obvious v itcsales.co.uk *** I WON ***

[obvious]

I bought some barebone PDA's from itcsales.co.uk with a view to buying all the bits and pieces to go with them (chargers,travel kits,batteries,styluses,b attery covers,cases,software etc) from various other places and then selling them on in order to help clear off some of my credit card debt.

Short version of story:
In November 2005 the PDA's arrived but were not new. Some were OK but all were second hand. Some had foreign ROMS that couldn't be changed to English. Some wouldn't turn on. Some were the wrong (lower) model. Most of them were scratched and damaged to some extent.

I had already ordered all the other bits and pieces to make them into saleable sets so I decided to ask ITC for a partial refund, keep the units, fix them up as best I could and sell them on one at a time. After initially responding to emails they started ignoring attempts to communicate. They ignored my requests to negotiate about a fair level of compensation so I did the usual escalation (by email) and threatened to do a S.75 CCA credit card partial chargeback. They still didn't respond so I went ahead and got the chargeback actioned.

Anyway, this all takes us to around March 2006 when ITC realise that the chargeback has gone through and they decide it's time to start negotiating by email. Too little to late as far as I'm concerned. I emailed them back a couple of times to basically put my side of the story and ask them why they'd stopped responding to emails. They gave some gumph about their mail server. A likely story. I never had any 'failure to deliver' messages and previous emails had gone through just fine.

I tell them that I've already had a partial refund via the Consumer Credit Act Equal Liability chargeback and consider the matter closed.

So........toward the end of May I get an N1 court form through the door. Looks like I'm going to Small Claims as a defendant. Should be fun.

I bought the Small Claims procedure guide as recommended here () and am starting to prepare my defence.

I'll update this thread as I go. Any thoughts/tips welcome.

[Rich44]

Apart from print out all your emails and file them in date order just in case have you still got any of the PDAs to use as an example?

Just general stuff like that, get your facts in chronological order to help you in court etc and good luck

[obvious]

Thanks Rich44. I've printed out the emails and had a first stab at a timeline + defence draft + things to look into.

Hope this isn't too much of a post:-

Particulars of Defence

Key: Notes in the form E1, E2 etc within brackets denote copies of communications between ITC and myself that will be presented in court. Copies have already been provided to the claimant.

1. The chargeback was issued by the credit card company (LloydsTSB) after receiving and considering my written and photographic evidence to support a Section 75 Consumer Credit Act “equal liability” claim rather than as detailed in the ‘Brief Details of Claim’. Does this mean the credit card company should have been named as the defendant? Aren’t they equally and severally liable? ITC’s claim (if any) should have been directed at LloydsTSB.

2. In ‘Brief details of claim’ ITC say they see the goods as stolen. Why didn’t they inform the police? Were they obliged to do so before going to court?

3. Again in ‘Brief details of claim’ they say that I refused to return the goods. Apart from the fact that they never directly demanded that I return the goods (they just proposed offers by an unaccepted method), I considered the matter resolved as I had received the refund from the credit card company in response to the S.75 CCA claim.

4. ITC asked if I wanted to return the non-English and damaged items and claimed that the units had been ‘booked in wrong’ (E3) on their system ie they were booked in and sold as new English units when in fact they were non-English, second-hand, damaged, scratched, faulty, non functional and some were not the correct model. In short, many of the items were pretty much junk, especially in the UK market.

5. 24/11/05 - I provided provisional details of condition/status of the shipment and asked for a partial refund (E6,E6A)

6. 28/11/05 – I asked for an update (E7)

7. 29/11/05 – I proposed a settlement and threatened a S.75 CCA claim (E8)

8. 30/11/05 – After having had no response (to E6, E6A, E7, E8) from ITC I sent email (E9) to inform them that I was had started an S.75 CCA claim.

9. 20/01/06 - Two months later ITC confirm receipt (E10) of my previous emails (E1, E2, E4) so emails were getting through to them. ITC then claimed that all the following emails (E6, E6A, E7, E8, E9) were not received by them which seems unlikely as previous emails were acknowledged and I had received no “failure to deliver” messages.

10. 20/01/06 – I provide copies of ‘failed’ emails to ITC (E11).

11. 20/01/06 – ITC deny originally receiving the ‘failed’ emails (E12).

12. 20/01/06 – ITC ask if I tried to contact them by phone.

13. 21/01/06 – I confirmed that I’d tried to contact them by phone but had been
fobbed off. As they’d claimed that there were numerous failures to deliver while communicating via email I requested that any further communication be by recorded delivery (E14).

14. 23/01/06 – Email communication received (and disregarded) from ITC. Email is now considered unreliable + the situation is being dealt with by my credit card company. Too little too late from ITC.

15. 02/03/06 – Just over a month later, I email ITC (E16) and include a copy (E16A) of the document I provided to the credit card company in support of my S.75 CCA claim. This was a courtesy/backup copy. The main copy was sent by post direct from the credit card company. It amounted to a final invitation to settle.

16. 02/03/06 – Nearly 4 months since I first reported a problem and after I have rejected email as an accepted method of communication, I receive the first firm offer of a refund (E17). As far as I’m concerned it’s too little too late again. By this stage I have already purchased items to make most of these units functional and other items to include in a package of sale in an attempt to mitigate my losses. Returning them is no longer an option as I would also have to return the other items that make up each package to the respective suppliers. I’m under a duty to mitigate my losses so selling the units was a reasonable step. Also, I have already received a partial refund from the credit card company so at this date I consider the matter closed.

17. 02/03/06 – I emailed back (E18), explaining once again that email was unacceptable/unreliable according to ITC and now to myself as well. Mentioned that the boxes had ‘REUNS’ and ‘FOR’ written on them which indicated ‘Foreign’ and ‘Returns’. I reminded them that I’d received no communication at all (through the post) from them despite my requests and once again invited them to respond.

18. 02/03/06 – ITC confirm email is working and ask for a figure on items sold (E19).

19. 02/03/06 – I reply (E20, E20A) with details of items sold and query why my emails to ITC become marked as “{Definately Spam?}” (unsolicited, unwanted junk email).

20. 03/03/06 – They claim (E21) that emails from me had previously been automatically marked as Spam. So my emails to them either disappear or are marked as rubbish. If that is the case then why/how did my original and acknowledged (see point 9 above) emails get through to them? Something doesn’t seem right.

21. 07/03/06 – They offer (by a rejected method) to give a full refund (E23) for some items and a partial refund for others. The offer is not detailed but does include an offer of £20+VAT for each unit I wish to retain. This offer is ignored and I resolve to continue to ignore any further communication from them by email.

22. 02/06/06 – To date, no written communication (outwith email and court papers) has been received from ITC since I told them of the problems. Were they not obliged to try and settle the dispute rather than ignoring emails, claiming non-receipt of communications, refusing to discuss matters on the telephone and then taking me to court?

23. I have made no explicit response to ITC’s “Statement of Truth” following their “Particulars of Claim” as it is not a statement of truth.

24. There is no statement of truth on the attached documents to the claim which would seem to be in contravention of rule 22.1. Therefore I make an application (under 22.4) to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.

25. Three separate pages (the first titled “Particulars of Claim”) were included with the claim form but these pages do not contain any “Details of Claim”. Only one of the three pages is court stamped. I find no claim to answer in these attached pages. The only information under “Particulars of Claim” on the attached pages concerns contact information.

26. I do find an allegation (of theft) on the N1 claim form itself which I deny on the basis of the points raised in this defence. Does the County Court (Small Claims Track) deal with theft allegations? I made every effort to contact ITC. They ignored me and made up excuses about email problems so I refused email as an appropriate method of communication, invited ITC to make an offer by conventional mail and took the matter to the credit card company who eventually settled it to my satisfaction according to the provisions of the Consumer Credit Act 1974.

27. Striking out/Summary Judgement: I make an application (under 3.4) to strike out the whole Statement of Case which discloses no reasonable grounds for bringing a claim (rule 3.4(2)(a)) and also under Rule 24.2 and 1.4(2)(c) for summary judgment against the claimant where that party has no real prospect of succeeding on his claim. Further, the claim sets out no facts indicating what the claim is about, is incoherent and make no sense, if found to be coherent then those facts, even if true, do not disclose any legally recognisable claim against me.

28. I have provided photographic evidence to ITC and the credit card company regarding the condition of the items sold that I also intend to bring to the hearing. Please see attached evidence from Dell UK re the age and specification of each of the units sold by them to ITC. They were all supposed to be new English Dell Axim X50v handheld computers.

Statement of Truth
I believe that the facts stated in these particulars of defence are true.

Notes:

When the Allocation Questionnaire arrives do I want a month’s stay for Alternative Dispute Resolution? I think not. Although of course anything like that would have to be non-binding.

Is the Burden of proof reversed as per Sale of Consumer Goods and Guarantees Directive 1999? I bought and sold over 30 PDA's as a one off plan to get rid of some debt. Trader/Consumer?

A judge will not be allowed to see any letters that contain “offers of settlement”??? Whats that all about?

Charge for photos. What else can I claim costs for?

Will the transfer to local court be automatic?

Did not receive a ‘Letter Before Action’ or any written requests/demands/offers. Does this cause them a problem?

They have not given an “opportunity to settle”. Does this give them a problem?

No damages are requested in Particulars of Claim

Do I prepare a response to the second ‘statement of truth’ even though it’s mis-titled

They only included a small selection of the communication between us. Does this help?

Should I inform the credit card company about the case?

Should I counterclaim?

Check my credit record - have they defaulted me?

Provide detailed compensation expectations

[obvious]

double post - please delete :oops:

[Rich44]

Nicely laid out and clear enough to read at least that makes your defence easy to put together, there are more knowledable people on here who can advise you on how to word things etc and good luck with it.

[MARTIN3030]

Blimey you have done some homework................t he clarification you need on the finer points is probably best answered by someone well versed on consumer laws.

over to one of the Mods perhaps ?

[obvious]

Dont suppose there's a friendly lawyer or anyone in the know reading who's willing to give an opinion (without liability of course)?

I can but hope.

[powelll]

Firstly, well done for sticking up for yourself - great post! Secondly, I'm not a lawyer but know a bit about County Court stuff... there's something called the Overriding Objective in the Civil Procedure Rules ( CPR 1998 ) which, in a nutshell means that an individual / company etc should not be taken court action unless they have exhauseted evry other method of resolution. From what you're saying this isn't the case so may be worth bearing this in mind. I'm not sure exactly which number rule it comes under but Google it if you need to quote exact wording. Usually just mentioning the 'Overriding Objective' of Civil Procedure Rules will do.

Best of luck!

[obvious]

Thanks powelll

I hadn't looked at the Overriding Objective. A potentially useful part might be the prospect of summary judgement - (1.4(2)(c))

1.4
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

Now I'm considering an application for an Order based on

23. I have made no explicit response to ITC’s “Statement of Truth” following their “Particulars of Claim” as it is not a statement of truth.

24. There is no statement of truth on the attached documents to the claim which would seem to be in contravention of rule 22.1. Therefore I make an application (under 22.4) to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.

25. Three separate pages (the first titled “Particulars of Claim”) were included with the claim form but these pages do not contain any “Details of Claim”. Only one of the three pages is court stamped. I find no claim to answer in these attached pages. The only information under “Particulars of Claim” on the attached pages concerns contact information.

26. I do find an allegation (of theft) on the N1 claim form itself which I deny on the basis of the points raised in this defence. Does the County Court (Small Claims Track) deal with theft allegations? I made every effort to contact ITC. They ignored me and made up excuses about email problems so I refused email as an appropriate method of communication, invited ITC to make an offer by conventional mail and took the matter to the credit card company who eventually settled it to my satisfaction according to the provisions of the Consumer Credit Act 1974.

27. Striking out/Summary Judgement: I make an application (under 3.4) to strike out the whole Statement of Case which discloses no reasonable grounds for bringing a claim (rule 3.4(2)(a)) and also under Rule 24.2 and 1.4(2)(c) for summary judgment against the claimant where that party has no real prospect of succeeding on his claim. Further, the claim sets out no facts indicating what the claim is about, is incoherent and make no sense, if found to be coherent then those facts, even if true, do not disclose any legally recognisable claim against me.

[Movingon]

*sniff*

*wipes away a tear*

It's beautiful... simply beautiful...

[Rich44]

I agree very nice what court couldnt be impressed with that

[obvious]

Thanks :embarrassed:

Just got to pull it all together now.

The notes in the third post still need attention and I need to decide whether to counterclaim.

Things are getting clearer but it's confusing deciding whether an Application for an Order (eg Summary Judgement) needs to be separate or could be included in the defence. Also whether such applications can be made "without notice" to the Claimant.

[Movingon]

They can't be made without notice I don't think; IF they are being claimed in a separate action.

However, I would put them in your "Defence and Counterclaim" document (you'll have to pay a court fee for your counterclaim... personally I would do this in person at the court as they will be a great deal of help to you in putting it together.) Take all your legal arguments and documentation with you, and a draft defence and counterclaim document, and ask them how to do it...

[obvious]

Top advice. Thanks.

[obvious]

Defence and Counterclaim filed yesterday (two copies to the issuing court). I didn't send a copy to the Claimant though as I understand they'll be sent one of the court copies and I think my printer will melt if I give it much more to do.

[powelll]

Best of luck with this; make sure you let us know how you get on!
Personally, I think their ass is grass...

[obvious]

Update:

All the paperwork is done including the Allocation Questionnaire and have just received a Notice of Allocation to the Small Claims track + an order for a 15 minute preliminary hearing to be held at my local Court.

This seems to be good news as it means that ITC will have to travel down for a short hearing. Perhaps they wont bother.

Anyway I'm thinking of sending them an Invitation to Settle. The terms being that they drop the action and I keep the chargeback + drop my counterclaim.

Have I got anything to lose (apart from the counterclaim) by doing this I wonder?

[MARTIN3030]

Dont suppose you have really.
Its their call then ?

Either way a conclusion soon
well done so far.

[Mad Ferret]

Hi Guys

This is an interesting thread!

I have just read through the thread and I'm a little bemused.

Obviously there was some problems here with e-mails not getting through to the correct people at I.T.C. Sales but a communication channel did occur as stated. I notice that I.T.C. Sales did offer a resolution to this issue but you state you chose to ignore it and initiate a chargeback via credit card so there are a couple of questions here:-

1) You mention that you had initial e-mails ignored, did you put this in writing and send it to them by recorded delivery stating the problem and that you have had e-mails ignored etc? Sending an e-mail is no proof of receipt unless sent with a read receipt which notifies the sender when the e-mail is delivered and if it was read.

2) Why didn't you return the items as requested and take a refund?

3) Surely if you chose to ignore there offer as stated which may have been negotiable and you initiated a chargeback which may have been completed by now the goods are not paid for in full and surely are not your property as "goods remain the property of the seller until paid for in full". From this I can see where the company are coming from when they say the goods are stolen.

Personally I think you may be on thin ICE here choosing to ignore there offer as you have stated and any further e-mails and initiating the chargeback. I don't think the I.T.C. Sales have been given any alternative but to go down the route they have as they did communicate with you as documented and they made you an offer which may not have been acceptable to you but you may have been able to negotiate with them. If they carry on with the case which I presume they will as they would not have gone this far it seems to me that they surely have a strong case with the above as I don't think I.T.C. Sales have been given the chance to resolve.

Good luck but I think you have left a few holes here but keep the thread updated as it's an interesting one to see how it develops.

Mad Ferret

[obvious]

Hi there Mad Ferret

Some good points there. I'll address them one by one as best I can :-

(a) "They offered a resolution" - The problem here is that I'd already ordered parts to make the saleable units complete ie batteries, battery covers, styluses, cases and software etc. so returning all the goods was never an option. I didn't ignore the offer (the first one) just told them it was unacceptable.

1. "Ignored emails" - I copied the ignored emails to them before issuing a chargeback and they acknowledged receipt.

2. See (a). I would have been in a 'loss of bargain' situation.

3. "Stolen Goods" - As far as I understand the Consumer Credit Act (Equal Liability), it is a legal method of claiming redress in a dispute situation. Both the credit card company and ITC's credit card processor (after some correspondence + proofs of the condition of the goods) allowed the chargeback to be processed without entering into dispute.

(b) "Thin ICE" - I asked them repeatedly to send me an offer via recorded delivery but they refused (in an email). Since they were the ones who claimed to be having email problems I feel I was acting reasonably by rejecting email as an appropriate form of contact.

I appreciate all the input as I dont want to fall into the trap of being over confident.

Cheers
Paul