Court claim for bump

[stanfranks]

T.C. my friend has lost all details of his insurers and no longer has a car so he is on his own with this one.

The POC refer to car hire charges and repair costs to the car but no details.

No estimates, invoices have been provided or previously submitted.

No insurers are involved as claim is from the driver of the other car..

[sailor sam]

Sorry, I just spent nearly an hour drafting a statement for you but something went wrong and I got logged out. I hav'nt the time to do it again. sorry.

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

I would always urge to seek professional advice for clarification prior to taking any action.

Please click my reputation button at the bottom of my profile window on the left if you found my advice useful.

[stanfranks]

That is a shame sailor sam - thanks for your attempt.

A draft defence statement to start us off would have been useful.

Do you have any pointers so I can start.

[stanfranks]

I found this on another thread which is also included on my friends claim form.

 

"The Defendant was negligent for:

a) Driving too quickly

b) Failing to keep any or proper look out

c) Failing to stop, slow down, swerve or in any way manage to control the motor vehicle so as to avoid the collision

d) Failing to give priority to the Claimant's vehicle

e) Colliding with the Claimant's vehicle

4. As a result, the Claimant suffered loss, damage and inconvenience."

 

Could this also be challenged on the basis of no cctv, police report, eye witness and therefore is unsupported.

 

Also would this as an end statement in the defence be good "as the claim is not fully particularlised I am embarrassed and unable to plead"

[sailor sam]

The above is irrelevant according to your first post because you say there was no damage. The TP will need to explain why it has taken a year to make a claim aginst your friend and he will need to convince the judge that the damage now showing was caused by your friend. Remind me, have we got a copy of the TP's estimate, if so what date is on it? Hopefully it will be fairly recent because I cannot see how the TP can prove his claim after a period of say 6 months.

 

I'm really busy today and won't be available untill next Monday evening as i'm away from this afternoon otherwise I would re-draft the statement.

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

I would always urge to seek professional advice for clarification prior to taking any action.

Please click my reputation button at the bottom of my profile window on the left if you found my advice useful

[stanfranks]

That is right there was no visible damage at the time.

There is no copy of the TP estimate so do not know what dates are or when car was repaired.

[stanfranks]

I forgot to add without any estimate we do not know the extent of damage and what is required to repair.

Also as there is no garage bill, we do not know if the car has in fact been repaired and detail of any work done.

[T.C.]

In civil law the courts will consider what is called the "Reasonableness" of the claim and the subsequent damage claimed for.

 

They will consider whether the value of the claim is reasonable for the circumstances of the crash taking into account that there is no documentary evidence, and as mentioned why it has taken all this time for the claim to be made (albeit statute of limitation is 5 years in damage only claiims).

 

However, unlike a criminal court where the case has to be proved beyond all reasonable doubt, in civil cases only the balance of probablity has to be shown, and this has only got to be 51%

 

The onus of proof will be on the third party to show that the level and value of damage was consistent with the values claimed for, and this is where you need to consider that this mayh be a genuine claim in respect of the actual crash, but fraudulent in respect of the value of the claim.

 

It is probably worthwhile speaking to a few body repair experts, explaining the circumstances the sort of damage possibly caused and ascertain from them what they think the costs would be or have been at the time.

 

If you get several opinions and then work out the average (bearing in mind that different companies have different charges) it will be easier for you and the Judge to make a determination as to what the actual probable costs were, particularly if they are significantly lower than the amount being claimed, and the Judge will take note of these costs.

 

On the other hand, if they costs work out substantially more than being claimed, then you can choose to disregard and not tender these prices in evidence and accept the value of the claim.

[stanfranks]

I have drafted a defence as below which most likely needs some amendments.

 

1. The Claimant's statement of case is insufficiently particularised:

 

a) Copies of detailed estimates, detailed independent assessors’ reports, details of work and parts required to repair damage from the incident that the Claimant cites in the Particulars of Claim, have not been served attached to the claim form.

b) Copies of any detailed evidence to show that a hire car was absolutely necessary, proof of hire and how hire car costs have been calculated have not been served attached to the claim form.

 

2. No Letter Before Action has been served on the Defendant prior to the Claim.

 

3. No copies of any detailed estimates, copies of detailed independent assessors’ reports, nature of damage and details of repair required have been received by the Defendant prior to the issue of the Court Claim.

 

4. Without the information listed above the Defendant is unable to determine if the costs of repair are reasonable and if damage is consistent with the incident and if car hire costs and the need for car hire are reasonable.

 

5. The Defendant has also not had the opportunity to provide his own assessor to assess the Claimant’s car for damage and seek alternative estimates if repair was required.

 

6. I would also bring to the Court’s attention as to why the Claimant has taken over 15 months to submit a Claim from an incident on xx xx xxxx.

 

Please amend as you think fit

Edited August 21, 2010 by stanfranks

[sailor sam]

It happened again! I formatted your statement and suggested you put paragraph '6' as your first paragraph which I expanded a little and when I came to actually post it, I was logged out again. I'm going to have to have to contact the mods to find out whats going on. Sorry!

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

I would always urge to seek professional advice for clarification prior to taking any action.

Please click my reputation button at the bottom of my profile window on the left if you found my advice useful.

[stanfranks]

Ok will amend with paragrah 6.

Hope you get the logging out business sorted.

[sailor sam]

CASE NUMBER: (insert case number)

 

IN THE (enter court name) COUNTY COURT

 

(enter applicant's name) (APPLICANT)

 

V

 

(enter your name) (RESPONDENT)

 

STATEMENT OF THE RESPONDENT

 

I am (enter your full name) of (enter your full address) and wish the court to consider this statement as being a defence of the applicant's claim in it's entireity. The applicant's claim relates to an incident on (enter date) whereby my vehicle; (enter make/model/VRM) was in a minor collision with the applicant's; (enter make/model/VRM). This I do not dispute. At the time of the incident, it was agreed by both parties that no visible damage was caused. Therefore the basis of my defence is as follows;

 

1. Since the date of the incident, the applicant has not corresponded with me what-so-ever previous to this claim so I would like to draw to the court's attention the time scale involved from the incident date to the date of the applicant's claim as being dubiously excessive. The applicant has so far failed to provide me with any evidence that the damage he is now claiming was caused by the incident above in which I do not dispute being involved. I submit therefore that the date of the estimate of repair to the applicant's vehicle (of which I have not been yet provided), will be signiffitant in this matter.

 

________________________________________________________________________________________________________________________________

 

 

This is more or less how your statement should be formatted and i've given a suggestion of the opening paragraph. The rest of your version should be fine except what I posted previously.

 

Plesae check for spelling mistakes as I did it very quickly this time!!

Edited August 24, 2010 by sailor sam
obvious spelling mistake

[stanfranks]

Thanks sailor sam I have redrafted defence.

My friend will send by special delivery to the court to reach them Fri 27 Aug.

I understand the hearing is on Wed 1 Sept.

Will let you know how we get on.

[buzby]

Won't this be too late? A defence needs to be also sent to the Pursuers, and if the court does this, there will not be enough time for them to receive and take whatever action to prepare they need. You'd really need to send it TODAY at the latest.

[sailor sam]

Oh I forgot, don't forget to sign and date it. You also should 'serve' a copy to the applicant. By serve I mean post him a copy with a simple covering letter stating; "Please find the enclosed copy of my statement of defence which has been submitted to court."

 

And as Buzby says; SEND IT TODAY!

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

I would always urge to seek professional advice for clarification prior to taking any action.

Please click my reputation button at the bottom of my profile window on the left if you found my advice useful.

[stanfranks]

Just read above - been out of the office all day and travelling.

Will send tomorrow and hope for the best.

What would normally happen if applicant did not receive a copy.

I'm sure some people just send to the court thinking that is ok.

[buzby]

As it is non complaisant, you may have to apologize and ask for a new date to give the pursuers time to consider it, which is their right.

[stanfranks]

Ok I'll see what we can do.

To help me understand, the persuers have not sent sufficient information and therefore we defend.

Does that mean we have to give them notice to provide required information, I thought that is down to the court.

Can they on the day state they have not been given sufficient time or that no copy of defence received.

What happens if this is the case.

[buzby]

One action does not impact on another failing. The fact your defence relies on showing that their pursuit has no merit (due to the delay and lack of corroboration of the work undertaken) the fact your defence pointing this out was not provided in good time works against you. As I see it, the three options of the pursuer would be: 1) complain od late service and seek judgement, stating you defence was out of time. 2) Tell the court they've only just received your defence and need a continuance to consider it. 3) having briefly seen your defence strategy/requirements, decide not to proceed and abandon the action.

 

You don't say who the pursuer is, whether the other driver in person, a solicitor or his insurer. This would also have a bearing on which of the 3 routes that could be taken.

[stanfranks]

The named persuer is the driver of the other car with correspondence to their solicitor.

Would the situation where my friend needed time to seek advice and then put his defence together provide any leeway.

Also would his lack of knowledge of how the system works be against him or would there be some understanding from the court even if the persuer seeks judgement for out of time defence.

 

I think we are looking at what is fair and reasonable or do the courts not think that way.

ie ignorance is no excuse so therefore tough.

 

Surely for their case to have merit they needed to have provided full disclosure in the first instance.

Would the court not consider this dispite timing of defence.

Edited August 27, 2010 by stanfranks
more text needed

[buzby]

With a solicitor, they go for option one. It will be up to the judge to decide whether this is reasonable or not. The fact remains, if I was a pursuer, I would be pushing to emphasis the defendant had ample opportunity to comply within the timeframe and did not. (So it can go either way). Their need to disclose the costs could be argued, but this has nothing to do with not responding in good time. By getting it in withing the timeframe, this provides the nature of the rejection of the claim, so provides the defence position that would be unassailable. The pursuers can argue you had your chance and blew it, and if accepted - could result in judgement. It doesn't pay to be lax with timeframes.

 

Of the 2 cases I had with a similar delayed action by the defender, I won one, and had to put up with a fresh date for the other.

[stanfranks]

Good points buzby, I suppose if submissions are late then it is down to the mercy of the court.

So up to the judge now.

[stanfranks]

We have now received an allocation questionnaire from the court for Small Claims Track.

At first glance the form appears to be straighforward and I will come back with some questions later.

On the notice it refers to a defence being filed and states £ 35.00 to be paid by claimant if they file their AQ.

Is the my friend as defendant liable to any court fees throughout the process?.

[crem]

Is the my friend as defendant liable to any court fees throughout the process?.

 

Not as far as I am aware. This may be different if he was filing a "counter-claim" as therfore he would be becoming a claimant as well as a defendant, but I don't think he is in this case is he?

[stanfranks]

Yes correct he is not counterclaiming.

He is acting only as defendant.