Summarising Instructions | Free BPTC/BVC Opinion
1. INTRODUCTORY PARAGRAPH
The opinion should begin with a paragraph summarising the instructions given by the instructing solicitor. Points To Include:
- You have been asked to advise Mr NIGEL RUBBLE of his legal position in relation to recent events regarding a 'Cumbrian' motorised caravan.
- Firstly, whether he has title to the caravan following his purchase of it from Mr Jack Stockwell.
- Next, whether he has any claims against or is liable to Mr Stockwell, Crewe Credit, Glossop Garage and Mr Barry.
- Finally, what steps should be taken on behalf of Mr RUBBLE.
2. SUMMARY OF THE FACTS
A brief summary of the facts should be given setting out the parties and their role in the events concerned.
Points To Include
- Mr RUBBLE bought the caravan from a friend, Jack Stockwell.
- The caravan was subject to a hire purchase agreement between Mr Stockwell and Crewe Credit.
- After purchase, Mr RUBBLE took the caravan to Glossop Garage to be repaired.
- Glossop Garage claim that Mr RUBBLE told them to ‘take offers' on the caravan after carrying out the repairs. They sold the caravan to a third party, Mr Barry.
- Mr RUBBLE denies that he asked the garage to sell the caravan and whilst it was still at the garage, being refurbished for Mr Barry, Mr RUBBLE used the spare key to remove the caravan and it is now stored in his own garage.
3. TITLE TO THE CARAVAN
This centres on whether the outstanding hire purchase agreement in favour of Crewe Credit means that Mr RUBBLE did not obtain good title when he purchased the caravan from Jack Stockwell. Points To Include
- Outcome depends upon whether NIGEL RUBBLE was aware of the outstanding hire purchase agreement or not.
- The Consumer Credit Act now incorporates the Hire Purchase Act. Under that statute, the first ‘innocent purchaser' of the caravan gets good title.
- To be an ‘innocent purchaser,' Mr RUBBLE must have been unaware that there was outstanding finance. As long as he did not and could not reasonably have been expected to know, then he will have title to the caravan.
- If it goes to court, factors that may be considered are that Mr RUBBLE states that he ‘should have realised' the caravan may be subject to hire purchase. He has also bought and renovated cars before and he works for a motor magazine.
- The court may decide therefore that he could reasonably be expected to know about the hire purchase.
4. CAUSES OF ACTION
Deal with each party in turn:
Claim Against Jack Stockwell
- If NIGEL RUBBLE did not get good title to the caravan, he can sue Jack Stockwell for breach of contract if Crewe Credit take back the caravan.
- Prior to suing, Mr RUBBLE should consider whether Mr Stockwell would have the funds to pay him, on the facts this seems unlikely.
Liability To Jack Stockwell
- Jack Stockwell does not appear to have any grounds to claim against Mr RUBBLE.
Claim Against Crewe Credit
- If NIGEL RUBBLE was unaware of the outstanding hire purchase agreement and he bought the caravan in good faith, he will have obtained good title as the first innocent purchaser.
- Mr RUBBLE could sue Crewe Credit if they subsequently remove the caravan.
Liability To Crewe Credit
- If NIGEL RUBBLE knew or had suspicions about the outstanding hire purchase agreement and didn't ask questions then he would not be an innocent purchaser.
- Ownership would not then pass to him and Crewe Credit could indeed commence legal proceedings if he fails to deliver up the caravan.
Claim Against Glossop Garage
- Mr RUBBLE left the caravan with Glossop Garage for repairs.
- Glossop Garage claim that Mr RUBBLE instructed them to effect the repairs and then ‘take offers' to sell the caravan on his behalf.
- Glossop Garage sold the caravan to Mr Barry.
- Mr RUBBLE could sue Glossop Garage for breach of contract since he contracted for repairs and they sold the caravan instead.
- The court would have to consider the terms of the contract and the circumstances of the mistake made in selling it.
Liability To Glossop Garage
- Mr RUBBLE had requested repairs to be carried out which instructing solicitors state have been done but not yet paid for.
- Mr RUBBLE used his spare key to repossess the caravan from the forecourt of the garage. Following the case of R v Turner (No. 2) (1971) Mr RUBBLE may well face criminal proceedings for theft as a result.
- In R v Turner (No. 2), the defendant took his car to a garage to be repaired. The garage had nearly finished the repairs and left the car outside the premises. The defendant then used his spare key to retrieve the car. His conviction for theft was upheld by the Court of Appeal despite the fact that the car ‘belonged' to him.
- Whether or not criminal proceedings are instigated, Mr RUBBLE may be liable to pay for the repairs undertaken by Glossop Garage prior to their sale of the caravan.
Claim Against Mr Barry
- Mr RUBBLE would not appear to have grounds for a claim against Mr Barry.
Liability To Mr Barry
- Mr Barry bought the caravan from Glossop Garage and his most likely recourse would be to claim against them rather than Mr RUBBLE.
- His claim against the garage would be made under the Sale of Goods Act 1979 for breaching the implied term as to title contained in section 12.
5. NEXT STEPS
Instruct solicitors how to proceed including:
- Finding out more about Mr RUBBLE's statement that he should have realised that the caravan might be subject to hire purchase – why should he have realised?
- Investigate what happened to the money that Mr Barry paid to Glossop Garage for the caravan.
- Find out the cost of repairs made by Glossop Garage at Mr RUBBLE's request.
- Discover the whereabouts of the caravan documentation.
- Summarise your advice and end the opinion stating that you would be happy to advise further as required.