Hi

A quick update about this whole business.

As mentioned - about 12 months ago I'd received an offer (via The Property Ombudsman Service (TPOS)) of £150 to settle all aspects of the case out-of-court - ostensibly as a result of the defendant's (i.e. the Estate Agency) failure to respond to my complaints properly.

After a few online discussions, the consensus of opinion/advice was that it would be best for me to take this offer, if still available, rather than go through the hassle of taking the matter to court, risk losing and paying (albeit meagre) court costs.

Happily the offer was still available, I've accepted it and I'm in the process of setting-up how to receive it via the security of TPOS i.e. I don't have to worry about dealing with the defendant if they don't pay-up.

It took me quite a lot of effort to be rational & sober, accept the compromise and get over my anger & desire to take the matter as far as I could.

Once again - many thanks to everyone who contributed to this thread - I can't single-out any particular contributions because they were all helpful

Hopefully this will be the end of the matter.

All the very best...

JulianS

Nowadays all skip jobs are recorded and they will know who attended on the day.

They will definitely write back to you explaining that they never move people's property and the driver will probably remember two guys hopping a car into the road.

This could be another piece of supporting evidence to prove that they indeed handled the car

Good point - thanks for that... although I suspect that the car was moved before the lorry arrived... but I can't recall where I got that suspicion from...

most skip lorries also have cameras now too

Good point too... I'll follow it up it it comes to that point...

I'll keep this thread updated about how it's all going... thanks folks...

ATB

JulianS

Hi steampowered

Thanks for your response...

Do you know if your neighbour would be prepared to attend a short hearing at the local county court, or at least to sign a formal witness statement setting out what he saw?

I took a proper witness statement (i.e. one that uses the proper format & language) at the time.

Yes the neighbour is almost too willing to attend a hearing! (during the whole palaver he tried to intervene in a dispute 'tween the Property Management Team supervisor and the ex-tenant who had returned to try to salvage some of his possessions - it ended with the team supervisor squaring-up to my neighbour in the middle of the street in front of the whole neighbourhood. I hope he doesn't come-across as a vexatious witness!)

Sadly this one neighbour is the only person willing to provide a statement and courtroom testimony...

I wasn't there to see all of this but it sounds like a scene out of Eastenders which would be entertaining under any other circumstances... As you can probably gather the whole episode was utterly disgraceful. My neighbour on the other side (a university professor) described the agency's workers as 'thugs' (sadly he wasn't around to see the car being moved but witnessed other 'acts' in the eviction).

My (witnessing) neighbour's elderly father stated that it's impossible to move a car in the manner that it was moved without causing some sort of damage... sadly he won't say this in court nor does he have accreditted expertise in the area of vehicle transportation...

A weakness in all this testimony is that no-one actually witnessed the damage being done... just the car being treated in such a way that the damage was 100% likely to have been caused... and the wording of the witness statement is obliged to reflect this... so any judgement would have to be based on probabilitites (which is often the case with small cases I hear?)...

...It is unlikely to be worth them using a solicitor over a £300 dispute.

Indeed - and thus far their defence has been more rubbish than my allegations...

I also agree that it sounds like you have a strong case.

It seems that it really does depend upon who I speak to & how I present things... also from what I gather the small claims court/process is different to other courts (in practice) in that it's as much about the spirit of the law as it is about the word of the law and tends to rely more on inferences & judgements based on probabilities. Although all the guidance recommends treating it as seriously as you would any other court of law (including pre-action protocols) I've now heard of cases being accepted where there's been no pre-action protocols, letters before action etc. so it all sounds a little less predictable than other courts in practice... it would be good hear the perspective of someone who's been through it.

Re. the strength of my case - in addition to the drubbing it got above regarding the amount of time that's past here's some feedback from a law graduate on another site:

I note you let the property to the estate agents (note from OP - I didn't - I don't own the property - I never said I did). You may be able to sue the estate agents for damages if the driveway where your car was parked was part of your land, under the Occupier Liability act 1957 as permitted occupiers, or under the Occupier Liability Act 1984 as trespassers. Let me explain the latter, the estate agent only had permission to be there in accordance with your contract, ie your covenant. You may be able to sue in contract as breach of covenant. However, removing your car from its place is the point of trespass for said Act remedy. Look into a land tribunal remedy for breach of covenant remedy or court remedy for Occupier liability.

 

...Which employees? Which one owed you a duty, breached it, and is solely to blame?

You cannot sue each and every employee for damages, can you? The onus is on you to prove which one caused the damage? You can't sue the employer indirectly either for the actions of his/ her employees as you simply do not know which employees caused what damage (causation test).

 

...What did the witness see - a reliable witness statement is only good if it is strong, yours is far from it.

 

...Duty, breach, causation is what the OP has to prove ...there is no case to answer on a normal tort in my view, but it's possible under what I stated in the above remedies.

 

...I studied tort law when doing a qualifying law degree and I cannot see you having a successful claim in ordinary tort, but possibly you may have one under specialist areas such as Occupier Liability as i have aforementioned.

That's the rather high-handed gubbins that I had to deal with over the weekend ... probably best that I get used to defending myself & the case before getting to court I guess, but I felt my case had been destroyed by Sat. evening...

If you are not happy with the £150 I would just go ahead and issue proceedings

That's broadly the plan... but I need to establish whether the £150 offer is still on the table (I contacted TPOS today to start that process) - the £150 offer is safer 'cos it's backed-up by TPOS and also relates to the mishandling of my subsequent complaints (for which we have comprehensive documentary evidence)... I bet they try to barter me down at this stage...

I know it's a lot of work for £150 but I find the whole affair distressing & compelling in equal measure - perhaps I was a lawyer in another life (I'm a teacher in this one...).

Thanks again for your response...

ATB

JulianS

...employees of the Estate Agent had already told me that they'd moved the car...

Just to give some detail...

3 days after the car was moved one of the supervising members of the Estate Agency's property management team was at the house supervising repairs to the flat from which the hoarding tenant had been evicted.

He told me that they'd had to move the car. I mentioned that there was fresh damage to the bodywork. We both inspected the car and he was adamant that they'd been very careful when they moved it. He accused me of lying, stating that he'd worked in bodywork repair and that the damage was clearly historical (i.e. it was already damaged before they moved it). I do have some very blurry photos of the car (before it was moved) standing next to the large pile of hoarded possessions on the driveway. The photos do indicate that, at that point, there was no sign of damage to the car. Sadly I'm not sure how reliabel these photos would be in court.

I wish I'd had a recording device with me that day! It was a really busy time for me... 2 days after the damage was done I finished my contract at work so I was busy with all the issues associated with becoming unemployed... and 1 day after the damage was done my sister arrived to stay from New Zealand to visit for the first time in 10yrs. so I was accommodating here with all the associated emotional & hospitality demands... Sounds like I'm fishing for sympathy but I'm actually trying to give context to the whole situation...

ATB

JulianS

A little thought: The estate agents claimed that the car had been moved by the skip company.

So write to the skip company and ask them the £300.

I bet they will write back to you and say that the estate agents moved the car.

One more piece of evidence in your favour

Thanks for the suggestion king12345

I did think of doing that - in fact in Dec. 14 the Estate Agents did offer me the contact no. for the Skip company...

I didn't follow it up since I didn't want to get into a 'they did it, no they did it, no they did it' situation which at the time I veiwed as a distraction since verbally employees of the Estate Agent had already told me that they'd moved the car...

I suspect that now too much time has elapsed for memories to be considered reliable...

I'll think about it but it's further delaying things also (i.e. a potential distraction).

ATB

JulianS

...if you have a low income then you may be entitled to a waiver of court fees.

 

I would suggest that the first action that you should take should be to find out all about fee waivers from the court services website and also visit your local county court on Monday or Tuesday and get the necessary forms and start applying.

Thanks for the suggestion Bankfodder - this is something that I looked into last year (and it's not changed since I think?) - although my income is low enough I have savings which, in combination with my income, disqualify me from getting help with fees.

The relevant guide can be found here I think?: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex160a-eng.pdf

One of the reasons why things have taken so long is because I work pretty-much full time (in education) and can't take time-off to work on all of this or collect forms on weekdays etc. Most of the big bits of progress I've made have been made in the few holidays I have (I don't work at a mainstream school/college and don't get the long holidays etc.)

ATB

JulianS

Hi Chris

Thanks for your response...

Unfortunately the amount of time that has passed now would make it unlikely that a successful criminal prosecution would come about... I would be inclined to continue progressing with the matter through a civil court explaining the delay in bringing about the case due to evidence gathering and exhausting all other avenues.

It was only ever my intention to take the matter through the civil court to get compensation - I did report the matter to the police who came to have a look and concluded that it wasn't a strong criminal case (all of this took more time of course!).

I would be inclined to continue progressing with the matter through a civil court explaining the delay in bringing about the case due to evidence gathering and exhausting all other avenues.

That was my intention - personal problems aside, one of the reasons it took so long is that I was being very thorough & cautious throughout - the message got through to me very strongly that going to Court was the last resort and that I would have to prove that I'd tried everything I could to resolve the matter out of court.

Once again - thanks for your response, support & encouragement...

ATB

JulianS

Thanks BankFodder for taking the time to write such a comprehensive response...

Your real problem here is that you have left it for two years. I have no idea why you would want to go along with it for so long. You've been played and I expect that you have been complicit in this.

It's not quite 2yrs. - the £150 offer via TPOS was made at the beginning of April last year - so there was a gap of 9 months in taking action to move things forward - but anyway yes you're right that it's been a long time.

The reasons that it's taken so long is that I've had a lot of other life business to deal with throughout - redundancy, finding new work - I'm on a low income (but don't qualify for legal aid) and as a result of it all I became ill so I've had to recover from that to a point where I feel up to fighting my case again.

I'd made a conscious decision that I didn't want this case to take priority over everything else that was going on.

...strictly speaking if you've got a good case then the justice of the matter should not be affected by delay, in practice I think that there could be an impact.

I was hoping that the delay wouldn't have such an impact... I was prompt in assembling all of the evidence at first whilst matters were still fresh in people's minds but then, as I mentioned, I took a break to sort other things out...

You don't help yourself by sending letters before action and then not following it up. You just show the other side that your weak and that you aren't really prepared to go ahead with the action that your threatening.

 

You only send a letter before action when you know that you're prepared to take that action and you know how to go ahead with it. It's never worth bluffing because once your bluff is called, you simply suffer humiliation if you're not prepared to go ahead and carry out your threat – and this is what has happened to you.

 

...you have lost your credibility because of the way that you have been dealing with it all

Ouch! (takes a deep breath) - I do realise that the issue of folk not following-through on letters before action is a contentious one...

Let me be clear - I have no intention of dropping this without a fight (not least because of the effort I've put in thus far) - I am in no way bluffing even if it appears that way.

The letter before action was sent a few weeks ago - I am in the process of following it up now!

Things take a long time - even accessing legal advice via my Union was taking weeks each time...

When I started this thread I was really asking whether there's anymore I should do before submitting the claim form (e.g. further ADR) and getting an impression of my chances so that I could adjust my expectations accordingly.

I'm recovering from anxiety & depression and am dealing with all of this by myself on a low income which causes me to have difficulties in making clear, aggressive decisions. I didn't particularly want to disclose that and sadly I don't think it would help if I disclosed it in court - but since we're talking of me appearing weak, humiliated, 'played' & lacking in credibility I feel the need to defend my approach & actions somewhat on here.

If the offer that they made you is not available, then you may consider that it is worth going ahead.

I think that's probably the best approach for me to take at the moment...

Thanks again for your thoughtful response BankFodder - I hope that my reply has clarified things a little - please go easy on me I've tried my best and intend to continue to do so... I've tried not to mess about... I'm simply frightened, anxious and hesitant which means everything is more difficult for me & takes longer...

I've got to go out this afternoon so please bear with me if I don't respond more 'til later...

ATB

JulianS

I would suspect there was CCTV footage

Sadly no

I live at the end of a quiet residential suburban street - the house opposite does have a camera but it's pointing in the opposite direction to where all this occurred...

You have spent MANY MANY MANY hrs trying to reclaim that extra £150. You should have taken it...

The thought of cutting my losses has occurred to me!

Actually the majority of the work I put into the claim was done prior to taking it to TPOS - since then I've spent a few hours researching the Small Claims Process and writing the letter before action.

Also it's not been just about the money - I've been incandescent with rage about the incident and the behaviour & attitude of the other party ever since so it's also been a matter of principle

I'll think it over & see whether the offer is still available...

You have nothing to gain and everything to lose!

So I guess you don't fancy my chances much?

Thanks again for taking the time to reply (and for dividing my initial post to make it easier to digest - I realise it was long & dense)...

ATB

JulianS

Hi

I’m new to this forum so ‘hello’ & I’d be very grateful for any thoughts that people have.

In summary I’m in dispute with a local Estate Agency.

I allege that, in July 2014, employees of the agency caused £300 of damage to the bodywork of my car.

Initially the agency did not respond to my complaints & requests for compensation.

Eventually they contacted me by ‘phone to deny liability and refuse to put their position in writing.

I referred the matter to The Property Ombudsman Service (TPOS) who was able to conclude that the agency had failed to respond properly to my complaints, but they were unable to conclude that the agency had caused the damage to my car based on the documentation I provided.

At that stage the agency made me an offer (via TPOS) of £150 to settle all aspects of my complaints.

To date I’ve not taken-up the offer because it doesn’t cover my losses.

So I’m currently deciding what to do next.

A few weeks ago I sent a carefully worded ‘Letter Before Action’.

The Estate Agency replied (i.e. their first written response to me) to once again deny all liability for the damage caused to my car.

They failed to refer to any of the specific points in my letter and simply defended themselves by way of a statement to say their staff are fully security-checked professionals who would never behave in ‘that way’.

They also stated that the offer of £150 was purely in relation to their mishandling of my complaint.

They also stated that my claim seemed opportunistic.

They also stated that they’d be referring the matter to their solicitors.

I was intending to make a claim against them which would hopefully proceed through the small claims process.

I’ve discussed this course of action with TPOS and with legal advice/advisors via my Trades Union both of whom were broadly supportive based on the evidence I could provide.

I’ve already drafted the claim form and was going to submit it last week

but then I got cold feet and decided to check whether I’d done enough

and got enough evidence to make my case as strong as possible in court.

I’ve now used the permitted amount of legal advice I’m entitled to via my Trades Union

so am now a bit stuck for further advice.

Hence I’m making this post.

So, my questions can be condensed thus...

1) Are there any other avenues that I should pursue before proceeding to make a formal claim/court action?

I’ve tried to follow pre-action protocol by attempting to settle the matter directly with the defendants and attempted mediation via TPOS.

The defendants have had plenty of time to respond fully.

I’ve considered arbitration which it seems would be too expensive given the amount I’m claiming for (i.e. £300).

The ADR specialists I’ve spoken to have suggested further mediation (at £100 +VAT for 2hrs)

but the matter has already been mediated by TPOS without successful resolution

and as far as I know I may be offered free mediation by the courts later in the small claims process

(which I would happily participate in).

I suspect we’re at an impasse that can only be broken by a judgement by someone with authority.

2) Is my case strong enough to present convincingly at a court hearing?

I have photographs of the damage to my car.

I have a reliable witness (who’s given a witness statement) who saw my car being manhandled roughly

by 2 of the Estate Agency workers.

The snag is that no one actually saw the damage being done

– they’re simply able to say that they witnessed the car being treated in a way that could have definitely caused the damage.

Also the Estate Agency have not admitted in writing that they touched my car (although they have done so verbally)

– my fear is that in a court hearing they could simply deny ever having touched the car

and then it’s the word of my witness against theirs.

A bit more info. to put all this in context...

I live in a house that’s been divided into flats.

One of the flats is let to the aforementioned Estate Agent and they use it to house social tenants temporarily.

Back in July 2014 the tenant in this flat was a hoarder who failed to pay his rent

and was evicted by the Estate Agent.

During the eviction all of the tenant’s hoarded possessions were placed on the driveway of the house alongside my car

(which was untaxed, uninsured and SORN at the time).

The Estate Agency hired a skip to clear–up the hoarded rubbish.

I returned from work one evening to find that my locked car had been dragged from its position on the driveway

and left on the side of the road.

The skip had been left in its place.

There had been no communication with me about this beforehand

(although 2 days later one of the agency staff told me that they’d moved my car

– I pointed-out the damage which he denied doing

– accusing me of lying that it wasn’t there beforehand

– I do have some blurry photos taken beforehand which show no signs of damage).

So my car had been left untaxed & uninsured on the public road with £300 worth of new dents in the bodywork.

I was fuming!

I’ve received a fair amount of legal advice about the matter

and essentially it seems that all my evidence is circumstantial

and any ruling would be on the basis of probabilities.

My witness is one of several neighbours in the street who saw my car

being manually bounced, pushed & dragged across the road by 2 men

working for the Estate Agent’s property management team

(at one stage they asked him whether they could borrow a jack from him).

I’ve been advised that the photos and the witness statement should be convincing enough for a magistrate.

.. but recently I’ve been afraid that the Estate Agent is going to deny that their workers ever touched the car

and I’ve actually got no written proof that they did.

They’ve tried to blame it on the skip company

but there’s no evidence to support this

and surely if the skip company were working under the direction of the agency

and the agency workers were present when the skip was put into position

then the agency are still liable as it was their ‘project’?

thanks for reading if you’ve got this far

– any informed thoughts or constructive comments would be warmly welcomed!

JulianS

Hi Good People...

I've been lurking on the site for a couple of days...

I'm just about to post about a legal issue I'm wrestling with but thought it only polite to say hello to the forum first...

I look forward to being here...

JulianS