Backdoor CCJ for Shortfall of Car Finance from VWFS (Audi Financial Services) - Set Aside but lost later hearing - 2018 diesel scrappage scheme help needed - want to appeal

[Unknown2024]

Hi all, new member, being advised by someone on another forum but looking for the opinion of others to help me decide what to do. 

Bit of a long one but I am looking for some quite specific advice or signposting to somewhere that may hold the correct information.

Long story short, I bought an Audi on finance years ago and traded my old car in under the diesel scrappage scheme, brilliant. This allowed me to reduce the value of my brand new car by £7,000

Fast forward a few years later and I fell into hardship. Unfortunately I could no longer afford the car and despite my best efforts at trying to negotiate some kind of support from VWFS (Audi financial Services), the car was subsequently marked stolen and I was pulled over at the side of the road using Tactical Pursuit and Contain. My car was then recovered back to the finance company.

I struggled for a while, bought an older car to get myself by and eventually got my finances back on track. Then in September of last year I became aware of a CCJ against me filed by VWFS, for the shortfall of the agreement minus the value of the car which was sold at auction. This caused me to do some research into my agreement, legislation and also consult some legal advice.

Using another forum and speaking to retired vehicle finance lawyers, it turned out I may have some grounds to apply to set aside the CCJ at a Court hearing,  I drafted some documents and a witness statement and I was successful in setting aside the CCJ, on the grounds that VWFS had no evidence that I had traded in my old car as a part exchange.

Now this is where things get complicated.

My whole defence on winning the case against VWFS and disregarding liability for the shortfall rested on the fact that, with my old car as a part exchange, I had paid in more than a third of the agreement and VWFS could not repossess my car without a court order or they would be in breach of Section 90 of the Consumer Credit Act 1974 and I would be entitled to all sums paid under the agreement

I took this all the way, noting that the CCA 1974 and the Consumer Credit Agreement Regulations 2010 state that a deposit is defined as any exchange of goods or by any other means a reduction in value of a purchase by means of a transfer.

I recently had my day in Court but as a litigant in person, was cross examined by an all singing all dancing Barrister and of course he persuaded the Judge that I had no case, and that my car traded in under the scrappage incentive was not to be classed as a deposit, despite it literally being written in legislation, amongst other reasons why I found the HP agreement to not be properly executed.

I am now appealing this decision as I strongly believe the Judge has misinterpreted the law,

What I really need for this to be successful is someone who is knowledgeable in the field of Vehicle Finance to help me understand if I have a possibility of overturning this case, as I have no doubt at all that my car should be classed as a part exchange and a deposit and it is blatantly written in the legislation that the finance companies are bound by.

I would massively appreciate if someone can help me decipher this legislation and its application in the sense of my HP agreement, I simply do not understand how I can trade in my car and it not be classed as a part exchange, or a deposit.

Similarly, if someone is able to find the exact wording of the terms and conditions of how the Diesel Scrappage Scheme was managed in 2018 that would be an absolute life saver!

Thanks so much in advance,

this is not a straight forward nor a well documented case but I believe I am onto something and I believe there will be other people in my position who have lost their cars without knowing this clause and could well be entitled to reclaim all sums under the agreement

[dx100uk]

thread title updated

pinging @theoldrouge

 

[theoldrouge]

What we need to see is all the original paperwork 
That would include the pre contract information and the original HP Agreement 
Post it up and I will have a good look over it at the weekend 
It really hangs on the wording as to whether it’s a scrapage adjustment /discount on the price of the car( that is how some schemes worked)
Every manufacturer had their own version 
Have you sent VW a SAR?

Edited May 15 by theoldrouge
Additional comment

[Unknown2024]

No problem at all, I can dig out and post up the complete trial bundle if that helps? 

The wording on the vehicle order forms was a mix of "scrappage discount" and "manufacturer discount" 

But I believe that under S189 of the CCA 1974 any part exchange is classed as a deposit. I exchanged my vehicle for a discount off a new vehicle, by virtue that should count as a deposit

 

I did SAR them before my Defence was written and received all the documents I signed at the time of purchase 

Edited May 15 by Unknown2024

[dx100uk]

please do

read upload carefully and use the online sites listed too.

one mass PDF pref though each can se split and well merge.

anything and everything we dont mind, but please ensure you delete YOUR DETAILS. account/CCJ/etc numbers.

just make it so 'they' cant find you here.

please ensure you leave all dates £figures mind!

dx

 

[Unknown2024]

Okay thanks, I will get this uploaded ASAP so that you can see the evidence along with the arguments which were made at the time. 

It is also worth noting at this point that besides the discount / deposit argument, I had further arguments on whether or not the deposit (the part exchanged vehicle) should fall under the 'advance payment' section of the agreement

or whether the agreement was improperly executed, whether this then made the default notice which was issued unenforceable,

then whether the finance company used the police to recover the car when they were in fact in breach of S90 of the CCA1974, along with other pieces of legislation such as the CC(A)R2010 and the consumer rights act 2015

VWFS redacted_copy-compressed.pdf

Okay here's the agreement and some of the vehicle order documents to give you a start on reading through some of the details

[theoldrouge]

Please post up the court bundle and the Audi Sar
You may have a case to appeal 
but if you appeal as a LIP you will surely fail 
Obtain a copy of R M Goode guide to the CCA1974

[Unknown2024]

I will grab this shortly just need to redact the information. 

Will look this up in the meantime thank you, and definitely intend to have representation at the appeal

Please see attached, SAR with redacted details. 

I've also just noticed that one of the documents labels a "scrappage contribution from VAG" - wish I had seen this before the Court hearing! 

 

LA - System Records -merged_copy.pdf

[Unknown2024]

Any chance of some advice with filling in the N164 please? 

 

I've sent an EX107 to the Court to request transcript of the Judgment to use in an appeal but the Courts still haven't actioned this and my 21 days expires on Tuesday

Edited May 25 by Unknown2024

[AndyOrch]

https://www.consumeractiongroup.co.uk/topic/466733-appeal-bundles-civil-appeals-parcel-delivery-firms/page/2/#comment-5259766

 

[Unknown2024]

Thanks, appreciate the reply but that thread eludes to an appeal bundle, which I'm not sure I require

I've applied to the Court for the judgment transcript in order to use it for my appeal but the Court hasn't fulfilled my request in time, I now need to ask for an extension to the appeal deadline on the N164 in order that I can get the transcript of the Judgment from the Court and I'm not sure how to do this correctly or on what grounds it will be permitted

 

Unless I'm reading this completely wrong and I can just submit my request for permission to appeal initially and then send the transcript when requested to? 

Edited May 25 by Unknown2024

[AndyOrch]

Extending Appeal Time

If a party wants more time to file its application with the Court of Appeal, it must seek an extension of time from the trial judge, either when the judgment is handed down or when requesting an adjournment of the hand-down hearing (so as to give it more time to apply to the lower court for permission). An adjournment in itself will not extend time.

It is possible to apply to the Court of Appeal to extend time retrospectively, but this is treated as an application for relief from sanctions and therefore the three-stage test from Denton v TH White Ltd [2014] EWCA Civ 906

 

How do I order transcripts? You will need to send a completed “Request for Transcription of Court or Tribunal proceedings” form (EX107) to the lower court (see list below). The form can be obtained via HMCTS form finder at: hmctsformfinder.justice.gov.uk/HMCTS/FormFinder.do The EX107 Guidance Notes (EX107GN) explain what you have to do to order a transcript. You will have to order and pay for one copy of the transcript of judgment. When you have ordered and paid for the transcript and it has been approved by the lower court Judge, the transcribers will send it to you to include in your bundle. You should also send a copy of the transcript to the Civil Appeals Office as soon as you receive it. You must keep a copy for your own use.

[Unknown2024]

I've sent the EX107 already and chosen a transcript company.

The Court is dragging it's heels though with actioning the transcript of the judgement and approving it to the external company. 

I don't yet have permission to appeal.

It's small claims.

As I understand it I can send the N164 within 21 days and just tick the box saying I don't have permission to appeal?

And then the request to appeal will have been submitted in the timeframe, giving me a further 14 days to submit the appeal bundle and include the transcript of the Judgment with the appeal bundle? 

[AndyOrch]

Correct and then you can refer to my previous link re collating your bundle.

Also may be useful:-

 

[jk2054]

you don't need a transcript yet.

You need the N164 and N460 and send those to the court. That is it.

If your within 21 days skip section 7b if you are outside 21 days complete it.

you will likely get longer than 14 days for your appeal bundle I'm not sure where you read that.

Just to make sure you are clear, you DO NOT need to wait for the transcript.

If you need help with the N164 please post up which parts you need help with.

Edited May 25 by jk2054

[Unknown2024]

Thank you this is the answer I was after! 

I've got the N164 ready to go. But no N460

Guessing the Court completes that!? The deadline is Tuesday, do I submit the N164 to the Court now and then wait for the N460? Or will I need to request an extension (fill out 7b) now that I won't get the N460 done by Tuesday? 

Edited May 25 by Unknown2024

[jk2054]

Just going to brief myself on the history of the claim, I'll reply in a few min

Ok I'm up to speed. 

Did you get the courts decision in the post? 

[Unknown2024]

Yes I've got the Courts order, I received it a few days after the hearing

[jk2054]

Please redact in PDF form

[Unknown2024]

On it now

Please see attached

Court Order 070524.pdf

[jk2054]

Are you sure this was a small claim?

Also did you ask for permission to appeal in your hearing?

Edited May 25 by jk2054

[Unknown2024]

Yes I pushed for it to go on the small claims track and the previous judge accepted this in his case directions leading up to the hearing

[jk2054]

ok, I still need to know if you asked for permission to appeal in your hearing please.

[Unknown2024]

No I did not unfortunately, I wanted to but the moment didn't really come up after the judgment was given

[jk2054]

ok so just N164 then