Shambolic claim by finance house blown out of the water by the Big Guns!

legal updates

Understandably, our member was delighted with the outcome, which was a complete vindication of its long stated position.

Read our disclaimer keyboard_arrow_down

This website content is intended as a general guide to law as it applies to the motor trade. Lawgistics has taken every effort to ensure that the contents are as accurate and up to date as at the date of first publication.

The laws and opinions expressed within this website may be varied as the law develops. As such we cannot accept liability for or the consequence of, any change of law, or official guidelines since publication or any misuse of the information provided.

The opinions in this website are based upon the experience of the authors and it must be recognised that only the courts and recognised tribunals can interpret the law with authority.

Examples given within the website are based on the experience of the authors and centre upon issues that commonly give rise to disputes. Each situation in practice will be different and may comprise several points commented upon.

If you have any doubt about the correct legal position you should seek further legal advice from Lawgistics or a suitably qualified solicitor. We cannot accept liability for your failure to take professional advice where it should reasonably be sought by a prudent person.

All characters are fictitious and should not be taken as referring to any person living or dead.

Use of this website shall be considered acceptance of the terms of the disclaimer presented above.

So was the outcome of a hard fought three year old dispute last week, which had been before the court for the last two years, which involved one of our members and who was represented at the final hearing of the matter by top quality counsel (a specialist barrister).

The final hearing did not go entirely as expected as it ended up being occupied entirely by arguments over the state of the Claimant’s case.

Essentially, to begin with the Judge asked the advocates to confirm what issues he had to decide. Counsel for the Claimant said that his client was not now pursuing any claim based on misrepresentation, as pleaded as its position had shifted and was now that the vehicle was of unsatisfactory quality given issues over a speed limiter and rust.

Counsel for our member pointed out to the Judge that this was not how the case was pleaded; that the Particulars of Claim argued that because of an earlier FOS decision, the Claimant was entitled to an indemnity from our member. It said nothing about the vehicle being of unsatisfactory quality or about breach of any express or implied terms of the contract between the parties.

After some back and forth on point, the Judge agreed with our member’s counsel. 

He then invited submissions on whether the Claimant should be allowed to pursue its claim on the day based upon the satisfactory quality point despite it not being pleaded. Counsel for the Claimant tried to argue that because this was a small claim the Judge should overlook the fact that the quality argument was not pleaded. Counsel for our member opposed that argument on the basis that this wasn’t just a case of a pleading not fully setting out a party’s case; this was a Claimant trying to argue a completely different cause of action on the day of trial! That was wholly unacceptable, particularly when the other side had been legally represented throughout.

Again, the Judge agreed with our member’s counsel. 

He then invited final submissions on whether to adjourn the hearing to allow the Claimant to amend its pleadings. After taking instructions from his solicitors, counsel for the Claimant sought such adjournment. Counsel for our member duly opposed on the basis that this dispute was already nearly 3 years old, that it would waste an inordinate amount of time, cost and court resources to adjourn, and that it was intolerable bearing in mind the cause was a failure on the part of the Claimant to plead the case they actually wanted to run.

Once more, the Judge agreed with our member’s counsel. 

Consequently, he concluded that the Particulars of Claim disclosed no reasonable grounds for bringing the claim (there being no legal basis for the other side to claim an indemnity in light of the FOS decision) and he struck them out and dismissed the claim. A double whammy if you will! There was no application for permission to appeal.

Automotive ComplianceWE TALK YOUR LANGUAGE, WE KNOW YOUR BUSINESS

Need help with keeping on track with FCA Regulation and Compliance? Partner with Automotive Compliance

The Judge had raised the possibility during the hearing of the other side trying to issue a fresh claim based upon unsatisfactory quality. In response, counsel for our member had pointed out the very high likelihood of such attempt being an abuse of process under Henderson v Henderson and it is doubtful they will try. Indeed, any such claim would be doomed to fail on the facts, in any event.

Understandably, our member was delighted with the outcome, which was a complete vindication of its long stated position and it described counsel’s performance on the day as ‘superb’ and worth every penny of his fee.

Howard TilneyHead of Strategy / Legal AdvisorRead More by this author

Related Legal Updates

From initial complaint to court claim form – let us help you

You can feel assured that court deadlines are attended to with the required attention and specialism.

Is it time to ditch “Dear Sirs”?

Clearly, “Dear Sirs” is old-fashioned, but is it sexist?

Location, Location, Mislocation: A costly oversight in court attendance

What the unfortunate Claimants (husband and wife) had not appreciated, was that the hearing was listed for the court at Central London.

Court re-instates a claim because of its own error!

One wonders how many times the courts have made the same error.

To Be or Not To Be Remains the Legal Question

The Claimant had sought to reject a commercial van that he had been using for business purposes but alleged that he was a consumer.

Always Deal with Court Documents

This cost our member an application fee to the court, plus a legal representative at court for the hearing.

FCA Commission Review: Separating fact from fiction in the wake of scaremongering

Attend a complimentary seminar hosted by the FCA for first-hand information – Scheduled for Wednesday, 24 January 2024.

Get in touch

Complete the form to get in touch or via our details below:

Phone
01480 455500
Address

Vinpenta House
High Causeway
Whittlesey
Peterborough
PE7 1AE

By submitting this quote you agree to our Terms & Conditions and Privacy & Cookies Policy.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.