Small Claims defendant - Strike out?

[rich998]

I've had a somewhat awkward customer proceed with Small Claims against my company. He has acused us of damaging his engine by pressure testing the coolant system on his vehicle. He is demanding 2.5k to replace the entire engine.

His engine was already leaking coolant internally. The pressure test proved this to be the case, but he believes the test actually ruptured the internals of the engine, and is demanding costs for a new engine and fitting.

I've returned the acknowledgement and also filed my defense. I've been advised to 'Submit a strike out against the Claimant' by a barrister, but I don't know how to go about it. Is this a letter with evidence/expert witness report addressed to the clamant demanding the case to be closed? The barrister also suggested I mention extra costs incurred, such as professional fees and the cost of the expert witness' work.

I just feel it's too easy to take a company to court, all for £85 with no real risk. Also, all the help is available for the claimant, but the only offer for the defendant is seek the advice of a professional solicitor.

How should I submit the strike out?

 

[Anthony Reeves]

Interesting post. If you want to PM me I am happy to offer some guidance (for free). On the point of submitting a claim being all too easy, I would say that is not actually the whole story. The Claimant will have to pay an allocation fee of £35 and a court hearing fee of £150 for a claim of £2,500, in addition to the issue fee of £85 that he would have had to pay to start a claim of £2,500. I actually think court fees are too high for small claims.

If you want to seek to try and strike out the defence, then when you submit the allocation questionnaire you can file an application for summary judgment (which though will require a court fee of £75). You would have to show that the claim has no real prospect of success. An application for summary judgment is not intended to be a mini trial and so unless it is clear from the documents that there is no prospect of success, it is often in small claims not worth making such an application as the hearing of summary judgment application is not likely to happen much sooner than the actual small claims hearing.

In the small claims procedure, the court has discretion to award only up to £200 for expert fees. Also, the court will not have expert evidence unless it make such a direction that it needs it, although will probably do so here.

My advice is to prepare the case carefully for the small claims hearing, rather than going for summary judgment under CPR 24 or strike out under CPR 3.4. If you want some additional assistance/guidance, please get in touch.

Anthony Reeves
Pinniger Finch & Co, Solicitors

 

[LawHound]

I agree with the above poster. There are lots of options open but all have costs implications to you. As the small claims hearing is designed to be dealt with in court, unrepresented, in front of a judge it makes sense to go to the final hearing and let the claimant prove his case.

 

[rich998]

Sorry, I may not have included a key issue here...

So far I have had no real evidence has been offered against us. The only evidence offered is that the vehicle has been seen driving around normally, and that he drove the vehicle to us in the first place. Of course, this is always possible provided the claimant was topping up his cooling system daily (which he admitted in writing and verbally) with over a litre of coolant.

The barrister suggested getting an expert witness to put a report together stating the the 1bar of pressure exerted into the cooling system by the test equipment (normal operating pressure for a K-Series Rover engine) could in no way affect the engine except in the case where a pre-existing issue was present. Then using the report and the Strike Out Application together, put it in front of the claimant stating that if things go further (with no evidence offered against us), I would wish to claim expenses back from him.

The big issue I have here is that there is all this help for a claimant (including freephone phone numbers and web sites and free independent agencies etc), yet there is nothing for a defendant except seeking professional advice from a solicitor which (under normal circumstances) costs considerable money.

I will PM you though for advice, and many thanks for the offer.

 

[The Resolver]

I agree with Anthony that court costs are high for small claims but they do at least provide a barrier to worthless cases being issued. I suspect the claimant may genuinely believe in his case but is simply ignorant not only of the technical argument you have to present (that pressure test could not have caused the damage) but also of the fact that, without evidence, his case cannot possibly succeed.

Now on this last point the SCC judges do like to act informally in a Judge Julie-I-know-how-the-real-world-works, style, and will sometimes decide cases guided by their own knowledge and intuition and without strict evidence. However, in this case, either the judge knows about these mechanical issues (in which case he will agree with your defence) or is ignorant in which case he will not attempt to apply his own view without technical evidence.

It may make sense to bring the claimants ignorance of the above , albeit politely, to his attention in a carefully worded letter copied to the court file inviting him to withdraw. If there is some authoritatve text that supports the technical point then show it to him.If you do obtain a note from an expert then show that to him (if it does go to final hearing then, although the onus in proving his case is on him , its safer to bring an expert witness to give evidence but, given the modest cover for expert costs, it doesn't have to be a 'career' expert, it can be just a local mechanic who works on engines). You should point out to him that, whilst he may feel safe that normally the court will not order him to pay your costs (other than unnecessarily incurred disbursements) if , as you say will happen, he loses the case, however you will proceed in such event with an application under Civil Procedure Rule Part 27.14(2)(q) under which the judge can order him to pay your legal costs if the claimant has acted unreasonably in the conduct of his case such as in pursuing a case bound to fail. Whilst you may not risk paying a solicitor to represent you (risk in case you do not succeed with your application under 27.14(2)(q) ) you are entitled to some degree to costs of your time in preparing your case yourself and in attending court. Tell him that, now you have brought all these matters to his attention, for him to still continue without evidence is to act unreasonably. Good luck and let us all know the outcome.

 

[rich998]

Thanks very much for your time in replying to my original post. It's actually very nice to be able to read and re-read your repies, rather than being at the end of a phone to someone offering advice as most of it goes over my head... :|

I will try and follow up with a reply. I'm sure I'm not the only one on the end of one of these cases. It's all very stressful. This, banks not lending and a Government wanting to increase my business rates and NI costs is keeping me awake at night.

 

[The Resolver]

It's actually very nice to be able to read and re-read your repies, rather than being at the end of a phone to someone offering advice as most of it goes over my head... :|.

Nice to read this as this is the thinking behind www.thesolicitorsroom.com

 

[yorkshirejames]

Okay, now I understand quite a bit about cars and engines (and I do love my 1980s classics) - so I have no doubt that you doing a pressure test did no damage.

However think about it from his point of view - his car previously took a litre of water a day, now after your test it is either not working at all, or taking 5 litres a day. Phrases like "leaking head gasket" will mean nothing to this man - all he will say is that the car sort of worked before your test, now doesn't work. This is why he has filed a claim.

Now, I'm not a rover man, so I had to refer to http://en.wikipedia.org/wiki/Rover_K_engine to understand what we might be talking about here (there is enough on there to put me off). Lets assume we're talking a mid 1990s rover 400 here. If you loose, you aren't obliged to replace like with new - you're obliged to replace like with like (or rather, to compensate thus).

Chances are with your contacts, you can get one of these engines from a decent salvage yard (where you know the mileage of donor car and can listen to engine etc) for about £200, and fitting would maybe be 4 hours? Make him a without prejudice offer to source a good second hand engine and fit it at cost (head this letter "without prejudice save as to costs") and hopefully he'll see sense.

Going to court, spending time before hand filling in forms and speaking to solicitors will take (my estimate) one day for the hearing and probably the equivalent of 3 or 4 solid days for the various other bits.

I'm trying to say that I absolutely agree that your garage is in the right - but chances are if I read any post that this dimwit may have made on one of the consumer forums, I'd read it and think he was in the right also.

 

[tuscan69]

I hope you come to an agreement but would offer my input that it is not so easy just taking someone to court: I have issued against a company and am finding that the whole County Court process is heavily loaded in favour of the defendant.

Just a thought.

 

[rich998]

I think it is stressful when you feel you feel you are in the right. Unfortunately, often both parties must feel this, otherwise things wouldn't go as far as court.

I've just sent off my Assessment Questionaire today. The Claimant still hasn't offered any evidence and I've mentioned this on the form, asking for the judge to drop the claim against us.

I've not agreed to mediation. I feel that without any evidence against us that this would be a waste of everyone's time.

If it helps, the forms are available on-line. I find it much easier to fill the forms in on the PC and then print off several copies.

James: This is not helping his case against us - http://forums.preloved.co.uk/fuseaction-forums.showdiscussion/thread_id-10411/4cf87374.html

 

[tuscan69]

I feel your concerns Rich998. I am in a similar position with a seemingly clear-cut case, albeit the other side of the fence.

By running with it yourself you can keep a handle on costs. In court however there is no consistency with Judges in my experience, some making you feel out of place for being there & others can't do enough for you.

Posting here seems to be a good source of reassurance with some very sound advice. Keep us posted.

 

[rich998]

Ok, so several months on again and finally the claim against us has been thrown out by the small claims judge this morning.

The claimant had not bothered to submit any witness statements but was allowed by the judge to discuss the case. However, after an hour the case was thrown out.

I can't believe how much stress it has been, but it was made much easier by Clare at Clarkmans http://www.clarkmans.co.uk/index.html who kindly PM'd me after reading this thread to offer her services to defend me. She has been excellent throughout and I'd recommend using her anytime.

 

[simo033]

I've had a somewhat awkward customer proceed with Small Claims against my company. He has acused us of damaging his engine by pressure testing the coolant system on his vehicle. He is demanding 2.5k to replace the entire engine.

His engine was already leaking coolant internally. The pressure test proved this to be the case, but he believes the test actually ruptured the internals of the engine, and is demanding costs for a new engine and fitting.

I've returned the acknowledgement and also filed my defense. I've been advised to 'Submit a strike out against the Claimant' by a barrister, but I don't know how to go about it. Is this a letter with evidence/expert witness report addressed to the clamant demanding the case to be closed? The barrister also suggested I mention extra costs incurred, such as professional fees and the cost of the expert witness' work.

I just feel it's too easy to take a company to court, all for £85 with no real risk. Also, all the help is available for the claimant, but the only offer for the defendant is seek the advice of a professional solicitor.

How should I submit the strike out?

I own a garage and have worked on cars since 1971 and have been fighting a scam that a customer has been trying to pull on me for over 5 years now!
This has cost the scammer and me thousands and the courts have been raking it in.
The scammer can tell lies in the court without impunity - beware!
Most judges will not know anything at all about cars never mind the finer points of an engine and head gasket.
The court staff can also add to the corruption, in fact my whole experience has dissolousioned my faith in British Justice.
In days gone by these scammers would have gone to Trading standards with this type of complaint and common sense would prevail and they would usually be given a reality check and education and shown the door.
But now the TS officers don't get involved and the courts milk the fees dry.
Your only hope is a good solicitor who can show the judge the truth if he/she is clever enough to understand this very simple event.-good luck.

 

[rich998]

All ended well in the end, but mainly due to the help from Clare at Clarkmans. I'd have been stuffed otherwise. Very little guidance from any other source.

Like you say, TS are a joke and they appear to make things worse by suggesting that a claimant can get free money. That's the impression I got anyway. I couldn't talk to TS as a business. I did try and email and find a number to call, but I got fobbed off once they found out I was a commercial enterprise. They just didn't want to know. Like you say, stupid really because things could have been stopped there and then before the small claims court got involved.

It is rediculous that we have this culture. Mention the prospect of free money to anyone and morals and ethics fly out the window.

 

[akirk]

James: This is not helping his case against us - http://forums.preloved.co.uk/fuseaction-forums.showdiscussion/thread_id-10411/4cf87374.html

A lot depends on which K series engine...

if a freelander 1.8 then yes - lots of head gasket issues - biggest issue with car...

if other k series engines, less of an issue - I believe that the same 1.8 k series in MGF / lotus had far less head gasket issues...

and the 1.4k series in the rovers (200 / 400) had no issues at all

(have owned several of these!)

to be honest, while it is a pain I would defend, if you can show that you used standard kit to standard settings you are covered - and if you lose, sue the equipment manufacturer as presumably that would be the only reason why you would lose!

Alasdair

 

[Kernowman]

I was talking to my regular garage that I use a while ago about K series engines and their propensity to having head problems and according to him (a very knowledgeable mechanic) the problems start when the cooling system gets clogged up with sludge, particularly the radiator. He says if you flush the whole lot out once a year at least, then you should not have head problems at all.

 

[PhilWarman]

Did you discuss this matter with your insurers? (rich998)