This is the story of my first County Court hearing. We bought a car in November 2017, subject to service and 3 months' warranty. At the end of part one, it was late March 2018, we were £1.3k out of pocket, and Cross. It was, sadly, time to contemplate legal action.
The first question was who to (threaten to) take legal action against - dodgy companies wind themselves up all the time, so while it was unlikely a small action would cause them to do so by itself, if they're consistently ripping people off, there was a distinct risk that we could go to all the bother (and expense) of suing the garage only to have them conveniently go bust (and a very similar company open on the same premises a day or so later) leaving us out of pocket. We'd bought the card on a credit card, which means that legally the credit card company are jointly and severally liable. So we could sue Nationwide as well as the garage - they're definitely good for the money, but are likely to be much more competent opponents. We concluded (having talked to![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
diziet who has done this sort of thing before) that it was better to go after both parties.
The first stage of suing anyone is to send a Letter Before Action. So on 10 April, we sent Letters Before Action to the garage (demanding they pay for both sets of repairs, and refuting their lawyers' letter) and Nationwide (including all the correspondence to date), giving a deadline of 8 May for a response. The garage sent us a "fuck off" fairly promptly (saying basically it's all wear and tear, and not mentioning the warranty).
Nationwide sent us a form letter asking for a bunch of details we'd already provided them with. We replied pointing this out, and including the "fuck off" from the garage, and reminded them of our deadline. Nationwide then phoned because they don't understand VAT on invoices(!), so I explained how VAT on invoices work (one of the repairs from MOT-garage included some things we weren't claiming for, so we'd crossed them out; but all the line items were net of VAT, so you had to add VAT to the not-zero-rated ones in coming to the correct total). Our deadline arrived without hearing from Nationwide, soatreic phoned them to say "what gives?"; they said they were waiting to hear from the Garage, and couldn't give us a timescale. We pointed out we'd sent them the "fuck off" from the garage, and said we weren't prepared to wait indefinitely. Nationwide said "We don't do deadlines, you should just issue proceedings". So we did.
Or rather, we tried to. I have previously issued proceedings including Fixed Commencement Costs per CPR 46.5(3), 27.14(2), and 45.2. But the Court bounced my claim saying that as I wasn't a lawyer, I couldn't claim FCC. I wrote back with a bit of argument on the above, and asked the Court to show the letter to a judge. The judge repeated the "not a lawyer, no FCC for you" line.
Whilst this was going on, Nationwide finally got back to us, offering us the cost of the cruise control repair, but saying that they wouldn't refund the other repairs, quoting the garage's line about wear and tear (and still not mentioning the warranty). We agreed that wasn't acceptable.
I didn't really want to fill in the court forms by hand, so went looking for a techy solution. As it happens the HMCTS forms are proper PDF forms, so you can fill them in with software. I wrote up how I did it, as it was reasonably straightforward once I'd found the necessary tools. I might do similar for how I did the evidence pack and court bundle in due course...
We re-submitted our N1 (the form to issue proceedings) on 18 June; the claim was formally issued on 25 June. The main bit of work here is the Particulars of Claim, where we had to set out what had happened, and the legal basis of our claim (43 paragraphs, numbered, in this case). At this point the defendants have 2 weeks to respond, or they can file an Acknowledgement of Service, in which case they get 4 weeks. In a rate moment of actually responding to something, the garage sent an AoS in by return of post (Nationwide did so shortly afterwards). Both indicated they intended to dispute the entire claim.
Both parties produced defences. The garage largely "put us to proof" (i.e. neither admitted nor denied our claims, but said we had to prove them), but denied the offer to service the vehicle, said the problems were wear & tear not faults, and that the switches were not part of the cruise control and were wear & tear items. They didn't mention the warranty. Nationwide admitted that we'd used their credit card (and so they were liable if the garage were liable), denied there was a service promised (whilst including the invoice of sale which said "Subject to: service...", repeated the wear&tear argument, and noted that they'd not been sent the warranty t&cs by the garage.
Nationwide also filed a notice claiming indemnity against the garage for the costs of proceedings and anything they paid us as a result of the claim (they're entitled to do so by the same law that makes them liable with the garage in the first place). That means that the garage will pay for Nationwide's lawyers regardless of who wins (in Small Claims, legal costs are not usually recoverable).
In early August, we got a "Notice of Proposed Allocation to the Small Claims Track", which is where the Court says "we think this is a Small Claim, tell us if you agree, where you want the hearing to be held, and how many people you want to send". Another PDF form to fill in electronically and post in triplicate! The legal system very much relies on snail-mail, and you keep having to serve documents on all parties as well as the court. We posted a lot of paper during this process! The garage failed to get their paperwork in on time, so were sent a Court Order saying "you failed to comply with the previous Order; get your questionnaire back to us by 17 September or we'll strike your defence out".
On 18 September, we were told the case was being transferred to the local County Court, and on 24 September we were told by the local County Court (actually another Court that handles all the paperwork due to centralisation these days) that the case had been transferred to them. Then silence.
On 1st November, we were sent an Order telling us the case had been allocated to the Small Claims Track and that the hearing would take place on 23 January. It also said that we had to pay the hearing fee by a particular date, serve any evidence and witness statements on the court and other parties by another date, and send an agreed bundle to the court 3-7 days before the hearing.
Bothatreic and I wrote witness statements, separately from each other. I also sat down with diziet to work out how our legal arguments might work, and what other evidence we might need. It was helpful that we'd sent each other so many emails during the relevant period, meaning we could produce evidence of all the phone-calls emails and suchlike we'd sent the garage. The eventual evidence pile came to 52 sides of A4 (excluding the witness statements) - the invoice of sale, paperwork from the MOT-garage, AA's summary of legal rights when buying a car (and their statement that tyres should last at least 20k miles), the car's MOT history, and so on. Each defendant also got a cover letter inviting them to narrow the issues between us (e.g. inviting them to concede that the sale was subject to Service given it said so in black and white on the invoice), as well as what I thought was a summary of the legal issues, along with a proposed set of bundle contents. That lot got posted off just before Christmas.
I hear nothing from the garage. Nationwide replied to say they didn't intend to rely on witness evidence. In response to an email, they also agreed that the bundle contents were fine, and that they were content to receive them by email. Less posting!
The CPR have rules on What should be in a Bundle; I ended up sticking together a number of scanned PDFs, along with some LaTeX-ery to make an index, Case Summary, and so on. The result came to 84 sides of A4(!), and the court copy had to be posted in a ring-binder. This was all a bit stressful - part of me was still convinced that I'd make some stupid clerical error and lose the entire case as a result. Still, it was all printed, and posted to arrive in good time. The die was cast, we were ready for the hearing...
On Saturday 19th January, we got a letter from the garage, containing a witness statement (clearly a response to our bundle, including a claim that we'd agreed an "oil service" of the vehicle, and that's what the invoice meant) and a skeleton argument (that we should have spotted the tyres so they weren't liable, and also that the car had been fine at point of sale it was all wear and tear). Still no mention of the warranty. As you might imagine, this caused a small amount of last-minute panic, but we made a plan for how we'd handle it at the hearing.
So, there were were, ready for the hearing. I was quite nervous, but reasonably sure we had a good case, and hopefully I'd done all the paperwork correctly. It was very useful havingdiziet to advise (and also to read my paperwork), as well as moral support and proof-reading from atreic
The first question was who to (threaten to) take legal action against - dodgy companies wind themselves up all the time, so while it was unlikely a small action would cause them to do so by itself, if they're consistently ripping people off, there was a distinct risk that we could go to all the bother (and expense) of suing the garage only to have them conveniently go bust (and a very similar company open on the same premises a day or so later) leaving us out of pocket. We'd bought the card on a credit card, which means that legally the credit card company are jointly and severally liable. So we could sue Nationwide as well as the garage - they're definitely good for the money, but are likely to be much more competent opponents. We concluded (having talked to
diziet who has done this sort of thing before) that it was better to go after both parties.The first stage of suing anyone is to send a Letter Before Action. So on 10 April, we sent Letters Before Action to the garage (demanding they pay for both sets of repairs, and refuting their lawyers' letter) and Nationwide (including all the correspondence to date), giving a deadline of 8 May for a response. The garage sent us a "fuck off" fairly promptly (saying basically it's all wear and tear, and not mentioning the warranty).
Nationwide sent us a form letter asking for a bunch of details we'd already provided them with. We replied pointing this out, and including the "fuck off" from the garage, and reminded them of our deadline. Nationwide then phoned because they don't understand VAT on invoices(!), so I explained how VAT on invoices work (one of the repairs from MOT-garage included some things we weren't claiming for, so we'd crossed them out; but all the line items were net of VAT, so you had to add VAT to the not-zero-rated ones in coming to the correct total). Our deadline arrived without hearing from Nationwide, so
atreic phoned them to say "what gives?"; they said they were waiting to hear from the Garage, and couldn't give us a timescale. We pointed out we'd sent them the "fuck off" from the garage, and said we weren't prepared to wait indefinitely. Nationwide said "We don't do deadlines, you should just issue proceedings". So we did.Or rather, we tried to. I have previously issued proceedings including Fixed Commencement Costs per CPR 46.5(3), 27.14(2), and 45.2. But the Court bounced my claim saying that as I wasn't a lawyer, I couldn't claim FCC. I wrote back with a bit of argument on the above, and asked the Court to show the letter to a judge. The judge repeated the "not a lawyer, no FCC for you" line.
Whilst this was going on, Nationwide finally got back to us, offering us the cost of the cruise control repair, but saying that they wouldn't refund the other repairs, quoting the garage's line about wear and tear (and still not mentioning the warranty). We agreed that wasn't acceptable.
I didn't really want to fill in the court forms by hand, so went looking for a techy solution. As it happens the HMCTS forms are proper PDF forms, so you can fill them in with software. I wrote up how I did it, as it was reasonably straightforward once I'd found the necessary tools. I might do similar for how I did the evidence pack and court bundle in due course...
We re-submitted our N1 (the form to issue proceedings) on 18 June; the claim was formally issued on 25 June. The main bit of work here is the Particulars of Claim, where we had to set out what had happened, and the legal basis of our claim (43 paragraphs, numbered, in this case). At this point the defendants have 2 weeks to respond, or they can file an Acknowledgement of Service, in which case they get 4 weeks. In a rate moment of actually responding to something, the garage sent an AoS in by return of post (Nationwide did so shortly afterwards). Both indicated they intended to dispute the entire claim.
Both parties produced defences. The garage largely "put us to proof" (i.e. neither admitted nor denied our claims, but said we had to prove them), but denied the offer to service the vehicle, said the problems were wear & tear not faults, and that the switches were not part of the cruise control and were wear & tear items. They didn't mention the warranty. Nationwide admitted that we'd used their credit card (and so they were liable if the garage were liable), denied there was a service promised (whilst including the invoice of sale which said "Subject to: service...", repeated the wear&tear argument, and noted that they'd not been sent the warranty t&cs by the garage.
Nationwide also filed a notice claiming indemnity against the garage for the costs of proceedings and anything they paid us as a result of the claim (they're entitled to do so by the same law that makes them liable with the garage in the first place). That means that the garage will pay for Nationwide's lawyers regardless of who wins (in Small Claims, legal costs are not usually recoverable).
In early August, we got a "Notice of Proposed Allocation to the Small Claims Track", which is where the Court says "we think this is a Small Claim, tell us if you agree, where you want the hearing to be held, and how many people you want to send". Another PDF form to fill in electronically and post in triplicate! The legal system very much relies on snail-mail, and you keep having to serve documents on all parties as well as the court. We posted a lot of paper during this process! The garage failed to get their paperwork in on time, so were sent a Court Order saying "you failed to comply with the previous Order; get your questionnaire back to us by 17 September or we'll strike your defence out".
On 18 September, we were told the case was being transferred to the local County Court, and on 24 September we were told by the local County Court (actually another Court that handles all the paperwork due to centralisation these days) that the case had been transferred to them. Then silence.
On 1st November, we were sent an Order telling us the case had been allocated to the Small Claims Track and that the hearing would take place on 23 January. It also said that we had to pay the hearing fee by a particular date, serve any evidence and witness statements on the court and other parties by another date, and send an agreed bundle to the court 3-7 days before the hearing.
Both
atreic and I wrote witness statements, separately from each other. I also sat down with diziet to work out how our legal arguments might work, and what other evidence we might need. It was helpful that we'd sent each other so many emails during the relevant period, meaning we could produce evidence of all the phone-calls emails and suchlike we'd sent the garage. The eventual evidence pile came to 52 sides of A4 (excluding the witness statements) - the invoice of sale, paperwork from the MOT-garage, AA's summary of legal rights when buying a car (and their statement that tyres should last at least 20k miles), the car's MOT history, and so on. Each defendant also got a cover letter inviting them to narrow the issues between us (e.g. inviting them to concede that the sale was subject to Service given it said so in black and white on the invoice), as well as what I thought was a summary of the legal issues, along with a proposed set of bundle contents. That lot got posted off just before Christmas.I hear nothing from the garage. Nationwide replied to say they didn't intend to rely on witness evidence. In response to an email, they also agreed that the bundle contents were fine, and that they were content to receive them by email. Less posting!
The CPR have rules on What should be in a Bundle; I ended up sticking together a number of scanned PDFs, along with some LaTeX-ery to make an index, Case Summary, and so on. The result came to 84 sides of A4(!), and the court copy had to be posted in a ring-binder. This was all a bit stressful - part of me was still convinced that I'd make some stupid clerical error and lose the entire case as a result. Still, it was all printed, and posted to arrive in good time. The die was cast, we were ready for the hearing...
On Saturday 19th January, we got a letter from the garage, containing a witness statement (clearly a response to our bundle, including a claim that we'd agreed an "oil service" of the vehicle, and that's what the invoice meant) and a skeleton argument (that we should have spotted the tyres so they weren't liable, and also that the car had been fine at point of sale it was all wear and tear). Still no mention of the warranty. As you might imagine, this caused a small amount of last-minute panic, but we made a plan for how we'd handle it at the hearing.
So, there were were, ready for the hearing. I was quite nervous, but reasonably sure we had a good case, and hopefully I'd done all the paperwork correctly. It was very useful having
diziet to advise (and also to read my paperwork), as well as moral support and proof-reading from atreic
(no subject)
https://www.gov.uk/make-money-claim