DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8,

Please find attached copies of: :

1. Buyacar's response to my Letter before Action on 9th April 2014
2. Buyacar's response to my refusal of their offer after letter before action.

Below is my response to Buyacar when I refused their offer and re-iterated I was still in dispute, not received any documents and requested proposals for mediation or other ADR:

14^th May 2014

WITHOUT PREJUDICE
Dear Mr
I am writing to you with reference to your letter dated 24^th April 2014. I apologise for the delay in response but I have been away on holiday.

Unfortunately I decline your offer to supply the vehicle for a “third” time and do not consider your offer to be satisfactory. I therefore confirm that I am still in dispute with Buyacar for failure to perform the contract.

I would also like to make you aware that Buyacar have not supplied the documents as requested in my “Letter Before Action” dated 9^th April 2014.

I can confirm that I would be agreeable to mediation and would consider any other system of Alternative Dispute Resolution (ADR) in order to avoid the need for this matter to be resolved by the courts. I would invite you to put forward any proposals in this regard.

I again draw your attention to section II (4) of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to the “Letter Before Action” before a claim is made. I look forward to hearing from you within the next 7 days from receipt of this letter.

Should I not receive a proposal for mediation or any other system of Alternative Dispute Resolution (ADR) within this time frame, then I anticipate that court action will be commenced with no further reference to you.

Yours faithfully,

Do I need to formally respond to their last offer letter dated 19th May 2014, or if so could you please offer advice on wording?

Regards,
0011728

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

OK, thanks for letters
So if you are determined to take action bear in mind it can be stressful and there is never any guarantee of success. You only have to look at the different results that come up on the parking cases to realize it is a bit of a lottery. You might wish to consider their offer, and even try negotiating an improvement in it.

You must also be aware that any information from this site is not and is not intended to be legal advice, which should be obtained from a lawyer.

If you don't want to try for an improved offer but still intend to continue with this action, consider sending a letter as in post 30. In it do not refer to their letters which are headed "without prejudice", and do not head your letter "without prejudice". You will need to produce this correspondence in court and if it is headed "WP" it can cause difficulties.

[stevemLS]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

There is rarely any point pursuing legal action for a "point of principle".

For what it's worth, my view is that if you issue proceedings you will fail. The company have clearly offered to perform the contract and have offered you Ł500 if you do not wish to proceed.

What exactly do you want?

[Wombats]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Search results very mixed - either customer delighted or devastated, very black and white and hardly any grey.

Honest John recommends ONLY http://www.drivethedeal.com/ (Source http://www.honestjohn.co.uk/askhj/an...-new-ford-kuga )

Hope this helps.

FWIW, IMO I'd get the chargeback, forget about court and go elsewhere, but it has to be your decision.

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8,

After deciding to take the legal route the court claim was filed. Buyacar have now contacted me as they wish to try and resolve the matter without legal proceedings. From my perspective, because I have evidence that neither of the previous orders were placed directly with Vauxhall, for a resolution to be agreed I require proof that the order has been placed with Vauxhall, with a sales order number and for myself to be set up on the "Track My Vauxhall" order system that automatically emails you order status updates for the order. Buyacar have staed (not yet in writing) that they can now do this.

Now the advice required. Is there anything else that I need Buyacar to put in writing that it is enough to stop legal proceedings and for them to fulfill the order?

If Buyacar failed yet again to fulfill the order what recourse would I have or would I have to start the whole process off again?

Any help would be greatly appreciated.

0011728

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Surprise, surprise.
You filed a claim and it has been served on buyacar who have contacted you outside of the court system.
Now an offer to settle after a claim has been filed is a part 36 offer and must, if it is to be compliant with court rules:
-Be a genuine offer to settle
-Be made “without prejudice except as to costs” (it cannot be referred to the Judge having conduct of the proceedings until the conclusion of the matter)
-Comply with the strict requirements of Part 36 of the rules of court

I would be inclined to write to them advising you would only be prepared to consider an offer to settle if that offer complied fully with those part 36 rules.Until such time as an offer is received in the correct format you will not be prepared to withdraw proceedings.

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8,

Thank you for the advice given. Having followed the advice I have received the following Part 36 offer.

This offer is intended to have the consequences of Section I of Part 36, and relates to the whole claim.

This offer is made without prejudice except as to costs.
Dear ...............,
I can confirm that we can re-order your vehicle at the original supply price and specification and also with the further added option of ........................at Ł.......... which brings the total order price to Ł.......... To order this vehicle we will create a new order including the added option for you to sign and accept and then order this with Vauxhall, within a few weeks of the order being placed we will be provided a Vauxhall SONO (sales order number) number which we are happy to provide you with so that you can track your order through the “Track My Vauxhall”. I must stipulate however that at no time must contact be made with our supplier with regard to the order, also if Vauxhall ask you questions with regard to your order then you will need to ignore these questions or seek our advice before answering them, under no circumstances must you mention to Vauxhall customer services that you are purchasing this vehicle online and through Buyacar. I raise this point as we never in practice offer our customers consignment numbers as our supply relationships are very sensitive and as such we have to go to great lengths to protect them and other orders etc affected by them.


I must stress the above point as it could seriously jeopardise your order and other orders in place if sensitive information is provided to Vauxhall customer services.

A new order for this vehicle is likely to take around 10-12 weeks, please be aware that this is only an estimate and this timeframe could come forward or even be prolonged if there are any production constraints, however at present we are not aware of any.

Replacing the order for you at the agreed price of Ł.............. is subject to your understanding and agreement of the above terms, and the cancellation of the legal proceedings.

I look forward to hearing from you within 21 days from the date of this offer if you which to accept.

I think I have read somewhere (but can't find it again) that I am also entitled to the fee I paid to start my claim i.e. Ł205.00, or am I incorrect. Also, there is no consideration for the other costs I have incurred e.g. hire car costs, administration costs etc.

I am also not happy with the restriction placed on me if I agree to the offer that I will not contact Vauxhall. If I agree and there are problems with this order my only contact would be through Buyacar who have been abysmal throughout this saga up to now.

Is there anything else I have missed with this offer, as all this is totally alien to me?

Kind regards,
0011728

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8,

Thank you for the advice given. Having followed the advice I have received the following Part 36 offer.

This offer is intended to have the consequences of Section I of Part 36, and relates to the whole claim.

This offer is made without prejudice except as to costs.
Dear ...............,
I can confirm that we can re-order your vehicle at the original supply price and specification and also with the further added option of ........................at Ł.......... which brings the total order price to Ł.......... To order this vehicle we will create a new order including the added option for you to sign and accept and then order this with Vauxhall, within a few weeks of the order being placed we will be provided a Vauxhall SONO (sales order number) number which we are happy to provide you with so that you can track your order through the “Track My Vauxhall”. I must stipulate however that at no time must contact be made with our supplier with regard to the order, also if Vauxhall ask you questions with regard to your order then you will need to ignore these questions or seek our advice before answering them, under no circumstances must you mention to Vauxhall customer services that you are purchasing this vehicle online and through Buyacar. I raise this point as we never in practice offer our customers consignment numbers as our supply relationships are very sensitive and as such we have to go to great lengths to protect them and other orders etc affected by them.


I must stress the above point as it could seriously jeopardise your order and other orders in place if sensitive information is provided to Vauxhall customer services.

A new order for this vehicle is likely to take around 10-12 weeks, please be aware that this is only an estimate and this timeframe could come forward or even be prolonged if there are any production constraints, however at present we are not aware of any.

Replacing the order for you at the agreed price of Ł.............. is subject to your understanding and agreement of the above terms, and the cancellation of the legal proceedings.

I look forward to hearing from you within 21 days from the date of this offer if you which to accept.

I think I have read somewhere (but can't find it again) that I am also entitled to the fee I paid to start my claim i.e. Ł205.00, or am I incorrect? Also, there is no consideration for the other costs I have incurred e.g. hire car costs, administration costs etc.

I am also not happy with the restriction placed on me if I agree to the offer that I will not contact Vauxhall. If I agree and there are problems with this order my only contact would be through Buyacar who have been abysmal throughout this saga up to now.

If I did proceed to accept the offer, could I stipulate that I would only cancel proceedings once the SONO number has been received?

Is there anything else I have missed with this offer, as all this is totally alien to me?

Kind regards,
0011728

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

A very quick look and his offer appears not to be compliant with part 36.

It cannot be subject to the claimant agreeing to cancel legal proceedings.
It is now part of the legal proceedings, and if they fail yet again to complete the offer you can have judgement entered against the defendant. (difficult to do if you have cancelled the proceedings)[part 36.11.8]
If you accept the offer, notice has to be filed at court.

You are entitled to the costs of the proceedings up to the time of acceptance.

I think (haven't checked back as in hurry) your claim included all your costs, and you say they haven't included these in their offer.

I would suggest declining this offer on the above basis, anticipating Buyacar will make an enhanced offer to cover your costs.
That is if you have any confidence at all that this outfit will complete the order.

Be aware however that there may be costs implication if you do not accept an offer which is compliant with the part 36 and the matter proceeds to trial, where your award is equal to or less than what is on offer.
Please remember I'm not a lawyer, and court action is always a bit of a lottery

Also don't understand why you should have to sign/accept a new order. You only wanted your original order completed, and I don't believe you ever cancelled that!
You would also need a firm delivery date, so that if offer was not completed you could have judgement entered.

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Thanks des8 for your response and I appreciate all the help you have provided since my original post!

I am considering responding to their offer stating that I cannot accept the terms as I cannot agree to cancel legal proceedings and then putting a claimant Part 36 offer to them. Could you please help clarify something on costs for me?

• Ł3,816.00 - difference between contracted price and cheapest dealer price. This is the main claim price to be included in the settlement sum
• Ł400.13 - made up of hire car costs, administration costs etc. Is this cost included in the "settlement sum" of my Part 36 offer?
• Ł205.00 - court fee. Not to be included in my Part 36 offer, correct?

Apparently I can also claim interest on the claim amount up to the expiry of the relevant period. When does interest start being calculated and how do I calculate it and at what rate?
I have attached a draft of my offer. Is there anything obviously wrong? Assuming the monetary offer is not going to be accepted, do you think I have covered everything in the non-monetary offer?

Regards,
0011728

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi
It's now 11.20 pm and I've just arrived home after a day out, and a bar-b-que at a friend's house. Be better if I look tomorrow (thanks FP)
Out AM, but in PM !!

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

hi
Correct, do not include court fees. When you win the defendant will get to pay them!

The hire costs etc I think should be included.as these were costs incurred because of Buyacars failure to perform. Did you include them in your original claim?.

Bear in mid, however, that a part 36 offer should contain some element of concession to make it attractive for both parties to settle. The idea is to avoid costly and time consuming court cases. If the claimant makes an offer which is not accepted, but then goes on in court to win the same amount or more than was offered , his damages are greatly increased.
Judges however take a dim view of offers which offer the other party very little and are made solely as a tactical measure.
You might consider therefore suggesting settlement on the original amount claimed less a percentage.

This would mean you could omit points 3,4 & 5

The recovery of costs is not something which can be avoided and so does not need mentioning.

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8,

Yes I did include the additional costs incurred in my original claim. I will consider taking out points 3,4 & 5 as suggested, and also reduce the claim amount. Then fingers crossed when I present the offer to them on Wednesday.

Regards,
0011728

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Good Luck/ pob lwc

[stevemLS]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

hi
Correct, do not include court fees. When you win the defendant will get to pay them!

The hire costs etc I think should be included.as these were costs incurred because of Buyacars failure to perform. Did you include them in your original claim?.

Bear in mid, however, that a part 36 offer should contain some element of concession to make it attractive for both parties to settle. The idea is to avoid costly and time consuming court cases. If the claimant makes an offer which is not accepted, but then goes on in court to win the same amount or more than was offered , his damages are greatly increased.
Judges however take a dim view of offers which offer the other party very little and are made solely as a tactical measure.
You might consider therefore suggesting settlement on the original amount claimed less a percentage.

This would mean you could omit points 3,4 & 5

The recovery of costs is not something which can be avoided and so does not need mentioning.

"Beating" (or not) a Part 36 offer has absolutely no consequence in terms of the damages which are assessed in the normal way.

It purely has consequences as to costs.