MCOL - detailed particulars making a claim and evidence: pros and cons

[mrharoldbarnes]

Hello,This is my first post - I've found this forum and am posting because I'm quite confused. I have no legal advice and I'm worried that I will be making a sub-optimal claim if I get things wrong.What I'm unsure of is whether sending detailed particulars to the defendant is going to be helpful or not. I've established (I think?) that I don't need to send them evidence and I'm happy about this as I want to spend some good time getting it set out in such a way that it is as unchallengeable as possible and I don't really want them seeing what I have beforehand. I've already written to them twice explaining I would take court action if the matter was not resolved and received no reply both times. I just feel that doing so again will be a waste of time BUT I'm worried that if I don't do this, I may be missing an opportunity to submit crucial evidence

[mrharoldbarnes]

whoops - pressed Enter by accident....in short I'd be so very grateful if anybody with experience/knowledge of this step in the process could advise me? I'll happily share further info if this is required.Many thanks

[mrharoldbarnes]

So sorry....the MCOL online claim form says "If you wish, you may also send detailed particulars direct to the defendant". So it seems optional.....

[AndyOrch]

Hi and welcome to CAG

 

If that is your real name I would advise a user name change.

 

Regards

 

Andy

[steampowered]

Generally your particulars should be as detailed as possible - but please keep it clear and to the point. For example if your claim is breach of contract you need to explain what the contract was, what the relevant terms of the contract were, how the contract was breached and what loss you have suffered as a result. If the information is needed for the judge to make a decision in your favour then it should go in the particulars. You should probably attach a copy of the contract to the particulars. The part of the Civil Procedure Rules dealing with MCOL actually refers to a detailed particulars of claim - the implication is that the POC should be detailed!!

 

The CPR promotes an upfront approach. You are supposed to flesh out the issues at an early stage. Be careful here: it is tempting for laypeople to want to hold on to all their evidence until the last possible date but this tactic can be diastrous and rarely achieves anything. If you have strong evidence then you should reveal this at an early stage as it encourages them to settle with you. They will get a fair chance to look at the evidence and deal with it before trial anyway. The court will take a very dim view of you trying to ambush the other side at trial with evidence they have not seen before. If you do try to ambush at trial you will find that the evidence is given less weight and in extreme cases the court may disregard the evidence or adjourn the trial (with you being ordered to pay the costs of the adjournment).

[mrharoldbarnes]

Thanks very much for the advice which is very helpful. I hope if I share more info with you then my dilemma is clearer:

 

My claim relates to a fake designer product that I bought (for a lot of money!) from an individual on eBay. I only became suspicious it was fake outside of the window within which eBay/PayPal would have taken action on my behalf. In the first instance I telephoned the seller explaning my concerns and since then they have totally ignored my voicemails, emails and both letters that I sent (written with support from the Citizens Advice Bureau) which is why I'm about to make a claim through MCOL. Quite recently, I have received an emailed letter from the designer who has seen the photos that I supplied (taken from the eBay listing) and confirmed that the item is definitely counterfeit, but I have not shared this with the soon-to-be defendant. Unknown to the defendant too is that I have saved the original eBay listing and all photos. This is relevant (I hope) because since I raised my concerns with them they have removed some of the images and added text to another along the lines of 'I can't guarantee this item is authentic'. Hardly the actions of somebody with nothing to hide.

 

Although I feel that my claim should be fairly bulletproof with the evidence that I've got, I'm worried that:

 

a) by not supplying enough info at this initial stage through MCOL (or by filling out the POC in the wrong way) it won't get any further

b) by only supplying partial evidence at this stage there is more opportunity for the defendant (or a judge?) to pick holes in it e.g. the letter from the designer in isolation could relate to any product - how does the court know that I sent them photos of the actual item in question. I am planning to print the whole email chain including all photos supplied and match these to the photos in the original eBay listing in order that it is indisputably the same item BUT this is a lot of paper and from what I read it's overkill at this stage.

 

I'm very confused as I really want to get this right - it's for so much money to us a very difficult financial time.

 

Many thanks for any advice at all.

 

 

Generally your particulars should be as detailed as possible - but please keep it clear and to the point. For example if your claim is breach of contract you need to explain what the contract was, what the relevant terms of the contract were, how the contract was breached and what loss you have suffered as a result. If the information is needed for the judge to make a decision in your favour then it should go in the particulars. You should probably attach a copy of the contract to the particulars. The part of the Civil Procedure Rules dealing with MCOL actually refers to a detailed particulars of claim - the implication is that the POC should be detailed!!

 

The CPR promotes an upfront approach. You are supposed to flesh out the issues at an early stage. Be careful here: it is tempting for laypeople to want to hold on to all their evidence until the last possible date but this tactic can be diastrous and rarely achieves anything. If you have strong evidence then you should reveal this at an early stage as it encourages them to settle with you. They will get a fair chance to look at the evidence and deal with it before trial anyway. The court will take a very dim view of you trying to ambush the other side at trial with evidence they have not seen before. If you do try to ambush at trial you will find that the evidence is given less weight and in extreme cases the court may disregard the evidence or adjourn the trial (with you being ordered to pay the costs of the adjournment).

[steampowered]

Realistically, the judge is not going to read anything until you get to a hearing so do not worry about the "picking holes" part. There will be plenty of time for people to pick holes at the hearing if it gets that far - you cannot avoid giving the other side a chance to look at and criticise your evidence if they file a defence and this goes to a hearing. You do not need to attach the evidence to the POC but I would refer to it. In the POC you need to explain, clearly, exactly why you have a claim. I would cover the following points:

 

(1) The Defendant is a seller on the website www.ebay.co.uk ("ebay"). The Claimant operates a business under the trading name [name]. The Claimant entered intto a contract with the Defendant for the sale of [product] for [price] through ebay and duly paid the price on [date].

(2) It was an express term of the contract that the [product] would be a genuine [brand]. [Refer to specific description and pictures from the seller's ebay listing]. Furthermore, under s13 Sale of Goods Act 1979 there was an implied term that the [product] would correspond with their description. Furthermore, under s14 Sale of Goods Act 1979 there was an implied term that the goods would be of satisfactory quality, taking into account of the description of the [product] as [brand] and the high price of [price].

(3) The Defendant delivered a [product] on [date]. In breach of the contract terms set out above it has become apparent that the [product] was not, in fact, [brand] but a cheap replica. [Describe problems with the product and the ways in which it is of inferior quality]. The Claimant contacted [designer] who confirmed on [date] that the product was indeed a replica.

(4) In accordance with the relevant pre-action protocol, the Claimant has asked the Defendant to rectify the matter but has not received a satisfactory response.

(5) The Claimant claims:

- Damages of [price].

- Interest section 69 of the County Courts Act 1984 at the rate of 8% a year, from [date money was paid] to [date of issue of claim] of £[interest so far] and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of [daily rate].

- Costs.

 

Interest is calculated at 8% per annum. Multiply the price by x0.00022 to get the daily rate.

 

Remember that winning a claim does not necessarily mean the other side will pay up. You may encounter difficulty especially if the seller is not based in the UK or you can't get a reliable address. There are enforcement options but they are not always successful and can cost you if they don't work.

[mrharoldbarnes]

Thank you EVER so much for taking the time to reply. I really like the layout and I guess the claim will have to be made with form N1 ans the MCOL online system only allows for a very small amount of text(?).

 

I've been doing more research today and (I think) I've deduced that the Sale of Goods Act is only protecting me for six months from the date of receipt. In this case we only had our suspicions aroused seven months after receiving it (it's a good fake and was used very infrequently given that it cost us nearly £700). If this is true, am I best just to give up or is there any (other?) way I can take this forwards with the court? I'm prepared to invest (a bit of the £700) into legal advice if totaly necessary, but not if it's pointless and/or I may only receive a partial refund.

 

Many Thanks

[AndyOrch]

The Civil Procedure Rules have been amended to facilitate the processing of all designated money claims at the County Court Money Claims Centre (CCMCC). The Centre situated in Salford (known as the National Civil Business Centre or Salford Business Centre) is aimed at centralising some administrative functions and will manage the early stages of the claims including admissions, default judgments, acknowledgement of service, defences and allocation questionnaires.

[mrharoldbarnes]

Thank you - I'm nowhere near Salford and it would cost a fortune to get there.

 

Is anybody able to advise on the six month period elapsing?

[AndyOrch]

You dont need to go there you submit on line MCOL ...hence the Particulars will be limited...you have an option to serve a more particularised after service.

 

Can I just ask again as per post #4 Is that your real name?

[mrharoldbarnes]

Thanks - not my real name. My real name is Robert Greaves.

 

 

 

 

 

Just kidding.....

[mrharoldbarnes]

Is there such a thing as free legal advice? I need to nail this six month post purchase confusion I have with the Sale of Goods Act. Most of this act seems to be geared towards faulty goods.

 

According to eBay there is no defined time limit, but I'm not certain I fully trust this. It's hard for a layman to know what to do.

Edited January 29, 2013 by Andyorch
External link removed.

[Michael Browne]

SOGA limit is 6 years.

 

OFT SOGA guide here:

http://www.oft.gov.uk/business-advice/treating-customers-fairly/sogahome/sogaexplained

 

I'm nowhere near Salford and it would cost a fortune to get there.

MCOL is for issuing a claim on-line, but as you've found out the POC's are limited to 1080 characters.

 

You used to be able to submit an N1 claim form at your local county court, but this has now been centralised at Salford and is submitted by post

[steampowered]

Thank you EVER so much for taking the time to reply. I really like the layout and I guess the claim will have to be made with form N1 ans the MCOL online system only allows for a very small amount of text(?).

 

I've been doing more research today and (I think) I've deduced that the Sale of Goods Act is only protecting me for six months from the date of receipt. In this case we only had our suspicions aroused seven months after receiving it (it's a good fake and was used very infrequently given that it cost us nearly £700). If this is true, am I best just to give up or is there any (other?) way I can take this forwards with the court? I'm prepared to invest (a bit of the £700) into legal advice if totaly necessary, but not if it's pointless and/or I may only receive a partial refund.

 

Many Thanks

 

With regards to the POC, have a read of the relevant part of the Civil Procedure Rules here: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part07e#IDAYPW1. You should have 1080 words for the particulars of claim on the form, the sample I gave you was only 286 words so it should fit. Alternatively, you can provide a very brief summary and state that the particulars are to follow, you then serve the particulars as a separate document within the time limits set out in the rule. If you do decide to use a separate document remember that you also need to file a certificate of service and you can do this by email.

 

A claim under the Sale of Goods Act can be made for six years. The six month reference you have read on the internet is about burdens of proof. If you are trying to show that goods are not of "satisfactory quality", before six months it is up to the seller to prove that the goods were satisfactory, but after six months it is up to the buyer to prove they were not satisfactory. I do not think this is important for you because you do not need to rely on the satisfactory quality provision, the most relevant part is the part about goods having to comply with their description.

 

To be honest I don't think you need to rely on SOGA at all. If there was a clear description of the goods in the ebay listing then that would be plain old breach of contract even if SOGA didn't exist. The parts of SOGA mentioned in my post just provide an alternative overlapping basis for your claim.

[Ganymede]

Thanks very much for the advice which is very helpful. I hope if I share more info with you then my dilemma is clearer:

 

My claim relates to a fake designer product that I bought (for a lot of money!) from an individual on eBay. I only became suspicious it was fake outside of the window within which eBay/PayPal would have taken action on my behalf. In the first instance I telephoned the seller explaning my concerns and since then they have totally ignored my voicemails, emails and both letters that I sent (written with support from the Citizens Advice Bureau) which is why I'm about to make a claim through MCOL. Quite recently, I have received an emailed letter from the designer who has seen the photos that I supplied (taken from the eBay listing) and confirmed that the item is definitely counterfeit, but I have not shared this with the soon-to-be defendant. Unknown to the defendant too is that I have saved the original eBay listing and all photos. This is relevant (I hope) because since I raised my concerns with them they have removed some of the images and added text to another along the lines of 'I can't guarantee this item is authentic'. Hardly the actions of somebody with nothing to hide.

 

Although I feel that my claim should be fairly bulletproof with the evidence that I've got, I'm worried that:

 

a) by not supplying enough info at this initial stage through MCOL (or by filling out the POC in the wrong way) it won't get any further

b) by only supplying partial evidence at this stage there is more opportunity for the defendant (or a judge?) to pick holes in it e.g. the letter from the designer in isolation could relate to any product - how does the court know that I sent them photos of the actual item in question. I am planning to print the whole email chain including all photos supplied and match these to the photos in the original eBay listing in order that it is indisputably the same item BUT this is a lot of paper and from what I read it's overkill at this stage.

 

I'm very confused as I really want to get this right - it's for so much money to us a very difficult financial time.

 

Many thanks for any advice at all.

 

 

 

 

Hi,

 

Can you just clarify if the ebay seller was an individual, as your state, above or a trader?

 

Thanks

[AndyOrch]

With regards to the POC, have a read of the relevant part of the Civil Procedure Rules here: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part07e#IDAYPW1. You should have 1080 words for the particulars of claim on the form, the sample I gave you was only 286 words so it should fit. Alternatively, you can provide a very brief summary and state that the particulars are to follow, you then serve the particulars as a separate document within the time limits set out in the rule. If you do decide to use a separate document remember that you also need to file a certificate of service and you can do this by email

 

 

5.2

 

Detailed particulars of claim must either be –

 

(1) included in the online claim form but must be limited in size to not more than 1080 characters (including spaces);

[steampowered]

5.2

 

Detailed particulars of claim must either be –

 

(1) included in the online claim form but must be limited in size to not more than 1080 characters (including spaces);

 

Thank you. I had just read the CPR on this, I wonder for my sanity sometimes!

[mrharoldbarnes]

Hi,

 

Can you just clarify if the ebay seller was an individual, as your state, above or a trader?

 

Thanks

 

 

The seller is an individual. Does this change anything? Many Thanks.

[steampowered]

The seller is an individual. Does this change anything? Many Thanks.

 

 

The implied term about "satisfactory quality" under SOGA only applies where the goods are sold during the course of a business. Remember that an individual can still be acting in the course of a business, it does not have to be a company. If it was just a one-off sale then seller was not acting in the course of a business. If the seller sells hundreds of these bags through ebay then seller is operating a business.

 

If you do not think seller was operating in the course of a business, you will need to delete the statement "The Claimant operates a business under the trading name [name]." from the POC and remove the reference to "satisfactory quality". Ultimately, I do not think it matters because the provision about goods sold by description having to comply with that description applies whether or not seller was running a business.

[mrharoldbarnes]

Hi Steampowered, I'm really very grateful for this advice. Would it suffice to NOT state on the POC what specific law/act had been broken (how is somebody supposed to really know without legal advice) and simply state the facts? One would be assuming that the person or people taking the POC into consideration would know the law well enough to determine that for themselves. I'm thinking that it would be better to put nothing, than put something that could be wrong and therefore challengeable.

 

 

 

The implied term about "satisfactory quality" under SOGA only applies where the goods are sold during the course of a business. Remember that an individual can still be acting in the course of a business, it does not have to be a company. If it was just a one-off sale then seller was not acting in the course of a business. If the seller sells hundreds of these bags through ebay then seller is operating a business.

 

If you do not think seller was operating in the course of a business, you will need to delete the statement "The Claimant operates a business under the trading name [name]." from the POC and remove the reference to "satisfactory quality". Ultimately, I do not think it matters because the provision about goods sold by description having to comply with that description applies whether or not seller was running a business.

[steampowered]

Hi Steampowered, I'm really very grateful for this advice. Would it suffice to NOT state on the POC what specific law/act had been broken (how is somebody supposed to really know without legal advice) and simply state the facts? One would be assuming that the person or people taking the POC into consideration would know the law well enough to determine that for themselves. I'm thinking that it would be better to put nothing, than put something that could be wrong and therefore challengeable.

 

As a general rule, you should be pleading something if you are going to be relying on it in court. It is not absolutely compulsory as long as you have plead the necesssary facts, but so many laypeople make the mistake of assuming that judges will act like an investigator or detective. Judges do not act in this way: they will only look at the information you put in front of them. Judges will not open up their copy of SoGA out of the goodness of their heart and point you towards the correct section. Personally I think our system should be changed so that judges can be much more helpful to people who are not legally represented but that is not how our system works at the moment. If you have said something that is wrong then the Defendant can point that out in the defence.

 

That said, I do not think you should worry too much about the technicalities here. This is not a case in which you need to rely on some of the more complicated parts of SOGA. It is simply a case of (1) whether there was a contract for genuine goods and (2) whether or not the goods were genuine.

 

At a bare minimum, the facts you must plead in the POC are as follows: (1) there was a contract, (2) defendant has breached the contract, (3) you have suffered loss. Assuming this guy sells lots of bags on ebay, personally I would keep the POC much as it is in my previous post. Ultimately I do not think it matters if you want to simplify some bits to get it under 1080 characters. I would keep the reference to section 13 SOGA and bring a print out of that section from www.legislation.gov.uk to the hearing (if the other side even bothers defending this, I suspect they won't). Good luck...

[mrharoldbarnes]

Hello all. I have an update.

 

The other party is defending the claim. I emailed them proof that the item was counterfeit, but they have challenged this proof.

 

I have so much supporting evidence now that I can put together such as a timeline (and transcript) of calls that I made to them, printouts of the original eBay listing, printouts of the listing after they retrospectively changed the bits they could, the email trail with the manufacturer and their response etc. I did not serve any of these as POC as I had understood that there was a step after they defended where I could do this, but this does not seem to be the case, unless I have misunderstood the Directions Questionnaire (Small Claims Track) that I have been given.

 

I don't know what is best to do as I don't want it to seem that I am ambushing them at a trial as I genuinely believed there would be an opportunity to share some of this formally as part of the process before it got to this point?

 

Any advice gratefully received - thank you.

[steampowered]

It sounds like you have some great written evidence. After filing the questionnaire, you will receive directions from the court setting out what you need to do. In small claims, the standard set of directions requires you to send copies of the evidence you wish to rely on to the court and the Defendant at least 14 days before the hearing.

 

I suggest completing a witness statement setting out the relevant facts in clear numbered paragraphs, basically it should be a roadmap of what you want to tell the judge at the hearing. You can attach photocopies of the documents you want to use to the statement and refer to them in your witness statement as necessary. You then send this to the court and the Defendant in accordance with the directions and bring the original documents to the hearing.

[mrharoldbarnes]

Steampowered - you've been so amazingly helpful through all of this. I am extremely grateful and feel so much better since reading your last response. THANK YOU