taking car trader to small claims court

[BankFodder]

It might be an idea as a preamble for this, to print out all of the text messages that you have exchanged and also any notes of phone calls. I hope you did take notes of your phone calls because I imagine you didn't record them.

It may well be that over the length of time, you have forgotten various aspects of the story and it would be a good time now to make sure that you have got everything lined up and that you are familiar with everything that he said.

My suggestion would be to print out each text message. It may be difficult to do them on separate pieces of paper but at the end, I would cut them and then paste them into separate pieces of paper with a page number on them – one, two, three – and dates for each one.

I would then create an index for them in an Excel spreadsheet and I would then enter each one by reference number and date and a brief note as to what it says. Use the index sheet as the front page of your bundle of printed text messages. The index sheet will allow you very rapid access to each one as you think it becomes relevant.

 

I think you will find this extremely useful. It may become very necessary if the matter goes to court and you have to disclose your documents or you have to rely on conversations which you apparently had by SMS.

Also, it will help you go back and refresh your memory and get everything into perspective again because over the period of time I can imagine that some of it has faded.

If you can do this before you even send your letter of claim, this would be a good idea because you could then make sure that your letter of claim picks up issues which may be were unexpressed at the time and need to be laid out now as part of a paper trail

[pringles1981]

Wouldn't the letter of claim be classed as the 3rd letter I sent on 1st May? Or are you saying it needed more detail? And that I needed to act on it on the 15th day, and because I didn't I need to send another one? 

 

[BankFodder]

I think you should start again.

The letters of claim that you have already sent have amounted to nothing.

Produce a letter of claim now that states your position and makes some particular important points – including the fact that you have been refused access et cetera. Use some of the points that have been made in the particulars of claim which I suggested above.

I really think you ought to understand that what you've done so far has not particularly helped and I think your to stay in position now and then move forward in 14 days.

[pringles1981]

I 100% made notes following phone conversations so that I could look back on it if needed. Unfortunately, my father didn't, however I have his phone log history with the trader (which is quite lengthy) which shows the extent to which he was in contact with him. 

 

I also have the screenshots of the text messages from my dad's phone, and my phone. I will get the ones from my brother in laws phone too. 

 

I was going to print them out, as screenshots per page, but the index thing sounds like a very good idea too. It might take me some time to do, so I will make a start on that tomorrow now...

 

Thank you for all your help

 

[BankFodder]

If you look at the advice that we give on organising your court bundle, it will help you refine your understanding of what I have suggested

[pringles1981]

brill, thanks!

[pringles1981]

Hi, - How does the below sound? Thanks...

 

14 June 2021

 

Letter of court claim

 

Dear XXX

 

Re: Complaint about faulty goods

 

I have not received a reply to my letters dated 6 April 2021, 22 April 2021 and 1 May 2021 despite strenuous attempts to contact you regarding the faulty goods (i.e. the vehicle, a Jaguar XF 3.0d V6, reg no: XXXX XXX) which my late father bought from you in October 2019. The letters explained what is wrong with the goods and why I am entitled to a refund.

 

Very shortly after my father purchased the car from you, the vehicle developed serious defects, which were reported to you, and despite various attempts at repairs, the vehicle has continued to exhibit problems.

 

My father was in constant contact with you from October 2019 – December 2020, reporting the various faults and requesting updates as to when the repairs would be completed.

 

I, along with my brother in law, have been in contact with you since January 2021, requesting repair updates and on numerous occasions, I have specially requested to speak to the mechanic repairing the car and you have refused this request. I have also asked for access to the vehicle and you have declined these requests previously, so I have been unable to understand the condition of the vehicle as it now is. I have been prevented from understanding what work may have been carried out so far and there has not been clear communication regarding the work which you believe needs doing. In addition, you have not provided me with any evidence of the work you state that has been carried out.

 

For the last 5 months since I have been in contact with you, you have not only withheld access to the vehicle, but also moved it to new premises and refused to divulge its whereabouts despite me requesting the location of the car repeatedly.

 

The vehicle has been in your possession (on and off) for 20 months during the entire 21 months of my father’s ownership and thereafter.

 

My current position still remains that you sold my late father a vehicle which should have been in satisfactory condition and yet it's clear that it's not and by your own admission it apparently needs a new engine despite the fact that it has scarcely been driven since it was purchased.

 

Therefore, I am once again requesting a full refund of the purchase price of £10,995 on the grounds that the goods were not of satisfactory quality under the Consumer Rights Act 2015.

 

In addition, the Consumer Rights Act 2015 also states that “service to be performed with reasonable care and skill” and “service to be performed within a reasonable amount of time”. It has taken an unreasonable amount of time for you to (attempt to) repair the faults reported, having had the car for a considerable amount of time. I am therefore exercising my final right to reject the goods.

 

I would like a reply as soon as possible so that I know you have received this letter. If you don’t agree to the refund, could you please send me a detailed response saying why you don’t agree.

 

To avoid taking court action, I am willing to use an Alternative Dispute Resolution to resolve the problem, as stated in my previous letters.

 

If I do not receive a satisfactory response from you within 14 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs.

 

I refer you to the Practice Direction on pre-action conduct under the Civil Procedure Rules, and in particular to paragraph 13-16 which sets out the sanctions the court may impose if you fail to comply with the Practice Direction.

 

I look forward to your acknowledgement.

 

Yours faithfully,

[BankFodder]

First of all, the letter is long although maybe that is unavoidable given the complexity of the issue and the length of time it has been going on.

Secondly, I think that a little more organised details of the events would be appropriate. Your letter is a bit discursive and I think you should simply make unassailable points

Thirdly, a letter of claim should ideally give one outcome that you are seeking and what will happen if the outcome does not occur.

You have put three possibilities –
one is to offer some kind of ADR (which you've already suggested in the past so this is simply a repeat of a proposal which you've already made and which has already been ignored)
another is to provide an adequate explanation
finally to receive a refund.

Your desired possible outcomes are far too confusing.

You should simply be demanding a refund or else you go to court. There is no need for the rest.

I don't really know what you mean by ADR. Who would be providing the ADR? Who would pay for it? ADR suggests that you would be prepared to accept some kind of compromise solution. Is this correct?

Also you should identify yourself as the executor of the your fathers will and therefore you are entitled to begin a legal action on this matter.

No need to start going on about the protocol.

 

Quote

 

I am the executor of my father’s will and as such I have authority to bring legal proceedings against you on behalf of his estate.

 

As you know, on 4 September 2019 my father bought a Jaguar vehicle registration number XXX from you.

You know all the basic facts but for the record I'm setting them out here for your information and for the benefit of the court.

• In less than two weeks the car started to demonstrate some serious defects and as a result the car was returned to you to repair an electrical fault.
• This repair has never been carried out despite the fact that you had the car ostensibly to carry out precisely this repair. When the car was returned, the electrical fault still presented.
• The car was returned to you on at least two occasions and each time after it was collected, the electrical fault was still present.
• My father made various attempts to contact you and to discuss the matter with you. Finally in March 2020, a full six months after the purchase of the vehicle, you collected the vehicle ostensibly once again you to carry out the repair of the electrical fault.
• The car was eventually returned to my father six months later in August 2020. The original electrical fault was still there that a further fault then presented itself in the form of a loud ticking noise from the engine.
• Your only suggestion was that the engine should be topped up with oil and taken for a long drive.
• My father followed your instructions and this did not resolve the problem. Still in August 2020, the car was returned to you for further inspection.
• Since August 2020 you have been in possession of the car and apparently the repairs are still outstanding. There have been extensive exchanges between yourself and my father by text message and you have informed my father that the repairs were still outstanding and in fact the car was now in an undriveable state.
• We have asked you repeatedly to advise us of the location of the car together with photographs so that we can make our own assessment and possibly carry out our own inspection and you have not provided any of this information.
• As you are aware, my father died in January 2021 and as executor and with other members of my family we’ve attempted to contact you to return the vehicle. You have told us that it apparently needs a new engine but once again we have not been permitted to visit the vehicle to carry out any inspection or to assess the situation for ourselves.

Since the beginning of April 2021 I have started writing to you formally and have received no reply.

I have sent you three letters and you have not replied.

 

Clearly the situation cannot go on any longer.

You sold a vehicle to my father which has been scarcely driven and in which has now been in your possession and not driven for a year and a half.

The car is not a satisfactory quality and my father has not had the use of the car for most of the period of ownership and has been deprived of substantially the whole benefit of the contract.

I take this to be a fundamental breach of contract and as such I consider the contract has been terminated by you and so I require you to refund me the purchase price of the vehicle.

If I do not receive payment of £XXX from you within 14 days then I shall begin a County Court action and without any further notice.
 

YS

 

 

 

I still think is a shame that you are going to sue for less than the value of the claim which should be the full value of the vehicle, plus any ancillary expenses plus interest.

Do you have it in writing from him that he refuses to tell you the location of the vehicle? Or why he moved it?

 

In view of the fact that he doesn't respond to anything, I would make sure that I sent this by side for recorded delivery and also a copy by ordinary first class post in case he refuses the signed for copy.

 

[pringles1981]

Thanks for the quick response, and for the suggested wording. I will review and amend accordingly today, and send back for your final glance. 

 

I kept the ADR in as a way of showing that I would happy to discuss with mediation, and if an acceptable offer was put forward then of course we would consider it. As he hasn't responded to the offer of ADR so far, its unlikely he will to this anyway. Aren't some of the conciliation services offered free? 

 

Do you have it in writing from him that he refuses to tell you the location of the vehicle? Or why he moved it? - I don't have it in writing from him, but i have confirmed it back in writing to him following a phone conversation. He moved it as he does not carry out repairs to vehicles at his garage, so had been moved to a "specialist" to carry out whatever work needed to be done. 

 

And in regards to suing him for less - the way I see it is, if we had the car at home, in working order, and we were to sell it privately, we would probably be looking to sell it for the current market value which was about £8-9K last time I looked. I just don't know if its worth the hassle of going about the £10k mark, and it go on fast track, and then potentially am faced with paying his legal bills etc

[BankFodder]

If you go to use a mediation service then you should use the one supplied by the County Court.

To suggest ADR when first of all you have no idea how it is organised, who would provide it, how much it costs et cetera is simply asking for trouble.
There is a motor traders trade association which will provide ADR – but don't forget that by and large they represent the trade. The fact you are asking whether or not conciliation services are offered free of charge shows that you don't know how it works so why on earth are you even bringing it into the equation?
You shouldn't be considering anything without understanding what it is you are considering or proposing.

Suggesting ADR immediately suggests that you are prepared to sacrifice some of your rights.  I don't see why you feel that you have to show some kind of goodwill after all the treatment that you have suffered – but on the other hand, we have understood by now that this is a man that you want to protect. Bless.

Suggesting ADR without having a court process underway means that you giving out signs that you are still not fully committed to bringing a legal action – and you have demonstrated that since January by sending three threats of legal action and not following any of them up.
By suggesting ADR again, you are going down the same path – why should anybody take it seriously.

 

On FastTrack, don't forget, you will only end up paying the other side' s legal bills if they win. On the basis of what you say, that looks like a very outside chance.

If you did go on the fast track then you would also recover your own litigant in person costs at 18 quid an hour. Not much – but then it delivers an extra slap to your secret friend. Also, you would be able to claim interest at 8% per year so you would be looking at at least two years interest on 10 grand – 800 quid a year. Plus by the time this is all over, you could be looking at 300 quid or so in litigant in person costs. But of course the fast track is a risk that you will have to take.

Check the figures I have put in the proposed draft, I calculated that it's about a year and 1/2 you haven't had the vehicle that you need to make it precise – at least within a month.

I suggest that you post up here before you send it off.

 

[pringles1981]

@BankFodder- just a thought, can I sue the trader for both breach of contract (i.e. faulty goods) and conversion? Or do I have to choose only one, and then stick to that? IMO its a bit of both, he sold us a faulty car due to the issues we had, took the mickey (attempting to) repair, and now has the car in a worse condition that it was before he had it off us, plus wont tell us where it is or show us photos.  

 

I've been re-reading and reflecting on your comments from the beginning and considering the alternative, i.e. including the bit about giving us access to the car within 14 days etc... I will be speaking to my sisters later tonight too so I will also see what their thoughts are too.  

 

Ultimately, I want to make sure I have the best chance of nailing this guy, so this time, we need to think it out properly. 

 

[BankFodder]

Note you can sue for both but you would need some definite evidence that he has moved the car and is no longer giving you access to it.

Please could you post up the message that you have had in which he refuses to grant you access to the vehicle.

I absolutely agree that you want to maximise your chances of nailing him. Of course by protecting him, you aren't doing that

[pringles1981]

There isn't a written message as such where he has refused access to the vehicle, however when I have asked for where the car is being kept a number of times when speaking to him on the phone, he said its "at a garage around the corner from his". 

 

When I've asked to speak to the mechanic working on the car, then his response is that "he doesn't want to get involved, so you need to go through me". 

 

 

[BankFodder]

Well you could bring action in conversion but I suppose that if he says that he wasn't prepared to allow you access to the car because you owed him money then that might be a basis for defending that allegation.
You really need a clear indication that he is dealing with the property in a way that only the user could. That he has converted your ownership into his by his actions – and a definite refusal to access the vehicle or to know where it is would be adequate to satisfy this requirement.

I had thought from the information you are given so far that he had refused access to the vehicle.

In that case it might be better to avoid an action for conversion and simply sue on the contract. If you get some information along the way that he has disposed of the vehicle or in some other way breached your rights as a proprietor, then we could discuss an action for conversion.

I'm going to say again, that it's extraordinary that you are prepared to accept this treatment and not want to give his name. I'm sorry that you feel frightened of him. Is he a thug? Are you French?

[pringles1981]

But he hasn't once said that he wants money from us, or indeed that we need to pay for the repairs carried out. The only time he has made any reference to this is in one of our final conversations (end of March 2021), he said that "I was doing this as a favour for your dad".

 

And when he spoke to my brother in law around about the same time, he said that he "had an agreement with your father in law (my dad) that he would contribute towards the cost of repairs if it was getting to a certain point regarding costs". 

 

But this so called conversation between the trader and my dad isn't mentioned in any of the text exchanges between them. And my dad never once mentioned that this was the case to us either - he always said that the trader was going to repair the car under the 12 month warranty which came with the car, which incidentally there is no paper trail for either, only mentioned verbally in the presence of my brother in law. 

 

And he has refused to disclose where the vehicle is located in the past - i have messages that I have sent to him where he has ignored this request, and when I have asked him over the phone, he has refused to give me the exact location, only that the car is "around the corner". 

 

And I think the conversion avenue is something we could always revisit at a later stage as you have suggested. 

 

I don't understand your comment about me being French and how that is relevant. And for all I know, he could be a thug, or use the services of . Could be completely coincidental but my husbands car was vandalised a few weeks ago, on 2 consecutive weeks, whereby the vandal damaged his side mirrors, knocking them off the car... 

 

And other than helping other potential victims which I do really want to do, what else would be the benefit of me naming the trader? Are you able to carry out further searches etc on him? 

[BankFodder]

The whole thing seems bizarre this person is holding this vehicle and that he has had it so long and that he is not giving you any information and you have no idea what is going on.

The only way to force his hand is to issue proceedings. If he fails to respond to those then apply the judgement and then put their sheriffs in.

I'm afraid I'm completely out of ideas otherwise – and you seem to be as well.

Revealing his identity on this forum, it's another way of putting pressure on him because if he realised that he was being discussed on social media, this might influence him to take some action – even if it was only to rise up in fury.
We might be able to do some additional research on him. There may be others who have been having difficulty with the same garage who would be interested to find somebody else in the same boat with the same trader. Even if they weren't on the form already, Google would pick up the references so that they would come up in Google searches.
If other people had trouble with this person in the future then they would find your experience with this person very useful to their own predicament.

You've offered let me have this information in confidence that I don't want to get involved in that kind of game. As I've said to you, there are no downsides to revealing his identity. There are any downsides to not revealing his identity – and at the very least, it may simply have a neutral effect.

He said in an earlier post that you were frightened of him. I think that to be intimidated by somebody who is treating you so shabbily and so unjustly must be very unpleasant.

I have a sense that you are holding back from sending this letter of claim and that means to me that you are still holding back from bringing a legal action.

I'm not sure what else we can say now. I think we have discussed everything. I think you understand everything. I think you need to make a decision now as to whether you want to get your money, maybe have the satisfaction of dealing with this person properly – or whether you'd prefer simply to write the whole thing off.

[pringles1981]

I'm not holding back from sending it at all. I think the letter is pretty much done and ready to go, but wanted my sister to read it this evening to get her thoughts so I will post it on here later tonight.

 

I'm also looking into whether the legal expenses cover with my / my parents home insurance will assist with legal representation if and when it gets to court

 

 

[BankFodder]

I can tell you now that your legal expenses cover will not assist with anything.

These so-called legal expenses/legal assistance insurance schemes are almost always completely useless. They limit themselves to writing a few letters. If they are prepared to litigate then it will only be after protracted correspondence and they will only litigate where the outcome is a dead cert.

If you try to involve them, you will end up with new correspondence going on for weeks and maybe months. You may think that they are going to involve solicitors but in fact they will simply be a bunch of clerks – maybe one or two who are paralegals if you are lucky – and eventually the case might go to a solicitor for an opinion. The solicitor may not even work for them but maybe somebody who simply does some kind of consultancy for them for a fee.

Your legal assistance insurance will not like what's happened here. We are moving far too rapidly for their taste. They will only be concerned about their own budget and not about your interests or about the justice of your case.

That's not to say that they won't be of use – that you can look forward to probably at least another six months of frustrated letter writing.

If you aren't prepared to do this yourself then you shouldn't be on this forum

 

As already said, I'm not sure that there is much else we can explain to you or advise you on. I don't think that we will be prepared to get involved in too much further discussion.
 

[pringles1981]

@BankFodderI've made some slight tweaks to the letter, would appreciate your thoughts....  also I'm not sure to keep the bits in bold - what do you think?

/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-

 

I am the executor of my father’s will and as such I have authority to bring legal proceedings against you on behalf of his estate.

 

On 2 September 2019 my father bought a Jaguar XF  3.0d V6 vehicle, registration number XXXX XXX, from you.

 

You know all the basic facts but for the record I'm setting them out here for your information and for the benefit of the court.

 

·        My father purchased the car from you in September 2019, however the car was not collected until October 2019.

·      In less than two weeks of having the car, it started to demonstrate some serious defects and as a result the car was returned to you to repair the electrical faults.

·      The car was returned to my father in late January 2020, with the repair still outstanding, despite the fact that you had the car ostensibly to carry out precisely this repair.

·     My father made various attempts to contact you and to discuss the matter with you. In March 2020, a full six months after the purchase of the vehicle, you collected the vehicle ostensibly once again to carry out the repair of the electrical fault.

·       The car was eventually returned to my father six months later in August 2020. It seemed the original electrical fault had been repaired, however upon return of the vehicle, a further fault then presented itself whilst under your possession, in the form of a loud ticking noise from the engine.

·        You commented that you had topped the engine with oil as it had been running low, and your only suggestion was to take the car on a long drive.

·       My father followed your instructions, and this did not resolve the problem. Still in August 2020, the car was returned to you for further inspection and repair.

·         Since August 2020 you have been in possession of the car and apparently the repairs are still outstanding. There have been extensive exchanges between yourself and my father by text message and phone calls and you have informed my father that the repairs were still outstanding and in fact the car is now in an undriveable state.

·         As you are aware, my father died in January 2021 and myself and other members of my family have attempted to contact you to return the vehicle. There has been extensive exchanges between you and I, by text messages and phone calls, regarding the attempted and outstanding repairs of the car.

·         We have asked you repeatedly to advise us of the location of the car together with photographs so that we can make our own assessment and possibly carry out our own inspection and you have not provided any of this information.

·         You have given us various excuses such as, the car is awaiting parts to be fitted, the car needs new parts (turbo charger, crankshaft), the parts are being sent for re-conditioning, to most recently the car needing a new engine, but again we have not been permitted to visit the vehicle to carry out any inspection or to assess the situation for ourselves.

·         I have previously asked for access to the vehicle, and you have refused this, so I have been unable to understand the condition of the vehicle as it is now. In addition, I have been prevented from understanding what work may have been carried out so far and have also been prevented from obtaining my own comparative estimates for the work which you believe needs doing.

·         Not only have you withheld access to the vehicle, you have apparently moved it to new premises and refuse to divulge its whereabouts

·         I have made strenuous attempts to contact you and hold a dialogue with you and you have failed to provide me with the information requested.

 

Since the beginning of April 2021, I started writing to you formally, sending you three letters and have received no reply. This situation cannot go on any longer. You sold a vehicle to my father which has been scarcely driven since it has been purchased and which has now been in your possession for 20 months (to date).

 

The car is not of satisfactory quality and my father has not had the use of the car for most of the period of ownership and has been deprived of substantially the whole benefit of the contract.

 

I take this to be a fundamental breach of contract and as such I consider the contract has been terminated by you and so I require you to refund me the purchase price of the vehicle.

 

If I do not receive payment of £10,995 from you within 14 days then I shall begin a County Court action and without any further notice.

 

Yours sincerely

 

[BankFodder]

Good idea

[pringles1981]

Hi, 

 

Today is Day 15 - no word from the trader since my letter of claim was sent and received. The below is what I will be submitting for the particulars of claim -  does this read okay? Also,  do I need to reference that I am acting on behalf of my late father? 

 

The claimant bought a Jaguar vehicle registration number XXXX XXX from the defendant for £10995 on 4th September 2019. Very shortly Soon afterwards, the vehicle developed serious defects and despite various defendant's s attempts at repairs, the vehicle it has continued to exhibit problems. The vehicle is now in the possession of the defendant and has been with him on and off for 20 months during the entire 21 months of the claimant's ownership. The defendant is fully aware of the nature of the defects and has been fully appraised. The defendant has supplied a vehicle which is manifestly not of satisfactory quality and the claimant has been fundamentally deprived of substantially for the whole benefit of the contract. Prior to issuing proceedings, the claimant sent a Letter of Claim to the defendant demanding payment. In the circumstances, the claimant seeks reimbursement of £10000.

 

Thanks 

[BankFodder]

I think you have to describe yourself as the executor of the purchaser's estate.

[pringles1981]

okay I will add this at the beginning... is there anything else that you think needs amending? 

[BankFodder]

I've made two or three small edits to tighten up the wording so that you can be more certain that it will fit into the County Court limitation.

You are suing as the executor of the estate and it would probably be a good idea just to check on the Internet to understand how you should describe yourself. All the way through the particulars of claim you are using the word "claimant". I'm wondering whether you should be using the word "estate" all the way through.

I think you should check up. I know it sounds picky, it seems to me that the person you are suing is likely to take some legal advice at the start getting picky and technical about what you are doing.

It would be a shame to make some technical errors and then to have to re-issue with the loss of your initial court fee – or else having to consider amending your claim which will also cost a fee

[pringles1981]

thank you for this - and yes I will look into this before I submit

 

Also, you say you have made some edits however I cannot see where - is there an attachment missing, or am I looking in the wrong place?