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Verbal agreement to support an out of warranty repair


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Hi.

Can a verbal agreement to support (repair a fairly substantial concern) that is then claimed wrong to have been offered be breach of contract?

A manufacturer repairs an expensive problem out of goodwill for Person A without explicitly accepting liability, outside of warranty. This is reported upon publicly and photo evidence can be seen.

 

Person B has case open with the manufacturer and submits visual evidence of the same issue (serious rusting behind a panel). Company denies to cover due to being out of warranty. Some to and fro where further evidence is sent in.

 

In a subsequent phone call the manufacturer claims the problem is some other (completely implausible) reason contradicting the evidence and won't support it... Person B says it can't possibly be that reason and it's obvious that it's the same issue as person A. The company representative says he isn't technical so can only say what the technical team come back with. B says this is clearly wrong and its undoubtedly the same problem (a child of six could compare photos and say the same!).

 

The representative says they deal with issues on a case by case basis and A's case was not something he was familiar with.

 

He said the technical team doesn't think it's the same so not something they can support as it stands, but if it were the same it would be supported; if an independent report can provide supporting documentation they would look at it again.

 

A recording of the call was made without their knowledge, obviously some parts of the call are a litle heated, not angry but a bit of impatient overtalking when what's said flies in the face of the evidence. This probably wouldn't have been the case if they came up with a reasonable explanation but it became clear they didn't want to investigate or repeat the repair on another vehicle.


As I understand a contract is formed by two parties when an offer is made, and it is accepted and there's something of value given up. In this instance I suggest an offer to repair was made based on provision of a report, accepted, arranged and paid for report  whichw as submitted (consideration, something given up), but then completely ignored.


Company then realises their mistake in asking for the report and back out by saying sorry it was wrong to ask and offer a small goodwill gesture as settlement. This offer is neither accepted or refused.

What's the legal position please, can this be relied as breach of contract in a court?

 

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I'm sorry but this is so vague it's not possible to give you any advice.

One that you lay out the story – chronologically in bullet pointed form without too much narrative and we can understand what's really happening

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first thing, what is the item, how old is it and what is the fault other than rust, whch may be considered cosmetic.

As a rule the CRA trumps a warranty unless it specifically adds value to your legal rights so dont accept a load of bull over the phone if you have a genuine problem.

Also warranties can be insurance contracts so they are covered by different legislation, whether you pay a premium or not so 2 strings to your bow

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Thanks for the quick responses!

 

This is a court action against a large manufacturer, the facts are very strong, court compliant report proving a defect, however the legal basis is less so... I initially believed negligence would cover me but they've defended that, saying not applicable and would be statute barred (I do have some arguments to the contrary but it's not a foregone conclusion).

 

I'm looking for advice on perhaps skeleton argument too but before I go there I am looking for advice as to whether I have grounds for breach of contract based on the telephone call as this cannot be statute barred.

  • Bought premium brand new vehicle in 2009, very well looked after, driven about 2,000 miles a year, still looks new
  • Minor paintwork blisters on one panel found in 2016, felt of no major concern
  • When professionally cleaned in 2018 couple blisters found on panel the opposite side, and suggested rusting inside out
  • Contacted manufacturer immediately. Took to main dealer to see blisters, said rusting inside out but he didn't think that, said would probably just sand down and repaint. I said it feels a bit more serious than that and to put the report in as a warranty claim with repair estimate over £3k.
  • Dealer sent claim to manufacturer with photos (of outside only), he suggested if time on hands to get access and look on the inside of panel which I did, finding the rust on the inside! evident that it probably been ongoing undiscovered for years (within warranty). took photos to keep on file.
  • Found another car with the very same problem, fixed by manufacturer after some considerable pain
  • Manufacturer phoned saying they looked into it but its not something they can support due to age.
  • I pushed back saying its not acceptable of a car of such prestige and clearly been ongoing for years, I can see its rusting inside out
  • They said they didn't have any outside photos, so sent them over with pictures of inside rust too
  • The rep phoned back saying that tech said if it was inside out there'd be a bigger spread of paintwork not isolated blisters, they don't think its inside out corrosion and possibly stone chips. Told him it can't possibly be stone chips, particularly on the side of a car done so little mileage.
  • I told them of the previous case. He said the technical team doesn't think it's the same so not something they can support as it stands, but if it were the same they would support it; if an independent report can provide supporting documentation they would look at it again.
  • There's a fair bit of back and forth here as they don't even confirm they looked at the photos showing the rust on the inside!
  • if I could get proof that its a manufacturing defect they would look at it further otherwise their final decision is no.
  • contacted dealer again but they were told not to do anything more until I got independent report
  • independent body shop inspected vehicle and immediately confirmed a manufacturing defect (nonessential part added to panel during manufacture that allows moisture to rot the panel from the inside).
  • Report sent to manufacturer
  • Manufacturer boilerplate response within 6 working hours (as if it were a new case) - not something they'd support due to age. What was the point in getting the report?
  • Ombudsman can't help due to age
  • escalated to executive team, more to/fro-ing along the same lines
  • they called back with final decision - concluded not a manufacturing defect and due to age and mileage cannot support. Pushed back again what is the cause - "could be anything external". I said that's perverse given the evidence to the contrary. He couldn't comment. I said previous case? He couldn''t comment on previous cases but said it was wrong to ask for a report and offered a small amount as goodwill for the inconvenience (much less than 2% of the cost of repairs). I made no comment to accept or decline this. suggested ombudsman.
  • undeterred I took matter further giving opportunities to resolve without court action (including having press get involved), it is clear they dismissed report and evidence of the problem
  • got advice to get a CPR compliant report which was done at more cost, again proving the defect
  • sent this with letter before action giving all the pre-action protocol warnings etc. No response received
  • issued court proceedings for repair costs and damages, with particulars of claim showing proof of defect, opportunities given to settle, time frames, prior cases, the fact manufacturer said would support if it was the same, no response to LBA or suggestion of ADR, leaving court as last recourse.
  • they did not file a response to the claim.
  • I filed for judgment - this transferred to county court for determination of amount. Obtained judgment and disposal directions given to prove amounts/damages etc
  • only then the manufacture gets solicitors involved, telling me there's no merit and is abuse of process, and apply for set aside, strike out and summary judgment. Defence is no legal grounds for claim, defence of no liability in negligence (they cite the 1987 CPA), no breach of warranty contract as expired and in any case would be statute barred. the reason for not responding is untenable (thought the court claim was pre-action). 3 year date of knowledge would have expired based on first signs of blisters in 2016 (I'd argue wasn't discovered until 2018), deny due to lack of care and skill at manufacture.
  • They now admit rust is there, admit made no inspection, deny liability, don't admit loss and damage occurred and I would need to prove the same

Their application hearing is later this week.

 

I do have some arguments to try to resist set-aside but in any case try to resist the strike out/summary judgment (based on 14A of limitations act, latent damage to property and potential for injury etc) but I feel the strongest is if I can rely on breach of contract hence this question?

 

Thanks again

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Thank you.

What is the vehicle? How much did you pay for it?
Please can you post up the claim form – any defence and also the set-aside application.

There will probably be more questions to ask. You should be aware that set-aside applications generally speaking tend to be granted
 

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Thanks so much, I appreciate you want to look at this case as a holistic view, I do appreciate that default set-asides are usually granted too, but I'm more interested at this time about specifics regarding the telephone call and whether it forms a contract.

 

With the best of intentions and respect I'm not sure of the relevance of the cost and type of vehicle, I don't feel it's prudent to add identifying aspects at this stage in a public forum in an ongoing case, which may be of potential prejudice, opposition solicitors could gain an advantage if found, hence the generalisations done to limit what a search engine can find.

 

Is there anything further specific needed to address the point in question re. whether I'm barking up the wrong tree with a breach of contract cause of action based on the telephone call... ?? Sorry to be a pain!

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I understand your caution – but there is no disadvantage to you by addressing my questions. The fact that this is a public forum is neither here nor there if you are honest and straight dealing – which we always are.

We don't play secret squirrel here.

 

To take advantage of the help that we offer you have to engage with this thread and provide us with all of the information we need to give you the best advice.

In what I understand so far, it is clear that the question as to whether the problem was "discovered" in 2016 or 2018 is extremely important.

I don't really understand what you are saying about the contract and also I don't really understand why you haven't pursued the person who sold you the vehicle.

 

This forum is not another piece of social media. It is a highly responsible and committed group of volunteers who give serious advice which has benefited hundreds of thousands of people over 14 years.

If you don't want to provide the information we ask for then I don't think there is much else to say.

 

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Vehicle purchased in 2009 (around £45K). The legal obligations of the dealer who sold the vehicle I already understand very much limited to 6 years. Discovery of the cause serious enough to warrant action was in 2018. I do not believe it was serious enough or to have formed the knowledge in 2016, but the concern is that they have a full defence on not legally being liable even if facts proven, whereas my point about the verbal contract is that this may or may not constitute a new and more formidable cause of action.

 

I'll see what I can do to get some more over in here in terms of claim form, particulars of claim etc later, but do feel the need to redact identifying parts, I don't think this changes the subject matter.  Like you I do not have anything to hide and others would say I'm as honest as they come but likewise I do not want to do anything that could prejudice my position, maybe I'm worrying too much.

 

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Of course you should redact the names and the claim numbers but you need to scan them up in PDF format please. You don't have much time.

Yes, I think you are worrying too much

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Also, you haven't explained why you didn't think of proceeding against the dealer. And you haven't explained what is the "contract" you have been talking about which you say you are relying upon in court. This kind of stuff should become clear when we see your claim for

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It was clear (to me) I had no claim with the dealer due to 6 year limitations stuff - the issue occurred outside the 6 year period.

 

The 'contract' stuff is in the very first post - can that verbal agreement as described and quoted be deemed as contract and in their actions have they breached that? Working on the scanning stuff now

 

Attached redacted claim form, particulars, defendants application, witness statement and draft defence...

I have also submitted a witness statement and drafting a skeleton arguments for the hearing.

 

The solicitors have also just sent me statement of costs which exceeds the value of the claim, feels like they're trying to intimidating me to drop it.

 

N1_Redacted.pdfParticularsOfClaim_Redacted.pdfn244-Redacted.pdfdrdefence_Redacted.pdfdefwitn1-Redacted.pdf

 

Attached witness statement sent last week to comply with CPR 24.5 and draft skeleton argument work in progress from my research - this is the full one as aide memoire on the day for oral stuff and would be pared down to the bone before filing at court and providing copy to defendant as to not annoy the judge with reams of paper.

 

I believe the latest for this would be 10am the day before, but would like to get this done earlier if possible.

 

Of course I know I don't HAVE to send in skeleton arguments but I've read that they can be of benefit other than perhaps persuading the judge to go down a more legal basis than pure facts route.

 

 

witstat_Redacted.pdf skeletonargumentfull_Redacted.pdf

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Okay. This is helpful – but you haven't told us what the car is or the value of it when you bought it. I don't understand why and I think you should because it will be helpful when formulating some opinions. I don't think you're doing yourself any favours. The only thing you needed to redact was your own identity. We don't care a fig leaf for the identity of the seller of the manufacturer. In fact the more that word gets around about them, the better it will be for you. You are helping them by protecting their reputation. We are not here to play riddle-me-ree and we're not trying to find out the colour of your underpants. 

 

Now I'm afraid that what I'm about to say is going to demoralise you – but you may as well understand what you are doing and what you have got yourself into.

 

The purpose of pleadings is to identify the cause of action and to identify the facts and also to identify or itemise the loss which has been suffered and its value.

I'm afraid that you haven't identified the cause of action - although I take it to be negligence. Although you have referred to latent damage, you haven't referred to the Latent Damage Act which is the basis upon which you want to extend the limitation period. Fair enough – and you haven't explained why 2018 should be the date from which time runs.

 

Pleadings should restrict themselves to facts – and not evidence and certainly not the amount of narrative you have included. Also you say that you are suing for "distress" but am afraid that distress is not a recoverable head of damage in these circumstances and in any event with some very rare exceptions you would have to show that distress has caused some economic loss – and you have not particularised anything like this at all.

 

Have you obtained any independent inspections of the damage? Have you obtained any independent quotations for the repairs?

You haven't particularised your losses at all so it's not all clear how much of this maximum £10,000 is attributable to making good the physical damage to the car.

Several times in this thread you have referred to some kind of "contract" and I've asked you where that contract is and you haven't replied. I'm a bit surprised to find that looking at your pleadings, there is also no hint of any contract which might have entered into. Why have you been asking about the contract all the time?

Of course as a litigant in person, you have a certain licence and a reasonable judge would be fairly tolerant and even supportive of you – but here I think that you may have exceeded the limits of tolerance because your cause of action – it's touch and go. The limitation period is touch and go. The amount you are claiming is touch and go. And so at the end it may be a bit too much.

If it brings you any comfort, I also think that the pleading by the defendant is also pretty shambolic and rambling – and for a firm which holds itself out to do a professional job, it's definitely substandard.

In particular they have referred to. The "Consumer Protection Act" and I don't know why they have done this because you haven't raised the issue in your own pleadings and frankly even if you had it would be irrelevant in the circumstances.

I think you are very lucky to get the default judgement that you did because it is clearly a testament to their own poor organisation that they failed to recognise that they had been served with the claim and they didn't respond. Had they responded they could have nipped this in the bud.

I'm not sure what is the best to advise here. It's a shame you didn't find us much earlier.

I think your skeleton argument doesn't really do the job and I'm going to suggest that you follow this link to see an example of a skeleton argument which we helped somebody put together in respect of Npower a few years ago. It was unconventional in its approach – but we exploited the licence that we had as a litigant in person and in fact the skeleton argument was lauded by the judge as being extremely helpful.

 

 

 

I've asked you several times why you didn't think of suing the supplier. You've referred vaguely to a liability of six years. I have a feeling that you think that the limitation period in contract runs from the date the contract was made. If that is the case then you're quite wrong. The limitation runs from the date that the cause of action arose which would be from the date of the breach.

I'm struggling to think of a way in which you could amend your particulars of claim without withdrawing the case and incurring costs unnecessarily but I think this late stage it could be extremely difficult.

Certainly I would say that your strong point is to argue that although you raised the matter with them in 2016, they made it very clear that the damage was not caused by any inherent defect and as a lay person you are entitled to rely upon their expertise. Because they eventually admitted in 2018 that they were wrong and in fact there was a problem at the time the car was produced, they would not be entitled to rely upon their misinformation of 2016 – which they gave to you without even carrying out an inspection – in order simply to backdate the beginning of the limitation period and on this basis and in the interests of the "prime objective" – CPR 1 - the judge should strive to find a just outcome and hold that the breach of the duty of care could only reasonably have been discovered in 2018 and therefore time runs from then.

If the experts were unable to ascertain by 2016 that there had been a breach, how on earth could a layperson without that expertise and technical support be expected to.

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You probably didn't need anything more than this:

 

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The claimant purchased an X X X vehicle registration number X X X in X X X date 2009. In 2018 serious rust damage became apparent and the defendant manufacturer agreed that the damage was caused by a manufacturing defect. The defect was caused by the negligent manufacture of the vehicle. The precise circumstances of the negligent manufacture are not understood but the thing speaks for itself as the defendant have themselves agreed that there is a defect and which must have been introduced at the time the vehicle was built. The defendant has been provided with independent reports and quotations for repairs. The claimant relies on the Latent Damage Act in that the damage could only be reasonably detected by the claimant and by the defendant on X X X date 2018. The claimant seeks £X X X damages in order to return the vehicle into the condition it would have been had the breach not occurred.

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Thank you for the reply and time looking at this. I only wish I'd found this site sooner too! One for future reference for sure (although I hope I never have to do anything like it again!)

 

I think you may have missed a few things (not surprising given the lengths). The cost of the car (Jaguar XF) is post 8 (45K).

 

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Now I'm afraid that what I'm about to say is going to demoralise you – but you may as well understand what you are doing and what you have got yourself into.

 

No problem there - it's clearly a minefield to the layperson, and must be easier for someone well versed in the subject matter.

 

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Have you obtained any independent inspections of the damage? Have you obtained any independent quotations for the repairs?

 

Yes, per post 4 (initial Jan 2019 and CPR compliant in November) and no, no other repair quotations - as this arose out of the approved nature of such a repair under goodwill or warranty to be done by the dealership. I realise if they owned the case from the start, the amount probably wouldn't be anywhere near that retail quote (but thats what I had to work with)... their repair fix cost makes their statement of costs of 8K+ even more commercially nuts.

 

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Fair enough – but you haven't explained why 2018 should be the date at which time runs.

 

This 2018 date is explained in the witness statement para 10 and the arguments para 16.

 

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You haven't particularised your losses at all so it's not all clear how much of this maximum £10,000 is attributable to making good the physical damage to the car.

 

page 2 of claim form, attachments to claim (thought you had enough to read without all that too) and also witness statement as to quantum and documentation submitted on notice of disposal (I can post that if it's of any use though), but it has all been provided to court and defendant for avoidance of doubt.

 

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Several times in this thread you have referred to some kind of "contract" and I've asked you where that contract is and you haven't replied. I'm a bit surprised to find that looking at your pleadings, there is also no hint of any contract which might have entered into. Why have you been asking about the contract all the time?

 

Unwritten verbal contract - phone call agreeing to repair on the basis of being same as another case and a providing report proving the defect, this was the original purpose of the question in this post. Does that not form a contract - that's my question?!

Particulars of claim 6-9. I accept now that it's not explicit, but I can't go back in time with this newfound knowledge!

 

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Of course as a litigant in person, you have a certain licence and a reasonable judge would be fairly tolerant and even supportive of you – but here I think that you may have exceeded the limits of tolerance because your cause of action – it's touch and go. The limitation period is touch and go. The amount you are claiming is touch and go. And so at the end it may be a bit too much.

 

I realise it's all a bit touch and go on the legal basis but on the facts it's almost undisputable, but I also would think there should be some basic common sense with the court and see it for what it is with all the circumstances and overriding objective etc. I realise that cannot be relied on.

 

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I think your skeleton argument doesn't really do the job and I'm going to suggest that you follow this link

 

Thank you will take a look.

 

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I've asked you several times why you didn't think of suing the supplier. You've referred vaguely to a liability of six years. I have a feeling that you think that the limitation period in contract runs from the date the contract was made. If that is the case then you're quite wrong. The limitation runs from the date that the cause of action arose which would be from the date of the breach.

 

I'm confused by this.. Won't the contract have 'expired' under statute of limitations, as the breach occured outside of the 6 years. otherwise what's stopping anyone from suing a supplier in 20 years time? I understand that if the breach occurred within that first 6 years I would have 6 years from that date to make the claim, but that's not the case here?

 

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Certainly I would say that your strong point is to argue that all that you raise the matter with him in 2016, they made it very clear that the damage was not caused by any inherent defect and as a lay person you are entitled to rely upon their expertise

 

This would have been the retailer not the manufacturer in this instance.

 

I just read your 2nd post...

 

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The claimant purchased an X X X vehicle registration number X X X in X X X date 2009. In 2018 serious rust damage became apparent and the defendant manufacturer agreed that the damage was caused by a manufacturing defect.

 

Thank you that reads very well but unfortunately they haven't agreed that it was caused by a defect, thats the crux of it :( They deny it in para 15 of their defence.

 

I do think that if it were to be allowed to proceed to trial that they would not want that embarrassment and perhaps aim to confidentially settle under an NDA, but can't rely on that or predict it. I feel on the balance and position of the parties, they have been the ones to have acted most unreasonably and at the very least would feel I could argue for my costs even if I lose.

 

I wonder again if I should refrain from a skeleton argument (it would be completely pared to the bone) in terms of being a lay litigant in person, but if I can help my case by providing something to appease the judge and "limits of tolerance" of me then perhaps that should be done

 

Apologies too for the "enthusiastic" redacting - naturally feeling a bit cautious right now :( 

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I won't answer all the points you made – is getting too complicated. Yes I had misunderstood the defect part. Very simple to alter my suggested particulars of claim simply to say that there was a manufacturing defect. You would then later on produce the independent report back you up. It's just a question of correcting my proposed POC.


The basic facts and law that you are relying upon should have been included in your particulars of claim – not supporting witness statements.
Of course it's too late for all of that now unless my suggested solution below can be adopted

I think a skeleton argument is a good idea but I would suggest that it needs to be to the point and maybe you could do something along the type of example that I have linked you to.

I'm afraid I'm suffering very badly from flu (not the virus!) And so I can't get as involved as I would like at the moment. However I would suggest that you adopt a two column approach in the way that I have set out in the example so that it is clear, the points that they are making – and how you are answering each one.

They are asking for a set-aside or in the alternative a strikeout. I think it would be in your interests to agree to the set-aside – but as a condition that you would be allowed to resubmit an amended particulars of claim within, say, four weeks – and to which they could then file an amended defence say, within four weeks.

You might even want to suggest it to them when you meet them at court or even drop them a note and explain to them that there is no way that they will be granted a strikeout but you will be prepared to consent to a set-aside so that everybody can start again with no order as to costs.

If you manage to do that then we will help you to something a bit more effective although you will still have some logistical problems in terms of limitation timescales.

Finally, on the damages that you are expecting to win – I would drop all reference to damages for distress. They are not available to you and the fact that you are even bothering to claim them makes it clear that you are unsure of your ground and in fact they discredit you.

On the matter of the damages that you are expecting to receive for the repair of the vehicle, I doubt very much that you will be able to get 100% of what you are claiming. You've had untroubled use of the vehicle for about seven years. By asking for what amounts to a brand-new repair you are effectively infringing the rules relating to betterment – and that you are asking for parts of the car to be put into their new position despite the fact that you have enjoyed it for all those years.

I think a reasonable position – and you may want to use this as a negotiating position with Jaguar – is that the value of the work is assessed, the reasonable lifespan of a vehicle such as yours is agreed – say, 15 years (it's up to you and them) – and then you will take the duration of your own use of the vehicle – seven years as a percentage of the life expectancy of the vehicle – 15 years which equals slightly less than 50% and then you agree to share the cost of repairs in those proportions. I think that to sweeten the pill for them, you would probably have to agree to ordered costs on a party and party basis. Don't forget that they've instructed solicitors and it will cost them a lot more than the loss of your claim fee and hearing fee.

This arrangement seems to me to satisfy the legal principles relating to awards of damages and I suspect that if the other side's solicitors are on the ball, then they will put this point to the judge in the event that they lose the case.

 

Anyway, consider all of that. I'm talking in a roundabout way – but that is generally the direction that I see it heading in if your case doesn't get thrown out willy-nilly.

I'm sure you will have to negotiate this one

 

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Thank you, sorry to hear you're under the weather, hope you're better soon. Your points as to negotiation do make sense, it seems that it may be better not doing any skeleton stuff right now then and see how it goes on the day, and plead for amendment of claim if it goes that way.

 

I did wonder that the courts have a duty in active case management to address issues like mine - if it is so patently lacking in substance that this would have been noticed earlier, given the fees paid etc would think it would have had a look over to some degree.

 

I would add that it does appear to have had some overview as I have been given leave to reply on the reports already submitted but that was on the basis of a disposal hearing that was set for May. Maybe just purely administrative though.

 

Understood on distress stuff - I put in as thought better to include everything and accept less than try to argue for more.

 

With respect I don't agree with the betterment aspects, (I know you think I wouldn't in any case) but the condition of the vehicle (aside from the defects) having been so pampered, and so few miles I would challenge anyone to say that it wasn't still in as new condition - perhaps even better than the replacement parts which may possibly use cheaper materials than in 2009. Subjective anyway and just a point I felt - I do understand where you're coming from.

 

It understand it shows willingness to compromise in terms of agreeing to set aside and such stuff but also the same demonstrates I'm not secure in the case (which I'm not!). As to costs I do wonder the likelihood of costs awarded against me given everything. i.e. if I do nothing further, and it is dismissed... I followed all the pre-action protocol stuff etc when they didn't.

 

Ultimately I'm after whats best for me, and likewise they'll be after whats best for them!  I feel that if I have to pay my costs and 2/3 of the repairs (vehicle is 10 now on a 15 year basis) it feels like they're still winning in a way, morally more than legally and ridden roughshod over the consumer, simply as it feels a technicality - if discovered 1 minute before expiry of warranty it is confirmed they would have supported.

 

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You might even want to suggested to them when you meet them at court or even drop them a note and explain to them that there is no way that they will be granted a strikeout but you will be prepared to consent to a set-aside so that everybody can start again with no order as to costs.

 

What are the risks in that?

 

If I give consent to set aside and it's struck out anyway? I don't think I can say they won't be granted strike out with such certainty.

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You won't have costs awarded against you. You will simply have to suffer the loss of your claim fee and your hearing fee. Under the small claims rules if you have litigated reasonably – and I don't see that you haven't – you won't be liable for the other side's costs whatever happens. In particular, their set-aside fee was incurred by them because they didn't take notice of your claim. That will definitely be something that they will have to bear but in the event that it comes up in the hearing, then you should be ready for it because I can imagine that the solicitor will ask for costs. You will have to make it clear to the judge that it is their own delays that have caused this needless expense and inconvenience to all parties. Clearly they were aware of the action because there set-aside application they have not suggested that they did not receive the papers. So they receive the papers and did nothing with..

I think is most unlikely they will be granted a strikeout – particularly as you are a litigant in person. If it came to that then you would have to say to the judge that you agree that your particulars of claim are not particularly effective and this is why you have already offered to the other side to agree to the set-aside on the basis that you will submit a new particulars with a reduced claim (no distress) and they then can supply a defence which addresses the points you made in your POC.

I would suggest that the best thing to do is to phone the other side. Tell them that you are intending to reduce the size of your claim against them because you appreciate that damages for distress are not available. Put it to them that you will save them the time and money and inconvenience of turning up at court by consenting in writing to a set-aside and that you want to agree terms with them that they will consent to your filing of an amended particulars of claim and they will agree to the filing of an amended defence.

If they go along with that then put it in writing and send it to the court – although, the courts are in such disarray that you will probally have to take it there hand it to the judge because it is probably too late for an agreement like that to be sent to the court and then find its way to the judge in time for the hearing.

You can explain to the other side on the phone that this is what you are going to do.

Then I would suggest that you tell the other side that you want to have a without prejudice conversation with them with a view to agreeing a settlement. Tell them that you appreciate that their clients are incurring costs of legal representation and that you would be prepared to accept a split on the value of repairs. You will have to decide what that split is going to be. I suggested a formula and you are saying that the car is in better condition than that – so you work out a formula and propose it to them – but also have a fallback situation so that you give them something and they feel that they have some Face.

Explain to them that if they can go along with that that all claims will be withdrawn, each side will bear their own costs, trouble and inconvenience will be spared to parties including the courts. I'm sure you can see where I am taking this.

You need to understand that you will not get a vehicle which has been repaired to a new standard for nothing. You will have to bear some of the costs. If you are unable to dislodge yourself from this position then I think that you are heading into a dangerous confrontation where you stand a very high chance of losing – and then you will get nothing.

If you prefer my approach, then rather than calculate the life of the vehicle in terms of the years its been used and the remaining life expectancy – calculate the value of the vehicle by means of independent assessment. Compare that value against the new purchase price – take its agreed present value as a percentage of the purchase price and then propose to the other side that you share the cost of repairs in those proportions.

I hope you understand that you are going to have to be able to calculate in some way which really does demonstrate an equity value – and simply waving their arms around and saying that it is in good nick and therefore you are entitled to more is not going to impress anybody and it certainly won't impress a court if it goes there.

Much better now to work out a well reasoned formula that impresses everybody by its science and its logic.

If you are not able to agree with the other side some kind of arrangement which avoids court then you should certainly prepare a skeleton argument. I'm sorry but the papers you prepared so far are so rambling in such a mess that you need to show something which is very clear and understandable to the judge.

Best to find a formula which avoids court all together in this case.

By the way, the limitation period on contracts runs from the moment that the breach occurs. You are entitled to a vehicle that is of satisfactory quality and remains that way for a reasonable period of time – judged by the reasonable expectations of a reasonable consumer. At the moment that that reasonable expectation is breached, your cause of action arises and you have six years from that time to bring an action.

Of course now that you have raised with one party the idea that the vehicle was defective from the start, which means that the supplier might be tempted to say that your cause of action arose on purchase. On the other hand, you have an official document on the manufacturer that says that the vehicle was not defective – and that effectively plays the seller directly into your hands. In my view.

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Have you read our guidance on making a familiarisation visit and also on preparing your court bundle?

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Thanks again.. You make so many good sense points, but in my defence I didn't make the thing rust, why should I have any part in its repair :(

 

I know you're demonstrating the art of compromise, but it is SO hard

- I don't want to have betterment I just want to be in the same position I'd be in had the defect not arisen...

 

so much rollercoaster... I'm really so wound up about it I don't think I can stomach a phone call with their solicitor and for the sake of my health.

 

I try to be as objective as I can and distance myself from the emotions as hopefully it comes across but it's taking a toll.

I need to sleep (or lack of sleep) on it.

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Yes but to be in the same position as if the defect had not arisen, you would have a vehicle with door panels aged and weathered to reflect nine years of use (you are saying that time runs from 2018). I am demonstrating the art of compromise but also I'm trying to explain to you that the compromise I'm suggesting is a long the lines of the applicable principles in law and you might find that these principles will be forced upon you in any event.



It would be impossible to do that. The only way they could repair the panels would be to put them in an as new position. That means that you would be enjoying a betterment – and that's not the way the law works.

Of course you can try and maybe their solicitors are too stupid to realise how they can make a saving on the amount of work that needs to be done and how they can save their client some Face. However, if you are up against me then I would cut you down.

I don't see what's wrong with owning the solicitor. Once you breach that divide your find it fairly straight forward. To their solicitor is just another job. Just another file. He will probably be perfectly friendly and professional and nondefensive. If he agrees to your proposition then you put in writing. If he disagrees to your proposition then you put it in writing expressing disappointment and making sure that a copy finds its way to the court without actually spelling out the details of your proposal which of course would be without prejudice.

 

If you tried to make this move, it might bring it to an end so that you could then get the car fixed and move on with minimum of risk to yourself and an end to the stress of it all.

I'm not sure what else we can advise you here - except to come here first.

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Clearly you have the advantage of knowing the processes so it comes easy to you :) I do appreciate he has no interest (other than profit) in the case and can be as objective as anyone else not party to the issue.

 

ok so on the conversation front though - if I start by saying I'm confident the claim will not be struck out, surely he'll ask why, I don't feel I can answer that confidently.

 

I do feel clear to suggest though that it may be in his clients interests to perhaps redirect costs towards settling the argument in terms of a repair rather than drawn out court case, of which there's no real chance of recovery. Around £4k of the costs identified are purely for the hearing on Thursday (instructing counsel and stuff, 7 hours travel time at £295/hour etc), on that basis could agree to the set aside (and presumably in return them withdrawing the application to strike/dismiss and cancel the hearing on Thursday).

 

That would suggest it would be in their favour not to attend on the cost ground, surely their own cost to repair would actually be considerably less than my retail quote, and I could be willing to accept the replacement of the front doors and a repair to the rear which have yet to erupt on the outside. I could be pursuaded to accept to not claim my costs in the case - around £1500 but really do feel strongly on not paying for repairs - and where is the fairness when a previous case got all four doors replaced without contribution. Alternatively if I were able to claim for a cash settlement that may be a way forward if I could then investigate alternative less costly repair than replacement (their preferred method if it were a warranty claim)?

 

If there was an agreement in principle and to put in writing would this be a part 36 offer?

 

Maybe I could make the call tomorrow.

 

just as a ramble... This really feels like hobsons choice to me. If I do nothing, and just turn up at the hearing, there's still a sliver of a chance of judge not setting aside (but you strongly suggest otherwise). If I make no contact with their solicitor then extra costs are incurred which arguably would cover the repair (surely solicitor would have mentioned that fact to his client in their interests). If I submit a well defined skeleton argument or two column fact explorer over their defence points, then that could help appease judge but do nothing to appease the opposition. If I try to negotiate I'm expected to accept I pay for any betterment (you'd have to see for yourself the condition of the car, you'd be hard pressed to see any age and weathering), but it brings to an end potentially, but if it went to trial there's also a possible chance they could offer to settle of their own volition. If is such a big word... I'm not making this easy (for anyone or myself) I know. I do try to think of everything

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Part 36 does not apply to small claims. However has this been allocated? If it hasn't then you are going into even more dangerous territory.

An agreement like this would be settled by way of the Tomlin order – or simply an exchange of letters would probably be fine. I think it's likely there will be a set-aside. I think it's unlikely there will be a strike up in view of the fact that you are a litigant in person and that you have an independent report which says that the vehicle was defective and that is the cause of the problem.

Once you in court, the job is not to appease the opposition. Your job is only to appease/convince the judge. The car may be in perfect condition – but but regardless of that you have had nine years use of it which is a sizeable chunk of its life expectancy – or its new value, whichever way you want to assess it. Maybe the best thing to do is get a valuation which then will take into consideration its excellent condition and that will give you a bigger slice of the pie.

If they disagree that they are unlikely to get a strikeout then you will simply have to point out to them that you will be showing the judge the expert opinion which says that it is caused by defective manufacture and also you would explain to the judge that as recently as 2018 the manufacturer whose expertise you are entitled to rely upon saying that it was not a defect – and I have already explained in an earlier post that it seems unfair that they can draw this out to a point where they have made you use up all your time.

I'm sorry to say – I think you have been led around by the nose since 2018 and if you had dealt with this assertively at the time then the issue of limitation would not have arisen. You have allowed them to take control of this problem and it is only now that you are starting to assert yourself. You sound to me as if you're quite demoralised and I'm sorry to add this to your burden – but I have to say but only for your sake but also for others who might visit this thread

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By the way, where are the solicitors in the country?

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clearly I would need to make this call as early as possible definitely by close of play tomorrow to be helpful to them in potentially avoiding unnecessary time and travel

 

Ok part 36 doesn't apply.. too much information out there to pick up on things, not enough self knowledge.

 

No it's not been allocated - dangerous territory?

 

I repeat the manufacturer has not admitted the defect in 2018 or any other time. They have led me around since 2018 for sure though! Definitely can rely on the expert opinion (given leave to rely on by court in notice of disposal). 

 

Their solicitors are in Birmingham area, My local court is about 100 miles away from them, not sure where their Counsel is from but clearly it looks like its a 7 hour round trip from costs statement.

 

I definitely don't want to say (or not say) something to them that jeopardises me. It would definitely save them money though not to have this hearing, but I would need to be clear in what I'm proposing - given I am LiP and likely with the report etc that strike out will not occur, proposing if I consent to the set aside, for them to withdraw their application, suggest redirection of these and potential future costs (given they won't recover from me) as a cash full and final settlement (will have to agree a value - for me it really needs to be at least 3.2K as thats replacement cost for two doors), further to offer that I will pay my own costs (hopefully to be drawn out of the settlement in some way as cash gives me the option to repair in my own way) and I will then withdraw the case, otherwise i'm content to rely on the report, amend my claim and let it go to trial? I could also suggest that given the poor behaviour, court sanctions would apply to them, awarding me my costs in any event.

 

Thank you for your words - I am extremely demoralised, all I get is sinking feelings with it. Definitely wouldn't wish it on anyone else.

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You won't get a costs order against them in any event. You would have to win to do that. You could ask the judge that they bear their own set-aside costs and you would probably win that point.

Nothing would jeopardise you if you start off conversation telling them that you want have a without prejudice conversation and do they agree.

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