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JimLawyer
JimLawyer, Solicitor
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Experience:  Senior Associate Solicitor
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Just wanted to see if there is any way of knowing if I am

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Just wanted to see if there is any way of knowing if I am likely to be successful if I pursue a small claims court. I purchased a car and the first time it was driven after purchase the engine management light came on. As it was within 30 days of purchase I contacted the trader who said they would look at it and I would get 25% off any repairs. I said that they should do the repair for free as it was less than 30 days since purchasing the car. He said they would not do it for free so I then added for a full refund instead as is my right under consumer rights 2015. He refused and is still refusing despite me making him aware of my rights.
JA: Where is this? And just to clarify, when was the purchase made?
Customer: I purchased hge car in colchester UK on 01/05/21, I made him aware of the issue 25/05/21 as soon as I realised.
JA: What steps have you taken so far?
Customer: Written a letter send recorded delivery posted 27/05/21 requesting a full refund. He has acknowledged the letter but still refusing to refund stating he offered to fix the car and I decided. Offer to fix it I have ad a message along with the quote of 25% off any repairs.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I had the car checked by a local garage as I was unsure if it would be safe to drive the distance back to Colchester as I didn't know what was wrong with it. The trader then claimed that as another garage has tampered with the car I have no right to refund.

Hello, this is Jim and welcome to JustAnswer. I will be the lawyer working with you today.
Sorry to hear of the issue. I will set out my written answer shortly.

There are no guarantees in litigation however in a civil claim the burden of poof is only 51% or "more likely than not", meaning if you have evidence to show the other party is likely to blame then you should win.
The engine management light (EML) being on could mean anything from something very minor such as a dodgy wire or emissions fault, to a serious problem meaning an engine failure.
From my basis knowledge of cars a yellow EML generally means the car has something wrong though not catastrophic (if it was a red EML it would be the latter - usually).
The Consumer Rights Act 2015 applies and requires a business to sell a car which is free from defects, fit for purpose and as described. The defect needs to be sufficiently serious (e.g. to affect the car's task which is to drive) if you want to be able to successfully sue the dealer.
The short time right to reject is 30 days and it appears you asked them to look at the car and repair instead, which is fine. They have one attempt to repair and if that fails then you are due a full refund. They must do it for free under consumer law, i.e. at their expense.
I would say given the facts you have a good case. You should send them a letter before action (see attached as an example), give them 14 days to refund you, if not refund then start court proceedings. You should also report them to Trading Standards on 0808(###) ###-####

The car remains your property until they refund you.

You will need to register at https://www.moneyclaim.gov.uk/web/mcol/welcome so that you are ready to issue the claim in the event they dispute the claim and do not pay you. The website is very user-friendly and you would not need a lawyer to use the money claim site.

Please ensure you name the business properly when you issue the claim - if they are a sole trader then it would be the dealer's name followed by "T/as dodgy motor cars" (as an example).

Or if they are a limited company, ensure you state the full name - you can check it here: http://wck2.companieshouse.gov.uk//wcframe?name=accessCompanyInfo

Claims with a value of under £10,000 are classed as a "small claim", so legal costs are not recoverable and the matter may be dealt with on paper by a Judge, not at a hearing. This means the parties are on an equal footing, so you don’t need to worry about legal costs if you lost.

A hearing may be necessary if the court thinks that oral evidence is required to dispose of the case.
Here is a user guide for the money claim online site: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/762843/mcol-userguide-eng.pdf

The court will then issue the claim and they will send you "notice of issue". The papers are served on the defendant who then has 14 days to acknowledge the claim - they do this by filling out an acknowledgment of service and they post it to the court. They indicate their intention when they do this, i.e. whether they admit the claim in full or partly, or if they deny the claim. If they want to defend the claim then their defence is due by 28 days from the date the court served them with the papers. The central court processing centre then sends the claim to the defendant's home county court for case management and directions - the directions will give a list of dates which you both must comply with. If there is no settlement then the claim will be dealt with at a final hearing which takes anything from 9 to 12 months from when you start the claim - longer if the claim is higher value. You can pursue the claim yourself or use a law firm. For the hearing you can use an advocate if you wish, though it's not compulsory. I have details of law firms and advocacy agencies if you would like those. Though in a small claim you won't be able to recover their charges from your opponent. A small claims hearing is easy to do, it's quite informal and no lawyer is required.

Claims between £10,000 and £25,000 are subject to fixed costs only so if you lose then the risk is minimal. Further, the money claim website allows you to sue for an amount up to £100,000.

You would claim the sum for the loss, the court issue fee (details of the money claim fees are listed here at page 5:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/904862/ex50-eng.pdf) and court interest which is 8% calculated on a daily rate from the date of loss to date of court judgment.

So for example if you were owed £10,000, interest would be £2.20 per day, which you can also claim.

The site allows you to calculate the interest and add it to the claim. If a hearing is required then there is a fee for this too - see page 7 of the previous link for details. Again, that fee is recoverable if you win.

If you are on a low income or have low savings (or in receipt of benefits), you can ask the court for a fee remission so you do not have to pay the court issue fee.

If you are eligible, let me know as you cannot use the online money claims site – you have to use the paper method, which is an N1 claim form sent to the County Court Money Claims Centre (I have a copy, let me know if you would like one).

If you win then once you have the CCJ from the court the defendant has 14 days to pay in full. If they do not then it gets registered with the credit agencies after 30 days. You can also enforce the CCJ with the county court bailiffs or transfer the debt to the High Court for a small additional fee assuming the total amount owed is at least £600 and you can use the high court enforcement officers who have greater powers than county court bailiffs. The transfer fee is added on to the debt and payable by the defendant.

There are other enforcement methods which I can help with, including bank account freeze, charging order on their property (and then apply to force a sale), application to wind up the company if £750 or more is owed (if suing a limited company), apply to summons them to court for questioning, apply to bankrupt them if they are a sole trader and they owe £5,000 or more - all of which can ensure you are actually repaid the money.

You may find they just pay you after receiving the letter before action – hopefully they will want to avoid litigation. If you prefer a law firm to do this for you, the following is an example and they offer a fixed fee : https://stormcatcher.co.uk/practice-areas/dispute-resolution/small-claims-lawyer-service/

I hope this helps and answers the question - my goal is to ensure you are happy with the answer and have the information you need. If you have any follow up questions then please let me know. I will reply as soon as I can to help with any further queries.

Many thanks,
Jim

Please let me know if the answer helped or if you need me to cover anything else?. I am happy to clarify the answer or if you have any follow up questions. If so, I’d be grateful if you would let me know. I am free most days, including weekends, so feel free to ask me anything you are unsure of.

Best wishes,

Jim

Customer: replied 17 days ago.
Thank you I will read through it all properly and if I need clarification I will contact you. I didn't actually request that he fix the car, I'm not sure if that changes anything. I simply sent him a message to say that the engine management light had come on. He replied with an offer to look at it with a discount of 25% on any repairs. I wasn't happy with that and told him it should be free. To which he replied they will look at it but not for free. At that point I asked for a full refund.
Also if I go to a small claims court can I ask for additional expenses incurred ie, valet which was needed due to stains to seats and insurance which I could have cancelled within the 14 day cooling off period if he had issued a refund when I initially asked for it.
I don’t see why not. You can claim losses which are reasonably incurred as a result of their conduct.
Customer: replied 17 days ago.
Thank you very much.
My pleasure
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