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Hi,
Firstly I write this after typing the below so it's a bit LOONNG I'm sorry! This whole thing has been like a rollercoaster - I feel positive, then I find something that puts me on a real downer!
I'm just hoping for a little bit of informal guidance please... I have struggled with this a little with lack of cover of legal assistance from my legal insurance cover and only just come across this forum last week so apologies for the very short notice. This case is ongoing and there is a hearing for the defendant's application to summarily dispose of my claim this coming week.
I'm being careful to keep the specifics and identifying aspects limited so hopefully makes sense, there's obviously a lot more detail but I'm trying to summarise
Overview.. I have a claim against a manufacturer for a latent defect in a premium brand car owned from new which is going to cost nearly £10K to put right based on quotations received. The defect has been proven by independent expert and a court compliant report made. Manufacturer acting the goat, haven't replied to pre action or court claims, default judgement obtained, but now they have solicitors involved.
The manufacturer would normally have covered the issue under warranty for 6 years but this expired some months before any external signs were apparent (very minor in paintwork and nothing of the sort that would make me think it was a serious issue or warrant further investigation at that point). It wasn't until late 2018 when more minor signs were seen on the other side when a professional cleaned the car and suggested it could be rusting from the inside. That was the point that made me want to look into it further... I contacted the manufacturer, they got me to take car to the dealer who looked at the paintwork and wasn't sure but took some photos and sent them as a warranty claim, and suggested I look inside myself. So I spent a long time to take all the panels off to see rust on the inside!
I did some research and found someone else with the same issue, he managed to get the manufacturer to replace the damaged panels with new ones outside warranty. The manufacturer phoned me to say they can't help due to being outside warranty. I responded not accepting this. Back and forth a while they claim its not a defect and must be stone chips or a previous repair or similar. Argued the implausibility of that, the fact they fixed a previous case, and they said if it was the same they'd support, so get an inspection and if it confirms what I was saying they'd look further but not until then.
Took it to another body specialist who looked inside and said immediately yes that's their fault - a nonessential component was added during manufacture that went bad and caused the rusting of the panel. I paid for the inspection and forwarded report to the manufacturer who just said out of warranty not our problem.
This went back and forth for more timebut no change in position. Press involved but no change. Ombudsman can't help due to being more than 6 years. Everyone suggested the facts speak for themselves and the manufacturer is clearly acting the goat, and take them to court. I gave the manufacturer another opportunity to see sense and said would resort to court proceedings. I got some legal advice as have home legal insurance cover, and put a claim in for their assistance. They looked over but saw no legal basis for a claim at the time due to limitations, the report I got wasn't compliant for court, and they couldn't help further, so I was on my own.
I decided to get a completely independent expert report done without any bias, written for the court, and confirmed the facts of the defect. With this I then then sought more legal advice on bringing a claim. As a result I sent a letter before action, with copies of the report and other supporting documentation and crafted with the necessary wording for the pre-action protocol.
This LBA went unanswered by the deadline given, so a court claim was filed for repair costs and damages, particulars of claim including facts showing proof of defect, opportunities given to settle, time frames, prior cases, the fact manufacturer said would support if it was the same, no response to LBA or suggestion of ADR, leaving court as last recourse.
The manufacturer did not respond to the claim. So filed for judgment, this was entered and forwarded to local court for a judge to give directions (as was unspecified amount). Directions on disposal notice for me to provide proof of costs and damages so this was done. I thought I was nearly home and dry but suspected more would come and I was right.
Next thing I know, solicitors letter arrives instructed by manufacturer, telling me there was no merit and it was abuse of process. They then file application to set aside, strike out claim and apply for summary judgment all in one hearing, giving me a warning that I need to file any witness evidence 7 days before.
They claim the defendant's employee (employed in a legal position) thought it was pre-action and didn't file acknowledgement in time only realising mistake when judgment was given. (I believe this is hogwash), witness statements to the same provided and draft defence which reads very solidly as you'd expect. No grounds due to limitations, warranty expired, negligence only covers damage to other property or people (they cite the 1987 CPA), and 3 years date of knowledge would have expired based on 'first signs', denying the defect was a result of lack of care and skill at manufacture, and it's all statute barred even if all the facts were proven.
They admit the rust is there, deny the defect is their lack of care and skill and would seek to rely on expert evidence, admit they made no inspection, admit they deny liability, don't admit I have suffered loss or damage and I am required to prove that???!!
I didn't think an application could cover so many options in one go and was prepared to go to the hearing and just orally give my response but the fact they put summary judgment in there too bound me to written evidence I think.
So I had 7 days to prepare a witness statement, I put all my facts and arguments in there then I read online that it can't contain arguments or opinions, and is just a vehicle for plain fact borne from your own knowledge, so ended up moving a ton of arguments into skeleton argument document and keeping pertinent facts in the witness statement.
These facts in essence:
Me and my professional position (not legal!).
Prepared as a result of summary judgment application.
This claim was a follow up to pre-action, no response (intended to highlight their legal employee's failings).
I am technically minded but didn't attribute the early signs as a serious defect.
There is no damage or repair to my knowledge from new.
Discovery of the inside rust was 2018 when it became obvious that it was serious enough to take further.
I discovered the other case (they fixed) around the same timeframe.
I didn't form knowledge of being a defect until early 2019 on 1st independent inspection.
I was told by manufacturer it was not a defect and caused by something else, which seems to be implausible given everything to the contrary.
I recorded the telephone call where manufacturer stated they would support if the same as previous case and backed by a report.
I paid an amount for the report which was sent.
I didn't get any indication that the manufacturer cared for the report substantiated by their contradictions and that they admit not inspecting the vehicle themselves
I would seek court permission to bring telephone recordings into evidence if allowed
I've done everything in good faith
I've been open to mediation
I've made many attempts to negotiate and use alternate means to negotiate a settlement
The manufacturer has refused to alter position
I have spent more money and time as a direct result of their actions
This 'DRAFT WITNESS STATEMENT' was sent last week to comply with the rule 24.5(1) - I put draft, not sure if that's allowable but thought better be seen to comply and do something than not at all.
I'm preparing a skeleton arguments document at the moment (from what I've read I think it could possibly help) and would appreciate any guidance. I'm intending to write all the points in detail (so that I can take it with me to help me orally put my case as I'm much better at writing thoughts down than speaking on the hoof) and then seriously strip down to the headlines as to not annoy the judge
The issues before court are whether there's a good reason to set aside, whether there's real prospects of a successful defence and the claimant having no prospect of success and this outlines the response to the issues...
Causes of action are negligence in duty of care of manufacturing under S14A of Limitation Act 1980 and breach of contract
Time estimate 15 minutes pre-reading time
As well as the arguments about not being a good reason (their failure to respond to claim and finding their abuse of process claim as vexatious), I feel prejudiced by the failures to respond and failure to properly investigate (they admit not inspecting yet claim to have conducted a thorough review and brought to a satisfactory conclusion!) as a deliberate attempt to delay timely justice, the damage worsens and I spend more time and money. Delay means nothing to the defendant as they're not the injured party.
I also have some arguments I think could help based around negligence and limitations:
Negligence under Latent damage act 1986 (not 1987 CPA), limitation starting when serious defect found not earlier (S14A(5) of 1980 limitations act).
Is it reasonable to dismantle a car to discover serious defects within the warranty?
If proceeded to trial I would request defendant's disclosure of documents showing any inherent manufacturing problems.
Breach of duty of care in safety of vehicle (defect has potential to become a safety issue and injure a person according to MOT inspector manual).
in Dutton v Bognor Regis Lord Denning considers that liability of a defect with the potential to cause injury rests with the manufacturer of an article, whether or not the injury has yet to occur: “I would say the same about the manufacturer of an article. If he makes it negligently, with a latent defect (so that it breaks to pieces and injures someone), he is undoubtedly liable. Suppose that the defect is discovered in time to prevent the injury. Surely he is liable for the cost of repair."
The claim represents loss consequential on physical damage not pure economic loss, I have a 'Linklaters vs McAlpine' argument based on complex structure theory and the loss of the component added during manufacture isn't being claimed but the damage to the panel is, and the component added is not considered part of the panel - the panel has been damaged by the defective part and claim is to cost to repair the panel. Argument that the damage isn't to the 'thing itself'??
Also
Conditional agreement to repair on the telephone call recording. Considered an offer which was accepted on consideration given to providing the report.
Overriding concern - I brought the case to right a wrong and exercise right to justice and fairness, and remain open to mediation (even if clear defendant isn't)
Concluding - notwithstanding late defence submitted, the defendan'ts unreasonable actions as a whole could mean I am likely to suffer prejudice if set aside and I believe the overriding objective would support the resistance of the set aside on ground of financial and legal position of both parties and of justice. For all these reasons the set aside should not be granted to the defendant and the claim should not be struck out or summarily disposed of.
I do apologise again and hope it makes sense - there's a lot of information there so I guess to summarise now where I'm looking for a bit of guidance..
1) Can I rely on the formation of a contract and subsequent breach in telephone call as a separate cause of action as that clearly isn't limitations statute barred? It was mentioned in particulars of claim even if not to that level of detail.
2) Any guidance on being able to retrospectively apply warranty as they clearly would have covered but given the latent nature it is wholly unreasonable to discover it in time (they must give guidance to the dealership yearly corrosion inspections but clearly wouldn't be in their interests to go looking in too much detail!)
3) Any guidance on bringing up quotes and points from past case law even when not an identical case and formulating arguments around that to my advantage.
4) Is there an 'assumption of responsibility' argument that I could use - I've seen this mentioned?
If I have to send skeleton arguments to the defendant as well as court will that not just give the defendant more opportunity to wear me down in court? So a choice between a judge pre-reading my position and possibly forming another view that I'm an 'above average' litigant in person to my detriment and the other side having fair warning of my arguments to prepare, but on the other side judge taking my points on board which assists me; or I do nothing until hearing and just give oral arguments in the court one by one assuming that's how it works, with the disadvantage of the judge perhaps not fully appreciating parts of it like reference to other cases, but I have the advantage of being a complete layperson? I'm probably overthinking it
Thanks SO MUCH in advance for any help!
Firstly I write this after typing the below so it's a bit LOONNG I'm sorry! This whole thing has been like a rollercoaster - I feel positive, then I find something that puts me on a real downer!
I'm just hoping for a little bit of informal guidance please... I have struggled with this a little with lack of cover of legal assistance from my legal insurance cover and only just come across this forum last week so apologies for the very short notice. This case is ongoing and there is a hearing for the defendant's application to summarily dispose of my claim this coming week.
I'm being careful to keep the specifics and identifying aspects limited so hopefully makes sense, there's obviously a lot more detail but I'm trying to summarise
Overview.. I have a claim against a manufacturer for a latent defect in a premium brand car owned from new which is going to cost nearly £10K to put right based on quotations received. The defect has been proven by independent expert and a court compliant report made. Manufacturer acting the goat, haven't replied to pre action or court claims, default judgement obtained, but now they have solicitors involved.
The manufacturer would normally have covered the issue under warranty for 6 years but this expired some months before any external signs were apparent (very minor in paintwork and nothing of the sort that would make me think it was a serious issue or warrant further investigation at that point). It wasn't until late 2018 when more minor signs were seen on the other side when a professional cleaned the car and suggested it could be rusting from the inside. That was the point that made me want to look into it further... I contacted the manufacturer, they got me to take car to the dealer who looked at the paintwork and wasn't sure but took some photos and sent them as a warranty claim, and suggested I look inside myself. So I spent a long time to take all the panels off to see rust on the inside!
I did some research and found someone else with the same issue, he managed to get the manufacturer to replace the damaged panels with new ones outside warranty. The manufacturer phoned me to say they can't help due to being outside warranty. I responded not accepting this. Back and forth a while they claim its not a defect and must be stone chips or a previous repair or similar. Argued the implausibility of that, the fact they fixed a previous case, and they said if it was the same they'd support, so get an inspection and if it confirms what I was saying they'd look further but not until then.
Took it to another body specialist who looked inside and said immediately yes that's their fault - a nonessential component was added during manufacture that went bad and caused the rusting of the panel. I paid for the inspection and forwarded report to the manufacturer who just said out of warranty not our problem.
This went back and forth for more timebut no change in position. Press involved but no change. Ombudsman can't help due to being more than 6 years. Everyone suggested the facts speak for themselves and the manufacturer is clearly acting the goat, and take them to court. I gave the manufacturer another opportunity to see sense and said would resort to court proceedings. I got some legal advice as have home legal insurance cover, and put a claim in for their assistance. They looked over but saw no legal basis for a claim at the time due to limitations, the report I got wasn't compliant for court, and they couldn't help further, so I was on my own.
I decided to get a completely independent expert report done without any bias, written for the court, and confirmed the facts of the defect. With this I then then sought more legal advice on bringing a claim. As a result I sent a letter before action, with copies of the report and other supporting documentation and crafted with the necessary wording for the pre-action protocol.
This LBA went unanswered by the deadline given, so a court claim was filed for repair costs and damages, particulars of claim including facts showing proof of defect, opportunities given to settle, time frames, prior cases, the fact manufacturer said would support if it was the same, no response to LBA or suggestion of ADR, leaving court as last recourse.
The manufacturer did not respond to the claim. So filed for judgment, this was entered and forwarded to local court for a judge to give directions (as was unspecified amount). Directions on disposal notice for me to provide proof of costs and damages so this was done. I thought I was nearly home and dry but suspected more would come and I was right.
Next thing I know, solicitors letter arrives instructed by manufacturer, telling me there was no merit and it was abuse of process. They then file application to set aside, strike out claim and apply for summary judgment all in one hearing, giving me a warning that I need to file any witness evidence 7 days before.
They claim the defendant's employee (employed in a legal position) thought it was pre-action and didn't file acknowledgement in time only realising mistake when judgment was given. (I believe this is hogwash), witness statements to the same provided and draft defence which reads very solidly as you'd expect. No grounds due to limitations, warranty expired, negligence only covers damage to other property or people (they cite the 1987 CPA), and 3 years date of knowledge would have expired based on 'first signs', denying the defect was a result of lack of care and skill at manufacture, and it's all statute barred even if all the facts were proven.
They admit the rust is there, deny the defect is their lack of care and skill and would seek to rely on expert evidence, admit they made no inspection, admit they deny liability, don't admit I have suffered loss or damage and I am required to prove that???!!
I didn't think an application could cover so many options in one go and was prepared to go to the hearing and just orally give my response but the fact they put summary judgment in there too bound me to written evidence I think.
So I had 7 days to prepare a witness statement, I put all my facts and arguments in there then I read online that it can't contain arguments or opinions, and is just a vehicle for plain fact borne from your own knowledge, so ended up moving a ton of arguments into skeleton argument document and keeping pertinent facts in the witness statement.
These facts in essence:
Me and my professional position (not legal!).
Prepared as a result of summary judgment application.
This claim was a follow up to pre-action, no response (intended to highlight their legal employee's failings).
I am technically minded but didn't attribute the early signs as a serious defect.
There is no damage or repair to my knowledge from new.
Discovery of the inside rust was 2018 when it became obvious that it was serious enough to take further.
I discovered the other case (they fixed) around the same timeframe.
I didn't form knowledge of being a defect until early 2019 on 1st independent inspection.
I was told by manufacturer it was not a defect and caused by something else, which seems to be implausible given everything to the contrary.
I recorded the telephone call where manufacturer stated they would support if the same as previous case and backed by a report.
I paid an amount for the report which was sent.
I didn't get any indication that the manufacturer cared for the report substantiated by their contradictions and that they admit not inspecting the vehicle themselves
I would seek court permission to bring telephone recordings into evidence if allowed
I've done everything in good faith
I've been open to mediation
I've made many attempts to negotiate and use alternate means to negotiate a settlement
The manufacturer has refused to alter position
I have spent more money and time as a direct result of their actions
This 'DRAFT WITNESS STATEMENT' was sent last week to comply with the rule 24.5(1) - I put draft, not sure if that's allowable but thought better be seen to comply and do something than not at all.
I'm preparing a skeleton arguments document at the moment (from what I've read I think it could possibly help) and would appreciate any guidance. I'm intending to write all the points in detail (so that I can take it with me to help me orally put my case as I'm much better at writing thoughts down than speaking on the hoof) and then seriously strip down to the headlines as to not annoy the judge
The issues before court are whether there's a good reason to set aside, whether there's real prospects of a successful defence and the claimant having no prospect of success and this outlines the response to the issues...
Causes of action are negligence in duty of care of manufacturing under S14A of Limitation Act 1980 and breach of contract
Time estimate 15 minutes pre-reading time
As well as the arguments about not being a good reason (their failure to respond to claim and finding their abuse of process claim as vexatious), I feel prejudiced by the failures to respond and failure to properly investigate (they admit not inspecting yet claim to have conducted a thorough review and brought to a satisfactory conclusion!) as a deliberate attempt to delay timely justice, the damage worsens and I spend more time and money. Delay means nothing to the defendant as they're not the injured party.
I also have some arguments I think could help based around negligence and limitations:
Negligence under Latent damage act 1986 (not 1987 CPA), limitation starting when serious defect found not earlier (S14A(5) of 1980 limitations act).
Is it reasonable to dismantle a car to discover serious defects within the warranty?
If proceeded to trial I would request defendant's disclosure of documents showing any inherent manufacturing problems.
Breach of duty of care in safety of vehicle (defect has potential to become a safety issue and injure a person according to MOT inspector manual).
in Dutton v Bognor Regis Lord Denning considers that liability of a defect with the potential to cause injury rests with the manufacturer of an article, whether or not the injury has yet to occur: “I would say the same about the manufacturer of an article. If he makes it negligently, with a latent defect (so that it breaks to pieces and injures someone), he is undoubtedly liable. Suppose that the defect is discovered in time to prevent the injury. Surely he is liable for the cost of repair."
The claim represents loss consequential on physical damage not pure economic loss, I have a 'Linklaters vs McAlpine' argument based on complex structure theory and the loss of the component added during manufacture isn't being claimed but the damage to the panel is, and the component added is not considered part of the panel - the panel has been damaged by the defective part and claim is to cost to repair the panel. Argument that the damage isn't to the 'thing itself'??
Also
Conditional agreement to repair on the telephone call recording. Considered an offer which was accepted on consideration given to providing the report.
Overriding concern - I brought the case to right a wrong and exercise right to justice and fairness, and remain open to mediation (even if clear defendant isn't)
Concluding - notwithstanding late defence submitted, the defendan'ts unreasonable actions as a whole could mean I am likely to suffer prejudice if set aside and I believe the overriding objective would support the resistance of the set aside on ground of financial and legal position of both parties and of justice. For all these reasons the set aside should not be granted to the defendant and the claim should not be struck out or summarily disposed of.
I do apologise again and hope it makes sense - there's a lot of information there so I guess to summarise now where I'm looking for a bit of guidance..
1) Can I rely on the formation of a contract and subsequent breach in telephone call as a separate cause of action as that clearly isn't limitations statute barred? It was mentioned in particulars of claim even if not to that level of detail.
2) Any guidance on being able to retrospectively apply warranty as they clearly would have covered but given the latent nature it is wholly unreasonable to discover it in time (they must give guidance to the dealership yearly corrosion inspections but clearly wouldn't be in their interests to go looking in too much detail!)
3) Any guidance on bringing up quotes and points from past case law even when not an identical case and formulating arguments around that to my advantage.
4) Is there an 'assumption of responsibility' argument that I could use - I've seen this mentioned?
If I have to send skeleton arguments to the defendant as well as court will that not just give the defendant more opportunity to wear me down in court? So a choice between a judge pre-reading my position and possibly forming another view that I'm an 'above average' litigant in person to my detriment and the other side having fair warning of my arguments to prepare, but on the other side judge taking my points on board which assists me; or I do nothing until hearing and just give oral arguments in the court one by one assuming that's how it works, with the disadvantage of the judge perhaps not fully appreciating parts of it like reference to other cases, but I have the advantage of being a complete layperson? I'm probably overthinking it
Thanks SO MUCH in advance for any help!
