed every deadline so far and a strike out would favour them massively as I would have nothing to pay them but equally I would not receive my counter claim and I would have to start my own legal proceedings in order to seek compensation in the future.

I also read that not accepting an offer can be damaging to either parties case on the day of the trial is this true?

Regardless of the above I think the talks will be interesting and will give a good insight as to how they are feeling regarding the trial. I will of course continue to update on here and post any further concerns I have leading up to the trial if settlement talks are not productive

[R0b]

If you haven't done anything like this before it can be a bit nerve-wrecking but if you are really struggling, then just say to them you have not done something like this before so invite them to start things off and how they want to approach it and go from there. Alternatively make a list of things you want to cover off before the call and tick them off as you go along.

Again with the confidentiality clause, there's not exact figure to put on that, it really comes down to how much VWFS value the secrecy of the settlement and not give you the opportunity to tell the world. £2k is a figure I plucked out of thin air but if you are going to put a figure on it, then it should be relative to the overall claim amount. £2k isn't so bad when you're talking a claim of £20k but asking for that much when claim value is less, would be disproportionate and possibly unreasonable. So you could start with £2k and VWFs say that's way too high, you invite them to counter and they may say £500. You then decide whether that's enough to keep your mouth shut of if you want to push it a little more.

In terms of legal costs, these are no longer recoverable since the claim has been allocated to the small claims track which for a litigant in person is the best thing you could have got out of this and without worrying of having to pay thousands more if you lost your defence or counterclaim.

However, if you are already keep a diary of time spent then I would suggest you continue doing that anyway, because if VWFS start getting irrational and unreasonable in their conduct or behaviour, you could still ask the court to award costs due to unreasonable behaviour, which is the only exception to the rule where legal costs can be recovered. The small claims court does allow you to recover some costs back such as taking annual leave to go to the hearing and if you have to stay in a hotel to attend, parking your car etc. then those costs are limited and will usually be in anywhere between £90-£200.

On that note, in your opinion what would be the chances that the other party would purposely miss the next deadline in order to have the case struck out?

I doubt they would forget to make payment. A lot of law firms have group accounts with the courts so they are unlikely to miss paying, but I suppose it can happen and has happened historically just a not so common occurrence. Even if they did forget they would probably make an application to set aside the strike out and the court will probably allow it if they acted promptly.

I also read that not accepting an offer can be damaging to either parties case on the day of the trial is this true?

Doesn't apply in the small claims track, unless you have acted unreasonably in your conduct of proceedings. Rejecting an offer on its own is sufficient to amount to unreasonable conduct. There are other rules for the fast track that relate to Part 36 offers and cost consequences but that's no longer applicable so I won't go into it.

At the end of the day, it will be an experience and once you have gone through that process, you will know how to engage next time, what to say and how to negotiate strategically. The only variable will be the lawyer on the other side because some of them can be really nice and relaxed and others are down right rude and abrupt acting like they own the place!

Good luck and do let us know how you get on.

[Unknown2023]

Hi Rob,

Had the discussion this morning regarding settlement. It was a very quick call, less than 5 minutes, I had my notes up and ready but it didn't really develop into anything. The solicitor was quick to say that we can talk without prejudice, that he didn't want to discuss the details of the case and thanked me for reaching out to them to attempt to settle. He was very firm about the fact that he is instructed to collect the owed sum for his client in full, and that he would not listen to any offer less than me paying a sum of money to them in some form. I of course countered this with the fact that I am counter claiming a large sum of money and that I would listen to any offer of payment in my direction. He declined this and would not even attempt to name a figure throughout the conversation, so I finished basically with saying that I would be open to further discussions, and that I would follow up in writing that we had a settlement discussion and could not come to an agreement. I also took your advice and stood firm saying that I believe the court will rule in my favour because I have a strong defence, and because of this we are now on the small claims track, to which he didn't have much of a response other than yes the judge will listen to me in Court. In summary it was pretty much a see you in Court kind of discussion, but I would like to know your thoughts on whether I should reach out again in a weeks time and see if anything has changed?

[R0b]

Well, that is annoying but not uncommon.

Personally I wouldn't bother reaching back, you leave the door open and it's up to them otherwise risk having a public judgment against them which could be damaging for all their current scrappage scheme contracts.

I would send a short email along the lines of the below and then focus on getting your witness statement(s) put together, evidence collected that will go into your statements which you need to refer to as well and then anything else you want to rely on.

Without Prejudice Save As to Costs

Dear XXXX,

I'm writing to follow up our call earlier today, and to express my disappointment that your client was unwilling to discuss terms of settlement other than the full amount claimed, despite evidence to the contrary. If your client had no intention of making a meaningful settlement offer, I would have preferred you to have told me by email rather than waste both our time. That said, I am willing to leave the door open for meaningful settlement discussions if your client changes its mind.

In the meantime, I would appreciate if we can work together to agree to a list of issues and any common points for the court to consider so that focus is on the on the key issues especially since the court only allocating 3 hours to hear the dispute.

I would repeat again that you should not underestimate how much time this takes and realistically, you probably want to allow 2-3 weeks of a few hours here and there on getting it all done and ready and perfected as you don't want to lose your counterclaim for poor document management or you missed out a key piece of evidence.

[Unknown2023]

I'm very disappointed to be honest. I wish I had been a little more reactive on the call, had I been better prepared I could have quickly reminded them that their likelihood of claiming any money in Court is already implausible due to the fact that the agreement was not properly executed. I should have also pushed the non disclosure agreement and reminded them that this is not a case that they would want to go public, perhaps I will add a line regarding non disclosure into the above agreement to emphasise the point.
I would have really liked to settle out of Court, since I am litigant in person and have never stood in a Court trial before, I know there will be a lot of pressure to perform on the day and it worries me that I will lose my whole claim over an incorrect or missing document or piece of evidence. It's going to come down to either winning the full amount or nothing now

[Unknown2023]

Hi Rob, I wondered if you would mind reading my most recent witness statement which I intend to use at the hearing?

I don't have much new evidence sadly, as the police were unable to provide witness statements and requesting bank statements for payments out of a closed account is taking too long.

However the evidence I received from the dealership a few months ago seems adequate enough to use going forward.

I've also received the other sides documents for inspection today. They intend to use a freshly typed blank vehicle order form, unsigned with yesterday's date written on it.

I also intend to use this in my evidence as I believe it is an attempt at perjury

[Unknown2023]

(Redacted)

[R0b]

Sure, if you post it up can take a look. Not entirely sure what they are playing at with using a blank unsigned order form if you already have the original order form.

Have you tried going into your local branch to get copies of statements? take your ID and bank details and explain the situation that they are needed for an upcoming court hearing, they may be able to print them off for you there and then.

The card deposit will turn out to be less of an issue anyway if the court decides that the part-exchange of the vehicle fell within the deposit or advance payment definition, which is what you need to prove to show that everything from the agreement down is tainted and unenforceable but also for you to rely on under section 90.

When is the hearing date again? I assume they are still intent on taking this all the way?

[Unknown2023]

Hi Rob,

Sorry for the late reply.
Please see the following link:

https://crimson-barbi-84.tiiny.site

Please let me know of anything else you think I should add in. It seems a little short but I feel I've covered the important topics, anything else I should be able to speak about on the day but I've tried to keep it simple and only include what I think is relevant.

Yes they are taking it all the way to the hearing now. The hearing date is 07 May and so all documents need to be submitted by Tuesday.

My bank statements should be arriving tomorrow and waiting on a few other bits of evidence by email which I will chase up, other than that it will just be a case of putting a good argument forward on the day.

I should receive the other sides witness statement tomorrow which will hopefully give me an idea of how in depth they have gone with it all.

Edit: I've also just had a read of the terms listed in the new vehicle order form the other side has sent to me, the definition of a part exchange is actually listed as a "part-payment" under their own directions, is this worth including in my statement?

[R0b]

I'm afraid to say you have some work to do because that statement is not right, you have drafted it as an affidavit and not a witness statement.

I'm attaching a template witness statement which is the bare minimum that needs to be included and so you need to insert the body of your content. The referencing to your exhibits also needs updating as well, per the template.

Your exhibits should be in sequential order and it is common to refer to your exhibits as your initials e.g. JS1. Then when you refer to your exhibits, you say something like:

I refer to page X of JS1 OR (see page X of JS1) OR a copy of the document/email can be found at page X of JS1

Some other points to note:

1. In paragraph 2, I feel like there is missing information. When you are referring to entering into the HP agreement, it would make sense to explain what documents made up that HP agreement. For example, in 2.1 you could mention that the part exchange was recorded by the dealer on a new vehicle order form or part exchange form and reference the exhibit. This is probably also where you want to lift out the first sentence of paragraph 12 and slide it here or as a new paragraph below paragraph 2.

2. I feel like after paragraph 2, you need to address termination of the agreement. If you were in financial difficulty then say so, but you can also add that if you had a right to retain the car notwithstanding termination because you believed you had paid 1/3 of the price and the only the way VWFS could recover the car is by an order of the court under the consumer credit act 1974. Given that you are arguing the default notice is invalid beause it has the wrong figures on, I think you need to include this also.

3. In paragraph 3, did you ever protest to the police that the vehicle was under a HP agreement and this was a civil matter? That is evidence which can support your claim so include it if you did.

4. Are paragraphs 5-6 necessary? You have had the judgment set aside and everyone has moved on from that so I don't see any reason to include it. Unless it adds anything material to your defence and counterclaim, you may want to get rid of it.

5. Paragraphs 8-12 seem to be legal arguments and are not allowed in the witness statement which are reserved for the hearing. Witness statements are statements of fact, not opinion, legal arguments or other things. You could keep the first sentence of paragraph 12 but it needs to go somewhere earlier in your statement.

6. In paragraph 13, you state that the order form is forged, but that is quite a strong allegation to make. You may want to consider revising the wording to something like (a bit wordy but take what you want):

On 19 April 2024, I received an email from the Claimant with an attached document titled 'New Vehicle Order Form'. The email suggested that the attached document was what the Claimant believed to be a copy of the original new vehicle order form that I received from the dealership. The document sent by the Claimant appears to have been manufactured for several reasons and is not a copy of the original new vehicle order form that I received from the dealership. The obvious difference is that the document is dated 18/04/2024 and the same date is replicated in the 'purchaser's signature' box. In the original copy, the document is dated XX/XX/XXXX and has my personal signature in the signature box. This is compelling evidence that the Claimant is seeking to deliberately (or at least recklessly) pass off their version of the new vehicle order form as the original document that I had signed in an attempt to deceive the court. This is clearly not an honest mistake and I am astounded by the audacity of the Claimant's dishonest actions.

7. You make a reference to your the statement of your fiance, that should be an entirely separate statement, not part of your own. It needs to be signed as well in the same format as the template.

8. Your last point about the vehicle order terms and conditions, yes include it in your witness statement. Don't go into great detail because it will be your argument at the hearing. Weave it in somewhere as you don't have much time to properly pad it out.

There's probably a lot more you could add or incorporate but unfortunately you are very short on time, which is always why you need to have these things done and pretty much ready at least a couple of weeks in advance to ensure you have covered everything - rushing things out is nearly always going to cause problems.

The main important thing is adding all the evidence you want to rely on in your witness statement and attach as exhibits. If it isn't in your statement, you can't rely on it. Remember your witness statement needs to be paginated also so don't forget that.

[Unknown2023]

Appreciate the honest feedback. I've always used an affidavit template for a witness statement, I can't see the difference between the two what am I missing?

I've had this drafted for a while but I was concentrating so much on settlement negotiations more than anything, I didn't expect the Claimant to keep pushing it to the hearing. Plus gathering evidence has proved to be a tricky and time consuming task.

Maybe they have a smoking gun of evidence they are going to pull out but I can't see how they would have, especially as they are resorting to perjury in order to try and win the case in their favour. It's beggars belief.

I am off work today so I have plenty of time to redraft the paperwork before it is submitted tomorrow, probably won't have enough time to send you a draft for proof reading though, there is a lot I took from the defence and I wanted to use more, such as the termination of the agreement and the repudiation by their own termination, also the poor particulars of claims used and the several breaches of the regulations by using an improperly executed agreement. However I didn't want to make it sound too much like a defence, as I assume the judge will have a copy of all my previous paperwork to hand for the hearing will he not?

In terms of reference, for the hearing will I be able to use any of my old paperwork to prompt myself during discussions or is that not allowed?

Once again I cannot thank you enough for all your support

[R0b]

Well, strictly speaking, you can file an affidavit if you wish, but it will need to conform to CPR 32.16 which cross-refers to Practice Direction 32. In my opinion, it is unnecessary and adds to the costs that are not needed and there is no guarantee that you will recover those costs back because it is at the discretion of the court. The obvious question would be, why did you feel the need to produce an affidavit when the court ordered a witness statement to be filed.

I am struggling to see the smoking gun here unless there is some relatively recent case law I have not come across that supports their position, in which case you would need to think of ways to distinguish it from the present, but I think that may only be of benefit in relation to your counterclaim since to me, it is obvious that your part exchange of the car is clear a deposit or advance payment one way or another.

Appreciate proceedings can be difficult but you should never put your eggs in one basket hoping the other side will settle the matter before trial. Everything should be done in parallel and it may be time-consuming at the time but you make up for it by not having to run around at the last minute.

All of the paperwork you have filed will be available to you as you should make yourself a copy for the hearing to refer to. I don't think the court required a formal skeleton argument but you can prepare one for yourself as a points to note and how to structure your arguments, but you need to make sure you are flexible enough to deviate if the hearing takes a different turn.

Once you have everything filed, I'll post up a few tips on preparing for the hearing.