Defence written "without prejudice" - will a small claims court judge accept this?

[Pezza54]

You are right, claimant normally first, then questions from the judge and defendant, then defendant's turn.
You should prepare your questions beforehand, take notes when the defendant is speaking, add/amend your questions if necessary
Call the judge Sir or Madam. Don't interrupt the judge or defendant when they are speaking, wait until they have finished

[Pezza54]

As the court hasn't named a judge and mentioned your claim may be transferred to another court I am wondering whether the court is seeking the availability of a TCC judge and a court that has a vacancy
With the lengthy expert report, your case is complex and may require a judge that specialises in this types of case
Please read CPR 60 and Practice Direction 60
Cpr 60.1 (3)(a) mentions complex technical issues

[MaryS57]

Q) Do Court Orders usually name a Judge then ? - as this is my first case I wouldn't know.

The CO's for the 6th Jan hearing (later vacated) and the 24th Feb hearing both did not name a judge and said the same thing i.e. "Please note this case may be released to another Judge, possibly at a different Court"


The Court Listing Dept's email (24/12/24) that put me on notice of the potential need to vacate the 6th Jan 2025 hearing said as follows:-


"Good afternoon,

The above case is listed for hearing on Monday 6^TH January 2025.

I do need to put you on notice that we do not currently have a Judge to hear this case and there is a high possibility this matter will have to be removed from the list, we will continue to try and secure a Judge but as the hearing is soon approaching this is looking less likely that we will be able to do so. This case may be vacated at short notice (the day before) if we are unable to accommodate the matter.

If you do not receive any further email from the court your case shall remain listed."

(I then got the email on 5th Jan 2025)

--------------------------
The complexity of this case is very much on the lower end of the scale.....potentially

In my caravan's case, a piece of the caravan's underlying wooden frame needed to be shaped to certain dimensions (i've got the manufacturer's instructions for the repair work and a blown up diagram with dimensions of this "shaping work" in my Exhibits and the Expert's confirmation that these dimensions are the correct ones).

It's a straight forward carpentry job - but costly because the old cracked plastic panels - that are glued on - have to be cut off, the underlying wood shaped and new panels put on.

Due to this earlier design fault, my caravan has had no such wood shaping at all - without which the underlying frame impinges on the outer plastic panels, resulting in very damaging stress- cracks of the plastic panels and water ingress. This is a safety and health issue.

The Defendant has refused to even see the caravan - even though I have repeatedly offered to tow it to their premises!!

[Pezza54]

In my case the judge was named when I received the date and time of the trial along with directions regarding exchange of witness statements
The standard statement by the court "..........may be released to another judge possibly at a different court" seems to imply that a judge has been allocated at that point in time
In post 4 you stated the expert report was 25 pages long with photos etc. You are aware of the main problem fault with the caravan, but a judge reading the report for the first time may struggle with the complexity of it

[MaryS57]

.........if I am not allowed to quote from the Expert Report, please remove this post.


a) You may have to trust me on this one; the report is extremely spaced out and not difficult to read:-

Page 1 -Title Page
Page 2- "introduction" who the Expert is, the model of caravan - 4 short lines
Page 3 - "Scope of inspection" - 4 short lines
Page 4 - Picture of the caravan; front & rear
Page 5 - "Identity of caravan" continued - picture of CRIS registration marks
Page 6 - "Identification of VIN number" - picture and 2 short lines
Pages 7 to 13 - "Location of cracks" - pictures of the many, many cracks
Pages 14- "Internal damage" - picture + 1 short paragraph about the water tracking along the ceiling line
Page 15- Internal Damage continued " - Picture of Damp reading measurement of internal ceiling (55% - damp recorded)
Page 16 - "Internal Damage continued " - 2 short paragraphs explaining what the 55% damp means within the industry i.e. "structural damage may be occuring and deterioration is inevitable"
Page 17- "Additional points" - Expert had copied out a few paragraphs from the 10yr manufacturer's water ingress warranty and body integrity.
Page 18 - "additional points" - 2 short paragraph that says:-

"The cracking of panels in the XXX range (and other XXX models) is known within the industry
It is down to the materials and the way that the manufacturing has been undertaken. The panels are
forced into position and then attached to the caravan body. The way that the underlying timbers
have been positioned and not chamfered causes stress fractures to occur in the ABS panels as they
are a very tight fit."

"Numerous examples of these issues can be found on-line within a few minutes of searching"

- many links are then provided.

Pages 19-20 "Summary" - 5 easy to read paragraphs including:-

"Clearly this caravan is suffering from very severe cracks at both the front and rear. They are classic
stress fractures and they are common in XXX vans with ABS front/rear panels. The best course of
action would be to remove the affected panels, shape the underlying structure to ensure that there
are no areas of stress and then replace the panels with new. The cost of a new front panel including
fitting would be in the region of £5,000 and £4,500 for the rear panel. The internal repairs would be
in the region of £500.

It would be my opinion that the dealer would know all about the issues as it is a well known within
the industry. It would be hard to believe that x's caravan was the first one that they have had
to deal with."

"Due to the number of caravans that I am aware of with similar issues, in my opinion it is highly
probable that this is down to manufacturing techniques or products. However the law clearly puts
the responsibility on the retailer of the goods, not the manufacture"

"It would not be unreasonable for the court to request details from the manufacturer of similar faults
and to find out what the manufacturer knows about the situation."

(someone commented that this last sentence could have been put a little more reverentially - ahem! - but hopefully will be fine! )

Pages 21-22 - a very comprehensive statement of truth
Page 23 - a full page of the Expert's qualifications
Page 24 - blank back page.

---------------------------------------------------

b) The carpentry dimensions (with a picture of the shape required and measurements written above) comes from the manufacturer's repair instructions sheet that both the Defendant and I have included as Exhibits attached to our Witness Statements.

c) The fact that the manufacturer has now brought this carpentry re-shaping work in-house so that it is "done at the point of manufacture" comes from a recent email (nov 2024) from the manufacturer's Retail Support Dept to the Defendant.

The Defendant has (usefully) included this email as one of their Exhibits attached to their WS.

-------------------------------------

[Pezza54]

Thanks for that. The report does seem easy to read. The expert is right, the seller is liable to the consumer for the manufacturing fault
Interesting that the defendant has evidenced the manufacturer's repair instructions. Perhaps the defendant intends to make a claim against the manufacturer if your claim is successful. He wants the judge to confirm it's a fault in the manufacture of the caravan

[MaryS57]

"Perhaps the defendant intends to make a claim against the manufacturer if your claim is successful. [/QUOTE]"


Perhaps - but biting the hand that provides your caravan workshop with (warranty) repair work is not necessarily the best to keep a good B2B relationship going, especially if you've already been banned from selling new caravans (by that Uk caravan manufacturer and another major European manufacturer) due to other serious incidents with other customers who bought new. He's restricted to retailing second hand caravans now.

I'm just focussed on putting across my case in front of the judge as clearly and as well as I can - backed up with the law and the evidence; (and checking occasionally that the Defendant still has assets to make all this great effort worthwhile).

[Pezza54]

I can't think of any other reason why the defendant would want to provide evidence in court confirming that it was a known manufacturing fault with the caravan

[MaryS57]

Update - I won at court - Defendant to pay £8800 for the caravan (approx market value without defects ) plus £1200 legal costs within 6 weeks; and I to hand back the defective, leaky, panel-cracked caravan at the same time.

The case has being going on so long the wooden structural frame is now probably rotted - an I don't trust it anymore.

I presume the Defendant has to collect it. - I don't want to tow it anymore?

[Pezza54]

Congratulations. Nearly 2 years on since you started the claim

£1200 legal costs. Does that figure include the expert report? Or just claim and hearing fees plus your expenses?

If the judgement order states the claimant to return the caravan, then IMO you would be responsible for arranging and paying for transport back to the dealer

The estimate to repair the caravan made it beyond economic repair. Who provided the judge with the approximate current market value of the caravan if it didn't have the faults it has?

[MaryS57]

Legal costs included the Expert report cost at £415.

The District Judge quoted Griffiths v Tui [2023] UKSC 48 (which I had read) and warned the Defendants at the outset of the Trial that because the Expert Report was uncontroverted it would be very hard for her to "go behind" that Report. The Judge also seemed unimpressed with the fact that the Defendant had not sought legal help at all and was just winging it.

I provided the approx current market value of the caravan within my exhibits - from 6 current online sales of the caravan (without faults),with small deduction for average actual sale prices (using Glass's Caravan Trader guides - although this Guide is no longer in print https://glass.co.uk/leisure-vehicle-...closures-faqs/ ).

I hope the printed court order comes fast - but so far in this case hard copies have taken ~4 weeks to arrive.

Thank you Pezza and everyone at legalbeagles for their insight and wisdom.

[Hen144]

Congratulations Mary, I'd been wondering how you got on in court.

[MaryS57]

Thanks Hen144. The road is long, especially if the Defendants just muddle their way through to the bitter end..

But the District Judges are smart, have read all relevant papers (so clear presentation - uncluttered by irrelevant information - is very important) and the Judges comprehensively shoot down any nonsense that the Defendants may try on (it actually leaves the Defendants looking silly).

So was it worth the huge effort ? ....a resounding yes..

(But I would rather not have to do it every time ... but my knowledge base is far higher now thanks to legalbeagles)

[MaryS57]

Pezza. One last thing arising from the court hearing, that my be helpful for this forum to know....

As I mentioned earlier, the Defendants wrote a joint witness statement (but with only one statement of truth at the end, signed by 2 dealer directors) . This made their WS ambiguous and difficult to read as the document flitted repeatedly between the term "I" and "we" . "We" could have meant the whole company for all I knew.

At trial, the District Judge very pointedly at the beginning of the hearing made clear she was only accepting the defendant's document as WS from the first author (i.e. 1st Director) - and that there was no WS from the second Director (although he was also present at the hearing) .

I am assuming other judges in the small claims court may take a similar approach if it happens again.

My conclusions are that CPR does apply in the small claims track but it is applied significantly more flexibly than would be permitted in the higher courts.

[Pezza54]

Thanks
It's difficult to think it will happen again. What were the directors expecting to do? Hold hands in the witness box?