Small Claims Court Pending***Resolved***

[JMCDJ]

Hi All

 

I was hoping for some advice.

 

Having purchased a new phone for £599 last September, as well as a new 24 month contract,

I noticed that after 11 months a problem with the phone's battery had emerged,

whereby the phone would lose all power at around the '10 percent remaining' battery mark.

 

I contacted my mobile phone provider who I also have phone insurance with

and the customer services representative performed a diagnostic test on my phone

and advised that it was indeed faulty and said she would arrange for a replacement phone to be sent.

I was then transferred directly through to the manufacturer without being told I was!

 

The manufacturer offered me three options:

 

1. Send the phone to them to be looked at and repaired or replaced
   
2. Arrange for a courier to collect my phone and pass me a new one
   
3. - a cost for the courier and a desposit would need to be placed on a credit card
   
4. Visit the manufacturer's store
   

I am registered disabled and am unable to walk properly without experiencing severe pain and discomfort,

as well as unsteady on my feet, so obviously mobility is an issue.

I sometimes need to be wheeled around.

 

I need my mobile phone in case I should take a tumble indoors and need to contact someone.

 

I am also on ESA, having had to give up my job last year (after I had paid £600 for a phone I would like to add!),

so money is an issue and I do not have disposable income. Therefore none of these options were really that viable.

 

I called the mobile phone provider again and explained these points to them

and also explained that I had purchased the phone in their store,

therefore the contract of sale should be between me and them, not me and the manufacturer.

 

I also reiterated I had valid insurance for the phone.

 

The phone operator told me none of the above mattered

and I would HAVE to go through the manufacturer as the phone was less than 12 months old.

 

I would like to add that the insurance terms and conditions state that the mobile phone provider

will replace or repair any phone that develops a mechanical of technical fault

within the first 36 months under their OWN warranty.

 

Nowhere in the terms and conditions does it indicate I should not be able to get a replacement

or repaired phone in this type of scenario.

 

I then contacted the executive office of the mobile phone provider

stating the above points and following lack of response, issued them with a letter of intent to take them to court.

 

They finally got back and advised they were not willing to help and stuck to their guns.

 

I subsequently issued small claims proceedings and have today received the phone provider's defence document.

 

In my claim form, I have requested termination of my account as I feel they have breached contract,

as well as a refund for the cost of my phone.

 

They state that because the phone is more than six months old they are unwilling to repair or replace the phone,

without proof that I have not caused the fault.

 

Nor are they, obviously, willing to reimburse me for the price of the phone or terminate my contract free of charge.

 

What I would like to know is the following:

 

1) whether there is a different time frame, rather than that of six months for an electrical item that costs £599 to be deemed faulty?

 

2) If I have any hope in hell in being successful should my day in court come soon!

 

3) Another piece of evidence to possibly present would be a taped phone conversation

with the mobile phone provider today, asking about insurance and whether it would cover me

in a very similar scenario than the one above.

 

I asked permission to tape the conversation prior to beginning and it was agreed this was fine

so believe the legal ramifications are little.

 

Would this recording or even a transcript of it be permissible in court?

 

4) Are there any specific clauses in the Sales of Good Act that would benefit my predicament?

 

5) Are there any other legal Acts I can throw at them, as claimant, excluding the Sales of Good Act?

 

6) Finally, does anyone know where I can get an iPhone diagnostic test done independently?

If the worst comes to the worst, I can get someone to take a day off work to pop it along. I'm based in London.

 

Many thanks in advance. I'm really sorry for all the questions and for the extremely long post!!!

 

J

[JMCDJ]

Hi All

 

I was hoping for some advice. I've posted this in the mobile phones forum as well as I was unsure where it should end up!

 

Having purchased a new phone for £599 last September, as well as a new 24 month contract, I noticed that after 11 months a problem with the phone's battery had emerged, whereby the phone would lose all power at around the '10 percent remaining' battery mark.

 

I contacted my mobile phone provider who I also have phone insurance with and the customer services representative performed a diagnostic test on my phone and advised that it was indeed faulty and said she would arrange for a replacement phone to be sent. I was then transferred directly through to the manufacturer without being told I was!

 

The manufacturer offered me three options:

Send the phone to them to be looked at and repaired or replaced

Arrange for a courier to collect my phone and pass me a new one - a cost for the courier and a desposit would need to be placed on a credit card

Visit the manufacturer's store

 

I am registered disabled and am unable to walk properly without experiencing severe pain and discomfort, as well as unsteady on my feet, so obviously mobility is an issue. I sometimes need to be wheeled around. I need my mobile phone in case I should take a tumble indoors and need to contact someone. I am also on ESA, having had to give up my job last year (after I had paid £600 for a phone I would like to add!), so money is an issue and I do not have disposable income. Therefore none of these options were really that viable.

 

I called the mobile phone provider again and explained these points to them and also explained that I had purchased the phone in their store, therefore the contract of sale should be between me and them, not me and the manufacturer. I also reiterated I had valid insurance for the phone. The phone operator told me none of the above mattered and I would HAVE to go through the manufacturer as the phone was less than 12 months old.

 

I would like to add that the insurance terms and conditions state that the mobile phone provider will replace or repair any phone that develops a mechanical of technical fault within the first 36 months under their OWN warranty. Nowhere in the terms and conditions does it indicate I should not be able to get a replacement or repaired phone in this type of scenario.

 

I then contacted the executive office of the mobile phone provider stating the above points and following lack of response, issued them with a letter of intent to take them to court.

 

They finally got back and advised they were not willing to help and stuck to their guns.

 

I subsequently issued small claimsicon proceedings and have today received the phone provider's defence document. In my claim form, I have requested termination of my account as I feel they have breached contract, as well as a refund for the cost of my phone.

 

They state that because the phone is more than six months old they are unwilling to repair or replace the phone, without proof that I have not caused the fault. Nor are they, obviously, willing to reimburse me for the price of the phone or terminate my contract free of charge.

 

What I would like to know is the following:

 

1) whether there is a different time frame, rather than that of six months for an electrical item that costs £599 to be deemed faulty?

 

2) If I have any hope in hell in being successful should my day in court come soon!

 

3) Another piece of evidence to possibly present would be a taped phone conversation with the mobile phone provider today, asking about insurance and whether it would cover me in a very similar scenario than the one above. I asked permission to tape the conversation prior to beginning and it was agreed this was fine so believe the legal ramifications are little. Would this recording or even a transcript of it be permissible in court?

 

4) Are there any specific clauses in the Sales of Good Act that would benefit my predicament?

 

5) Are there any other legal Acts I can throw at them, as claimant, excluding the Sales of Good Act?

 

6) Finally, does anyone know where I can get an iPhone diagnostic test done independently? If the worst comes to the worst, I can get someone to take a day off work to pop it along. I'm based in London.

 

Many thanks in advance. I'm really sorry for all the questions and for the extremely long post!!!

 

J

[steampowered]

1) I think people often overstate the importance of the six month thing. If the fault arises before six months it is presumed that the item was faulty when you bought it;

after six months the presumption doesn't apply.

 

But it is a very weak presumption - whether or not the item was faulty when purchased would always be determined on a case-by-case basis.

Relying only on the six month thing would be a very weak Defence.

 

2) Need to know what you put in your Particulars of Claim to answer this.

 

3) I can't see what this conversation would prove.

If you are making a claim under SOGA

the question is whether the phone was faulty or otherwise not of satisfactory quality when sold.

If you are making a claim under the insurance policy the question is whether the insurer is in breach of contract.

 

If you are claiming under a retailer warranty the question is whether the issue is covered by the warranty.

You can claim under all three of these things at once if they are in your Particulars of Claim, but I don't think a recent conversation is relevant to any of them.

 

4) Have a read of section 14 re: satisfactory quality. You can find the full version of SOGA on www.legislation.gov.uk.

 

5) Breach of warranty claims and insurance claims are general breach of contract claims made under common law not under any specific Act of parliament.

 

We would need to know more about the warranty to know if a claim for breach of warranty would work here..

. but if this point is not made in your Particulars of Claim you would need to make a formal application to amend your POC if you wanted to add it.

 

6) Think there are places that do this all over the place, mainly independent shops.

After my younger brother dropped his iPhone in the loo I took it to some dude with a phone stall at the local market, he fixed it for a tenner.

 

One final thought:

SOGA allows the retailer a choice of whether to repair, return or replace at its discretion.

If they elect to repair I don't think there is any provision which would require them to provide you with a replacement phone

while the repair is taking place provided the repair is completed within a reasonable time.

[dx100uk]

who did you get the phone from?

 

the bottom line here is the insurance is WORTHLESS & TOTALLY unnecessary.

 

your court claim should include the TOTAL refund of all premiums paid + 8% statutory sec 69 interest on top.

 

second.

 

you are cover FREE OFCHARGE under SOGA.

 

you DO NOT need a warranty

you do NOT need to refer the product BACK to the manufacturer

 

the only thing you SHOULD have done was to get an independent report

done on the phone, as its outside of 6mts old.

 

then you should have taken that and the phone to the store you got it from for

repair/replacement or refund

as they feel fit.

 

dx

[JMCDJ]

Many thanks dx. I appreciate your feedback a great deal.

 

When you say I should request a total premium + 8% statutory sec 48 interest on top are you referring to monies paid for the cost of insurance or bills included in the mobile contract?

 

Thanks again. I really appreciate your time.

 

J

[JMCDJ]

Hi steampowered. Many thanks for your advice, I sincerely appreciate it!

 

I feel as though I may have to go back and request a formal application to amend my POC. My POC was very vague and reads as follows:

 

'I contacted the mobile provider on 4th September,

having been a customer for over a decade

regarding a problem with my handset purchased in their store on 21st September 2012,

we herby it powered down when the phone stated it had 10% battery remaining.

 

Having spoken to various individuals in customer services,

it was confirmed my phone was faulty,

but as it was less than a year old I would have to seek replacement or repair via the manufacturer.

 

I subsequently spoke to various individuals at the mobile provider who have since refused to repair, replace or refund me

for the price of my phone. Not are they honouring the Sales of Goods Act 1979.

 

Having exhausted a lll avenues and issuing them with a letter of intent to take them to court t

hey still remain adamant the problem isn't anything to do with them

and are refusing to help. I

 

have now requested to be paid for the full price of an iPhone 5 owing to their behaviour

and would also like to terminate my contract at no cost to myself as I no longer wish to do business with them.'

 

Having looked at this,

I am quite ashamed that I have managed to exclude various details,

such as the fact that I had insurance.

 

1) Would the insurance issue need to be covered off the back of my original post,

as well as any other significant points?

 

I tried to squeeze as much as I could into the POC, as it is limited to a specific number of characters

and was unaware I could've provided more on a separate document!

OR, can this wait until I am asked to provide more details on the next form,

the name of which escapes me?

 

In a nutshell (which is ironic, considering the length of my posts!)

I would like to make a claim under the SOGA as well as under breach of contract for them not honouring the insurance policy.

 

2) Also,

I think the SOGA concentrates on whether the item was faulty when purchased,

and I'm not necessarily saying this was.

 

What I am saying, however, is that the fault has developed within 11 months

and this is something I'm not pleased with.

 

How would this point of view stand up in court?

I'm more than happy to get an independent assessment of the phone carried out.

 

3) In order to amend the POC, if I need to, are there any implications based on this?

The mobile phone operator has already submitted their defence and I received this directly from them yesterday.

I am yet to have received anything else from the courts other than claim form and notice of issue.

 

Many thanks once again.

Hopefully I'll never darken your doorstep again

- unless to advise all was successful in court thanks to your help!

 

Kind regards

 

J

[dx100uk]

I refer you to the merged thread here now

 

I was unaware you had posted in two forums

 

sp Is far more legally minded than me.

 

my 'suggestion' was that if it was ME taking this to court

i'd be after getting ALL my insurance payments back + 8% stat sec 69 court interest on top.

 

and

 

force the retailer to repair my faulty phone under soga.

 

just my musings.

 

dx

[dx100uk]

I don't think you can sue to have to price of the phone refunded?

 

the phone as far as I know is a free gift [you didn't pay £600 for it?]

its linked to the contract?

 

dx

[JMCDJ]

Hi dx. Thanks again.

 

I believe I paid for the phone out of my own pocket as I was not due an upgrade.

 

I just wanted the latest iPhone, had more money than sense

and sold my other one on ebay in order to recoup some of my losses!

 

I think it is linked to the contract as far as a contract on a new service agreement is concerned.

 

I like the sound of also asking for a refund on insurance for the 12 months I was paying for it.

Excuse my ignorance, but what do you mean by 'stat sec 69 court'?

 

Steampowered

- I hope you are able to help with my response further up the chain of posts.

Both of you have been very helpful so far and I very much appreciate your time and advice.

[JMCDJ]

One more question! If I was to go down the breach of contract AND SOGA route, could the judge reject one and not the other, or would it be a case of throwing everything out if he only agreed on 50% of the issues surrounding this case?

 

Please excuse my ignorance. I'm quite new to all of this.

 

Thanks.

 

J

[dx100uk]

look at any claim form

 

you are entitled to stat court int [sec 69] @ 8% APR on any sums claimed

 

however

 

I have now requested to be paid for the full price of an iPhone 5 owing to their behaviour

and would also like to terminate my contract at no cost to myself as I no longer wish to do business with them.'

 

you are suing for the price of the phone

 

you'll need to prove you paid for it!!

 

i would post up their defence now

[stopstealingmydata!]

look at any claim form

 

you are entitled to stat court int [sec 69] @ 8% APR on any sums claimed

 

however

 

I have now requested to be paid for the full price of an iPhone 5 owing to their behaviour

and would also like to terminate my contract at no cost to myself as I no longer wish to do business with them.'

 

you are suing for the price of the phone

 

you'll need to prove you paid for it!!

 

i would post up their defence now

 

I can prove I paid for the phone, that's no problem. One problem is their defence doc is around 40 pages long!!

[dx100uk]

pdf?

 

dx

[steampowered]

I think the nature of your POC is clear.

The only point made is SOGA, there is nothing about breach of warranty or the insurance policy .

.. although you might think that a claim for breach of warranty is unnecessary

in particular I query whether there is any breach

- have a look at the T&Cs of the warranties,

if they offered to repair in accordance with those T&Cs there is no breach.

A claim under the insurance policy would presumably have to be made against the insurer.

 

By the way have you tried to make a claim under the insurance policy?

 

One more question! If I was to go down the breach of contract AND SOGA route, could the judge reject one and not the other, or would it be a case of throwing everything out if he only agreed on 50% of the issues surrounding this case?

No, if you succeed on only one of those grounds you would be successful.

[stopstealingmydata!]

Hi steampowered. Thanks for getting back. The terms and conditions found on their website for the insurance state:

 

'Whether your mobile device has been lost stolen or damaged or it decides to stop working, you have the reassurance that we'll get a replacement device out to you within 24 hours,

 

It also goes on to state the phone is covered for:

 

'Loss, theft, damage plus warranty cover against electrical or mechanical breakdown for 36 months, PROVIDED BY EE'

 

The last sentence seems to be the issue, whereby EE are stating I should honour the manufacturer's warranty and that they are unwilling to help!

 

Are you saying I do not need to amend the POC to incorporate the insurance aspect, but will be able to introduce that as further evidence when I need to present a further explanation of my claim when asked? I wouldn't want the judge to throw that out because I hadn't mentioned it originally in my poc!

 

When I explained I had insurance I was told the insurance doesn't count within the first 12 months as I would have to take the phone back to the manufacturer, despite what the insurance Ts &Cs state as above. That is as far as my claim went as far as insurance is concerned. Will this suffice?

 

Many thanks again.

[steampowered]

SOGA is against the shop,

manufacturer's warranty is against the manufacturer,

insurance is against the insurance company.

 

These would all be three different claims against different Defendants.

 

When you said warranty before,

I didn't realise you were talking about a manufacturer's warranty not a shop warranty.

As you are just suing the shop I think your POC covers the SOGA point so no need to amend.

 

As I mentioned above,

I am doubtful about the merits of your claim because SOGA allows the retailer to

repair/replace/refund at its choice and if they choose to repair

I do not think they are required to provide you with a replacement phone while the repair is completed.

 

Now the claim has been issued you might as well follow it through,

but it would be better to agree a solution with the shop before you get to court if you can.

[JMCDJ]

Hi Steampowered

 

I think my long emails have confused matters. I'm not referring to the manufacturer's warranty. I'm not trying to be patronising here, but have laid out the issue below, as briefly as possible:

 

1) The company is EE.

2) I bought an iPhone in cash and signed up for a new contract in Sept 2012.

3) I also paid monthly for EE phone insurance.

4) Phone developed a fault and EE said I have to deal with the Apple through Apple's warranty for the handset disregarding EE's Ts&Cs which state 'Loss, theft, damage plus warranty cover against electrical or mechanical breakdown for 36 months, PROVIDED BY EE'

5) I said, 'No, I have insurance with EE as well as the fact it's less than a year old'*.

6) EE said 'That's not our problem, go to Apple'*.

7) I said 'No, I'll see you in court'*.

 

EE have refused to repair, replace or refund me (the refund being a last resort), and have continuously told me to go through Apple and completely washed their hands of it.

 

Perhaps I should have just posted the above to begin with. ha.

 

On another note, I thought the Direction Questionnaire gave you space to provide more information about your claim, i.e. narrative as to why you are issuing court proceedings. I can't see this though. Any idea as to if I can enter more evidence supporting my claim? I would obviously like to provide as much information as I can. Would this mean I would have amend the POC?

 

Many thanks

 

J

 

*words to that effect!

Edited October 24, 2013 by JMCDJ

[steampowered]

Fair enough.

There is a warranty claim here which really should be mentioned on your POC.

However I would think that a judge would let it slide as you are a litigant in person in small claims track.

 

I am actually doubtful that your problem is covered by the warranty.

With these things it is important to read the wording of the warranty very closely.

Your situation is not loss or theft.

I don't think it would be 'damage' either.

Your problem is also not an electrical or mechanical breakdown.

For this reason I think you would need to rely on SOGA anyway.

 

The next chance to provide more information about your case

will be when each side has to disclose to the other the documents it intends to rely on in court .

.. you can prepare and file a witness statement at this stage.

 

It would be good form to write a 'without prejudice save as to costs' letter to the other side

concisely explaining the problem and what they need to do in order for you to withdraw the court proceedings.

[JMCDJ]

Hi Steampowered

 

I can't stop thanking you for your help.

 

I have had quite a productive day, as follows:

 

Following on from a hospital appointment,

I was wheeled to the Apple store by a friend, which was close by.

 

Apple confirm my phone is faulty and wrote the words

'requires hardware repair'

which suggests to me a fault or electrical/mechanical breakdown (I hope).

I have this in writing and will present this as evidence.

 

I have also decided to amend my POC to:

 

"I contacted EE on 4/9/13 re. a phone purchased from them on 21/9/12.

The phone shuts down with approx. 10% remaining as indicated by battery icon on phone.

EE confirmed to me that the phone was faulty and a replacement would be required.

However, EE have stated I need to seek resolution via the phone's manufacturer,

despite having phone insurance with EE and my phone being less than 12 months old at the time.

 

I have now, as a last resort, received written confirmation from the manufacturer the phone requires 'hardware repair'.

The onus should be with EE under the terms of: SOGA, EE's warranty and EE's insurance Ts & Cs.

 

I would like to claim under SOGA as well as breach of contract

 

I request to be reimbursed for the phone, as well as reimbursed cost of insurance since September 2012."

 

I will be popping this in the post on Monday.

 

Thanks for all your help.

 

J

[JMCDJ]

Hi Steampowered or anyone?!!?...

 

I have today been dealing with resubmitting my POC as I failed to mention insurance within the claim, which I feel is an integral part of it.

 

My POC now states the following:

 

'I contacted EE on 4/9/13 re. a phone purchased from them on 21/9/12. The phone shuts down when at approx. 10% as indicated by battery icon on phone. EE confirmed to me that the phone was faulty and a replacement would be required. However, EE have stated I need to seek resolution via the phone's manufacturer, despite having phone insurance with EE and my phone being less than 12 months old at the time.

 

I have now, as a last resort, received written confirmation from the manufacturer the phone requires 'hardware repair'. The onus should be with EE under the terms of: SOGA, EE's warranty and EE's insurance Ts & Cs.

 

I would like to claim under SOGA as well as breach of contract

 

I request to be reimbursed for the phone, as well as reimbursed cost of insurance since September 2012.'

 

The above is as much as I am able to state as the POC box is limited to 1080 characters. The evidence in support of my POC is a hell of a lot longer and I attach it below. What I would like to know, however, is:

 

1) Do I need to send the below with the new amendment to POC forms? I know which form I need to send and the process as far as that is concerned.

2) Do I need to show the below to the Defendants at any stage?

3) Can I just use the below as evidence on the day, if the day in court comes?

4) If you can see any anomalies in the below.

 

Please take a read if you can. I'd really appreciate it.

 

Many thanks

 

J

 

 

1) The Claimant has been a customer of the Defendant for at least 13 years.

 

2) On 21 September 2012, the Claimant purchased an iPhone 5 (white, 32GB) from the Defendant’s store at Crescent Arcade, Greenwich, London, SE10 9EJ and entered a contract in doing so, in accordance to the Sales of Goods Act 1979. The Claimant paid cash and subsequently extended his mobile phone contract simultaneously.

 

3) On 3 September 2013, the Claimant recognised an issue with the battery of the purchase mentioned in S2, whereby the iPhone 5 powered down at approximately 10 per cent.

 

4) On 4 September 2013:

 

(1) The Claimant contact the Defendant’s technical support team and alerted the Defendant to the issue and confirmed ‘Clone Phone Fully Loaded’ insurance held with the Defendant was in place.

 

(2) The Defendant’s technical support team performed diagnostic tests and confirmed the Claimant’s iPhone 5 was faulty and would need to be replaced.

 

(3) The Claimant was unwittingly transferred to the iPhone 5’s manufacturer with no prior knowledge, thus being referred to a third party.

 

(4) The Claimant was informed by the iPhone’s manufacturer that three options were available:

 

(a) For the Claimant to send the iPhone 5 away for repair via registered post

(b) For the Claimant to pass the iPhone 5 to a courier and receive a replacement phone to be temporarily assigned, during which the Claimant’s phone would be assessed for a fault (a courier fee of £30 would be charged to the Claimant and deposit would be required to be placed on the Claimant’s credit card)

© For the Claimant to visit the iPhone 5 manufacturer’s store to receive a repair or replacement.

 

(5) In pursuant to 4.1, the Claimant would be greatly inconvenienced. The Claimant is disabled and, as mobility is an issue, requires the use of a mobile device at all times. To be without a mobile device may prove detrimental to the Claimant’s wellbeing.

 

(6) In pursuant to 4.2, the Claimant does not have the disposable income to pay a courier charge of £30. The Claimant is in receipt of Employment and Support Allowance and is not in receipt of any additional income.

 

(7) In pursuant to 4.3, to arrange a visit to the manufacturer’s store to receive a repair or replacement within the timeframe required, due to the pending end of manufacturer’s warranty, would not have been feasible owing to the Claimant’s disabilities and logistical requirements surrounding them. The Claimant suffers from autoimmune inflammatory arthritis, fibromyalgia and von Willebrand’s disease. As a result of these disabilities, the Claimant suffers from mobility issues, severe pain and discomfort and severe bleeding and relies upon supervision when travelling.

 

(8) The Claimant advised the iPhone 5’s manufacturer/third party of the desire to contact the Defendant again to seek resolution.

 

(9) The Claimant further contacted the Defendant and was, in the opinion of the Claimant, unduly advised Clone Phone Fully Loaded insurance held would not cover the iPhone 5 for developing a fault within the first 12 months of purchase on numerous occasions. There is no mention of this within the Clone Phone Fully Loaded Terms and Conditions (Consumer and Small Business) (see attached Schedule). The Claimant was again advised to seek resolution with the manufacturer/third party.

 

(10) During further telephone correspondence with the Defendant, the Claimant was advised reasons given for being unable to comply with the manufacturer/third party’s options (see 4.1.a, 4.1.b, 4.1.c and 4.5, 4.6., 4.7) were not ‘exceptional circumstances’ and the Defendant’s Clone Phone Fully Loaded insurance was deemed redundant.

 

(11) The Claimant advised the Defendant of imminent written correspondence to the Defendant’s executive office.

 

(12) Email correspondence was sent to the Defendant’s executive office explaining the situation and requesting remedy.

 

5) On 11 September 2013 the Claimant sent an email and letter of intent to use court action of the attention of the Defendant’s Chief Executive (proof of receipt attached in Schedule).

 

6) On 18 September 2013 the Defendant’s executive team contacted the Claimant confirming unwillingness to resolve the issue without court action.

 

7) The Claimant subsequently issued court proceedings.

 

 

 

Sales of Goods Act 1979 (“the Act”)

 

 

8) For the purpose of S48A(3) of the Act, goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so confirmed at that date.

 

9) The length of the renewed contract between the Claimant and Defendant at the time the iPhone 5 was purchased was agreed to be 24 months. Within less than half of the contract cycle, a fault has developed on the iPhone 5 which the Defendant will not rectify.

 

10) For the purpose of S48A(4), S48A(3) does not apply if its application is incompatible with the nature of the goods or the nature of the lack of conformity.

 

11) For the purpose of S48B, if any of S48A applies, the buyer may require the seller to repair or replace the goods and the seller must repair or replace the goods within a reasonable time without causing significant inconvenience to the buyer, thus rendering the Defendant in breach of the requirement of S48B(2)(a) by failing to repair or replace the goods within a reasonable time and without significant inconvenience to the buyer.

 

12) For the purpose of S14(2A), goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of the price.

 

13) The Claimant paid £599 for the iPhone 5, which subsequently developed a fault within 11 months.

 

Clone Phone Fully Loaded Terms and Conditions (Consumer and Small Business) (included in Schedule)

 

14) The Claimant took out insurance with the Defendant on 21 September 2012 and continued to pay for insurance services as at the date of the fault becoming known.

 

15) The Claimant was subsequently advised that insurance was not able to be applied to cover the issue of the iPhone 5.

 

16) The Clone Phone Fully Loaded Terms and Conditions state: Whether Your mobile device has been lost, stolen or damaged or it decides to stop working, with Clone Phone Fully Loaded You can have the reassurance that we’ll get a replacement device out to You within 24 hours’.

 

17) The Claimant promptly paid £14 per month for insurance via the Defendant which, according to the Defendant’s insurance Terms and Conditions cover ‘loss, theft, damage as well as warranty cover against electrical or mechanical breakdown for 36 months, provided by EE’ (the Defendant).

 

18) Under S2.7 of Clone Phone Fully Loaded Terms and Conditions (Consumer and Small Business), Terms and Conditions are set out to explain what is not covered in insurance (available to be viewed in attached Schedule). The Claimant states the issue with the iPhone 5 is not listed under these Terms and Conditions and therefore should have been covered under the terms of insurance.

 

19) To further substantiate how the Defendant’s insurance is sold, a recording, agreed to by the Defendant, was made of a conversation between the Claimant and the Defendant regarding Clone Phone Fully Loaded insurance. A transcript and recording have been provided for reference (see Schedule).

 

20) The iPhone 5’s manufacturer has confirmed there is a fault with the iPhone 5’s battery – a battery which is not removable and therefore should be covered in accordance to S2.7 of Clone Phone Fully Loaded Terms and Conditions (Consumer and Small Business) (see Schedule for confirmation).

Edited October 29, 2013 by JMCDJ

[steampowered]

1) Do I need to send the below with the new amendment to POC forms?

I know which form I need to send and the process as far as that is concerned.

 

No need to provide any evidence at this stage.

Your POC should expressly mention the section of SOGA which you think has been breached

- section 14 (2A)

- and that you are making a breach of contract claim under the seller's warranty and/or insurance policy.

 

If you want more than 1080 characters you can send your POC to the court

and the other side as a separate docment and indicate that it is to follow on the claim form,

but I think 1080 characters with not much detail is OK as long as the nature of the claim is clear.

 

2) Do I need to show the below to the Defendants at any stage?

Yes, before the hearing you will be required to disclose all documents you intend to rely on in court.

 

3) Can I just use the below as evidence on the day, if the day in court comes?

No, in the interests of fairness both sides will be required to disclose the documents they intend to rely on to the other side.

 

4) If you can see any anomalies in the below.

 

I am nervous about including paragraphs (4) to (6) in their current form.

The retailer is entitled to repair, replace or refund at its discretion.

I don't think, legally speaking, your disability would give you a right to refuse a repair.

 

In view of paragraph (4) the Defendant will argue that a repair was offered and thus there is no breach of SOGA.

You can keep the references to your disability

I think it is better to remove the bit about Apple offering a repair

and just say the manufacturer did not offer a satisfactory resolution.

 

Regarding paragraph (9),

it does not matter what your opinion is it only matters what the T&Cs say.

Either they are in breach of the insurance contract or they are not.

If they are in breach then you need to say so expressly and preferably refer to the particular term which has been breached.

 

Regarding paragraphs 8-11, s48A SOGA only applies to Scotland.

For you the relevant sections are s14 (2A) (satisfactory quality) and 14 (3) (fit for purpose).

 

The bit about the insurance looks great, ideally refer to the paragraph which has been breached.

 

I don't see anything about the warranty?

 

Otherwise looks good, you've done a great job with the statement.

[JMCDJ]

Thank you so much once again Steampowered. I really appreciate your time and help. I'll amend the particulars and the doc.

 

Kind regards

 

J

[steampowered]

No worries, let us know how you get on

 

As previously advised, it would be a good idea to write a separate 'without prejudice' letter informing the other side what you would need them to do in order for you to withdraw the claim.

[jayjay1975]

As an FYI. I had a problem with Orange (part of EE) on a iphone 4s that they sent me out AFTER i had lost my phone. Basically it wouldnt power up fully and would just keep looping into itunes mode.b It did this the day i received it.

 

They too told me that i would need to take the handset to Apple as it was in Apple warranty, and that even though i was paying top dollar insurance it wasnt covered by that. They also let slip, that the handset they had sent me out was not a new phone but a refurbished handset.

 

Not being aware of my rights, i swallowed the £18 train fare it would cost me to my nearest apple shop and got it replaced for a new phone!

 

This thread is very interesting and i hope it gets resolved favourably soon.

[stopstealingmydata!]

As an FYI. I had a problem with Orange (part of EE) on a iphone 4s that they sent me out AFTER i had lost my phone. Basically it wouldnt power up fully and would just keep looping into itunes mode.b It did this the day i received it.

 

They too told me that i would need to take the handset to Apple as it was in Apple warranty, and that even though i was paying top dollar insurance it wasnt covered by that. They also let slip, that the handset they had sent me out was not a new phone but a refurbished handset.

 

Not being aware of my rights, i swallowed the £18 train fare it would cost me to my nearest apple shop and got it replaced for a new phone!

 

This thread is very interesting and i hope it gets resolved favourably soon.

 

Sorry to hear about that!

 

The thing is, Orange/EE seem to be a law unto themselves as far as iPhones are concerned and I feel they seem to laugh in the face of what are consumer rights.

 

I really hope I'm successful, but you never know! Hopefully the judge isn't a fan of the company!!

 

I'll obviously keep this post updated.

 

Cheers

 

J