My first claim through MCOL - what to put in the detailed particulars?

[jpmad4it]

Hi all,

 

This is my first post, and the first time that I have had to try and claim money from someone. So please have patience with me!

 

I am using the MCOL system and have become a little confused at the "details of particluars" section.

 

I have already wrote to the person I am trying to claim money from explaining that I wanted compensation from them, and that I reserve the right to take them to court if they were not willing to. They replied in writing, offering their side of the story and didn't offer any compensation, so here we are. In my letter I gave dates of where and when events took place, and details of money that I have lost. I didn't provide any copies of invoices or photographic evidence etc. I was hoping to keep these up my sleeve until they were really needed i.e. in court.

 

So taking the above into consideration, what do I actually need to send as details of particulars? Do I need to send a detailed account of all dates, costs, copies of invoices, evidence etc? Or is it just an overview that I need to send (which is basically what I've done already)? My main question is whether I need to send the defendant copies of the evidence that I have obtained?

 

On MCOL it states:

If you don't have space for all the details, provide a summary of your claim and say you will send the details separately. You will then have to send the detailed particulars to the defendant within 14 days of submitting the claim. You will also have to send the court a 'certificate of service' form.

 

I will have to send details separately, as my original letter outlining the details was quite long.

 

On the 'certificate of service' form it asks to attach documents that I have served to the defendant. Is this the only way that I can provide the court with my evidence, and at the same time make the defendant aware of what I posses? Or will there be another chance for me to present my evidence, and if so, how and when would I do this?

 

If anyone can help me answer any of these questions I would appreciate it greatly.

 

If you need any further information about my story / case, please don't hesitate to ask.

 

Kind regards

Jonathan

[MrBigglesworth]

Hiya jpmad4it,

 

I started my claim using MCOL; in my POC I did not include any evidence (as this can be provided later), but I did bullet point it all in chronological order, i.e.

 

1) On the Xth of Month I entered into a contract with the defendant.

2) On the xth of month I then sent an email/had a phone call, etc.

etc etc...

3) the defendant is liable for damages because A, B, C, etc (refer to sales of goods act, etc etc).

 

Do a search for POC there are some good examples out there.

 

When you submit the claim on MCOL make sure you tick the "POC to follow" box and you'll need to send these to both the court (Northhampton in the case of MCOL) and to the defendant.

 

I'm not an expert, I've only done it once but this is what I've done

[asokn]

There's no need to provide your evidence at this stage as the court will order disclosure in due course. Your Particulars of Claim really just need to set out what you're claiming for (I.e. your cause of action), the brief facts that show that the cause of action has arisen, details of the loss you have suffered and, if applicable, a breakdown of how you have quantified that loss.

 

I wouldn't worry about trying to draft perfectly, drafting is a particular skill that lawyers spend many years learning. You are a LiP so you're not expected to produce the same quality of drafting.

[jpmad4it]

Thanks for these rapid responses! Exactly what I needed to know.

 

The letter that I originally sent to the defendant is around 2 and a half sheets of A4 paper, and it is quite wordy. Is it better to provide something like this as a POC, or should it be more concise?

 

I'm sure I'll be back here at the next step asking for more advice.

[asokn]

There's no harm in being lengthy if needed and without seeing the content of that letter I don't know if it's suitable but, in general terms, that seems like a long Particulars of Claim. What is the claim actualy for?

[MrBigglesworth]

Mine was 3 pages and very articulate (small claims), not sure if this was overkill or not (I didnt want to omit too much just in case).

[asokn]

Mine was 3 pages and very articulate

 

If you do say so yourself

[MrBigglesworth]

Sorry I should have said, make sure its articulate rather than showing off

[jpmad4it]

I can upload a copy of my letter for you to see if you like?

 

The claim is for my car's gearbox - it needed to be refurbished as selecting 2nd gear was quite difficult. A mechanic close to me tested the car, and we agreed for him to take the gearbox out. Once the gearbox was out, it was taken elsewhere to be refurbished. Once the company said they had completed the refurbishment, the gearbox was collected and put back in by the mechanic local to me. As soon as I set off to drive home the car was making a horrid noise, which wasn't there before the gearbox was taken out. After several inspections it was decided that the noise was within the gearbox.

 

We took the car back to the company that carried out the gearbox refurbishment and they said that it was a wheel bearing that was causing the noise. So I had the wheel bearing changed, and the noise was still there afterwards. I went back again, and they still denied that they could hear any noise. Funnily enough they were the only people that couldn't hear this noise.

 

I took the car to another mechanic for a third opinion, and they were adamant that it was the gearbox causing the noise. I took a video that day of the horrendous noise being emitted.

 

I sent the video to the company that carried out the original work, and they asked me to go down to see them for another road test. When I got there they said that the best thing to do was to give me my money back (£350), or leave the car and let them look at it - but I wouldn't get any money back if I did this. I didn't want to leave the car with them as I didn't trust them any more and took my money back. If I left the car with them they could have just put it to one side and then told me nothing was found without even inspecting it! And they would have kept the money.

 

Anyway, in the following weeks the damage that they had caused within the gearbox cost me a total of £1300 to fix elsewhere. I obtained a report of what was found when the gearbox was opened by another company, and I have photographic evidence.

[jpmad4it]

Do you still think I've got a claim in court ?

[asokn]

I wouldn't like to give advice on the merits of a claim without seeing evidence but on the assumption that everything you've said is correct and can be proved then you have at least the basis of a claim for negligence/breach of contract.

[consumeredge]

RE: Post 9

The claim is for my car's gearbox - it needed to be refurbished, as selecting 2nd gear was quite difficult. (Refurbished or Repaired? as the word "Refurbished" suggests the gearbox was completely overhauled and would thus carry a manufacturer parts and labour guarantee. In todays market £350 indicates merely a replacement of the 2nd gear cog/synchro or selector lay shafts when the second company charged £1300 to repair the alleged damage caused by the original repair) A mechanic close to me tested the car, and we agreed for him to take the gearbox out. Once the gearbox was out, it was taken elsewhere to be refurbished. Once the company said they had completed the refurbishment, the gearbox was collected and put back in by the mechanic local to me. As soon as I set off to drive home the car was making a horrid noise, which wasn't there before the gearbox was taken out. (Why didn’t the mechanic who took the gearbox out and then refitted it for you, road test the vehicle, report this noise before you drove the vehicle away and warn you continued driving could cause further irreparable damage?) After several inspections it was decided that the noise was within the gearbox.

 

We took the car back to the company that carried out the gearbox refurbishment and they said that it was a wheel bearing that was causing the noise. So I had the wheel bearing changed, and the noise was still there afterwards. (Which side of the vehicle was the wheel bearing that was causing the noise offside or nearside? Did you retain the wheel bearing, or bearings, for evidence?) I went back again, and they still denied that they could hear any noise. Funnily enough they were the only people that couldn't hear this noise.

Any mechanic worth his salt having diagnosed the noise was coming from the gearbox when told it was infact the wheel bearing that was causing the noise would argue NO it is the gearbox, and be able to offer a technical explanation as to why.

I took the car to another mechanic for a third opinion, (Why? Did you not trust your first mechanic?) and they were adamant that it was the gearbox causing the noise. I took a video that day of the horrendous noise being emitted.

How many weeks and miles did the vehicle travel in total from first having the gearbox refitted by your mechanic to having the gearbox repaired by the second company? This will prove crucial as in all probability you caused further considerable damage to the gearbox simply by driving the vehicle about then seeking a third opinion to confirm if the gearbox was at fault!

I sent the video to the company that carried out the original work, and they asked me to go down to see them for another road test. When I got there they said that the best thing to do was to give me my money back (£350), or leave the car and let them look at it - but I wouldn't get any money back if I did this. (The company offered you a full refund or to leave the vehicle there for them to investigate. You accepted the full refund because you didn’t trust them?) I didn't want to leave the car with them as I didn't trust them any more and took my money back. If I left the car with them they could have just put it to one side and then told me nothing was found without even inspecting it! And they would have kept the money.

 

Anyway, in the following weeks the damage that they had caused within the gearbox cost me a total of £1300 to fix elsewhere. (How is this total made up of? Specify Parts and Labour costs) I obtained a report of what was found when the gearbox was opened by another company, and I have photographic evidence.

What you should have done is ask the second company who repaired the gearbox to first open and inspect it, before any work is undertaken to then provide an estimate for the cost of repair with a written report as to what caused the gearbox to be damaged, you should have then provided the first company with the estimate and report to negotiate if they accepted liability, were willing to pay the bill, or on what grounds would they dispute/refuse.

 

Did you notify the first company you intended to take legal action and gain any reply?

 

Unless the original company is a Mickey Mouse back street affair they will have a poor workmanship insurance cover; they will be instructed to handle any claim.

 

What the court will consider is why, when the gearbox was first refitted and the noise was apparent, why the gearbox was not removed and immediately returned to the original repairer in the same manner as it was first given, having been offered a full refund which you accepted it would appear you then gave this second company the complete vehicle, not just the gearbox, and now expect the original company to foot the bill?

 

In my opinion the Defendant has a defence, they offered you to either leave the vehicle for them to investigate, bearing in mind if the gearbox had to be removed and repaired they would have done so free of charge, or offered you a full refund. You accepted the refund.

[jpmad4it]

RE: Post 9

The claim is for my car's gearbox - it needed to be refurbished, as selecting 2nd gear was quite difficult. (Refurbished or Repaired? as the word "Refurbished" suggests the gearbox was completely overhauled and would thus carry a manufacturer parts and labour guarantee. In todays market £350 indicates merely a replacement of the 2nd gear cog/synchro or selector lay shafts when the second company charged £1300 to repair the alleged damage caused by the original repair)

 

It was as you say, a repair to the gearbox, not a complete overhaul. The second company charged £600 to repair the gearbox. The other fees were to take the gearbox out again (8 hours labour) and petrol money travelling to and from the company that originally repaired the gearbox.

 

A mechanic close to me tested the car, and we agreed for him to take the gearbox out. Once the gearbox was out, it was taken elsewhere to be refurbished. Once the company said they had completed the refurbishment, the gearbox was collected and put back in by the mechanic local to me. As soon as I set off to drive home the car was making a horrid noise, which wasn't there before the gearbox was taken out. (Why didn’t the mechanic who took the gearbox out and then refitted it for you, road test the vehicle, report this noise before you drove the vehicle away and warn you continued driving could cause further irreparable damage?) After several inspections it was decided that the noise was within the gearbox.

 

That is a very good point.

 

We took the car back to the company that carried out the gearbox refurbishment and they said that it was a wheel bearing that was causing the noise. So I had the wheel bearing changed, and the noise was still there afterwards. (Which side of the vehicle was the wheel bearing that was causing the noise offside or nearside? Did you retain the wheel bearing, or bearings, for evidence?)

 

It was the passenger side wheel bearing that they said was making the noise. I have retained the original wheel bearing.

 

I went back again, and they still denied that they could hear any noise. Funnily enough they were the only people that couldn't hear this noise.

Any mechanic worth his salt having diagnosed the noise was coming from the gearbox when told it was infact the wheel bearing that was causing the noise would argue NO it is the gearbox, and be able to offer a technical explanation as to why.

 

The original company that repaired the gearbox said that they would not carry out any tests etc until we had the wheel bearing changed. We wanted them to take responsibility for what they had done and so we told our mechanic to just go ahead and do the work, so that we could prove it wasn't the wheel bearing. We felt it was pointless in our mechanic arguing with them over what they thought it was, as the gearbox company were not prepared to listen until we did as they said.

 

I took the car to another mechanic for a third opinion, (Why? Did you not trust your first mechanic?) and they were adamant that it was the gearbox causing the noise. I took a video that day of the horrendous noise being emitted.

 

The third mechanic is a specialist for my make of car, and he knows a very reputable gearbox and clutch company that he uses for all of his gearbox repairs. Seeing as though he was going to be the one taking the gearbox out and taking it to be repaired, we wanted his opinion on what the problem was.

 

How many weeks and miles did the vehicle travel in total from first having the gearbox refitted by your mechanic to having the gearbox repaired by the second company? This will prove crucial as in all probability you caused further considerable damage to the gearbox simply by driving the vehicle about then seeking a third opinion to confirm if the gearbox was at fault!

 

There was 6 weeks in between the original repair and the car being completely fixed. The car was probably driven around 100 miles. This was from travelling to and from the gearbox company 4 times, twice to the third mechanic and twice to the first mechanic, all of which were trips that were required. Other than that the car was not used, purely for the reason that it would probably cause further damage to the gearbocx.

 

I sent the video to the company that carried out the original work, and they asked me to go down to see them for another road test. When I got there they said that the best thing to do was to give me my money back (£350), or leave the car and let them look at it - but I wouldn't get any money back if I did this. (The company offered you a full refund or to leave the vehicle there for them to investigate. You accepted the full refund because you didn’t trust them?)

 

Would you trust a company that had ruined the gearbox in your car, and then tried to fob me off by saying it was a wheel bearing? They blatantly lied. They heard the noise in the first place. but then when we went back after the wheel bearing was replaced they now couldn't hear a noise? And then when presented with video evidence they simply offered to give me my money back? It was only after much debate that they offered for us to leave the car to be looked at. However, they said if nothing was found there wouldn't be a refund. They could have just left the car to one side and upon our return simply tell us that they didn't find anything!

 

I didn't want to leave the car with them as I didn't trust them any more and took my money back. If I left the car with them they could have just put it to one side and then told me nothing was found without even inspecting it! And they would have kept the money. Anyway, in the following weeks the damage that they had caused within the gearbox cost me a total of £1300 to fix elsewhere. (How is this total made up of? Specify Parts and Labour costs) I obtained a report of what was found when the gearbox was opened by another company, and I have photographic evidence.

 

£700 labour. £400 parts. £60 for a wheel bearing. £140 in fuel.

 

 

What you should have done is ask the second company who repaired the gearbox to first open and inspect it, before any work is undertaken to then provide an estimate for the cost of repair with a written report as to what caused the gearbox to be damaged, you should have then provided the first company with the estimate and report to negotiate if they accepted liability, were willing to pay the bill, or on what grounds would they dispute/refuse.

 

Did you notify the first company you intended to take legal action and gain any reply?

 

Unless the original company is a Mickey Mouse back street affair they will have a poor workmanship insurance cover; they will be instructed to handle any claim.

 

What the court will consider is why, when the gearbox was first refitted and the noise was apparent, why the gearbox was not removed and immediately returned to the original repairer in the same manner as it was first given, having been offered a full refund which you accepted it would appear you then gave this second company the complete vehicle, not just the gearbox, and now expect the original company to foot the bill?

 

In my opinion the Defendant has a defence, they offered you to either leave the vehicle for them to investigate, bearing in mind if the gearbox had to be removed and repaired they would have done so free of charge, or offered you a full refund. You accepted the refund.

1) In theory that would probably have been the best thing to do, but in reality it is my car at the end of the day, which I need to get to and from work. A dispute about whether or not the first company caused this damage could have gone on for weeks.

 

2) In the letter that I wrote them I said that I reserved the right to take legal action. They wrote a letter back that said they couldn't find any original fault when the gearbox was first brought to them, but they decided to carry out the work anyway?! Surely they should have informed us that they couldn't find any fault. They said that if the box was emitting a noise when first brought to them, they wouldn't have been able to hear it (The first mechanic has written me a letter to say that there was no noise in the first place). They said that they couldn't find any faults after the road test ect, and offered to inspect the gearbox at no cost or refund the £350. They said that we took the refund as we felt we had lost faith in their company.

 

3) It was their shoddy work that caused the issue in the first place - why should we pay another £300 labour to have the gearbox removed again and then taken back to the first company? If they had done the job properly, there would have been no need for the gearbox to come back out.

 

4) As said above - I didn't trust the original company or their workmanship after everything that has occurred in the lead up to that point.

 

edited for errors

Edited April 2, 2012 by jpmad4it
error

[consumeredge]

Hi jpmad4it

 

This is only my opinion,

 

If you proceed with this be warned the defendant could submit a counter claim, if they instruct a solicitor he may well want to see evidence your 1st mechanic was suitably qualified to tackle the task, how much did you pay him and by what method? if you paid this mechanic by cash without a reciept you are breaking the law, which could place him in an awkward situation, any award would be subject to a consideration for the damage caused travelling 100 miles, £140 in petrol? have the you receipts?

 

As to whether they should have informed you if they found nothing wrong, the problem I understood was you were unable to select 2nd gear, when a gearbox is stripped it is possible to select gears masking the cause of the problem, they may have taken the precaution to replace parts which are known to cause this,

 

The cost of the "original" repair was £350, little labour I suspect as they were handed the gearbox, the second garage charged £400 for parts and £700 for labour, it would be reasonable to assume had you taken the vehicle to the second garage first, the labour cost would not be much different.

 

Whilst I agree it makes you mad to think they bodged the job, should you lose you could be faced with further costs.

 

Whilst my opinions might not be welcomed it is only right you be warned of the possible conseqences.

 

Kind Regards

 

Clive

[asokn]

Consumeredge is right to suggest caution, never dive in litigation! However, I'm not sure what the counterclaim could be for?

[jpmad4it]

Hi jpmad4it

 

This is only my opinion,

 

If you proceed with this be warned the defendant could submit a counter claim, if they instruct a solicitor he may well want to see evidence your 1st mechanic was suitably qualified to tackle the task, how much did you pay him and by what method? if you paid this mechanic by cash without a reciept you are breaking the law, which could place him in an awkward situation, any award would be subject to a consideration for the damage caused travelling 100 miles, £140 in petrol? have the you receipts?

 

As to whether they should have informed you if they found nothing wrong, the problem I understood was you were unable to select 2nd gear, when a gearbox is stripped it is possible to select gears masking the cause of the problem, they may have taken the precaution to replace parts which are known to cause this,

 

The cost of the "original" repair was £350, little labour I suspect as they were handed the gearbox, the second garage charged £400 for parts and £700 for labour, it would be reasonable to assume had you taken the vehicle to the second garage first, the labour cost would not be much different.

 

Whilst I agree it makes you mad to think they bodged the job, should you lose you could be faced with further costs.

 

Whilst my opinions might not be welcomed it is only right you be warned of the possible conseqences.

 

Kind Regards

 

Clive

 

I totally understand that you need to warn me, and I thank you for your advice as it gives me food for thought. It is just extremely frustrating.

 

I should have mentioned that the £140 was for fuel and diesel, as my dad had to follow me in his van just in case the gearbox company wanted us to leave the car with them. My dad's van probably travelled 200 miles and my car 100. Unfortunately I don't have the receipts.

 

In the gearbox company's letter, it says "The said gearbox was brought into use with the complaint of 1st and 2nd gear to which we could not find any fault. We carried out a repair on your gearbox as requested." And yes it says "use" and not "us". That doesn't really say to me that they carried out repairs as a precaution.

 

Another point to mention is that I obtained a copy of the genuine Renault gearbox manual for my car. Before the car was taken back to the gearbox company for the first time after the problems began I emailed this document to them. It was purely so that they could check over any settings within the gearbox to check if they did everything to the manufacturer's standard. On our arrival at the first visit the joint owner made it known that he felt like I was implying that I didn't know what his was company doing by sending him a gearbox manual. On the third visit, the other joint owner asked me where I obtained the copy of the gearbox manual, as they didn't have access to that kind of documentation. Now to me that implies that they didn't know what the manufacturer's settings should have been, and they just carried out the repair without consulting the manufacturer's manual, or without knowing the standard settings.

 

One of the joint owners said that at least we were handling this complaint respectably, as he had another client become irate with a complaint a few weeks earlier. Alarm bells began to ring when he said this - how many complaints does he receive?

 

Finally, I think that my Dad may have paid cash to the gearbox company - so who could be seen to be at fault here? My dad, the company, or both? I know that he received an invoice for the first job (taking the gearbox out and refitting it), and he settled that via BACS. This is also true for the wheel bearing being changed and all the other work that was carried out to fix the gearbox.

 

And what kind of counter-claim could they issue? Loss of earnings for taking time to check the car? What else?

 

Thanks once again.

Jonathan

[jpmad4it]

Could anyone help answer the questions in my last post?

 

Any help is much appreciated.

Jonathan