Taking trader to court - help / advice with particulars of claim needed pls

[pringles001]

Morning all… I just wondered if anyone is able to take a look at my PoC please and provide some comments ?

thank you in advance x

[echat11]

Morning all… I just wondered if anyone is able to take a look at my PoC please and provide some comments ?

thank you in advance x

Hi Pringles001

Unfortunately, Rob is actually a solicitor, so only has so much availability, but I'm sure he'll take a look as soon as he's available,

[pringles001]

Hi there,

Thank you for your response... ahh, totally makes sense, and really appreciate the support and advice with this matter

[R0b]

Sorry, I did read over the weekend but something had come up.

I've attached a commentary version for you to think about. Generally the POC is not bad but does seem to be lacking in detail in some parts, but whether you choose to make those changes is entirely up to you.

[pringles001]

R0b thank you so much for the comments - I will have a read through and update it over the next couple of days. I'll post up once done to request that someone kindly glance over it once again - thank you once again x

[pringles001]

R0b

I have made some amendments to the PoC (as attached)... I am not very fond of track changes so I apologise in advance as it looks very messy, plus the numbering has gone abit strange which is minor but will sort it...

I would be really grateful if you could review the content when you get the chance.... thank you xx

[pringles001]

I've made some further amendments and below is the final version I propose to submit, although there are some minor amendments i need to do... I would be very grateful for a final sense check please...

Thank you

[echat11]

It looks fine to me, if you have taken onboard Rob's suggestions then it should be fine. Hopefully he'll be able to take a look over the weekend. R0b

[pringles001]

great, thank you so much for all your help - and yes, would appreciate R0b taking a look when he gets the chance

[R0b]

Looks fine generally just a few points to consider below.

- You are going to put in the heading part of the claim aren't you? This is the bit that has the details of the claim, court claim number etc. If you file your POC as is then it's not compliant.

- Para. 1 you put a capital L for late, should be lower case.

- In para. 3 regarding your comment, you need to be clear as possible as these are supposed to be facts. You might want to remove the sale price from para. 4 add a new para. 5 then say that the advertised price was X though it is not clear what the agreed price was for, however it is verified that the Claimant paid X deposit by card, and bank transfer of X. The Claimant also traded in his current vehicle, an Audi A4 under reg XXXX. It is assumed unless the defendant can provide evidence to the contrary, that the payments plus exchange of the Audi satisfied the sale price of XXXX.

- para. 18, yes make it clear.

Your questions

- If the car has a private reg then you should explicitly state that in your claim. Asking fornthe return of it means it is more than just a money claim and you will need to pay additional fees, something like £310 when I last checked. Same applies for the keyring, but in both cases if the Defendant doesn't have the keyring, you can't order someone to give back something they don't have. In that case a monetary value would be given by the court which may not amount to much.

[pringles001]

Hi R0b - thank you for checking this for me again - i would like to thank you from the bottom of my heart and appreciate all your help and advice with this...

This should be ready to submit now, once I have filled in all the XXX's with the personal information, however I would love to get your final comments on the document, and below:


- I have inserted the heading - please can you check if this is the correct one? Not sure whether the highlighted bits on the title page need to be amended / deleted? Also, I assume I would be assigned the claim number once I start the claim form online, so will insert this once I have it

- I have amended para 3 & 4 as per your advice. Please can you advise if this reads okay?

- I have added a new para 8, stating that a private reg number was transferred to the Vehicle - please can you check this reads okay?

- I have added a new para 21, stating that the Defendant has the physical private plates and the keyring - please can you check this reads okay?

- I have amended para 27 to include the private plates and keyring as part of the claim - please can you check this reads okay?

- Do I need to sign and date the document?

Thank you once again for all your help

[pringles001]

Hi there R0b et al,

I'm so sorry to keep bothering you with all the questions... I just wanted to confirm a couple of things that I have just thought of., my mind being over-active at this time of evening and not being able to switch off...

1. Firstly, and most importantly, do I need to apply for grant of Probate before I submit this claim? I am the named Executor and Trustee in the will, as are my other 2 sisters, but we didn't apply for probate, as after calculating assets (only the car as house in join names) and money in bank, it didn't meet the bank's threshold for releasing money. However, I am now wondering whether it is a requirement for me / my sisters to have a grant of Probate before I can proceed with this claim??

I don't want my claim to get thrown out because of this, or is it a case that the courts will advise that I need to apply for it before the claim can go any further? I am unsure as to how it would work...

2. In the claim, should my late father be classed as the Claimant, or should I? I wanted to double check this again as when I inserted the title page, I was unsure whether put:

- Mrs XX XXX (acting as Personal Representative in the Estate of) Mr XX XXXX (deceased), or
- Mr XX XXX (deceased), by the Personal Representative of the Estate, Mrs XX XXX

In addition, para 1 states:

The Claimant is the late Mr XXXX, a consumer. Ms XXXX is acting as the personal representative of Mr XXX (deceased) and was appointed as such on [insert date]

However if I am the Claimant, then do I need to change the document to reflect that, i.e. use something like the following:

The Claimant brings this claim on behalf of Mr XX XXX (the 'Deceased'). A copy of the Deceased's Will, dated X, is attached to these particulars as evidence that the Claimant is acting on behalf of the Deceased's estate.

3. Do I need to attach the Will at this point?


I know this is probably just as painful for you, as it is for me, so wanted to say a massive thank you for being patient and supportive... I will certainly be making a donation to this service as I couldn't have got this far without the help and support of you all - thank you

[R0b]

Morning, answers to your questions in the same order as asked.

1. My knowledge on probate law is limited but I have done a little research and the answer seems to be yes you do need to have applied for probate. There is a case about an issue similar to yours and the court has indicated that without probate, any claim is a nullity (link here).

2. Think I answered this previously in an earlier post, but it should be something like Mr Joe Bloggs as the representative of Mrs Sharon Bloggs (deceased).

3. Don't think you do as the will is not relevant. You may be asked to provide evidence that you are entitled to bring a claim on the deceased's behalf but the will is private and confidential so you wouldn't want to make that public record if a court has not asked you to do so.

[pringles001]

I'm so glad I checked this with you R0b and that you have confirmed what I thought. When I did some searches on this point, the details was in very legal language and I was struggling to understand, but the bottom line is, I will have to apply for probate to avoid risking my claim getting struck out...
This of course is going to take some time, as i think there is an 8 week processing time, however, fingers crossed it gets done quicker.

Referring to point 2 above, suggests I would be the Claimant, and not my dad. Therefore, where I have referred to my father as the Claimant within the PoC paragraphs, should I amend this to the Deceased then?

And I agree with the Will being a private and confidential document. I guess once I have the grant of Probate, i could attach this at the time i submit the claim.

I just hope its not looked at negatively for the time its taken me to submit this - hopefully a judge would understand that as I am representing myself, it can take time for the PoC to be drafted etc, and get your head around the whole process.

I will amend the PoC over the weekend, and ask that you kindly have a final look over so they are ready to go once the Probate is granted. Would it be worth including a paragraph in the PoC stating when Probate was granted, or would this not be relevant?

Thanks

[pringles001]

R0b

Hi all, hope everyone is doing okay.

It's been a while since I posted, as taken some time for the grant of probate to come through, coupled with personal circumstances etc...

I have uploaded my amended PoC, and have some queries regarding the language used.

I would be very grateful if you could check / confirm the following:

a) Which of the 2 options is best to use on the title sheet as the Claimant?

b) Do i need to attach grant of probate as stated in para 1?

c) What is the correct language to use in para's 16, 19, 22, as highlighted?

d) What is the correct language to use in para 23.2 and 26.3, as want to get across that the issues with car were still prevalent following my father's passing, and also that we/ the estate has been deprived of the use of the car

e) What is the correct language to use in para's 24.3, 24.5, 24.6, 26, 27, 28, as highlighted?

f) when working out the interest, I need to get your thoughts on the question which asks "Date money became owed to you". In your opinion, would this be the date when the car was reported as faulty (2 weeks after collecting the car in Oct 2019), or when the car was returned the first time (in Jan 2020) following the attempt of repairs, but repairs were still outstanding, Or when the car was reported faulty again in Feb 2020?

In addition, I think I am correct in assuming that CPR 26.8, states that court will diregard the amount of interest when deciding which track to allocate the claim. Therefore if my claim amount is £10,000, and my interest is say £1000 for example (i need to work this out once I know which date to use as per point f above), then will this still be allocated to small claims track, even though the total amount is over £10k?

Apologies for all the questions, but this has been hanging over my head for some time now, and I am keen to get this sorted as soon as possible...

Thank you