due in court tomorrow, what should I expect!?

[kizzy]

Hi, I hope this is in the correct forum! I'm due in court tomorrow for a hearing to have a judgment set aside (I am the claimant). To cut a (very) long story short: July last year I bought a £7000 car from a dealer and within the first couple of months it went back to the dealer with a loss of power (which they said they fixed) and then the tubo went (I got a report from Audi stating this). So I went back to them and rejected it but they refused. So I started a claim against them, which they ignored and I got a default judgment. Then out of the blue (as I was instructing HCEO's) they applied to have the judgment set aside giving the reason that the car was a private sale between me and the manager of the garage.
So the hearing is tomorrow and I am really anxious and scared, so any advice on what I should expect (how to address the District Judge, will I get to speak etc) would be gladly received! Thanks!

[wales01man]

Re: due in court tomorrow, what should I expect!?

Do you have an Invoice and any other documents from the garage at the time of purchase or is the Invoice in the Managers name?

[kizzy]

Re: due in court tomorrow, what should I expect!?

I have a invoice and a document wallet with the garage name on and also a bank statement (I paid with a debit card) with the company name. The car did belong to the manager but I only discovered this when I received the V5. The manager led me to believe the car was a part ex owned by a woman that had only just come in and he kept referring to the previous owner as 'her' and 'she'.

[Amethyst]

Re: due in court tomorrow, what should I expect!?

Do you have a copy of their draft defence they would have entered with the set aside application?

If he sold you the car as a trade sale, and you subsequently found he had misrepresented it to you as a trade sale, then that'd give you entitlement to rescind the contract anyway I reckon. They can't just pick and chose what kind of sale it was to supress you using your rights.

[Amethyst]

Re: due in court tomorrow, what should I expect!?

And yes you will be able to speak ... keep it calm, unemotional, factual and truthful. Have three copies of all your evidences with you in case its asked for, then you can give one copy to judge and one to the other side. If they get the set aside it isn't the end it just means the judge thinks their arguments warrant consideration, so you come back and basically defend their defence. We'll need to go through more info and do a witness.statement etc. To get a set aside they just have to show a reasonable chance of success.

[des8]

Re: due in court tomorrow, what should I expect!?

I see two different scenarios here.
1) If sale from garage SOGA is applied : you reject vehicle as has already been upheld.

2) if a private sale :
If you had known the actual seller was the manager and not the company, (and your paperwork would seem to bear this out) would you have purchased the vehicle?
At £7000 I assume not, as eg with a private sale there would not have been any warranty.

It seems that you were induced into a contract by use of a fraudulent misrepresentation of identity of the other party and so are entitled to rescind the contract.
This is different to a simple mistake of identity.


Crossed with Amethyst!

[kizzy]

Re: due in court tomorrow, what should I expect!?

Yes I have a copy of their draft defence and I'm pretty confident I can defend all of it. The car was sold to me as a trade sale, it was advertised on their website and I viewed it inside their showroom. All the paperwork is headed with the garage name and it was also priced up about £1500 more than a private sale would be for this make/model/millage of car. The owner is also claiming that the manager who owned the car and sold it me has been on an extended holiday and so he has not known of any paperwork or letters that have been sent to the garage.

[kizzy]

Re: due in court tomorrow, what should I expect!?

If I had known the car was being sold to me as a private sale I would not have bought it. I wanted to buy a car from a garage so I had a warranty and some kind of protection. I did actually get a warranty but when I tried to use it for the turbo I found it was only covered up to £150.

[ncf355]

Re: due in court tomorrow, what should I expect!?

Sounds to me like you have a strong case

Make copies as advised on here and follow the other advice about stating facts and being calm and you'll be fine

If you haven't entered a civil court before, don't worry - it's not gowns and wigs, just the judge in a suit, you and the other party who will probably send a solicitor/barrister along, but you will be given ample opportunity to put your case and it sounds like your documentation will put their arguments to rest

[kizzy]

Re: due in court tomorrow, what should I expect!?

Hi, thanks for all the info at the weekend. I won yesterday in court, the judge refused to set aside the judgment. The defendant sent a paralegal who had no real defence with him or evidence to back it up! After the hearing (at the suggestion of the judge) I spoke to the paralegal and he told me he would be dealing with the claim on behalf of the defendant, he took my number and promised to ring me to arrange collection of the car and issuing the refund. But I don't really believe the defendant is going to pay up so I will be contacting the HCEO's again. The only problem is that I think he may apply for a set aside again.
Can anyone tell me if he can apply for a set aside if I already have a writ issued from a High Court? I was going to ring the HECO company today to see how quick they can deal with it. Thanks!

[EXC]

Re: due in court tomorrow, what should I expect!?

Well done.

I very much doubt that they could apply for a set aside again but I'll leave that for others to confirm.

[ncf355]

Re: due in court tomorrow, what should I expect!?

Err

Not sure why this didnt occur to me before now

How did you pay for the vehicle?

I ask, as if it was paid for via credit (or even a deposit over £100 was paid via credit card) the better bet would have been action via Section 75 CCA 74 - action via the creditor who supplied the loan/card


But I guess thats all passedd now you have this from the court


I think EXC is correct, if they dont pay within a few weeks it should be quiet easy to get the HCEO to sort it for you, as the set aside has been refused, that's it unless they try an appeal and I doubt that would be worth their while

[kizzy]

Re: due in court tomorrow, what should I expect!?

I paid with my debit card unfortunately. I dont really want to wait more than a couple of days to instruct a HCEO as I think he may appeal, he keeps finding reasons to drag all this out as he has no intention of paying!