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

[andydd]

If not, get upto the court and ask them to strike it out, you could write a letter and ask them to use their initiative to strike out or make an application/order yourself (but this will cost, but its all money you could claim back off other side).

[Emz0305]

If not, get upto the court and ask them to strike it out, you could write a letter and ask them to use their initiative to strike out or make an application/order yourself (but this will cost, but its all money you could claim back off other side).

 

It could turn up in today or tomorrow's post yet so will see

[Mike_hawk]

Hi Emz

 

Could you post the full content of the order please

[Emz0305]

Hiya, POC turned up in today's post. Still not sure they're right though. The statement of truth is a separate document to the POC, so the POC has just been signed and dated but does not carry an actual 'Statement of Truth'.

 

 

The statement of truth enclosed is a few pages long, and he's also enclosed another threatening letter which he writes in an aggressive tone, basically saying if what's owed isn't paid now, it will be a lot more when he win's the case.

 

Should I just scan the lot up for you to have a nosey at? I'll remove all the ID in paint first.

 

Mike, do you still want me to scan a copy of the latest order?

[SuperVillain]

The statement of truth enclosed is a few pages long, and he's also enclosed another threatening letter which he writes in an aggressive tone, basically saying if what's owed isn't paid now, it will be a lot more when he win's the case.

 

lol a settlement offer as well as the particulars! I'm shocked...

[Emz0305]

lol a settlement offer as well as the particulars! I'm shocked...

 

It's not the offer of a settlement that I'm bothered about, it's the tone in which it's wrote just like all the other correspondence from him, oh and I've just noticed that he's changed his story in this most recent statement by saying he repaired the vehicle along with his mechanic friends, but in his first statement he sent though, he states that with the guidance of his mechanic friends he repaired the vehicle by himself. His statement is full of non truths and this proves how quick he changes his story

[Mike_hawk]

Hi Emz

 

Yes, please post the content of the order and the particulars........... it's important to concentrate on the issues at the crux of the case and not be drawn into arguments which would/should have no bearing on the case

[Emz0305]

I've scanned everything apart from another document that was enclosed, Mechanical Data and Facts. Takes me ages to remove all the personal identifying text and it's another 4 pages long.

[SuperVillain]

Hmmm all he needed to do was put on his original particulars:

 

‘[i believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true.’

 

and then sign it.

 

The original particulars, whilst now signed, still do not have a statement of truth. The second document I'm not sure about. The Court may give him some leeway and accept this as particulars with a statement of truth.

 

With regards to the differences between the first and second particulars it could get interesting. Part 17 of the CPR deals with amendments to the statement of case. He can amend his statement of case any time before service or with the permission of the court after service.

 

Question is - are particulars served without a signed statement of truth, truly served? I'm not sure they are in all honesty...

[mjt2013]

I would say that they're served PoC but defective, a car with a wheel missing is still a car

[Emz0305]

Ok, I'm none the wiser lol

 

I'll wait for a few more people to look over it.

 

As for changing a statement, surely if it was a statement of truth it wouldn't change? As the truth always remains the same. To state in his first statement he repaired the car himself, then to later change and say he assisted the repair, surely makes him out to be a liar, but I'm no judge or lawyer so not sure how they would look at that.

[andydd]

What a load of twaddle.

 

He is obvioulsy rather confused about the Statement of Truth, the SOT is supposed to be just one line at the bottom of the Statement of Case or Witness Statement saying "Statement of Truth

I andydd of xxxx,xxx,xxx believe that the all facts stated above are true.

 

andydd: Dated

 

As mentioned above, you could well argue that he still hasnt given you a proper POC, Im not sure that the POC is signed in the proper way as required by see CPR 22.2 > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22), the court can strike it out and also his "Statement of Truth" (in reality this is his Statement of Case or Witness Statement is not signed at all.

 

I'd also argue that his claim does not give rise to a legal right to claim any money, it should say something like "Due to the actions of the XX Garage, I have suffered a loss and claim damages of £xxx", it doesnt really say that, it just waffles, now the impoirtant bit, where is the evidence ?. It mentions "Mechanical Data and facts", where is this ?. Without some sort of expert report I wouldnt rate his chances to highly !

 

God knows what hes going on about in the additional letter, more waffling and vague threats...what is this letter, the Statement of Case (or as he calls it 'Truth') has been served, you can add or amend it but it needs another hearing and will cost him.

[andydd]

Id be very tempted to go for a Summary Judgement BUT this is suppossed to be done earlier, normally pre-allocation and does have costs risks.

 

So have a look at CPR 3.4, this gives the court power to strike out whole or parts of a case, Id'd be tempted to use this, (but it would mean yet another application) asking them to strike out all or at least some parts of his case for various reasons, not signed or not signed as per CPR, giving no actual legal basis for his claim, no realistic basis for the amount he is asking for, no asking court for permission to use an expert (if he does indeed get the Renualt report) and Im sure there are other reasons we could find.

 

Also have a look at the Practise Direction regarding wording of Statements of Truth. > http://www.justice.gov.uk/pre-trash-archive/civ-proc-rules-old/_old/pd_part22#IDALBUJC he really hasnt complied with them at all.

 

Here is a quick guide to CPR 3.4 strike outs > http://uk.practicallaw.com/1-204-3083?service=ld

[Mike_hawk]

I think you may have to play the long game and defend on what you understand of the claim. Probably best to pick through the bones of the docs he's served and try to construct your response by reference to each document and para number. Most of the waffle really doesn't require much beyond including reference to each paragraph within your defence... For example you could state something along the lines of:

 

1. Paragraphs 5 - 10 of document marked xx are denied, the claimant has failed to particularise the loss alleged to have taken place. It is further denied that any such alleged loss constitutes any actionable cause by the claimant.

 

I suppose you could apply to strike out, its already allocated to the small claim track so costs shouldn't be an issue if you fail... Alternatively, ask the court to strike out of its own motion within your defence, at some stage the court will have to read the papers prior to serving directions.

 

'The defendant contends that parts of the 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'

[Emz0305]

See what I mean about him ranting on?

 

I can upload the mechanical data and facts document if you want Andy.

 

I'm really going to struggle with this, I have less than 14 days to get a defence in and it's totally battering my head. I haven't a clue where to start?

 

One of my dads very good customers has offered to help with the defence, she works for a law firm so understands it all more than me. Maybe I should let her take over?

[andydd]

You can just ignore the ranting and in fact prob about 80% of it, court documents should be short, clear and concise and based on the facts only, they are NOT suppossed to be ranting like a schoolchild and I doubt a Judge would be impressed, if this was on a fast track, it would be thrown out instantly..but Judges do give leeway on small track and to LiP's and dont expect the docs to be perfect.

 

Yes..If you could post the mechanical data one as surely that may contain some evidence as I fail to see anythinbg in the other docs that could constitute a claim.

 

Mike's post above "1. Paragraphs 5 - 10 of document marked xx are denied, the claimant has failed to particularise the loss alleged to have taken place. It is further denied that any such alleged loss constitutes any actionable cause by the claimant. " is great and pretty much somes it all up, he just hasnt clearly spelt out what loss he claiming (in the POC it mentions £110 but doesnt say anything about a loss or why the garage is responsible and in the added on letter it mentions all solrts of other sums that appear to be plucked from the air).

 

Let me read through them again and Ill post up some thoughts.

[Emz0305]

Thanks guys, not sure where I'd be without you all helping me

[andydd]

If it were me I'd write to the court now (ahead of your defence) asking them to strike it out or at least parts of it out.

 

Use something like Mike's comment above -[ "'The defendant contends that parts of the 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'"

 

But I'd also add that the following should be struck out:-

 

POC should be struck out because it does not containg a Statement of Truth as required by Practise Direction 22 2.1 > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22/pd_part22#2.1 , it also does not contain "It is further denied that any such alleged loss constitutes any actionable cause by the claimant. "

 

Again the so-called Statement of Truth (he means Case) should be struck out for the same reason, its nit-picking a bit but the signed bit does NOT conform to pd 22 2.1

 

The 'extra' letter, this also doesnt comply it doesnt even mention Statement of Truth and should be struck out.

 

So you are asking that all three of his documents be struck out either all together or individually as they are not signed correctly and as a whole "the claimant has failed to particularise the loss alleged to have taken place. It is further denied that any such alleged loss constitutes any actionable cause by the claimant. " - to nicks Mike's quote.

 

So what you would be doing is for the court to use its initiative under CPR 3.4 to strike all/or parts of the claim out, there would be no cost for this, if the court doesnt use its own motion you could then apply to do it, but I guess there would be a cost for this (£45 or so).

 

I'd recommend writing asking that the court strike it all/or parts of out under cpr 3.4, if nothing happens and it goes to trial, no less, I cant see that the other side has any hope.

[Emz0305]

Andy here is the Mechanical Data and facts and I've also attached the photographs. The physical evidence that he mentions will probably be a box with a few nuts and bolts and the fan belt.

 

My dad has said that if what the claimant is saying was correct, and the tensioner was mis-aligned, it would become apparent very quickly certainly not 6 months later. After the initial repair, the alignment was checked and the car was left to run and was found to be running true.

 

Its strange that he said the rattle stopped several weeks later, maybe he took my dads advice and looked on the forums and repaired it himself with the help of his mechanic friends.

[Emz0305]

I got it wrong about the letter that I scanned up, it came with the same post but in a separate envelope, so not in the same envelope as the statement of truth and POC. Do you think that he's also sent a copy of this to the court? Should they have a copy of all of his correspondence even pre court action?

[Emz0305]

His statement of truth is signed, I erased the signatures when I removed all the identifying names etc, so it does have his signature at the end.

[Emz0305]

We've quickly thrown this together. Wasn't sure if it was supposed to be done as a witness statement so I've composed it as that for the time being. If you could have a look and let me know what you think so far and if I've missed anything or put anything that isn't required. I may have rattled on a bit too. Also, have I got the CPR rule layout's correct? Wouldn't want to get those wrong.

 

I won't be able to get to a printer now until tomorrow morning so have plenty of time to get this right, then will have a bit more time to compile a defence should this not be successful.

[Mike_hawk]

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

[Emz0305]

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

 

Right ok, well maybe I should just get on with the defence then. Not a clue where to start though. Do I have to defend each paragraph that's stated in the particulars of claim? Or do I compile a defence based on everyhing, his statement of truth, his mechanical data facts etc?? How do I set it out? How much detail do I go into or should it be kept very simple and to the point? Sorry for all the questions but I really don't know what I'm doing lol

[Mike_hawk]

Hi Emz

 

Respond to each paragraph, try looking at a few at a time and breaking it down into bite sized chunks.......... where you can specifically deny an allegation do so and include reference to any other paragraphs which would naturally fall to be denied putting him to strict proof of each issue.

 

Keep each paragraph fairly concise and to the point

 

1. Paragraph 1 is admitted, the defendant undertook fixed cost repairs of £110.00 on the instruction of the claimant

 

2. .............

 

3...........

 

You could include a paragraph at the header of your defence contending that his failure to adequately plead has resulted in assumptions being made as to the issues at the crux of the case.