taking trader to court - advice please **Case WON and PAID**

[betty_lo]

hi, i have a few queries and hope someone might be able to help me with them. here goes, hope noone falls asleep halfway through:

 

i bought a kid's digital camera from an online seller on 2/1/08 which costs me £79.99. after having to chase them for two weeks regarding delivery info etc, the item turned up on 26/1/08. great item item, daughter loved it. two of three weeks later the display stopped working. i contacted the manufacturer for repair/replacement who referred me back to the seller where i purchased it from. the seller refused to repair/replace, claiming i had 28 days to return a faulty item despite the fact that it developped a fault after 28 days. i took advice from trading standards, sent various emails quoting the sales of goods act 1979 and eventually returned the camera for their inspection and requesting an independent report re its malfunction. in light of the poor service i had received since the order, i took pictures of it before returning it by special delivery. i chased them a couple of weeks later and this is a copy of the email i received

 

Hi

 

Thank for sending the camera back to us.

Bad news we are sorry to say. We have had a look at the camera and their is a few things wrong with it.

 

1. Their seems to be a bite mark in the right hand handle

2. Underneath were the battery goes their is a scratch marks

3. The screen is very badly scratched

4. Their is a scratch mark on the front of the camera as well.

 

Also are distributor has also looked at the camera and agreed the same. When you send a item back it has to be in perfect condition sorry to say but this isn't

 

We can not send you a new camera I'm afraid all we can do is send this one back to you.

 

Thanks

 

so, they totally disregarded the fact that the camera was not working properly, found cosmetic defects that were not there to my knowledge and failed to provide a comprehensive inspection report. i gave them a little more to time to sort it out but ended up filing a small claim last month.

 

the camera was never returned to me and to my surprise, they have filed a defence again argueing that the camera was allegedly not in a perfection condition to warrant a repair or replacement. i have received my allocation questionnaire and just wondered

 

1- should i carry on with the claim, knowing that i will be taking on a company (i believe sole trader or partnership) (i feel i should as i am out of pocket and camera and believe the legislation to be on my side)

 

2- should the seller be legally entitled to be using my property i.e the camera as evidence in the case??? and as i am able to prove that the camera was not in any way damaged as claimed by the seller, is there any further action i could take about this?

 

3- what i should put in the further info section of the allocation questionnaire form.

 

hope someone will have time to help me with these queries. thank you.

[gyzmo]

Errr, if the camera was in a perfect condition then a repair or replacement wouldn't be needed anyway:confused:

 

the scratches etc can only be cited sa saying that the camera has been misused / abused etc, thereby presumably causing the fault. If they are saying that just because there are scratches on they wil not refund well that is tough on them.

 

You are returning it because the display will not work. The defence taht you have quoted is not a defence at all. It is for the seller to prove that the goods conform to the contract. They do not seem to have done that.

 

In the "other information", I would include the history of their responses - i.e that they have refused on grounds of their 28 day policy etc. This will go some way to demonstrate that the seller, in short, is not willing to comply with statutory obligations.

[slick132]

Out of interest, how old is the child you bought the camera for.

 

Is that an exact copy of their email to you spelling, grammar etc. - if so, make sure it is included in your court documents as it is quite damning in itself.

[betty_lo]

Out of interest, how old is the child you bought the camera for.

 

Is that an exact copy of their email to you spelling, grammar etc. - if so, make sure it is included in your court documents as it is quite damning in itself.

 

she's 4

 

and yes, this was an exact copy of their email.

[gyzmo]

Oh my god......

[slick132]

Hi Betty,

 

In response to your earlier Q's:-

 

1) I think you should proceed to File a claim against the trader if you have exhausted all attempts to negotiate. Have you sent a Prelim letter and an LBA. Do you have the traders proper address and are they in the UK.

 

2) You and the trader can use whatever evidence you both wish and it's up to a judge to decide who has the better case. Use that email as evidence and I think the case should be yours !!

 

3) The AQ doesn't d/w the detail of the case. What stage are you at with the claim.

 

The childs age may well be relevant as the camera could easily be dropped or banged by a younger child but, if the condition of the camera looked generally good, this should not be a prob.

[betty_lo]

Hi Betty,

 

In response to your earlier Q's:-

 

1) I think you should proceed to File a claim against the trader if you have exhausted all attempts to negotiate. Have you sent a Prelim letter and an LBA. Do you have the traders proper address and are they in the UK.

 

2) You and the trader can use whatever evidence you both wish and it's up to a judge to decide who has the better case. Use that email as evidence and I think the case should be yours !!

 

3) The AQ doesn't d/w the detail of the case. What stage are you at with the claim.

 

The childs age may well be relevant as the camera could easily be dropped or banged by a younger child but, if the condition of the camera looked generally good, this should not be a prob.

 

 

 

hi slick132, thanks for the reply. with regards to point (2), i understand what you are saying but it seems unfair that as well as refusing to replace or refund the item, that they should be able to keep it and should offer (as per their defence) to use it as evidence.

 

3) sorry, but at the risk of sounding stupid, i can't work out what d/w means.

 

thanks

b

Edited May 17, 2008 by betty_lo

[betty_lo]

Hi Betty,

 

In response to your earlier Q's:-

 

1) I think you should proceed to File a claim against the trader if you have exhausted all attempts to negotiate. Have you sent a Prelim letter and an LBA. Do you have the traders proper address and are they in the UK.

.

 

i did send the trader both a prelim letter and lba before filing the claim, giving them as much time to put the matter right but sadly they were still not interested in redressing the situation.

[slick132]

Hi Betty,

 

d/w = deal with (and you don't sound stupid at all)

 

I've re-read your posts and now see they have kept the camera - this is outrageous but you can draw this to the attention of the court to demonstrate their inability to properly d/w your complaint.

 

Re the AQ "Further Info" section, I'm not sure there's anything you need to put here with this type of claim. So just get the AQ in on time.

 

The next step is the judge will review your case and any response made by the trader. He will then likely ask for you to enter your full evidence to support your claim. Wait to see what the judge orders.

 

Also, contact the court and ask for a copy of the Defence made by the trader.

[betty_lo]

i have received a copy of the seller's defence which i will scan when i have a moment. i shall send my aq as is and wait to see what happens. thanks again for everyone's help and advice.

 

b

[betty_lo]

hi there, i'm back nearly six months later and i haven't really got very far! still, the good news is i won by default as the defendant failed to file their allocation questionnaire on time. a request for payment forthwith was issued by the court a couple of weeks ago but this obviously has been ignored by the defendant as i haven't received a penny yet. i understand the next possible step is to send the bailiffs out, could someone kindly let me know how this would work and whether this would this be at my expense? thanks.

[Michael Browne]

See here:

Warrant of Execution - Consumer Wiki

 

The fee is automatically added to the debt to be collected

[betty_lo]

thank you. would this be worth pursuing, bearing in mind the trader has proved to have a total disrespect for customer service and the law? if the bailiffs aren't able collect the amount due or to seize items to the value of amount due, then this is it?

[Michael Browne]

would this be worth pursuing, bearing in mind the trader has proved to have a total disrespect for customer service and the law?

That's entirely up to you, no doubt that's what he's hoping you'll do

 

if the bailiffs aren't able collect the amount due or to seize items to the value of amount due, then this is it?

If the warrant is served at their business premises (assuming they are still trading), chances are the bailiffs can just walk in (peaceable entry)

[betty_lo]

That's entirely up to you, no doubt that's what he's hoping you'll do

 

i guess, as a matter of principle i shall go ahead with it. will keep you posted. thanks again.

[betty_lo]

hello, just a little update.

 

i've filed my warrant of execution today, fingers crossed, i will finally get my money back as i am now nearly two hundred squids down.

 

i also got a call from trading standards this afternoon, to whom i had made a complaint about this, and who were checking whether i had received a refund as yet. it seems, a great number of complaints nationwide have prompted an investigation into the trader and their business and trading standards are now enforcing refunds where they are due. anyway, it's good to see that sometime the system works...

[gyzmo]

That is why it is important to report problems. They can be used as intelligence and for further action to be taken. I cannot emphasise this enough.

[Madeira99]

Hi betty lo.

I have just filed a Warrant of Execution and wondered if you have any update on whether Trading Standards have been able to help? I have another thread running and I am thinking of involving Trading Standards as the company I have taken through Small Claims, issued what I now know to be a contract that contravened a certain Act. I'd be interested to know if you were successful?

[betty_lo]

Hi betty lo.

I have just filed a Warrant of Execution and wondered if you have any update on whether Trading Standards have been able to help? I have another thread running and I am thinking of involving Trading Standards as the company I have taken through Small Claims, issued what I now know to be a contract that contravened a certain Act. I'd be interested to know if you were successful?

 

 

hi there,

in my case, i had contacted trading standards before taking the trader through small claims. they were really helpful in terms of clarifying the current legislation, laying out all the reasonable steps i should take before taking the matter to court and giving out useful numbers etc. when i failed to resolve my problem and had to go down the small claims route, i called them back and expressed the wish to make a formal complaint against the trader.

 

to date there has been no real news. i know that my warrant is now in the hands of a bailiff. should i fail to get my money back, the enforcement officer at trading standards suggested calling him. so, i shall post note when/if my warrant finally prompts the trader to pay up... 'hope this helps.

[MARTIN3030]

Thank you Bookie-well spotted.Ammended accordingly.

[Madeira99]

Thanks betty lo

 

I had similar advice from Trading Standards who asked me to get in touch when I had a decision from the court. So, like you, I am waiting to see what happens to the warrant, although I'm not holding my breath!

Good luck with yours.

[betty_lo]

hurray!!! the system does work. finally got my money back this morning.!! it took two warrants of execution though... the trader stopped trading half way through the first one and moved address. luckily, trading standards who were involved anyway were there to help. a formal undertaking was obtained against the trader based on the following and which also gave details of his new address. so i am a happy bunny. thanks again, for the advice.

 

 

Legislation used:

Community Infringements Specified UK Laws//Consumer Protection Regulations 2008

Regulation considered:

Misleading Practices//CPR Reg.5 Actions

Notes:

using a statement or symbol that relates to direct or indirect sponsorship or approval of the trader and/or the products

Legislation used:

Community Infringements Specified UK Laws//Distance Selling Regulations 2000

Regulation considered:

Distance Selling

Notes:

...not providing consumers with a refund within 30 days

Legislation used:

UK Legislation//Sale of Goods Act 1979

Regulation considered:

Sale of Goods Act

Notes:

...not despatching goods to consumers within a reasonable time

Legislation used:

UK Legislation//Supply of Goods and Services Act 1982

Regulation considered:

Supply of Goods and Services Act

Notes:

...failing to provide a service with reasonable care and skill.

[gyzmo]

Hurrah! Nice to see a good outcome.

[slick132]

Hi Betty and CONGRATULATIONS

 

Although you've had the benefit of support from TS, it is down to your tenacity that you've won on this.

 

Good work, from first complaint right through to warrants,etc.

 

Title changed accordingly.

[Madeira99]

Congrats are in order, even after all this time!

Following my last post, I too was successful, after warrants were issued, both for myself and my friend as we did our summons at the same time against the trader.

He dragged it out until the last day for payments on the warrants, and finally paid a cheque into the court which I later received in Jan of this year.

 

I then reported the guy to my own local Trading Standards who sent the info to the trader's TS office who were 150 miles away as I felt other people should not be hoodwinked by him in the future by signing a duff contract.

 

Unfortunately, I never heard of any outcome from them as he had the audacity during the case to say he woorked with the local TS!!!

 

Never mind, I was able to bank my cheque after an extremely stressful year of going to court to get my money back.