Difference between revisions of "Litigation"

Latest revision as of 22:28, 23 March 2018

Notes for litigation letters for the engine failures - thanks to user landroverlitigant

A suite of documents that may be of use in these circumstances

DRAFT FOR USE WHERE YOU PURCHASED THE VEHICLE FROM NEW AND HAVE A FULL SERVICE HISTORY – ALWAYS TAKE LEGAL ADVICE BEFORE COMMENCING PROCEEDINGS AS PROCEEDINGS CAN HAVE ADVERSE COST CONSEQUENCES

IN THE COUNTY COURT AT [Insert Local Court] Claim no:

[INSERT YOUR NAME: OWNER OF VEHICLE] Claimant - and -

[INSERT COMPANY NAME OF COMPANY THAT SOLD THE VEHICLE] LIMITED Defendant

DRAFT PARTICULARS OF CLAIM

1. At all material times, the Defendant carried on business as a garage selling and servicing Land Rover vehicles, using the name “[Insert relevant trading name]”. The Defendant was an authorised Land Rover dealer and service centre.

2. On [ ], the Claimant purchased a new Land Rover Discovery 4 3.0 SdV6 (the “Vehicle”) from the Defendant for the price of £[ ](“the “Agreement”). The Vehicle was registered on [ ] with registration [ ]. The Defendant was acting in the course of its business in selling the Vehicle to the Claimant and providing repairs, maintenance and servicing as described below (the “Services”). The Claimant was at all times acting as a consumer. The Agreement included implied terms that:

a. The Vehicle would be of satisfactory quality, and free from latent defects; and

b. The Services provided from time to time would be provided in accordance with the standards to be expected of a reasonable competent service provider.

3. The Vehicle was subsequently repaired, maintained and serviced by the Defendant on an annual basis as set out in the table below:

Date Mileage Service fee paid

4. On [ ], the Vehicle suffered a severe mechanical failure, and catastrophic engine failure (the “Breakdown”) such as to necessitate a replacement engine and/or other repairs. The Defendant estimated the costs of such repairs to be £[ ] (the “Cost of Repair”).

5. The cause of the Breakdown was the incorrect location of the main crankshaft bearing shells during assembly of the Vehicle, and/or incorrect assembly of the Vehicle in a manner permitting undue rotation of the crankshaft bearing shells during normal use, leading to crankshaft and crankshaft bearing failure (the “Fault”).

6. During May 2014, Land Rover UK published a service bulletin SSM71816 “Crankshaft/Crankshaft Bearing Concerns” (the “Bulletin”), which informed Land Rover dealers (including the Defendant) of the existence of the Fault and/or the risk of crankshaft failure due to the existence of the Fault.

7. At no time did the Defendant inform the Claimant of the existence of the Fault and/or the Bulletin. In particular:

a. On each of the [ ] service visits following May 2014, the Defendant carried out repairs, maintenance and servicing of the Vehicle, and was paid by the Claimant for providing such services;

b. The Defendant confirmed on each occasion that it had checked for any applicable outstanding service actions or recalls, and that it had reported any unusual features of vehicle condition and additional work required;

c. The Defendant did not inform the Claimant of the existence of the Fault and/or the Bulletin. The Defendant should have done so either on the basis that the fault was an outstanding service action or recall, or an unusual feature of vehicle condition, alternatively because it was a matter that any reasonably competent provider of the Services would or should have drawn to the Claimant’s attention in circumstances in which it was aware of the Fault.

Breach of contract: defective Vehicle

8. In breach of the Agreement, the Vehicle was not of satisfactory quality and/or was subject to a latent defect by reason of the existence of the Fault.

9. By reason of the Defendant’s breach of the Agreement, the Claimant has suffered loss and damage in an amount equivalent to the lesser of the Cost of Repair or the value of the Vehicle (without the existence of the Fault) as at [ ]. The Claimant currently estimates the loss and damage to be fairly reflected by the Cost of Repair.

10. If and to the extent necessary, the Claimant will rely on the Defendant’s failure to inform [him/her] of the existence of the Fault and/or the Bulletin as amounting to deliberate concealment of a fact relevant to [his/her] cause of action in contract against the Defendant.

Breach of contract: negligent provision of Services

11. In the alternative, in breach of contract, the Services provided were provided negligently. PARTICULARS OF NEGLIGENCE

a. The Defendant was aware of the Fault and/or Bulletin as from May 2014;

b. The Defendant failed to draw to the attention of the Claimant the Fault and/or Bulletin at any of the [ ] subsequent service visits;

c. Any reasonably competent provider of the Services would have drawn the Fault and/or Bulletin to the attention of the Claimant once aware of the same.

12. Had the Defendant done so, the Claimant could have either commenced proceedings for breach of contract (as set out above) at an earlier date, and/or required the Defect to be remedied and at a lesser cost than the Cost of Repair.

13. By reason of the Defendant’s negligence, the Claimant has therefore suffered damage and loss as set out in paragraph 9 above.

14. Further, the Claimant claims interest pursuant to Section 69 of the County Courts Act 1984 at the rate of 8% per annum from [ ] and continuing at the rate of £3.85 per day. Alternatively, the Claimant claims interest at such rate and for such period as the court thinks fit.

  AND THE CLAIMANT CLAIMS:

(1) Damages in the sum of £[ ]or such other sun as the court thinks fit; and

(2) Interest as set out in paragraph 14 above.

Statement of Truth

I believe that the facts stated in these Particulars of Claim are true.