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

[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.

[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.

[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!).

[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.

[BazzaS]

As predicted they have sent a paltry offer of £6300, I think at this stage I shall reject that as I feel I have a strong case and that price puts me out the price of a gearbox and no car.

 

With a day to go before small claims track of the county court, you don't even have to acknowledge the offer, let alone reject it .......

If they mention it, just say "I'm happy to let the judge decide".

 

Your claim is for £7,469 and interest?.

Including £700 for 20 hours (you wouldn't get £35/hour, even in a track other than small claims, unless you can demonstrate you lost 20 hours work that you could have been paid £35/hour for....)

 

Interest at 8% on £7,469 is 597.52 per year, or £1.64 /day. Where did you get the figure of £5.26/day you have claimed??

[BazzaS]

And you know I am happy to let the judge decide, both the wife and I have decided the facts really do speak for themselves, they have a weak defence and I want them to have the inconvenience of facing me 200 miles from home, to look in their eyes and tell them what I think and tear their pathetic excuses apart.

 

Do you think they will show up?

 

I doubt you'll get the chance to "tear their pathetic excuses apart". While your desire for "your day in court" is understandable,

a) they may not show up

b) you may not get to question them, or tear their defence apart. It will depend if the judge decides to question either of the parties.....

[BazzaS]

Hi Ben,

 

Interest is calculated at 8% per day.

 

No, it isn't 8% per day ....

 

The court may allow 8% per year.

If so, you can work out the value for 8% for the year, divide that by 365, and use that as the applicable daily rate ......