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

[echat11]

'Thank you for your advice... I have numbered the points (not sure if this is necessary) and tidied up some of the grammar / wording. In addition I have included other valid points such as the 1 year warranty that was agreed verbally (not written) for the car, for which my brother in law was a witness to. - please could you kindly review and provide your comments? - Numbering is fine, if the Defendant defends then will use those numbers to answer your claim.

I also have a few questions that I'm hoping you can help with please:

1. when I fill in the form, do I need to complete in my late fathers name (i.e. Late Mr XXX) , or in my name (Ms XXX as a personal representative of the Late XXX) - Ms XXX as a personal representative of the Late XXX)

2. as I have mentioned before I cannot find an invoice for the receipt, so I am going on the value on the car advert which was £10.995. My father paid £5500 cash, and the rest was the value of this previous car, therefore it may be that his previous car was part-ex'd for £5000, rather than £5500 etc. But without paperwork I have no way of confirming this - is this something I need to worry about? Like you mentioned, it may be disclosed by the trader alter (if he has copies etc) but i'm worried he could fabricate figures / invoices etc.

It would be good to get clarity on the figures involved. If he had replied to your LBA, that would have given an indication on the figures if wrong.

3. Do I need to include an Annex now (at the time of submitting the form) with the receipt, bank transfer etc (as I've stated ) or shall i leave the bit in italice out of the PoC statement?

No, you are just giving the court an outline of your claim.

Thank you for your help, it is much appreciated

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1. 'MY NAME' is acting as the Personal Representative on behalf of the Late 'MY LATE FATHERS NAME' (the Claimant).
2. On or around the 4^th September 2019, the Claimant entered into a contract for the purchase of a Jaguar XF vehicle, registration number XXXX XXX (the “Goods”) from the Defendant, a car trader.
3. The Claimant agreed to buy, and the Defendant agreed to sell the Goods for the sum of £10,995.
4. The Claimant subsequently collected the Goods from the Defendant at its registered office on 12 October 2019. A verbal one-year warranty period for the Goods was provided by the Defendant.
5. Following collection, on / around the 24^th October, the vehicle developed serious defects. Despite the Defendant's attempts at repairs, the vehicle continued to exhibit problems.
6. The vehicle is in the possession of the Defendant and has been with him for 22 months during the entire 24 months of the Claimant's ownership.
7. The Defendant has been made fully aware of the nature of the defects and the vehicle has been fully appraised, but instead the Defendant has supplied a loan vehicle, current market value of approx. £2,240 (as taken from Autotrader Aug 2021).
8. The Defendant is in breach of contract as has supplied a vehicle which is not of satisfactory quality contrary to the Consumer Goods Act 2015. In addition, the Consumer Rights Act 2015 also states that “service to be performed with reasonable care and skill” and “service to be performed within a reasonable amount of time”, which is contrary to the service received.
9. The Claimant has been fundamentally deprived of the whole benefit of the contract for a substantial period of time.
10. Prior to issuing proceedings, the Claimant’s representative / Executor of the Estate sent a Letter of Claim to the Defendant demanding a refund .
11. In the circumstances, the Claimant’s representative / Executor of the Estate seeks reimbursement of £10000.

[echat11]

in addition, the courtesy car (which hasn't been used since Nov 2020, when my dad last used it), now has a flat battery, which I can try jump start. My sister has informed me that she recalls seeing an engine management light on the car when she started the car in Jan this year, whilst my dad was in hospital.

How would I acknowledge this point in my PoC, that the loan car had issues etc?
I don't want the trader to make false accusations and say that the issues were caused by my dad etc.

Can i just add to point 7:

7. The Defendant has been made fully aware of the nature of the defects and the vehicle has been fully appraised, but instead the Defendant has supplied a loan vehicle, which is not of satisfactory quality, current market value of approx. £2,240 (as taken from Autotrader Aug 2021).

7. The Defendant has been made fully aware of the nature of the defects and the vehicle has been fully appraised, but instead the Defendant has supplied a loan vehicle, which is not of satisfactory quality and has faults, current market value of approx. £2,240 (as taken from Autotrader Aug 2021)

[pringles001]

Thank you so so much for your help, I really do appreciate it so much

In your opinion, should I persue for the full amount, including interest, and litigant in person costs etc?

I know this would mean that it may go through the fast track system, which is where you become liable for the other parties legal costs if I lose the case, although I am not entirely sure how much this would amount and whether it would be worth it.... what would you do in this situation?

[echat11]

Thank you so so much for your help, I really do appreciate it so much

In your opinion, should I persue for the full amount, including interest, and litigant in person costs etc?

I know this would mean that it may go through the fast track system, which is where you become liable for the other parties legal costs if I lose the case, although I am not entirely sure how much this would amount and whether it would be worth it.... what would you do in this situation?

I would leave it as it is. You don't want to end up paying the other parties legal costs, there is no certainty the way the courts operate. Wait for another member of the site to read through it.

And don't add anything else to the POC even if you are tempted.

[pringles001]

okie dokie, thank you for your advice.... I will leave it until tomorrow / Wed for other members to comment ( hopefully they will see it by then) as am keen to submit this as soon as possible... as you can imagine, its been hanging over our head since the death of my father in Jan this year, and its something we (as a family) could do without.

I really appreciate your assistance and support with this,... Thank You & God Bless You All

[pringles001]

Good morning

I just wondered if other experienced members had had a chance to read through my PoC and had any comments please?

thank you

[echat11]

Original Post

I am taking a trader to court regarding my late fathers car which was purchased in October 2019, and since purchase it has had ongoing issues. The trader has had the car for a total of 22 months out of 24 months allegedly repairing it and since my fathers death (this Jan 2021) has been particularly unhelpful and has refused to return the car. I don’t know where the car is and he has stated that it requires a new engine however despite my numerous requests of asking for photos, location, the trader has not provided this. The car has been taken apart and is now in an undriveable condition. There have been no written reports, no evidence of parts he has ordered / replaced etc - it’s all been his say so.
I have been in telephone contact with the trader from Feb - Apr 2021, and have also sent him written letters. My local trading standards office have been in contact with him and he has advise “customer misuse” however this has never been communicated to me or my late father.. More so if this was the case then why has he accepted the car back for repair a number of times and not returned it back on the last occasion?
In addition, the trader has advised the trading standards officer that he will be perusing for the non-return of the courtesy car which was given to my father while his was allegedly being repaired. The courtesy car is still on the drive and the trader has only mentioned it being returned once during the time I have been in contact with him. We agreed at the time that he could pick the courtesy car when my fathers car was returned.

I would appreciate some advice on writing the particulars of claim so I can get this matter resolved once and for all

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Information

a) Also, do I need to apply for the claim as “personal representative of Mr (my late father)” or “estate of the Late Mr (my late father)
when I fill in the form, do I need to complete in my late fathers name (i.e. Late Mr XXX) , or in my name (Ms XXX as a personal representative of the Late XXX).

b) I have text message exchanges between the trader and my father in regards to the faults being reported and chasing the repairs. The car came with a 1 year warranty (which was orally stated, and not written) which my brother in law is a witness to that conversation at the time of purchase.

c) i have the company house address details too. It is registered as a limited company. The company is still active - was incorporated in June 2012. The company was previously trading under a different but similar name from Sept 2009 - Aug 2013, but the company was dissolved. The dissolved company had 3 directors, one of which is the director of the current company, that I have been dealing with.

d) I'm not entirely sure when the 1st repair was carried out, as am only going by text messages from my fathers phone but it’s clear that my dad reported a fault in the 24th October however due to a mix up at the garage it was taken in on the 4th November. The trader had the car until sometime end of Jan / beginning of Feb 2020.

e) The fault was still there so my father reported this again mid-Feb and tried to arrange for the car to be collected, but it wasn’t collected until mid-March 2020 (just before lockdown) and the trader had the car until August 2020. The car was returned with the initial electrical fault resolved however my dad noticed a knocking sound coming from the engine (which wasn’t there previously) and spoke to the trader , who advised that the car was running low on engine oil and had to top it up, and told my dads to take it for a long drive. My dad followed this advice and it still didn’t resolve the issue and again contacted the trader. The trader again collected the car after a week of it being returned (in Aug 2020) and it’s been with the trader ever since.

f) he is claiming customer misuse due to the engine oil not being tipped up but my father hardly even had the car to use as it’s been in the traders possession for most of the ownership, and also why was my father not advised soon afterwards in Aug 2020 that it was customer misuse and returned back ? It’s now in an undrivable condition and I have no idea where the car is despite numerous attempts requesting the location and photos of the car.

g) in regards to the courtesy cars, my dad was given a few of them, the one on my parents drive is a golf, which has a very high mileage. I don’t think it’s been used since my dad last drove which was in November last year. When I was in phone contact with the trader earlier this year he mentioned it once , that he would “take it off my hands” and at the time, it wasn’t long after my father had passed, so i suggested he collect it once my fathers car had been fixed and dropped back to us, to which he agreed. And that was the only time we spoke about the courtesy car.
in regards to referencing the courtesy car in the PoC, is this relevant because of the trader mentioning to the TS officer that he will be persuing me for this car?

h) also in terms of the claim , my father our £5500 via cash (bank transfer) and the rest of was part ex of his previous vehicle. I cannot find the invoice receipt for the car (I’m not sure if one was given, or it may still be in the glove box of the car) but I have the receipt for the £500 deposit and the bank statement for £5000.

i) I know the limit for small claims is up to £10k, and the anything above is £10k goes to fast track, where I could claim interest however there is also a risk of paying the other sides legal costs which just wouldn’t be worth it, hence the £10k claim in my statement. I could add that as we had some very minor use of the car this is the reason but would be good to know your thoughts around this please.

j) The last MOT (in Aug 2020) shows the mileage was at 111,000 so I've taken these values and done a quick search, The value of the courtesy car is as follows: Autotrader - £2,240, parkers - £2,490 - £3,165

k) I've amended some of the wording below. I have also taken out the not fit for purpose part (not sure whether to include this as how do I back this up), and also taken out misdescribed - just checked the archived Autotrader advert for the car, and it doesn't have a lot of detail although one presumes when you buy a car it will be in good working order - do you think I should leave these in or take them out as I have done?

l) as I have mentioned before I cannot find an invoice for the receipt, so I am going on the value on the car advert which was £10.995. My father paid £5500 cash, and the rest was the value of this previous car, therefore it may be that his previous car was part-ex'd for £5000, rather than £5500 etc. But without paperwork I have no way of confirming this - is this something I need to worry about? Like you mentioned, it may be disclosed by the trader alter (if he has copies etc) but i'm worried he could fabricate figures / invoices etc.

m) in addition, the courtesy car (which hasn't been used since Nov 2020, when my dad last used it), now has a flat battery, which I can try jump start. My sister has informed me that she recalls seeing an engine management light on the car when she started the car in Jan this year, whilst my dad was in hospital.

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Potential Claim

1. 'MY NAME' is acting as the Personal Representative on behalf of the Late 'MY LATE FATHERS NAME' (the Claimant).

2. On or around the 4^th September 2019, the Claimant entered into a contract for the purchase of a Jaguar XF vehicle, registration number XXXX XXX (the Goods) from the Defendant, a car trader.

3. The Claimant agreed to buy, and the Defendant agreed to sell the Goods for the sum of £10,995.

4. The Claimant subsequently collected the Goods from the Defendant at its registered office on 12 October 2019. A verbal one-year warranty period for the Goods was provided by the Defendant.

5. Following collection, on / around the 24^th October, the vehicle developed serious defects. Despite the Defendant's attempts at repairs, the vehicle continued to exhibit problems.

6. The vehicle is in the possession of the Defendant and has been with him for 22 months during the entire 24 months of the Claimant's ownership.

7. The Defendant has been made fully aware of the nature of the defects and the vehicle has been fully appraised, but instead the Defendant has supplied a loan vehicle, which is not of satisfactory quality, it has faults, current market value of approx. £2,240 (as taken from Autotrader Aug 2021).

8. The Defendant is in breach of contract as has supplied a vehicle which is not of satisfactory quality contrary to the Consumer Goods Act 2015. In addition, the Consumer Rights Act 2015 also states that service to be performed with reasonable care and skill and service to be performed within a reasonable amount of time, which is contrary to the service received.

9. The Claimant has been fundamentally deprived of the whole benefit of the contract for a substantial period of time.

10. Prior to issuing proceedings, the Claimants representative / Executor of the Estate sent a Letter of Claim to the Defendant demanding a refund .

11. In the circumstances, the Claimants representative / Executor of the Estate seeks reimbursement of £10000.

R0b

[R0b]

I think there's some improvements that could be made, but I'll post some detail when I have time later.

[echat11]

I think there's some improvements that could be made, but I'll post some detail when I have time later.

Thanks Rob.

[R0b]

When you issue a claim for a breach of contract, there's certain elements you need to meet in order for a claim to be successful:

There was a legally binding contract
Under the contract the defendant had certain obligations
The defendant failed to perform or comply with those obligations and thus in breach of contract
The breach has caused the loss or damage you are seeking to recover

As mentioned, there's a few gaps I think in your POC. I'm a fan of using headings and sub-headings in a POC as it helps to signpost the reader about what each of the sections are about. It's not a requirement nor is it always necessary if the claim is straight forward, but I find it good practice. The POC should be drafted in third person always, never first person.

If I was drafting a POC for breach of contract, I would think about having the following headings

1. Introduction (or The Parties)
You already have the introduction but change it to the third person.

2. The contract

This is where you explain whether the contract was in writing or if it was verbally and the date on which the contract was entered into. Also explain what the contract entailed i.e. The Claimant agreed to purchase a 2008 Mercedes Benz with 30,000 miles for the price of X amount. That sum was paid in cash, or by credit card or direct debit etc.

3. Terms of the contract

Important you set out the key terms of the contract you are relying on as part of the breach. You want to make it clear the contract was subject to the Consumer Rights Act 2015. A few lines below to get you started on how to include this.

At all material times, the Claimant acted in the capacity of a consumer and the Defendant as a trader. Accordingly, the contract was a consumer contract subject to the Consumer Rights Act 2015 ("CRA 2015").

Pursuant to the CRA 2015, there were the following implied terms incorporated into the contract, particularly that:

the goods would be of satisfactory quality (section 9 CRA 2015);
any services performed would be carried out with reasonable care and skill (section 49 CRA 2015); and
the services would be performed within a reasonable time (section 52 CRA 2015).

4. Relevant facts

Set out the background leading up to the claim. Stick to key facts and dates, don't give full chapter and verse that isn't necessary.

5. Defendant's failure to perform the Contract (or The Defendant's breach of contract)

Here you specify how the defendant is in breach. I would suggest you split out how the goods were not of satisfactory quality and the services not performed with reasonable care and skill and/or not performed in a reasonable time. This can link back to some of the relevant facts you might have mentioned and also some of the evidence you have either by text messages or other written or verbal responses.

6. Loss and damage suffered

Clearly identify the loss or damage suffered here. You may want to explain loss of use of the car, the length of time the car has been in the possession of the defendant and also include what you've written about being substantially deprived of the benefit of the car due to the amount of time the defendant has had the car.

Next you have to write

AND THE CLAIMANT CLAIMS:

1. Damages in the sum of XXXX
2. [Any other remedy]
3. Interest
4. Costs

Make sure to put in the Statement of Truth at the end.

As for your question about what you put on th Claim form. I suggest you read the notes N1A (link here). It says

suing or being sued in a representative capacity you must say what that capacity is for example, ‘Mr Joe Bloggs as the representative of Mrs Sharon Bloggs (deceased)’

Think that's about enough for tonight, it's late and Ive had a long day! Feel free to put up a revised POC but just a little advice to you - always best to get it right than simply rushing because you are itching to get the legal proceedings started. There's rules that need to be complied with and if you don't get them right, it could cost you in making amendments to your claim or worse, having it struck out for non compliance.

[pringles001]

R0b Thank you so much for your comments above - I will have a go at drafting this today and post abit later.

just a quick question relating to 6 (AND THE CLAIMANT CLAIMS part)

The car was advertised for £10,995. I know my dad paid £5500 via debit card and bank transfer, the rest was the value of his existing car, which was an 08 plate Audi with low mileage. I cannot find the invoice (not even sure if the trader gave one) so I am not sure how much was given for the value of my dads previous car - it might have been £5000 - £5500.

Because of this, plus to minimise the risk of it going to fast track, I was going to claim a fixed cost of £10,000, and no interest - what are your thoughts around this please?

thank you

[pringles001]

Hi R0b

Following your comments above, I have attached my draft of the PoC. - not sure whether you prefer an attachment, else I can copy and paste it in the box to view?.
Please can you have a glance over and let me know what you think ?

Thank you

[pringles001]

Good evening all…

please can someone kindly give me some feedback on my attached PoC (as per my above post?)
thank you

[R0b]

I will try and have a look today but can't promise.. I've got a really busy couple so it might have to be the weekend if you can wait until then. If not, then I can only suggest you re-read your POC and make sure your happy and have covered everything.

[pringles001]

R0b thank you for replying - the weekend will be fine thank you