Hi All,

I bought a used hot tub from a trader in Late Feb 2018. It was described as in working condition other than a few cosmetic issues which I planned to fix.

The trader delivered it in March 2018. It leaked from the get go. Only a bit, but enough to be an issue. I spent £250 on a callout and attempts to repair it, which made it better, but it still leaked a bit from the centre which could not be got to. The leaking will seriously reduce the life span of components and increases electricity consumption a lot.

I sent an LBA, no response. I sued for the purchase price, plus delivery, plus the repair costs, in the hope of a settlement or a repair. They ignored the proceedings and I got a Default Judgment. I sent the bailiff (HCEO), who had to start loading the hot tubs before they decided that it was actually serious and they paid the HCEO on the spot in order to get their brand new hot tubs back.

The hot tub is still at my house, is still working and clearly has some value.

The question is, legally (not morally), who actually owns it now, as because it was a Default Judgment, there is no order as to what happens to the goods.

Thanks in advance.

I would say that the trader owns it and you therefore have a duty to store it responsibly and to make sure it stays in good condition.

However you should write to the trader – recorded delivery – and tell them that the item is still in your possession and that you are proposing to dispose of in 14 days unless they notify you that they want it back and also inform you as to the arrangements they are making to get it back to them. Tell also that if they will want it back that you will be levying a £10 per day storage charge which they will have to pay before they take possession.

Tell them that if they wanted then they must let you know within five days and they must take possession of it before the 14 day deadline or else you will dispose of in any event. Warm them that if they do not notify you within the five days, that they will be incurring the daily storage charge and which you will be enforcing by way of an action in the County Court – and given the experience so far with you, they should understand that this is not a bluff.

I have written to them saying what you suggested.

Thanks for the advice

I would say that the trader owns it and you therefore have a duty to store it responsibly and to make sure it stays in good condition.

 

However you should write to the trader – recorded delivery – and tell them that the item is still in your possession and that you are proposing to dispose of in 14 days unless they notify you that they want it back and also inform you as to the arrangements they are making to get it back to them. Tell also that if they will want it back that you will be levying a £10 per day storage charge which they will have to pay before they take possession.

 

Tell them that if they wanted then they must let you know within five days and they must take possession of it before the 14 day deadline or else you will dispose of in any event. Warm them that if they do not notify you within the five days, that they will be incurring the daily storage charge and which you will be enforcing by way of an action in the County Court – and given the experience so far with you, they should understand that this is not a bluff.

So the defendant has now filed for a set aside. His grounds are very weak and 2 of his 3 points are provable lies, which is always handy.

Here's the issue though. The Judgment was for around £1450, he was a total pratt with the HCEO bailiff though and only paid when they had started loading his stuff, which means the bailiff fees were just under £1600. he has paid a total of £3100.

If there is a set aside, the bailiff clearly isn't going to refund me, so will I need to pay the HCEO fees to him myself? Seems a bit harsh as he ignored all court papers and after paying has now decided that the Ltd Company defendant didn't sell me the item, but it was him as a private individual and as such it should be set aside. I am quite worried, as I hate set aside hearings.

Doubt he will get a set a side considering it got as far as execution.

Andy

Doubt he will get a set a side considering it got as far as execution.

 

 

Andy

I seriously can’t see him getting it, but I’m petrified that I’ll end up paying the bailiff fees as well! Am I right in thinking that since around 2015 set asides are much stricter when people have failed to file a defence?

Not sure what happened in 2015......but changes were made for parties to seek relief from certain sanctions imposed for none compliance with court orders...not submitting a defence was not one of the reasons.

Not sure what happened in 2015......but changes were made for parties to seek relief from certain sanctions imposed for none compliance with court orders...not submitting a defence was not one of the reasons.

Sorry, I was talking about the Denton Principles and the Judgement in Gentry v Miller, where set aside was denied after a failure to acknowledge service, even when the claim was fraudulent. Failing to acknowledge service and then attempting to set aside requires relief from implied sanctions under rule 3.9. Since roughly 2015, the courts have been much harsher on allowing set aside, where there have been serious failures I am told. Do you know much about this?

Thanks

http://www.stjohnschambers.co.uk/dashboard/wp-content/uploads/Denton-Resource-September-2018.pdf

http://www.9goughsquare.co.uk/news/1088/

http://www.stjohnschambers.co.uk/dashboard/wp-content/uploads/Relief-from-Sanction.pdf

Im aware of the cases...but as stated they do not come in to play when a defendant has failed to submit a defence

Im aware of the cases...but as stated it they do not come in to play when a defendant has failed to submit a defence

I’m really confused. Some of the cases listed in the document by St Johns Chambers specifically list failures to file a defence? Sorry if I’m being thick.

And have the cases got as far as executing the judgment ?

And have the cases got as far as executing the judgment ?

Some have got to judgment. Does executing the judgment change things legally speaking?

Well it shows how far the claim has progressed and how long the defendant has had to rectify or agree and done nothing.

Well it shows are far the claim has progressed and how long the defendant has had to rectify or agree and done nothing.

Ok I get you now. Most of those cases, with judgments not executed had the set aside refused, so the you’re saying that the fact it has been executed means setting it aside should be even less likely. Thanks.

If there is a set aside, the bailiff clearly isn't going to refund me, so will I need to pay the HCEO fees to him myself? Seems a bit harsh as he ignored all court papers and after paying has now decided that the Ltd Company defendant didn't sell me the item, but it was him as a private individual and as such it should be set aside. I am quite worried, as I hate set aside hearings.

If he is a trader trying to pose as an individual to remove any consumer rights, I am sure that is a criminal charge?

If he is a trader trying to pose as an individual to remove any consumer rights, I am sure that is a criminal charge?

I didn't see your post, and the matter had died, as the court had rejected his application for set aside as he filed the n244 as an individual and the defendant was his ltd company. You are of course right. Pretending to be an individual is illegal under the 2008 Consumer Protection from Unfair Trading Regulations.

5 Months after his form was rejected and 4.8 months after I wrote to him telling him that if he wanted to refile he ought to act swiftly, he has now applied for a set aside. 6 months after judgment.

I have instructed a solicitor to deal with him and counsel are booked to be sent to court in 3 weeks.

The hot tub is long disposed of as it was rotten and I sent him a letter telling him he would be charged and there would be disposal after 28 days.

His application is so nonsensical and so dishonest, they are doing it free of charge, in the almost certain knowledge of a costs order. I've come across some stupid defendants before, but this person wins the prize for the biggest pratt of all.

I will come back with the results of the hearing..