Customer issued court proceedings against us (small family run garage)

[king12345]

I would like to ask a question.

Anyone at your dad's garage fitted the fan belt tensioners as described by the claimant?

Who's ground the nut and bolts to make them fit?

[Emz0305]

I would like to answer a question:

Anyone at your dad's garage fitted the fan belt tensioners as described by the claimant?

Who's ground the nut and bolts to make them fit?

 

Sorry king, what question did you answer? Confused!??

[king12345]

Edited, sorry got up a 4am :-P

[Emz0305]

The mechanic that did the job put the car back as originally found. No bolts were ground down. My dad was present at the garage all day and he would of noticed his mechanic using the grinder to grind down bolts. The job was subsequently checked by my dad that all was aligned and the car was running true.

[king12345]

So the claimant must have "fixed" something else and properly screwed it up.

If those incorrect bolts and ground nut were already there I would have notified the claimant and replace them, but it's difficult to say now where they've come from.

[Emz0305]

Don't know, it's all a bit strange really, the fact that he didn't want my dad to see the car intact before he stripped everything off it, and the fact he didn't seek an independent garage to give estimates and the fact he stated in his first correspondence that he repaired the car by himself then later changed his story to say it was fixed by himself and two mechanics. At the end of the day, he makes reference time and time again that he wasn't happy with the original repair but not once did he ask for his money back, not once in the 6 months between repair and engine failure did he contact my dad to complain. 6 months is a hell of a long time for a car engine to run with a misalignment. I doubt it would of lasted the week never mind 6 months and I'm no mechanic.

[Mike_hawk]

If you believe the fixings were in situ prior to undertaking repair or if you believe that no alternate fixings were used it should be stated within your defence.

 

Any contradictory correspondence (assuming written) should also be referenced.

 

Grab a couple of hiliter pens and a copy of all the docs he's served and pick out the main allegations. Once you're satisfied you've established the issues draft a response to each, check back through the correspondence for any paragraphs which can then be disposed of within each response and add those para/document number/title.

 

If you get over the hurdle of being sidetracked by the bluster you should be able to construct a single page response.

[Emz0305]

If you believe the fixings were in situ prior to undertaking repair or if you believe that no alternate fixings were used it should be stated within your defence.

 

Any contradictory correspondence (assuming written) should also be referenced.

 

Grab a couple of hiliter pens and a copy of all the docs he's served and pick out the main allegations. Once you're satisfied you've established the issues draft a response to each, check back through the correspondence for any paragraphs which can then be disposed of within each response and add those para/document number/title.

 

If you get over the hurdle of being sidetracked by the bluster you should be able to construct a single page response.

 

 

Mike, when referring to claimants correspondence, do I forward copies of said correspondence to the court with the defence? I want to draw attention to where claimant suggest's docking the young mechanics wages and then sacking him, and also where he states that he had no intention of letting my dad see the car because he would work out what he had done and try and cover it up. He said in his latest 'statement of truth' that if my dad would of offered to do the repair at no cost to claimant he would of agreed, but that is an out and out lie as my dad asked if he could see the car and he said he wasn't telling him where it was. Sorry I'm waffling on again, not quite sure how I'm going to get the defence on one page, will need about 20 pages at this rate lol

[Mike_hawk]

Mike, when referring to claimants correspondence, do I forward copies of said correspondence to the court with the defence? I want to draw attention to where claimant suggest's docking the young mechanics wages and then sacking him, and also where he states that he had no intention of letting my dad see the car because he would work out what he had done and try and cover it up. He said in his latest 'statement of truth' that if my dad would of offered to do the repair at no cost to claimant he would of agreed, but that is an out and out lie as my dad asked if he could see the car and he said he wasn't telling him where it was. Sorry I'm waffling on again, not quite sure how I'm going to get the defence on one page, will need about 20 pages at this rate lol

 

Nope, exchange of witness disclosures/docs/evidence comes later. Just the defence to file and serve.

[Emz0305]

Ok, will get on with it 2moz. Thanks again for all your help

[andydd]

Thanks for the Mechanical Data sheet..eerr..Ive spent some time repairing cars, etc and it left me totally confused, I don't believe at all, that it would leave the judge with an 'inescapeable conclusion' at all, its more likely to leave him/her with a headache !

 

There is no definate eveidence that any photos of the short/ground down bolts came from the car in question nor that the claimant didnt fit them himself during the 6 month period.

 

Everything in this document is just hearsay evidence with no real proof.

 

What is really needed is a proper experts report (if allowed by the court) but they fact that the claimant (and I believe some of his friends) have had a tinker with it means that even then any report may be inconclusive.

[andydd]

Emz

 

Not sure that writing to the court is going to work, can't imagine anyone looking at the papers until it has sight of your defence and considers directions.......... even then you may have to attend a prelim to help the judge understand what the claimant is chuntering on about. You could certainly make an application to the court to address the content of his 'particulars' and ask that sanctions be applied should he fail to adequately plead his case......... or carry on constructing your defence and bring these matters to the courts notice within it

 

I tend to agree with this, the Strike Out letter you have constructed is good, it doesnt need to be written as a Witness Statement, what you are doing is to ask the court to consider using its powers to strike out all/or parts of the claimants case, this would normally be as an 'Order'. (i.e you compile it as a court would..something like.."It is Ordered that the Claimants Statement is truck out due to failure to comply with CPR x.xx") and you are in effect asking for the court to agree with your order so it becomes legally binding.

 

Now this could be put to court informally..i.e you are not seeking for an actual Order (which would cost) you are just reminding the court of its powers, however Mike may be right in that it won't actually be looked at or acted upon at this stage and it maybe better to bring up these matters in the actual defence or if there are any preliminary/case management hearings first.

 

Personally I dont think it can hurt to send the letter to court now, if it gets ignored so be it or if they want you to put in an actual Order and pay the fee then you can cross that bridge when you come to it.

 

The benefits of using Strike Outs (and maybe corresponding Summary Judgement) is that it avoids having to get involved in writing a full defence, as you know due to the Claimants incoherant rantings, putting together a defence will be tricky.

 

As for the defence,remember, its upto the Claimant to prove everything in his claim, so as already mentioned, just go through paragraph at a time and start with "It is admitted...", "It is denied that blah blah and the defendant is put to strict proof".

 

Point out any contradictions or inacuracies in his various claims. The fact that there is no expert report (at least so far) is not going to bode well for the claimant.

[Emz0305]

I tend to agree with this, the Strike Out letter you have constructed is good, it doesnt need to be written as a Witness Statement, what you are doing is to ask the court to consider using its powers to strike out all/or parts of the claimants case, this would normally be as an 'Order'. (i.e you compile it as a court would..something like.."It is Ordered that the Claimants Statement is truck out due to failure to comply with CPR x.xx") and you are in effect asking for the court to agree with your order so it becomes legally binding.

 

Now this could be put to court informally..i.e you are not seeking for an actual Order (which would cost) you are just reminding the court of its powers, however Mike may be right in that it won't actually be looked at or acted upon at this stage and it maybe better to bring up these matters in the actual defence or if there are any preliminary/case management hearings first.

 

Personally I dont think it can hurt to send the letter to court now, if it gets ignored so be it or if they want you to put in an actual Order and pay the fee then you can cross that bridge when you come to it.

 

The benefits of using Strike Outs (and maybe corresponding Summary Judgement) is that it avoids having to get involved in writing a full defence, as you know due to the Claimants incoherant rantings, putting together a defence will be tricky.

 

As for the defence,remember, its upto the Claimant to prove everything in his claim, so as already mentioned, just go through paragraph at a time and start with "It is admitted...", "It is denied that blah blah and the defendant is put to strict proof".

 

Point out any contradictions or inacuracies in his various claims. The fact that there is no expert report (at least so far) is not going to bode well for the claimant.

 

 

Andy I've been doing some digging on this particular car and apparently it has a common fault with the alternator pulley? Apparently it has a clutch that can seize or something along those lines, anyway, it's been responsible for causing these rattle noises on this model and also a whirring noise and has also been know to cause the belt to snap and due to a poorly made cover on the timing belt it breaks through snapping the timing belt. Loads and loads of the same fault and advice on how to fix it. Most people firstly changed the tensioner as that was the obvious thing causing the rattle as when you held a screwdriver against the tensioner the rattle stopped, but it nearly all cases the ratel was still present after changin tensioner or returned later. I still suspect he went home from my dads that day and looked on the forums, found this common fault and the instructions of how to repair, and tried to do it himself. In his statement he says how the rattle stopped after several weeks, that's probably because he changed the alternator thingy himself or one of his mechanic friends did it.

[andydd]

Well.. there you go, more evidence for you.

 

I assume there is no date yet for the actual hearing or any prelimanry/case management ones ?

[andydd]

There is plenty on the interweb about strike outs.

 

Here for example > http://www.drukker.co.uk/publications/reference/strike-out-applications/

 

I believe it may be a good idea to consider this route to save you the hassle of preparing a defence.

[Mike_hawk]

Emz

 

Started you off......... you'll need to have a tinker with it though

 

 

1 References made herein are in response to the Claimants variously titled documents (Particulars of Claim, Statement of Truth and Amended mechanical data and facts) served at xx March 2014

 

2. The defence set out hereafter is made within my understanding of the claimants case and without prejudice to the defendants contention that this claim should be struck out for failure to demonstrate or state any grounds capable of success at trial, alternatively the court is invited to summarily dismiss the claim of its own motion pursuant to CPR3.4(2) for failing to demonstrate any prospects of success at trial,

 

3. Paragraph 1 of document marked ‘Particulars of Claim’ is admitted, the defendant undertook a fixed price service at the claimants instruction,

 

4. Paragraph 2 of document marked ‘Particulars of Claim’ is denied, the claimant has failed to demonstrate or state why the diagnosis was wrong at that time and is put to strict proof to show the incorrect nature of the diagnosis agreed between the parties at 12th March 2013

 

5. Paragraph 3 of document marked ‘Particulars of Claim’ is admitted, the Claimant did not seek to instruct further diagnosis and bear cost of same. It was put to him that should he wish to instruct further works based on his own diagnosis this would be effected with pricing to be agreed prior to commencement.

 

6. Paragraph 4 of document marked ‘Particulars of Claim’ is admitted, no offer for reimbursement was made to the claimant as the works were effected at his instruction. The Defendant denies the Claimant is entitled to any relief in this matter.

 

7. Paragraph 5 of document marked ‘Particulars of Claim’ is outside the knowledge of the Defendant and is neither admitted nor denied. The Claimant claims that a catastrophic failure of the engine occurred but refused to allow inspection of the vehicle at the time of the alleged failure. The Claimant has failed to demonstrate any failure of the engine or show why those works instructed at March 2013 consequentially led to that averred failure. The Claimant is therefore put to strict proof to show;

 

 

i. The nature of the failure

 

i. The effect of any works carried out by the defendant

 

iii. ……………..

 

iv. …………

 

v………

 

8. Paragraph 6 of document marked ‘Particulars of Claim’ is denied, the Defendant repeats his defence in paragraph 7 and denies he was afforded the opportunity to inspect any claimed damage in situ and maintains his position that at no time has the Claimant substantiated his demands.

 

9. By reference to documents titled Statement of Truth & Amended mechanical data and facts the Defendant is embarrassed in pleading beyond repeating his defence above. It is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

 

10. The documents titled Statement of Truth & Amended mechanical data and facts whilst making many allegations, are vague and fail to disclose an adequate statement of facts relating to or preceeding the alleged cause of action.

 

11. No particulars are offered in relation to how the Claimant has mitigated his averred loss or calculated the quantum claimed . Further and pursuant to Civil Procedure Rules 16.4 & 16.5(4), it is expected that the Claimant set out the basis of his claim and prove the allegation that any money is owed. The Claimant is therefore put to strict proof to show:

 

i...........

 

ii................

 

iii............

 

iv...................

 

12. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[Emz0305]

Thanks mike that's brilliant and really helpful. Just need to have a look where I can slot in other relevant information now about the common fault on these cars etc, or do you think that is not needed?

[andydd]

Given that some of the letters from the Claimant are vague and slightly threatening you could also add the 'claim is vexatious'.

[Emz0305]

Oh I'll defo be adding that in somewhere don't worry. Oh that's what I wanted to ask, is it possible to supina witnesses to small claims court if they want nothing to do with giving evidence against the defendant? Apparently the claimant has witnesses that don't want to get involved?? And he wrote on one of his little notes that came with one of his letters that he has 3 witnesses that know the defendant and they're not willing to give evidence against the defendant so the claimant will supina them to court lol

[Mike_hawk]

Thanks mike that's brilliant and really helpful. Just need to have a look where I can slot in other relevant information now about the common fault on these cars etc, or do you think that is not needed?

 

I think any additional information would be best served at exchange of evidence prior to trial. The draft defence sets out the basics and puts the other side to proof... you just need to fill in some blanks asking the right questions of the claimant.

 

I would imagine you'll be served general directions following service of the defence, to include exchange, disclosure and inspection followed by a trial date. If the claimant wants to introduce additional witnesses its up to him to manage, if he doesn't its a little unlikely the court would order an unknown and unwilling third party to attend.... too much judge Judy me thinks!

[BazzaS]

he wrote on one of his little notes that came with one of his letters that he has 3 witnesses that know the defendant and they're not willing to give evidence against the defendant so the claimant will supina them to court lol

 

Does he mean subpoena?

As in "an order of the court forcing a witness to appear"?

These are now known as "witness summons" and are dealt with under CPR34 of the Civil Procedure Rules.

 

Could be used in a major criminal or civil case. Not likely to happen for a small claims civil case. In theory a (county court) district judge could issue one, but would want very good reasons to do so.

 

It will give the judge a giggle (or apoplexy) if he tries : either way it is a non-starter here if the claim looks fallacious / vexatious.

[SuperVillain]

Does he mean subpoena?

As in "an order of the court forcing a witness to appear"?

These are now known as "witness summons" and are dealt with under CPR34 of the Civil Procedure Rules.

 

Could be used in a major criminal or civil case. Not likely to happen for a small claims civil case. In theory a (county court) district judge could issue one, but would want very good reasons to do so.

 

It will give the judge a giggle (or apoplexy) if he tries : either way it is a non-starter here if the claim looks fallacious / vexatious.

 

I do them as a matter of course when I have a witness, even in small claims. It's a simple form to fill out - N20 and you file at Court with a fee of £40 i think.

 

The Court then seal the summons and send it back to you to serve (or they can serve it themselves). It's a form filling/stamping exercise and I doubt a Judge even sees the summons.

 

Strictly speaking its a court order and the witness is liable for a fine if they don't turn up but it depends on the Judge on the day. Last time one of mine didn't turn up Judge did nothing (much to my displeasure!).

 

But before panicking lets see what his directions questionnaire says - on it you have to put how many witnesses will be giving evidence so the trial can be listed for an appropriate length of time. If his directions questionnaire states 7 witnesses for a relatively low value claim the Judge/Court officer dealing with case management directions may question it at this point.

[Emz0305]

I do them as a matter of course when I have a witness, even in small claims. It's a simple form to fill out - N20 and you file at Court with a fee of £40 i think.

 

The Court then seal the summons and send it back to you to serve (or they can serve it themselves). It's a form filling/stamping exercise and I doubt a Judge even sees the summons.

 

Strictly speaking its a court order and the witness is liable for a fine if they don't turn up but it depends on the Judge on the day. Last time one of mine didn't turn up Judge did nothing (much to my displeasure!).

 

But before panicking lets see what his directions questionnaire says - on it you have to put how many witnesses will be giving evidence so the trial can be listed for an appropriate length of time. If his directions questionnaire states 7 witnesses for a relatively low value claim the Judge/Court officer dealing with case management directions may question it at this point.

 

Would these witnesses in order to be summoned already had to have gave a witness statement?

[Emz0305]

Mike, I'm just typing up the defence and just need some help with this bit.

 

11. No Particulars are offered in relation to how the Claimant has mitigated his averred loss or calculated the quantum claimed. Further and pursuant to CPR 16.4 & 16.5(4), it is expected that the Claimant set out the basis of his claim and prove the allegation that any money is owed. The Claimant is therefore put to strict proof to show:

i........

ii........

iii........

 

What do I need to be asking for here? Things like Garage receipts etc? Wasn't sure?

[Emz0305]

and where can I slot in about the claim being vexatious?