Should I wait or issue aletter before action letter?

**des8** · 17th February 2020, 16:22:PM

So ignore his insurers as you cannot make a claim against them, only he can.
You claim against him so send your LBA now.
*

**utukku** · 20th February 2020, 14:46:PM

Hi, just had a msg from the garage, saying his insurers independent engineer has been out and cant find a fault with what he has done to the car, and to take it to a BMW specialist for inspection ( at my cost no doubt ). I have the chat msg saved,* where he admits it happened at his place, but doesn't know how. Where do I stand now?

**des8** · 20th February 2020, 15:50:PM

"his insurers independent engineer"..... really independent?* and of course he has supplied you with a copy of the report?*

So you reply to him and tell him that the Consumer Rights Act 2015 (CRA 2015) has certain things to say about service contracts.
These include*that the trader must perform the service with reasonable care and skill. and within a reasonable time.
Your remedies for his failure include suing for damages (ie the losses you have incurred)

So is he going to arrange for the vehicle to go to BMW, because if not you will take it and pursue him for the costs.

**utukku** · 20th February 2020, 16:06:PM

I will await the report and then go from there. Probably next Tuesday. He's told me his insurance has told him not to correspond with me anymore. Which is fine by me now.
*

**utukku** · 5th March 2020, 12:59:PM

It's now over 2 weeks since the "Letter Before Action" was delivered. Not heard a thing from the garage or his insurer. So I have now started the online process of small claims court action.

**des8** · 5th March 2020, 13:13:PM

I assume the insurers cover his professional indemnity, and they won't want him writing to you and inadvertently admitting liability.

Make sure you word your claim properly... don't want it struck out because of an error

**utukku** · 10th April 2020, 08:15:AM

The latest news is, that after requesting an extension, they waited to the final hour before rejecting my claim. So I have til the 4th of May to say if I want to go forward. Which I know means court @ a cost of £385 to me. Is there anything else I need to do to prepare for this? Should I get a solicitor to help?

Thanks

**des8** · 10th April 2020, 09:08:AM

Not sure where you are in the process, but assume you issued a claim which he is defending.
What was the wording of your particulars of claim?

These three sites might be worth a read (if not already seen)
https://www.gov.uk/government/public...ine-user-guide
https://www.judiciary.uk/publications/handbook-litigants-person-civil-221013/
â€‹https://www.judiciary.uk/wp-content/...+web+FINAL.pdf

Wouldn't recommend a solicitor as his costs would not be recoverable even if you win.
You could end up paying him more than you win.

**utukku** · 18th April 2020, 06:47:AM

Hi, here is my wording: ( note that I have within a chat msg's proof the guy stating he would not be charging me anything for this work, also his date on when he received the car is incorrect, by a month and I did offer mediation as stated in my letter before action )

Received on: 5 March 2020 at 12:15PM
Issued on: 5 March 2020

3. Claim
Reason for claim:
3.1. At the begining of April 2019, I drove my Mini Clubman to Benn & sons
garage with a suspected burning smell. 1 week later they say it was some
loose wires, which they fixed. But then they said the fuse box needed
changing. 2 weeks later they say that since changing the fuse box, they cant
get the car started.
3.2. Weeks more went by with them saying that they have had auto
electricians look at it who cant find a fault, then they supposedly sent it to
another garage who also couldn't find a fault. But it would still not start. They
then told me it was the ECU, and would get it sent away. more weeks went by,
and after I chased them, said the part came back from a place in London, and
they ahd reprogrammed the ECU. On fitting it, it still failed to start.
3.3. After hearing nothing from them for a few more weeks, I suggested a
second hand ECU (to which I supplied a link to one on ebay £125) I said I was
willing to pay just to get my car back!. They said they would find one locally.. a
few days later Matt sent me a video of the car starting and running with the
second hand ecu. They said they would now organise an MOT and a full
service at their cost in way of compensation.
3.4. 1 week later, they say they had to abandon the MOT as the replacement
ECU was not programmed with the ABS module. So then, after a few more
weeks, I found a specialist company "ECUTech" in Taunton who can reprogram
/repair ECU's. Matt agreed to send it to there. ECUTECH told me that the 2 ecu
( original and 2nd hand one) had not been opened for touched since factory.
3.5. He rushed the job and got my ECU working. The garage "Matt" failed to
pay after 2 weeks and I in desperation paid upfront to get it delivered. The
ECU was posted in a state where it needed the final bit of programming to the
ABS, a 10 min job if you have the tool. THIS was explained to Matt by
ECUTECH and written instructions saying the car will not start whilst in this
mode, and not to try.
3.6. However, Matt went ahead fitting it and trying to start the car. He then
informed me it still doesn't work. Weeks more went by and on December
20th, I gave Matt an ultimatum that after nearly 10 months at his garage, I
wanted to be able to drive my car away on Feb 1st 2020 in a roadworthy &
Claim number: 129MC185
OCON1 (PD 51R) For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 3 of 5
legal state, or the value of my car. Various promises were given to me,
including that he would take out a personal loan, or claim against his
insurance, and that I would not be out of pocket.
3.7. On the 1st of Feb 2020, I asked about my car, to which Matt stated he had
sent it to a BMW specialist ( another one ) who said there was no
communications between the ECU and the car, and that I needed a new one
at between £2000 - £3000. Matt gave ME the option of paying this, or claiming
on his liability insurance. To which I told him to claim. He has since told me
that his insurance have denied he was responsible for the fault.
3.8. On February 17th I personally delivered to Matt's office, a Letter Before
Action, stating my intentions to claim against him, but also offering to use a
mediation service to solve the dispute. He has failed to respond in any way to
this letter.
3.9. Throughout this whole period, Matt has said he would pay for everything,
give me compensation/full service for free etc. But It has not materialized. I
am without my car nearly 12 months and apparently it is my fault. I have full
transcripts between Matt and myself via whatsapp and MS messenger of our
conversations, also between myself and ECUTECH, which I can supply to the
court on demand.
Timeline of what happened:
April 2019 Drove car into garage with possible burning smell.
april 2019 told wires had burned but was fixed but needed
new fuse box
April 2019 told fuse box changed, but wont start
May 2019 told that an autoelectrician could not find fault
August 2019 2nd hand ECU obtained, fitted and car starts. MOT
arranged, but aborted as ABS unit no programmed
to replacement ECU
August 2019 ECU unit sent to a Specialist "ECUTECH"( that I found
) for reprogamming and Testing.
September 2019 After 2 weeks, ECUTECH not hearing anything from
Claim number: 129MC185
OCON1 (PD 51R) For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 4 of 5
Matt, about payment. I ended up paying for unit to
be returned to the garage.
September 2019 Told by garage, the ECU was fitted but not starting
the car. They had failed to follow ECTECH
instructions before trying to start the car.
Oct/Nov 2019 Various excuses from Matt as to what was
happening to my car.
Dece,mber 20th 2019 Gave Matt ultimatum for car to be fixed & road legal
by Feb 1st 2020 or I want the value of the car.
17th JFeb 2020 Personally delivered a Letter Before Action to the
garage.
3rd week Feb 2020 Told by Matt his insurance do not believe his did
anything wrong. And it's now my problem
Evidence:
Letters, emails and other
correspondence
Detailed transcripts between Matt & Myself on MS
Messenger & Whatsapp, including video's and
pictures.
Expert witness Expert statement from ECUTECH
4. Claim amount details
Claim amount items:
Cost of Vehicle £2,950
Half year car tax £50
Half year icar insurance £150
ECU repair costs £287
5. Total amount
Claim amount: £3,437
Claim fee: £185
Total: £3,622

And here is his reply obviously through a solicitor:

Defendant’s response I dispute all the claim
Why they dispute the claim
2.1. PRELIMINARY ISSUES
2.2. 1. The Defendant asserts that the Claimant’s claim is deficient in that the
cause of action is inadequately pleaded. As pleaded currently, the Claimant’s
claim discloses no reasonable grounds for bringing the claim and CPR 3.4 (2)
(a) is therefore engaged.
2.3. 2. In the circumstances the Claimant serves additional documents and/ or
information which clarifies the pleaded case, the Defendant reserves the right
to serve an amended Defence.

OCON9B For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 2 of 10
2.4. 3. Additionally, the Defendant asserts that no sufficient opportunity has
been afforded to him/ his insurers to fully investigate the Claimant’s claim
prior to proceedings being commenced. The Defendant avers the Claimant
has issued Court proceedings prematurely. The Defendant avers that he has
therefore been unfairly prejudiced as a result of the Claimant’s conduct.
2.5. 4. Without prejudice to the foregoing, the Defendant pleads as follows:
2.6. DEFENCE
2.7. 5. It is not admitted that the Claimant brought his vehicle to the
Defendant’s premises “at the beginning of April 2019”. The Defendant avers
that the vehicle was brought to his premises by the Claimant on 18 May 2019.
The remainder of paragraph 3.1 of the Claimant’s Particulars of Claim is
admitted.
2.8. 6. In respect of paragraph 3.2 of the Particulars of Claim, it is admitted
that the Defendant subcontracted investigatory works to a dedicated mobile
auto-electrician, to no avail in identifying the cause of the engine non-start.
The Defendant then sub-contracted a second auto-electrician to consider the
Claimant’s vehicle from a local specialist to no avail before sending the
Claimant’s vehicle to that local specialist garage for comprehensive further
investigations. The Defendant will say that the specialist garage was unable to
identify the fault following detailed investigation and so the Claimant’s vehicle
was returned to the Defendant garage. It is admitted that the Claimant’s
vehicle would still not start. It is admitted that the Defendant advised the
Claimant that he believed the Claimant’s ECU to be the issue. The Defendant
will say that a vehicle’s ECU takes information from sensors around the
engine. The Claimant’s ECU displayed such information gathered from the
Claimant’s vehicle however did not allow a spark to ignite the Claimant’s
engine. It is denied that the Defendant advised the Claimant he would “get the
ECU sent away”, and rather the Defendant avers that he purchased an
alternative and comprehensive ECU kit which constituted a complete system,
with a CAS module and a number of keys. The ECU kit was purchased from a
local broker who dealt with Minis. The Defendant will say that the CAS module
was sent to Liverpool, and not London, to a specialist who cloned CAS
modules. It is denied that the ECU was sent away and/ or reprogrammed.
Rather, the original and new CAS modules were sent to a specialist to convert
the old system to the new system in order to prevent a whole reprogramming
being required on the Claimant’s vehicle. It is denied that on fitting the reprogramed
CAS and ECU unit that the Claimant’s vehicle failed to start. The
Defendant will say that the Claimant’s vehicle would start at this point.
2.9. 7. In respect of paragraph 3.3 of the Particulars of Claim, it is admitted
that the Claimant suggested to the Defendant the purchasing of a second
hand ECU and that the Defendant instead purchased an alternative ECU kit
Claim number: 129MC185
OCON9B For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 3 of 10
locally, as stated above from a local Broker. The Defendant further admits
that the Claimant’s vehicle was running and driving with the second ECU
computer network, as also stated above. The Defendant admits that he
offered, for the purposes of delivering good customer service, an MOT and
service at the Defendant’s expense to compensate for the delay experienced
by the Claimant in rectifying the ECU issue which had presented whilst at the
Defendant’s garage.
2.10. 8. Pursuant to paragraph 3.4 of the Particulars of Claim, the Defendant
will say that the ECU IP address was wrong and thus presented an ABS error
code when operating in the Claimant’s vehicle. The Defendant will say that the
ECU serial number was not compatible with the Claimant’s vehicle and thus
was unable to operate as intended. The vehicle was running, however the ABS
warning showing prevented the Defendant from successfully MOT’ing the
Claimant’s vehicle. It is admitted that the Claimant found a specialist company
“ECUTech” in Taunton who stated that they were able to reprogrammed and
repair ECU’s. The Defendant understands from discussions with the Claimant
that the Claimant sourced such specialist company from internet
recommendations. It is further admitted that the Defendant agreed to the
Claimant’s suggestion to pass both ECU’s to specialist company “ECUTech”.
The Defendant can neither admit nor deny what ECUTech told the Claimant
for want of knowledge, however the Defendant will say that its is accurate that
the ECU’s had not been opened since manufacturing. Indeed, the ECUs were
never sent away so would not have been opened. Rather, as outlined above, it
was the CAS module that was sent away to Liverpool to be cloned.
2.11. 9. In accordance with paragraph 3.5 of the Particulars of Claim, the
Defendant can neither admit nor deny that ECUTech “rushed the job and got
the ECU working” for want of knowledge. The Defendant avers that there was
no agreement between the Defendant and the Claimant that the Defendant
would meet the costs of the work completed by ECUTech and so it is denied
that the Defendant failed to pay ECUTech. Rather, the Defendant send the
Claimant’s ECU to ECUTech on the premise that the costs of the same would
be met by the Claimant, given the Claimant had made such suggestion. It is
admitted that the Claimant met the costs of ECUTech. It is admitted that the
ECU was sent to the Defendant in the state where it required programming
and the Defendant will say that that the ECU was unlocked. It is denied that
the Defendant received any written instructions from ECUTech stating that
the car would not start whilst in its un-programmed and unlocked mode, nor
was it communicated to the Defendant that he must not attempt to start the
car whilst the ECU was in this condition either in writing or orally by ECUTech
or the Claimant. The Defendant adds that an ECU must be in the vehicle and
the vehicle must be turned on to programme the ECU, and so this is
Claim number: 129MC185
OCON9B For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 4 of 10
contradictory to the Claimant’s pleaded instructions which he states were
provided by ECUTech.
2.12. 10. The Defendant denies, in accordance with paragraph 3.6 of the
Particulars of Claim, that he “went ahead fitting it (the ECU) and trying to start
the car”. The Defendant will say that he was unable to programme the ECU as
it required a specific tool and the diagnostic system the Defendant owned was
generic. The Defendant will say that he did not attempt to programme the
vehicle’s ECU but rather sent the ECU to a specialist BMW garage, R. L. Motor
Services Ltd, in January 2020 to complete the programming, as they
possessed the specific diagnostic tool required. Works were attempted by R.
L. Motor Services Ltd in late January 2020. The remainder of paragraph 3.6 of
the Particulars of Claim is admitted.
2.13. 11. Paragraph 3.7 of the Particulars of Claim is admitted. The Defendant
adds that R. L. Motor Services Ltd had advised him that there was no
communication between the ECU and the Claimant’s vehicle, which was
indicative that ECUTech failed to properly programme the ECU. It is admitted
that further to engineering investigations completed by an independent
engineer instructed by NIG Insurance on 19 February 2020, liability was
denied by NIG Insurance in email correspondence to the Claimant dated 11
March 2020.
2.14. 12. Paragraph 3.8 of the Particulars of Claim is conceded. The Defendant
will say that he was advised by his insurance company/ insurance Brokers that
he should not directly communicate with the Claimant, and that they Claimant
should communicate with his insurers, NIG Insurance, only.
2.15. 13. The Defendant makes no admissions as to paragraph 3.9 of the
Particulars of Claim for want of knowledge. The Defendant will say that thus
far, the Claimant has failed to provide any or all relevant disclosure for
inspection.
2.16. PARTICULARS OF DAMAGE
2.17. 14. It is not admitted that the Claimant sustained any loss or damage
whether as pleaded or at all. The Claimant is put to proof and is required to
establish causation, and to prove the nature and extent of all losses claimed.
2.18. 15. The Defendant reserves the right to plead a Counter-Schedule of loss
in due course, if so advised.
2.19. 16. In anticipation of evidence being produced to support the Claimant’s
allegations, the Defendant reserves the right to put questions to the Claimant’
s expert(s) and/or to seek the Court’s permission to obtain his own expert
evidence, if so advised.
2.20. INTEREST
Claim number: 129MC185
OCON9B For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 5 of 10
2.21. 17. The award of interest is a matter for the Court exercising its
discretion under section 69 of the County Courts Act 1984 or section 35A of
the Senior Courts Act 1981.
2.22. 18. Accordingly, no admissions are made regarding the Claimant’s claim
for interest and he is put to proof as to the sum(s), rate(s) and period(s)
claimed on each and any part of damages that may be award.
Defendant’s timeline of what happened
18 May 2019 Claimant brought his vehicle to the Defendant's
garage complaining of a "burning smell".
May 2019 The Defendant diagnosed the issue causing the
"burning smell" as burnt wires. Burnt wires were
replaced by the Defendant. The Defendant also
identified that the Claimant's fuse box required
replacing and so completed the same. The works
completed by the Defendant rectified the issues
causing a "burning smell" to the Claimant's vehicle.
May 2019 Issues causing "burning smell" were rectified by the
Defendant. The Defendant communicated to the
Claimant, however, that an engine non-start issue
had presented itself.
June/ July 2019 Numerous auto-electrician investigations
commenced, to no avail.
August 2019 Defendant advised the Claimant that he believed the
Claimant’s ECU to be the issue. The Defendant
purchased an alternative and comprehensive ECU
kit which constituted a complete system, with a CAS
module and a number of keys from local Broker.
CAS unit was sent to Liverpool to be cloned and
thereafter, the Claimant's vehicle would run and
drive. However, the ABS issue presented itself.
August 2019 ECU unit was sent to ECUTech as recommended by
the Claimant for reprogramming and testing.
September 2019 Claimant paid for works completed by ECUTech.
September 2019 Defendant received ECU from ECUTech.
December 2019 "Ultimatum" given to Defendant by Claimant.
Claim number: 129MC185
OCON9B For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 6 of 10
January 2020 ECU sent to R. L. Motor Services Limited to be
programmed by the Defendant, however the same
could not be completed as there was no
communication between the ECU and the Claimant’s
vehicle, which was indicative that ECUTech failed to
properly programme the ECU. This was
communicated to the Claimant.
17 February 2020 Letter Before Claim delivered to Defendant by
Claimant.
17 February 2020 NIG Insurance confirm interest as insurers to
Claimant by email correspondence and request all
future correspondence be directed to NIG
Insurance.
19 February 2020 Independent engineer, Associated Independent
Assessors Limited, visit Defendant premises to
inspect Claimant's vehicle.
20 February 2020 Independent engineer, Associated Independent
Assessors Limited, produce Engineers Report stating
that there is currently no evidence to indicate that
the Defendant's actions led to the non-start issue.
Report suggests there is potentially a separate,
undiagnosed fault causing the issue complained of.
Report recommends vehicle be taken to a BMW
main dealer for further investigations to determine
the nature and cause of non-start issue.
February 2020 Findings of independent engineer, Associated
Independent Assessors Limited, communicated to
the Claimant by the Defendant. Defendant requests
Claimant's agreement to send vehicle to BMW main
dealer as recommended by independent engineer,
Associated Independent Assessors Limited, to
complete investigations. No response received by
Claimant.
5 March 2020 Claimant issues Part 7 proceedings via CCBC online
system.
11 March 2020 Findings of independent engineer, Associated
Independent Assessors Limited, communicated to
the Claimant by Defendant's insurers, NIG Insurance
Claim number:
OCON9B For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 7 of 10
by email. Liability denied formally however the
Claimant was put on notice that NIG's liability
decision would be reassessed once investigations
were completed by the BMW main dealer.
Comments about claimant’s
timeline
N/a
Defendant’s evidence
Receipts R L Motor Services Ltd Invoice to Defendant dated
24 January 2020
Letters, emails and other
correspondence
Various text message correspondences between the
Claimant and Defendant pertaining to this matter
Receipts ECUTech copy invoice (Illegible copy)
Photo evidence 20 x black and white images of claimant's vehicle
Expert witness Associated Independent Assessors Limited Engineer
Report and invoice
Comments about claimant’s
evidence
The Defendant is not able to admit nor deny any
element of the Claimant's listed evidence as it has
not had privy to the same and so is beyond the
Defendant's knowledge at this time.
3. Mediation
Willing to try mediation No
Claim number:
For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 8 of 10
4. Statement of truth
I believe the facts stated in this response are true.
I understand that proceedings for contempt of court
may be brought against anyone who makes, or
causes to be made, a false statement in a document
verified by a statement of truth without an honest
belief in its truth.
What happens next

Settle the claim
Unless you’ve been asked not to, you can still
contact defendant directly. If you can reach an
agreement you may not have to go to a hearing.
Mediation
If the defendant has asked for mediation then the
claimant will be asked if they want to mediate.
If the defendant hasn’t asked for mediation then the
case will be reviewed by a judge and might go to a
hearing. The claimant and defendant will be
contacted if a hearing date is scheduled and it will
be explained what they need to do to prepare.
Claim number:
OCON180 For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 9 of 10
Directions Questionnaire Online
In the County Court Business Centre
Online Civil Money Claims
Claim number: 129MC185
Issued on: 5 March 2020
Response received on: 7 April 2020 at 10:19AM
A Your details - Defendant

Hearing location
Preferred hearing centre Plymouth Combined Court
Expert evidence
Have you already got a
report written by an expert?
Yes
Report 1
Claim number:
For further details of the courts www.gov.uk/find-court-tribunal © Crown copyright Page 10 of 10
Robin McIntyre
20 February 2020
Witnesses
Do you want to give
evidence?
Yes
Other witnesses 4
Dates unavailable None

**des8** · 18th April 2020, 12:12:PM

You are in danger of having your claim struck out as it has not been formulated correctly, and what you posted is nearer a witness statement than a statement of claim.
I think you need to make an application on form N244 (cost £255) to amend your claim and possibly ask for relief from sanctions as you might have to pay the defendant's costs. (persuading the defendant not to oppose your application might save you £155)
You will need to properly format your particulars of claim which should be on the following format:
State who the parties are:
1)defendant xyz motor engineer
claimant utukku consumer

2)BRIEF details of background:
Claimant contracted with defendant to repair faulty vehicle on dd.04.2019
Claimant seemed unable to repair fault so 20.12.2019 time was made of the essence and repairs were required to be completed by 20.02.2020

3. Breach: Defendant breached contract a) failed to deliver repaired vehicle by 20.02.2020.
b) breached implied terms that the trader must perform the service with reasonable care and skill.contrary to Consumer Rights Act 2015 sec 49 (1) and within a reasonable time* cotrary to CRA 2015 sec 52 (1)

4. Amount of loss; (As you still own the car I don't see how you can claim its value.)
You claim your monetary losses , and possibly for loss of use for some of the time it was with the repairer.
Also interest.

In view of application cost I wonder if it is still worthwhile pursuing this claim as presumably you do still have the car.

Tagging R0b &Amethyst for other opinions

**utukku** · 18th April 2020, 13:44:PM

Thanks for the advice, I will look into it. AS for owning the car, yes I do, but It's still at the garage as it is still not in a drive-able state, so I can either have it towed to another garage for repairs ( at my cost )or sold as scrap. Either way, it's even more money, possibly more than the car/claim is worth. It just gauls me that they can get away with trashing someones car and they walk away free.

**des8** · 18th April 2020, 14:04:PM

If they have damaged the car, that too goes into your claim, but from your posting it seems only that the ECU might have been damaged

**utukku** · 18th April 2020, 14:15:PM

Originally posted by des8 View Post

If they have damaged the car, that too goes into your claim, but from your posting it seems only that the ECU might have been damaged

Thats correct, but the cost of a replacement ecu is now almost as much as the cost of the car.

**des8** · 18th April 2020, 14:29:PM

If that is the case, (and it is provable) that is what you claim for, not the car

Should I wait or issue aletter before action letter?

Should I wait or issue aletter before action letter?

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Announcement

Court Claim ?