Behemoth auction house demanding return of purchased lot - Letter before action

[dylan2408]

Attached particulars of claim redacted.

I'm still shocked an auction house can create this claim considering they are not the owners of the vehicles and only take a percentage of the sale value. Their client (insurance company) in my mind would be the only party able to open this case in the first instance.

I'm seeking professional help through the direct access portal but I am out of country from tomorrow until the 8th of Jan, The timing couldn't have been any worse.

Any help appreciated, I still have not received the pack only an email with the particulars of claim so I can't yet access the case in the portal.

[des8]

I don't understand how the claimant advertising the item for sale on a "buy it now" basis instead of "make an offer" basis can be classed as a "mistake of fact".
Doesn't a mistake of fact apply to the interpretation of the terms of the contract?

It appears to me that Copart listed the item in the wrong section, but that doesn't give grounds to void the contract

[R0b]

Only scanned it so no real comments just now but as far as I am aware in civil law, there is no such thing as a mistake of fact or a mistake of law. Mistake of fact is a criminal defence, and doesn't bear any application to civil law. A cause of action for mistake can be (1) common mistake, (2) mutual mistake or (3) unilateral mistake.

The particulars of claim are a bit wishy washy to be honest and my immediate reaction is, why are they not claiming breach of contract? They've referred to the right to cancel and unwind the sale, but they seem to be relying on mistake - possibly unjust enrichment but that's not actually clear either.

The POC seem to be insufficient to amount to a cause of action as it looks like Copart are mixing and matching.

[atticus]

Mistakes in contracts can be corrected in civil law. But this is far from easy. Generally a mistake in contract has to be clear on its face in that the wording does not make commercial sense. If the wording works, then even if one party thinks it is not what was meant, then tough, the wording of the contract will be applied.

See the HL case of Chartbrook v Persimmon Homes (2005) https://www.bailii.org/uk/cases/UKHL/2009/38.html

[atticus]

Having read the Particulars of Claim, I think the Claimant faces an uphill struggle here. I strongly recommend that the OP should consult a good solicitor. Without making any promises, I would be asking the solicitors whether, once a Defence has been submitted, there are grounds to apply for summary judgment dismissing the claim.

The Claimant's problem seems to be inability to recognise that it must bear the consequences of its error.

And what is "negative enrichment"? To my mind that is impoverishment!

The claim for compound interest should not wash.

[dylan2408]

Thanks everyone for your replies!

I'm certainly glad I am not the only person reading this scratching my head about where the confidence is coming from regarding the matter.

I'm awaiting reply from barristers on the direct access portal and have reached out to one local solicitors.

Taking from what Copart have said it would seem "negative enrichment" would also apply to any vehicle sale wherein the new owner of the vehicle finds out the seller had previously advertised for a lower price, or Copart having sold at a lower price prior and this time round sold for more (as often happens at auctions). I can't imagine they would be offering me anything if I had found out they previously sold the lot at a lower price then what I purchased it for.

If anyone could recommend someone who would be interested in the case and would write a draft defence and/or deal with the case please get in touch I would be interested in talking with them asap.

Thanks,
Dylan

[atticus]

As to recommendation, contact barristers' chambers in your are. Find those who deal with commercial cases and see whether they will assist you on a direct access basis. Speak to the clerks in those chambers - most barristers' clerks are very helpful.

[atticus]

NB - what is the claimant's loss here? The Claimant is the auctioneer. If it was also the owner of the vehicle it has failed to say so either in the letter before action or the Particulars of Claim. That said, Copart's website indicates that they do buy vehicles, presumably to sell.

If I was still in practice, I'd have gladly taken on this case - if a fee arrangement could be agreed.

[dylan2408]

atticus After acknowledgement of service should I wait until close to the deadline to file my defence? I have been quoted by Clerksroom direct £850 for my defence to be drafted by one of their barristers.

I'm just trying to figure out timings as I am out of the country and cannot file paperwork or attend any hearing from the 20th December until the 8th Jan. After acknowledgement of service when would my deadline be for submitting a defence?

Also would it immediately after that I should issue for summary judgement, if it is advisable by a barrister, I am reading anywhere up to 14 days after for a hearing hence why I do not wish to risk submitting now and being unable to attend?

[atticus]

Serve and file your defence when it is ready. This may be close to the deadline, but don not leave things close to the deadline just for fun. Given the Christmas and New Year period, why not ask the Claimant's lawyers to agree an extension of time - the rules allow the parties to agree an extension of up to up to 28 days**. Otherwise, you have 28 days from the deemed date of service to file your defence.

A fee of £850 plus VAT (check the VAT position!) does not surprise me for drafting a Defence.

At least 14 days notice must be given of an application for summary judgement. In practice, given how clogged court lists are, it will be longer. If applying for summary judgement you should consider instructing the barrister to represent you at the hearing.


** CPR 15.5 https://www.justice.gov.uk/courts/pr...rules/part15#4

[dylan2408]

Serve and file your defence when it is ready. This may be close to the deadline, but don not leave things close to the deadline just for fun. Given the Christmas and New Year period, why not ask the Claimant's lawyers to agree an extension of time - the rules allow the parties to agree an extension of up to up to 28 days**. Otherwise, you have 28 days from the deemed date of service to file your defence.

A fee of £850 plus VAT (check the VAT position!) does not surprise me for drafting a Defence.

At least 14 days notice must be given of an application for summary judgement. In practice, given how clogged court lists are, it will be longer. If applying for summary judgement you should consider instructing the barrister to represent you at the hearing.


** CPR 15.5 https://www.justice.gov.uk/courts/pr...rules/part15#4

Can the contact with the claimant be via email to request the extension, Should I include any evidence of pre booked vacation?

[atticus]

Yes and yes. And point out that they chose, after several months, to issue the claim just before Christmas.

[dylan2408]

Things are ticking along, directions questionnaires received by the court. I am issuing a concise three pointer part 18s to the claimants legal team to find out mainly who owned the vehicle and how they have lost out on £20,000 and also more details around the "system error".

I am wondering if its worth asking as part of "who owned the vehicle" request, how much they paid for it?

They are a salvage site, if they did indeed own the vehicle I cannot imagine they paid anywhere near the £44,000 they want from me.

Worth adding?

[atticus]

I see no harm in it.

[Ukmicky]

Would loved to have seen their response if you had said you had sold it the day after you collected the vehicle. Would they now be suing you because you failed to wait for 1 week ,1 month ,1 year before you dealt with your purchase as an owner is permitted to do .

There has to be a reasonable point where the vehicle was deemed to be yours otherwise you would never be able to sell it, For their terms to be fair surely it would need to mention at what point they lose the right to cancel the transaction.