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Legal matters

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Original poster

small claims advice needed badly - complicated issue

27 replies

friendlyflicka · 22/10/2020 12:09

I will link my thread on AIBU but summarise

My daughter was harassed sexually and and physically on the first day of an intensive driving course. For this reason the further 3 days were cancelled. I had paid over £1000 in advance to the driving school. I had no details of the individual driving instructor.

Daughter listed the instructor as a safeguarding concern with the police and we proceeded with a statement to the DVSA.

The driving school would not give me any refund because they said driving instructor has the money and pointed to their t & cs which said that in event of refund, this was with the instructor not the school.

In the end I went to small claims suing school and saying I had a contract with them whatever their subcontracting arrangements

Had preliminary hearing yesterday: judge waiting for DVSA conclusions so has set for new year. But indicated that I would be better dealing with the individual instructor. My point was that I had no contact details for the instructor and felt it was inappropriate to deal with him and that my contract was with the school.

But I contacted the school for details of the instructor. They are clearly not answering my emails. Can I name them both on the claim?

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Original poster
friendlyflicka · 22/10/2020 12:11

And the driving instructor has just been interviewed this week and the DVSA are passing recommendations at some time in the future (very slowly)

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eurochick · 22/10/2020 12:13

Hi. Yes you can name them both.

Allthegoodnamesweretakenalread · 22/10/2020 12:16

Check your home insurance policy to see if you have legal advice cover. If you have it, you can call and speak to a legal advisor for help with the court documents.

lolsurro · 22/10/2020 12:27

Name them both, you can list the school, and then the driver in the alternative as a third party

Original poster
friendlyflicka · 22/10/2020 12:58

@lolsurro, can I do that in the small claims court definitely and would I have to start again with the claim?

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Original poster
friendlyflicka · 22/10/2020 13:13

just rung small claims to list this in the alternative I need to fill out a form and the pay another £255 and for another hearing to agree this. And I need the contact details for the driving school

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Original poster
friendlyflicka · 22/10/2020 13:20

So not keen to do this. I suppose it strengthens my claim against the driving school if they will not help as intermediary in this in contradiction to their t&cs. Perhaps I just give up. Seems very unfair. Or I decided when I see what the DVSA decide

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RhymesWithOrange · 22/10/2020 13:35

How long do you have to bring the claim and how long will DVSA take to make their decision? Ultimately you may not get any money back as if he is self employed yours harder to make him pay up

Have you had any legal advice at all? E.g. challenging the validity of the contract?

Original poster
friendlyflicka · 22/10/2020 13:43

I haven't had legal advice. I have backed my case by pointing to unfair clauses in terms and conditions in the Consumer Act 2015. That a company can't just opt out of contract in tiny small print. But judge yesterday sounded quite like she didn't appreciate this (although it wasn't the issue on hand).

DVSA will send their decision to my daughter in next few weeks.

I have giving up on this because of the issue that they were able to completely disrespect my daughter and grab our money. But I also don't keep wanting to prolong the pain and increase costs.

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ChaChaCha2012 · 22/10/2020 13:49

It won't strengthen or weaken your case if the driving school will not pass on the instructor's details. It might influence a compensatory award if relevant, but it won't change the decision.

I think the judge is trying to help you in guiding you to naming the correct respondent. They can only make an award based on your contractual agreement, and whilst there is regulation around unfair terms it's not an easy argument to win.

ChaChaCha2012 · 22/10/2020 13:58

Who entered into the contract? If your daughter, you could leave the claim until she's 18. She's likely to qualify for fee reimbursement, so you wouldn't have the risk that you do now.

mrsjennilou · 22/10/2020 14:01

I would write to DVSA and threaten an application the the Court for disclosure of the instructors details. They will more than likely have them and should really provide them to you. If they refuse, your only option is to make the application to the Court and then a Judge can decide whether they should provide the details. Unfortunately, applications to Court will require a further £255 fee.

I definitely agree with previous comments, worth checking if you have legal expenses cover and then you can get legal representation to sort this out.

If you can't be bothered with the hassle of it all it's definitely worth a strongly worded letter to DVSA making the threat. You never know they might give you the information.

Good luck!

Original poster
friendlyflicka · 22/10/2020 15:20

I have no legal cover: just checked.

So if I went after the instructor (probably only as a result of dvsa finding towards my daughter's favour). Would I stop action against the driving school and start action against the instructor?

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prh47bridge · 22/10/2020 15:36

You may not have a claim against the school. It sounds like they may have been acting as an agency, in which case you didn't have a contract with them. You had a contract with the instructor. That isn't "opting out of the contract in the small print". That is the entire basis of agents in law. You cannot sue the agent on the contract because it is not their contract. The fact the judge said you would be better dealing with the instructor suggests that the driving school were indeed acting as an agency.

If you are in any doubt you can sue both. But you definitely need to take action against the instructor.

The driving school should give you the contact details you need for the instructor. That would be a better route than threatening the DVSA who may be in breach of GDPR if they give you the instructor's address.

Original poster
friendlyflicka · 22/10/2020 15:39

@prh47bridge so I would need to stop this action and start a new one against the instructor?

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prh47bridge · 22/10/2020 17:43

As I say, if you are in doubt you can sue both. But if the driving school is definitely acting as an agency you should drop the action against them and take action against the instructor.

Original poster
friendlyflicka · 22/10/2020 19:06

it seems cheaper to stop this action and start a new one than to do a variation or something and add in the alternative. I think I will wait to hear from DVSA and then decide. If DVSA are very inconclusive then I think, with difficulty, I will drop it and just move on and try and learn something useful from it!

Thanks so much.

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MummaGiles · 22/10/2020 19:15

The relevant section of the civil procedure rules is Part 6 www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.9

If you are suing an individual then you need their last known or usual address. But this is in his professional capacity. If the driver is still employed by the driving school (I presume you might know this given the DVSA investigation) and you don’t have his home address you may well get away with using the address of the driving school.

prh47bridge · 22/10/2020 21:42

@MummaGiles

The relevant section of the civil procedure rules is Part 6 www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.9

If you are suing an individual then you need their last known or usual address. But this is in his professional capacity. If the driver is still employed by the driving school (I presume you might know this given the DVSA investigation) and you don’t have his home address you may well get away with using the address of the driving school.

Given that the judge and the driving school have both suggested that the OP should sue the instructor, I suspect that he has never been employed by the driving school. It is impossible to be sure without looking at the driving school involved but I think it is likely that the instructor is self-employed and the "school" simply act as agents.
Original poster
friendlyflicka · 22/10/2020 22:15

@prh47bridge thanks. I wish I had asked on here - legal board - before starting this procedure. Definitely agency.

You helped me on school appeals before so thanks on both counts huge amounts

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Original poster
friendlyflicka · 13/11/2020 15:55

I now have a hearing for small claims court against driving school. DVSA have found evidence of misconduct and have given instructor a warning. I have got in touch with driving school who still refuse to answer about helping me to get a refund or giving me contact details for the instructor.

Any advice welcome.

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Original poster
friendlyflicka · 24/01/2021 11:55

Just an update on this and some more advice, please:

DVSA found enough evidence of assault to give him a warning.

So, I took the advice of a solicitor (don't think I can claim this back as small claims matter) who wrote me a counter response saying that because t&cs were completely hidden in their website, and not referred to at all on the invoice, and because I booked over the phone and again no mention of them, the school was responsible for refunds because they made no reference at any point that they acted as an agency only.

Because of this I have the right Defendant listed and should continue with this. He told me I needed to claim for damages on behalf of my daughter at this time and ask for an amendment to the original claim (for refund only). Because if I claimed at a later date this could be seen as an abuse of process (Henderson precedent - which I have read).

for this reason, I paid out yet more court fees to ask for a hearing to add damages to the claim. This is now being heard on Friday.

The next Friday is the actual hearing for everything now with the DVSA finding that the instructor is culpable.

Other relevant points: the instructor is still named and photoed as being available to teach under the banner of the driving school.

I tried to get the driving school to liaise (again as listed in their terms and conditions in which they specify refund must be sought from driving instructor not school) with the instructor. They ignored my requests - even after agreeing with the judge to do so at my preliminary hearing - and also refused to give me contact details for the driving. Even after the DVSA has found him culpable.

Need advice a) about all of it: what to say at each hearing - have some idea but now sure - and what I should say to substantiate claim for damages for my daughter (I have asked for £1000), given that she was under age, this was a figure of authority, the length of time this has been spun has been cruel, she had to have either me or her boyfriend in the back of the car for her first few lesson with new driver. she wasted the opportunity given by the summer to learn to drive as a result of this.

Please help! I will also post this in Legal Matters. It is really specifically legal advice I need...

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Margaritatime · 24/01/2021 19:12

Make sure you have a timeline with evidence.

List all the costs you have incurred including your time as you should be able to claim for this. This includes attending driving lessons, emails etc.

Damages could include all the times you have had to drive your daughter as she had not passed her test. You would have to identify a reasonable date your daughter should have passed if she had continued with the original lessons.
HTH

Original poster
friendlyflicka · 25/01/2021 09:45

@Margaritatime thank you. That really does. I have been very organised in the evidence but I will list the stuff you suggest as I have spent a lot of time and energy chauffeuring her and hadn't thought of that.

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