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Small claims hearing and witness attendance


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My wife has brought a claim against someone who we rented a holiday home from.

 

Her claim is based on the sales of goods act - the property was not fit for purpose/did not meet the description.

 

She does not have photos but has her, mine and her sister as witnesses and so the witness statements will be the key evidence for her.

 

We are assuming that the case will be allocated to the small claims court and that it will be allocated to the defendant's local county county.

 

That court is a long way from where both we live and my wife's sister lives. We have two young children and my wife's sister will not want to take holiday/travel for a hearing.

 

My questions are, assuming allocated to small claims and defendant's local court:

 

- how likely it is that there will be a hearing at all for a case like this versus a judge deciding it without a hearing;

 

- assuming there is a hearing, is it possible to avoid my wife/her sister having to attend either as claimant or witness?

 

Many thanks

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For the first question, there is a rarely used procedure whereby if both parties consent the case can be decided by the judge on paper without a hearing. The advantages and disadvantages of this are fairly obvious and, unless the Defendant has similar problems with attendance, I'd imagine a hearing will take place. If possible sound out the Defendant and see whether you can agree that but beware you may get an adverse judgment as the judge won't have heard what you have to say. Part 27 of the CPR contains the procedure for this.

 

For the second question, witnesses don't have to attend to give evidence as the court will consider their statement to be their evidence in chief but, again, beware because a witness who has not been cross examined will be less persuasive than one who has attended and had their evidence tested. Ultimately it's a judgment call but the best thing would be to have a hearing with all of your witnesses there.

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The Sale of Goods Act cannot apply because you never sold - or agreed to sell - the claimant any goods! Section 2(1) of the Act spells this out: "A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price."

 

A claim for a breach of an express term of the contract may well succeed but there can be no successful claim under the legislation stated.

 

PS I see now that your wife is the one bringing the claim not defending it - but the above still applies. The Defendant may seek to have it struck out on that basis but if there is still a possible breach of contract claim despite the wrong quoting of this Act it will probably still be heard but with all references to the Act simply ignored.

Edited by Rex Shepherd 7
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I'm afraid there is generally always a hearing. Cases very rarely get decided on paper. I don't think there is any way to avoid having your wife attend the hearing. You'll have to make a decision whether it is worth having the sister attend the hearing as a witness - given that she is closely related to your wife I am not sure her evidence would add much value.

 

The exception would be if the defendant does not enter a defence in time in which case your wife would end up with a default judgment.

 

This is not a Sale of Goods Act case but I don't imagine the judge would get too excited about that ... the nature of the claim is clear and failure to meet the description is a breach of contract.

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Hmmm.I see what you mean.It would appear that the claim should have been made on the basis of Sale of Goods and Supply of Services Act 1982 - failure to provide the service of accomodation with reasonable skill and care.What is the best thing for my wife to do? Should she seek to amend anything or just carry on as is? Maybe deal with in the witness statement which seems to follow next post allocation?Many thanks

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It isn't a 'reasonable care and skill' case either. It is just a breach of contract case. There is no legislation to cite for this it is just common law.

 

If the Particulars of Claim makes the facts of the case clear, I'd just plow on and deal with it in the witness statement.

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