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Rex Shepherd 7

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Posts posted by Rex Shepherd 7

  1. Thansk for the reply dx.


    I spoke to the finance company yesterday and I'm waiting for documentation to come so I can log a complaint against the dealership with them. all of the mentioned problems have happened within 6 months of purchasing the car, bar the current engine problem.


    If the car is being supplied under a Hire Purchase agreement then the so called 6 month rule cannot apply.


    That rule is written into the Sale of Goods Act but your contract is with the finance company who are supplying you the car under the Supply of Goods (Implied Terms) Act

    - which does not have the 6 month rule written into it.


    Although the car was sold under the Sale of Goods Act to the Finance Company,

    the Sections relating to the 6 month rule cannot apply here either because they only apply when the buyer is a consumer

    - S48 - Additional rights given to consumers.


    The Finance Company is not buying as a consumer so it does not have those rights against the selling garage.


    Your only contract is with the Finance Company but, for the reason stated above,

    you cannot benefit from this so called reversed burden of proof within the first 6 month rule.

  2. I have successfully overcome a similar situation by arguing that the correct process was not to make a second set aside application once the first one failed but, rather, to appeal the refusal before a Circuit Judge. The District Judge agreed and threw out the second set aside application and the subsequent Appeal application was rejected by the Circuit Judge.


    What was great was when bankruptcy proceedings were instigated against the builder, a 3rd set aside application was made. Which was great because we knew that the District Judge had to follow the Circuit Judge's earlier decision.

  3. As a former Trading Standards Officer for 14 yrs and until recently, I'd be really surprised if Morrisons had mis-fuelled via the tanker. For if they did there would be cars breaking down everywhere and it would be well known that it was a problem.

  4. Name them both if you cannot identify one but explain why in your Particulars. Who you pay is often not who your contact is with when it comes to holiday law. Sending both a letter of claim may make it clearer should they reply.


    Adverse costs on small claims only if conduct unreasonable and against unrepresented litigants extremely unlikely so have no fear about naming them as joint D's.


    Do you have home insurance legal assistance to do it for you?

  5. Well I've seen some truly hideous defences in my time but never known a judge gift a judgement without a hearing. So what defence this was I'm keen to know. Presumably it was based purely on law.


    Anyway, you can write back within 7 days asking for a hearing. Mind, get a proper legal opinion as to its merits first to save a judicial bollocking later.

  6. http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_ced


    This is not straightforward and you may need to see a solicitor in the absence of home insurance (or similar) legal assistance. You may need to also consider rebuilding costs if they are to be greater than the price quoted by the builder. Also, unjustified manipulation of the figures to avoid allocation to a specific track may well incur the wrath of the judge.


    So too might any significant departures by either side of the pre-action protocol for building disputes. The link is above and note the protocol's requirement to have a meeting before litigation is commenced.


    It simply may not be appropriate to "fly solo" on this one and although expensive I would suggest you at least allow a suitable lawyer to assess the case and paperwork before submitting a defence and counterclaim. Ensure you don't miss the defence deadline though. Give yourself extra time by acknowledging service.

  7. I'm saying it is a possibility. If the builder gets legal representation and you don't have any then they will press for fast track as a costs order will impact far more on you than them.


    You should request it be on small claims track at the point you complete the Directions Questionnaire. Your rationale being that only the claim or counterclaim can succeed (not both) and therefore whoever wins, the award has to be under 10k.

  8. You have no contractual right to use it or not to return it if asked for it to be so.


    It was conditional on you having the phone contract and so cancelling that contract means you have no right to the gift that came with the contract.


    It is not an unsolicited gift either because in placing the order for phone you were requesting the gift too.


    Who knows if anyone will ask for it back but failure to do so in an unused condition opens you up to the potential to be sued for its value under the tort of conversion. This is the unlawful treating of someone's property as your own.

  9. Be mindful that if you are being sued for 5k and counter-claiming for 7.5k then the value of the claim could be outside the 10k limit on small claims. This puts each party at risk of having to pay each other's legal costs if you lose. Fast track claims are best handled by solicitor as there are stricter rules on evidence disclosure and the court won't be so lenient with unrepresented litigants as they would be in small claims.


    Do you have legal protection on any home insurance or similar?


    Your defence should address every point made and any denial of any allegation should be given as a reason why. The real detail tends to come in a posted witness statement as online defences are space limited and don't have a facility to attach electronic photos.


    A glitch on MCOL defence page means characters such as a £ won't allow it to be sent. You need to say GBP instead!

  10. I presume you meant they offered a partial refund of £500. You can claim for up to that amount a ruined holidays are contracts that you can claim for loss of enjoyment and freedom from distress. You need as much pictoral evidence as you can get. Unsuccessful complaining at the time is also important evidence. Whether you would get all the cost back needs you to demonstrate a complete disaster throughout the whole of the time due to the failings of the tour operator or their agents.


    In the past Judges have demanded to see a large number of photos and not just a select few to ensure it wasn't just one bad day and then fun, fun, fun. And be mindful that someone may be checking your Facebook entries so don't tell all your friends there how great it was 'cos it may haunt you in 6 months time!

  11. Just be mindful of CPR 3.6

    (1) A party against whom the court has entered judgment under rule 3.5 may apply to the court to set the judgment aside.

    (2) An application under paragraph (1) must be made not more than 14 days after the judgment has been served on the party making the application.


    As you first posted here on the 5th of Jan your application is going to be filed with the court out of time.


    However, I'm not convinced CPR 3.5 applies in this case because I read it as being relevant only when judgment has being entered into as a consequence of one party not complying and the other applying for judgment as a consequence. I imagine that as neither party attended the whole case was struck out rather than judgment having been given in favour of your opponent although your earlier post is silent on this.


    If this is the case then there is no actual judgment to be set aside and that a simple Relief from Sanctions Application under CPR 3.9 is preferred requesting that the whole case be re-instated for the reasons given. A Relief from Sanctions Application is not limited to being made within 14 days either.

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