Yes Car Credit PPI REclaim *** Resolved***

[PaulW922]

Do let us know how this goes as I am considering a county court claim against DAF based on what comes out of this and others. Even if you lose I think it unlikely that the small claim division will award £1600 costs against you

[ukdarrenfan]

Well wish me luck. Let's hope we get a decent judge who can see through their lies.....

[AndyOrch]

Best of luck UK ...please update your thread whatever the result.

 

 

Regards

 

 

Andy

[caro]

Good luck

[ukdarrenfan]

Thank you. I will let you know what happens.

[dx100uk]

go nail them

 

dx

[ukdarrenfan]

Well the case has been adjourned until February.

 

The judge said that the Limitations Act 1980 was the correct act

but as we were saying that we were told we had to have the insurances or we couldn't have the car,

he said that there was no mistake and we have to argue deliberate concealment.

 

Apart from now having to prove that we also have to prove due diligence,

as he said it was hard to believe that we could not know until last year that we didn't have to have the insurances.

 

Help!

[steampowered]

Responding to your report - What has been adjourned until February? Why an adjournment? Presumably it is just an adjournment of the summary judgment application and not of the whole trial?

 

I think the judge has to be right on 32 (1) ©. If you knew that you were taking out the insurance then this is not a case of mistake. Mistake would only apply where the insurance was sold without your knowledge.

 

You are better off relying on 32 (1) (a) or (b). Your argument would be that you were told the insurance was compulsory, this was fraudulent (or alternatively concealment of the fact it was optional). In this case the limitation period would run from the first time on which you had discovered the fraud/concealment or could reasonably have done so ... and you would say you could not reasonably have discovered the fraud until you started hearing about similar instances in the news. You can't really prove any of this just hope the judge thinks there is enough there to let it go to trial.

 

If you read the Defence carefully there is what appears to be a very odd admission at paragraph 19. They admit that 'the Defendant ... made a personal recommendation that it was suited to his demands and needs as assessed by the Defendant on the basis of information supplied by the Claimant'. Unless I am misreading this it looks valuable to you and should be pushed. What information did they request? How did they make the assessment? How did they reach a verdict on suitability? How can something be suitable if it is several times more expensive than comparable products in the market (see if you can find competitor pricing to prove this)?

 

They are correct that the newspaper articles are hearsay. They are hearsay because you are relying on what the journalist says but you are not calling the journalist to give evidence in court. But doesn't mean the evidence should be struck out, and the formal rules on hearsay do not apply in small claims track (refer to CPR 27.2 (1) (d)). I wouldn't get too excited about this.

[ukdarrenfan]

Yes it is the application to strike out that has been adjourned until February, to give us time to submit more evidence. Apparently the judge has allowed 2 hours for the next hearing rather than the 45 minutes we had for this one.

 

Can you tell me where you found what you quoted in the defence? I didn't post their defence so I don't know where you read that, if it was someone else posting on this thread or not. I know that they didn't say that to us.

 

They never brought any of the hearsay evidence up so it doesn't appear to be an issue at the moment.

 

The biggest thing that we need to do is prove the deliberate concealment and most of all - prove due diligence. I don't know how I'm going to do that.

 

All I can say is that if we didn't know we had been mis-sold it how could we know to do anything earlier?

 

I only discovered all the articles and everything else when I was researching another PPI claim.

 

Until then I had no idea.

 

The judge suggested that we might like to get some legal advice, so I think that's what we are going to have to do.

 

I just don't want to have to throw more money away if we don't have much chance of winning

[steampowered]

I'm referring to the attachment in post #249 Darren

 

I don't think you need to prove under s32 is that you could not have discovered the fraud/concealment/mistake even with due diligence ... per s32 'the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.'

 

You need to be very specific about why the insurance was missold and how reading the newspaper articles brought this to light. If your case basically relies being told by the salesperson that the insurance was compulsory, then to get around the limitation problem you would need to show that this was fraud or concealment, and would need to show that you only discovered the insurance was in fact optional more recently.

 

 

Legal advice isn't a bad idea. With the greatest respect, if I am correct to think that your case hinges on what you were told by an unknown salesperson 11 years ago without any documentary evidence to support it, my gut instinct is that your case is weak. It is very difficult if not impossible to prove what you were told 11 years ago, the best you can hope for is that the judge agrees with you on a balance of probabilities because he thinks you are a reliable witness. It will also be very difficult to convince the judge that you can accurately remember a conversation which happened 11 years ago. However this whole thing will be costing them legal fees they are unlikely to recover from you so they may offer a commercial settlement.

[ukdarrenfan]

Oh thank you so much.

 

I hadn't looked back on that for a while after they produced their witness statement and I had totally forgotten about that.

 

Thinking of it I don't think that they had to produce any statement of demands and needs at that time so I doubt they would have bothered.

 

From what I remember that only came about when Financial regulation came about in 2005

 

They never assessed our demands and needs at all.

In fact I'm sure I remember them saying somewhere in one of their letters that as my husband was employed he was suitable for any insurances.

So they just basically made their assumptions based on the fact that he was employed and had proof with both of our payslips,

a bank statement, a council tax bill and a telephone bill.

That's all we were asked to provide. No questions were asked about suitability in any way whatsoever.

 

It may seem strange that we can remember so much about that day,

but we can because it was such an awful place and a totally different way to buy a car from what we are used to.

 

I can still remember looking at the other cars that we had to choose from and feeling really despondent because they were awful.

One had deep scratches on the side, and the other was purple and had the bumper hanging off.

Little memories but they all add up to the bigger picture.

 

If it came down to the balance of probabilities I would have to just go with proving all their lies would show that we are the more reliable.

We have evidence of certain things that I have already stated that they say we would have received and can prove we haven't, etc.

[ukdarrenfan]

I found what I was looking for with regards to demands and needs. It was on their final decision letter. It says

 

The finance application form completed by you indicates you were employed by .........

 

You had been in that position for 11 years and the position was permanent.

 

You were both eligible and suitable for the PPI.

 

DAFS undertook reasonable checks to ensure you were suitable by reviewing the information provided on the documentation completed by you.

 

It would seem fair and reasonable given the nature of the employment disclosed

to recommend a policy which covers accident, sickness, unemployment, redundancy, disability and death.

 

they decided that we were suitable for PPI because my husband was employed in a permanent job

and that we had provided them with a bank statement and a couple of bills.

No questions asked.

 

We take in the documents that we were asked to provide thinking they are for a credit check

and they decide (without further question) that that means we want PPI and warranties!

[dx100uk]

that was nice of them!!

 

dx

[Mike_hawk]

Not read the whole thread [yet] but perhaps Cave v Robinson Jarvis & Rolf may be useful http://www.bailii.org/uk/cases/UKHL/2002/18.html

 

Wouldn't suggest its impossible to overcome limitation but it will be an uphill battle.

Edited January 14, 2014 by Mike_hawk

[ukdarrenfan]

We've just arrived back from a weeks holiday to a notice from the court. It says: It is ordered that

 

1. The Claimants do by 4pm on 27/01/14 file in court and serve on the Defendant further evidence in relation to S32 of the Limitation Act 1980.

 

2. The Defendant do by 4pm on 10/02/14 file at Court and serve on the Claimant any evidence in response.

 

3. The Defendant's application be adjourned to 20/02/14 at 2pm before District Judge ***** time estimate 2 hours.

 

4. Costs of today be reserved to the adjourned hearing.

 

5. Skeleton argument shall be exchanged and filed at Court by 4pm on 18/02/14 with copies of any relevant Statutory Material and authorities.

 

Help! What do I need to provide them with as further evidence in relation to S32 of the Limitations Act? As we've been away (as the Judge knew) we have had no time to take legal advice yet and things are obviously going to need posting extremely quickly.

 

What exactly will the judge be looking for? What do they mean by Statutory Material and authorities when they talk about the Skeleton Argument?

 

Such a relaxing holiday then I come home to this. I have a headache already

[ukdarrenfan]

Am I correct in thinking that I can use some of what I think is relevant from Mike_hawk's post above and quote my relevant experience within it? Is it us that has to file the skeleton argument or DAFS as it doesn't say?

 

 

I'm really pushed for time on this and I am trying to make sense of it all. Which parts of that document may help me please?

Edited January 20, 2014 by ukdarrenfan

[steampowered]

I think its better to focus on the evidence first and move onto the skeleton argument later.

 

Your evidence will probably be a witness statement setting out in detail why you think section 32 is satisfied. Remember to format it properly (use a template). Please also make sure to refer to the precise wording of the Limitation Act available on www.legislation.gov.uk. Referring to case law can also be useful, but not crucial and don't try to be clever or overcomplicated it. I think you've had a few ideas already, let us know if you need further help with this and feel free to post up your ideas or a draft.

 

The skeleton argument will basically be a condensed version of the witness statement. The witness statement should be several pages long and the skeleton argument 1 page long maximum.

 

Exchanging skeleton arguments means you and the other side's solicitors should both prepare a skeleton and send to each other at the same time. It is best to call or email the solicitors on the day and ask when they are ready to exchange ... when you are both ready you give each other your skeleton argument and file at court.

 

 

It would also be a good time to offer a settlement, if you are so inclined. As you probably know by now there is a costs risk if you lose the application.

[ukdarrenfan]

I think its better to focus on the evidence first and move onto the skeleton argument later.

 

Your evidence will probably be a witness statement setting out in detail why you think section 32 is satisfied. Remember to format it properly (use a template). Please also make sure to refer to the precise wording of the Limitation Act available on www.legislation.gov.uk. Referring to case law can also be useful, but not crucial and don't try to be clever or overcomplicated it. I think you've had a few ideas already, let us know if you need further help with this and feel free to post up your ideas or a draft.

 

The skeleton argument will basically be a condensed version of the witness statement. The witness statement should be several pages long and the skeleton argument 1 page long maximum.

 

Exchanging skeleton arguments means you and the other side's solicitors should both prepare a skeleton and send to each other at the same time. It is best to call or email the solicitors on the day and ask when they are ready to exchange ... when you are both ready you give each other your skeleton argument and file at court.

 

Thank you.

I will quote the relevant sections of the Limitations Act and also why I feel they were satisfied.

 

I sorted all that before we went away on holiday, as a document to show a solicitor.

 

I just need to put it all together as a more legal sounding document instead.

 

I won't put my reasons on here yet, I just get the feeling that they are watching this forum

sometimes and it worries me a bit.

[ukdarrenfan]

Can we also quote Section 32 (2)?

 

(2)For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

[ukdarrenfan]

Oh gosh this evidence pack is going to be huge.

 

I need to print off the whole of our SAR request to prove that we didn't receive the sheets

they provided in their evidence to say the insurances were optional,

that's 48 pages x3 at the very least without all the rest.

 

You mention about offering a settlement.

 

What would you say would be reasonable?

 

It already amounts to about £6500 with interest, not including some of the court costs.

 

The actual amount of the insurances was £3199.52.

 

This has already taken up over a year of my time and has been really stressful.

 

They've done nothing but lie and been obstructive the whole time.

 

It's costing me a fortune in time and printer ink.

Edited January 21, 2014 by ukdarrenfan

[steampowered]

Yes you can quote s32 (2) if relevant. Attention to the exact wording is important with these things, they are precise rules not vague general principles, so you'd need to clearly explain why you think the section applies or is relevant.

 

The figure to request for settlement is your call really. Remind me, is the whole thing possibly statute barred if s32 does not apply, or were some payments made less than 6 years ago?

 

If it is all potentially SB I would go in by offering to settle for 50% with no order as to costs.

 

If it won't all be SB I would go in at 75%.

 

You can make a settlement offer by writing a separate letter to the other side headed 'without prejudice'.

 

It should not be shown to the judge at any hearing, without prejudice documents may only be considered by the judge on the issue of who should pay legal costs (if any) after the main hearing has been decided.

[ukdarrenfan]

The whole thing would be statute barred as it ended in April 2006.

 

Surely it would look better on us if the judge did see the letter?

That way he could see that we were being reasonable in trying to end this case?

 

Or is that not how it works?

 

Is there any kind of template on here as to how to word the letter?

Edited January 21, 2014 by ukdarrenfan

[Mike_hawk]

The whole thing would be statute barred as it ended in April 2006. Surely it would look better on us if the judge did see the letter? That way he could see that we were being reasonable in trying to end this case? Or is that not how it works?

 

Is there any kind of template on here as to how to word the letter?

 

It's the 'reasonable diligence' within the construction of s32 which is really the catch all and difficult to overcome, I suppose if you could show you had historically engaged with the other side and it had concealed/omitted relevant data you may stand a slim chance. The issue is that the court will possibly/probably view the execution date of the agreement as the date you became aware of the issue.

 

WP........ to be honest, not much you need to include beyond your offer to settle all matters arising from the case. These things are usually best left short and sweet so they are not left open to (mis) interpretation of your position. Have a go at drafting something and post it back on here before sending,

[caro]

If you do decide that you want to settle, I'd suggest that whatever it is, you ask that each side bear their own costs.

[ukdarrenfan]

Oh sometimes I wish we'd never started this.

 

I never realised it was going to be this difficult:-(

 

It's the reasonable diligence bit that is going to be really difficult,

though we can prove that there is nothing at all in the information that stated these insurances were optional,

so it proves that they were lying about what they have included in their defence.

 

I don't understand how we can be expected to have known that we were mis-sold these insurances

before all the scandal of mis-selling came about in the first place.

 

If the sales person concealed the facts from us then how could we have known that we had been lied to,

let alone been expected to find out?

 

Surely the judge must think we have something to work with or he would have just struck out the case

at the hearing last time.

 

He's allocated 2 hours for the next hearing rather than the usual 45 minutes,

so I'm expecting to have a lot to thrash out this time round.