Car dealer CAR HUB LONDON LIMITED trying to stall/evade/dodge their responsibilities Claim Issued ***Judgment***

[AndyOrch]

Looks that way...the court should have sent you a copy of their defence..if not request it.

[BenScoobert]

Their defence arrived. It sounds a lot of waffle to be honest, similar to the emails waffle when they were trying to fob me off and delay me.

 

How do I reply to this? Do I make my own list or do I reply to each item individually?

[AndyOrch]

There is no requirement to respond to the defence pre allocation....I would complete the DQ and await court directions...you can respond point by point within your witness statement...which you will be required to submit after allocation.

 

Andy

[BenScoobert]

ok thank you Andy, I'm guessing the mediation is pointless as there is no middle ground really

[AndyOrch]

Well as claimant you should always be open to mediation..mediation is not a case of showing any weakness or opting for anything less than what your claim originally requires.Mediation can be an opportunity to resolve matters without the need to progress further and still attain what you require without increasing costs and courts time.

 

And of course the court expects all parties to participate in mediation irrespective.

[BazzaS]

 

as claimant you should always be open to mediation..mediation is not a case of showing any weakness or opting for anything less than what your claim originally requires.Mediation can be an opportunity to resolve matters without the need to progress further and still attain what you require without increasing costs and courts time.

True

 

 

And of course the court expects all parties to participate in mediation irrespective.

 

Yet, not true.

 

The courts expect all parties to "reasonably consider" Alternative Dispute Resolution (ADR), not to "participate .... irrespective"

 

Mediation is one form (albeit the most common) of ADR.

If Mediation is the form of ADR chosen, the obligation is to reasonable consider it, not to participate.

 

If a party has considered ADR and not unreasonably decided there is a reason not to use it, this will protect them from possible sanction (the costs implication of para 11 of the Practice Direction on pre-action protocol)

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#8.1

 

The OP has already come up with a point that can show mediation was considered but reasonable decision not to partake was reached : futility.

ok thank you Andy, I'm guessing the mediation is pointless as there is no middle ground really

 

If correct, then there is no point to mediation (although it may still be useful to clarify areas of agreement or where disagreement persists).

 

Other grounds where ADR can be considered but still reasonable rejected exist including e.g. Where the cost of ADR is disproportionate to the value of the case.

[AndyOrch]

Let me re phrase for the pedantic.... all parties are invited to participate in ADR. if the case is suitable as decided by the court

 

11. If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#8.1

[BazzaS]

Might be considered unreasonable.

 

Which is why (as part of standard disclosure in tracks other than small claims) a Witness Statement stating why ADR has been considered and not used is required. The standard direction is

At all stages the parties must consider settling this litigation by any means of Alternative Dispute Resolution (including Mediation); any party not engaging in any such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not be shown to the trial judge until questions of costs arise.

 

Even this points to the fact that a party doesn't HAVE to use ADR, just be prepared to explain why they (reasonably) didn't!

 

BTW : The OP doesn't need to make such a witness statement if their case remains in Small Claims Track.

 

Whether or not it is considered pedantic, there is a difference between "required to consider" and "required to participate .... irrespective"

 

There is no requirement to participate irrespective.

The court can look at if a refusal to participate is reasonable or not.

Futility is a reason the court is likely to accept, as it makes the cost of ADR disproportionate to the benefit.

 

Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 4 All ER 920 is the case that lays out how the court should judge "reasonably consider", and one of the factors is "whether the ADR had a reasonable prospect of success".

 

If the OP reasonably believes "Entrenched positions would mean the mediation had no prospect of success" (and they pretty much said that, unprompted!), they could persuade a court they "reasonably considered" ADR, and reasonably declined it.

 

"Must participate in Mediation .... irrespective" remains poor advice, for the reasons stated ; that isn't pedantry.

[BenScoobert]

Thanks you for all your responses, so my next question, given the email discussion in post 1, do you believe it is futile to try and reach anything via mediation?

I will accept nothing but the return of the car and a full refund plus my costs, that is not negotiable. I don't want to keep the car as it is clearly neglected and nothing like they described.

[mch1991]

Point 14 of his defence made me laugh, I didn't know driving an S Class Mercedes-Benz above 70mph would create substantial wear and cause severe judder, what a clown.

 

The defence is very unorganised, the law is clear in that a consumer is entitled to reject a vehicle within 30 days should an issue occur, or after 30 days should an issue occur and an attempt at a repair has been made but is not successful.

 

With reference to Bartlett v Sidney Marcus Ltd 1965, I'm fairly sure the buyer in this case purchased the vehicle at a discount due to the alleged "fault" with the car, and was offered to buy it at the full price and the fault rectified, but chose to buy it with the fault at a discount.

[king12345]

Is it true what he says in his defence that you refused him to inspect the fault?

[BazzaS]

Is it true what he says in his defence that you refused him to inspect the fault?

 

Would that prevent rejection (within the first 30 days) under The Consumer Rights Act 2015?

 

Did the OP refuse inspection or merely refuse to drive the car back to be inspected?

 

If the OP would allow inspection at/close to their home, or if the seller could have arranged for the car to be transported back to the seller's premises, is that "refusal to allow them to inspect"?

 

http://www.legislation.gov.uk/ukpga/2015/15/section/20/enacted

 

does s20(7)(b) require the OP to drive the car back / arrange its return, or merely allow the trader to collect it for inspection. Unless the T's and C's of the sale say the former, it is the latter! (which the OP offered!).

[king12345]

Would that prevent rejection (within the first 30 days) under The Consumer Rights Act 2015?

 

Did the OP refuse inspection or merely refuse to drive the car back to be inspected?

 

If the OP would allow inspection at/close to their home, or if the seller could have arranged for the car to be transported back to the seller's premises, is that "refusal to allow them to inspect"?

 

http://www.legislation.gov.uk/ukpga/2015/15/section/20/enacted

 

does s20(7)(b) require the OP to drive the car back / arrange its return, or merely allow the trader to collect it for inspection. Unless the T's and C's of the sale say the former, it is the latter! (which the OP offered!).

 

I understand what you mean, It's just that from his defence it sounds like he was told of the fault and never got any proof that such fault actually existed

[BazzaS]

I understand what you mean, It's just that from his defence it sounds like he was told of the fault and never got any proof that such fault actually existed

 

That may be what the dealer is claiming, or trying to claim, but the OP has stated their version : that the dealer was insisting he drive the car back to them, when he offered for them to collect it or inspect it locally.

[BenScoobert]

Point 14 of his defence made me laugh, I didn't know driving an S Class Mercedes-Benz above 70mph would create substantial wear and cause severe judder, what a clown.

 

The defence is very unorganised, the law is clear in that a consumer is entitled to reject a vehicle within 30 days should an issue occur, or after 30 days should an issue occur and an attempt at a repair has been made but is not successful.

 

With reference to Bartlett v Sidney Marcus Ltd 1965, I'm fairly sure the buyer in this case purchased the vehicle at a discount due to the alleged "fault" with the car, and was offered to buy it at the full price and the fault rectified, but chose to buy it with the fault at a discount.

 

Nor at any point do I suggest I've exceeded 70mph

 

I was not made aware of any faults on this car, surely a dealer would write that on a receipt and have you sign it if there was

[BenScoobert]

Is it true what he says in his defence that you refused him to inspect the fault?

 

No that's just another lie, all of the communication is in post 1, there was email only, no phone calls, I wanted it all in writing for this exact reason

[mch1991]

Nor at any point do I suggest I've exceeded 70mph

 

I was not made aware of any faults on this car, surely a dealer would write that on a receipt and have you sign it if there was

 

Exactly. Hence why I stated the defence was nonsense, the case law quoted isn't relevant to your claim.

[BenScoobert]

I'm just doing my DQ, at the bottom of the instructions it says "and serve copies on all other parties."

 

Do I have to send one to dodgy car ltd?

[AndyOrch]

I'm just doing my DQ, at the bottom of the instructions it says "and serve copies on all other parties."

 

Do I have to send one to dodgy car ltd?

 

To their Solicitors ...yes...if no solicitors then yes to the defendant...its expected that all parties are civil in litigation...so serve him a copy and ask that he reciprocate,.

 

Andy

[BenScoobert]

IS it ok by email? They didn't send me one as you'd suspect. If they fail after I ask I guess it looks bad on them in court that they were not cooperative.

[AndyOrch]

Still time for them to serve you a copy ...what date must it be submitted by ? Its not a showstopper if the defendant fails to serve you a copy of theirs....you are the claimant ..you set the standard.

[BenScoobert]

21st as I recall, I'm posting mine today, I'll email theirs in a couple of days

[BenScoobert]

The case has now been transferred to my local court and I have an order for both parties to send each other and the court the expert evidence.

It is nice to know it is progressing now and we are local, do I have to send the original documents to the court or is a copy ok?

[AndyOrch]

Originals to the court (copies for the defendant)...but retain copies for your file.

[BenScoobert]

Well court today, they sent no evidence, all they have is the garbled defence. Will post up later the results, quite nervous, I 75% expect them to not show up.