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Bought a faulty car, dodgy company name change, Who to Sue?


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Hi,

I'm new to this but am hoping someone can help!

 

 

A car we bought was seriously faulty and the chap we have been in communication with doesn't want to know.

 

 

We are therefore taking him to the small claims court.

 

 

The car was advertised on the internet by a limited company, let's say ABC Limited of 123 Computer Drive,

however, we were told to make our cheque payable to Mr DEF of the same address.

 

 

We have since established that Mr DEF is a Director of ABC Limited and we think is the chap

we have been communicating with (the emails were from "[email protected]).

 

 

I don't know if it matters but ABC Limited only became a limited company two days after we sent our cheque to Mr DEF.

 

My problem is who do I sue?

Do I name ABC Limited as the Respondent or Mr DEF or do I name Mr DEF trading as ABC Limited.

 

I do hope someone will be able to help. In anticipation. thank you.

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Yes it matters enormously that the company came into being after you sent the cheque.

 

It seems very clear on the basis of what you have said that your contract is with the individual concerned and that is the person to sue.

 

You will be much better off seeing him directly because he will not be able to hide behind Ltd liability to escape the effect of a judgement against him.

 

However, if he sold the car as an individual and it was his own car and he is not in the business of selling second-hand cars then it would be a private sale and this would mean that you would have to sue him simply as an individual and the case would be heard in his court because he is the defendant.

 

If you can show that in fact he was a dealer and that he traded the car to you as part of his business, then you will be able to sue him and have the case heard in your own local court and this may be much more convenient for you.

 

In this case, the way to describe him as a defendant is "Mr DEF (sole trader)" or "Mr DEF – trading as DEF car traders" – whatever his trading name was.

 

At some point you will receive a directions questionnaire and it will ask you about where you want the case to be heard. You will then say that you want it heard in your local court and you will explain that the person you are suing is a business and that you are a private individual.

 

In case he starts challenging you and says that you should sue him as a limited liability company, make sure that you have got all the documents you need to show first of all that you contracted with him personally, and secondly that in any event his company was only formed after your contract.

 

What are you tell us the full name of his new business – if it is a car selling business – or are you trying to protect him.

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Thank you Bankfodder for your very prompt reply. Just to be clear - although the vehicle was advertised by a company (the eBay site states the advertisement was placed by a business seller) am I right in thinking that the contract was with Mr DEF even though I have never actually spoken to him (I spoke on the phone with, I believe, his brother). We have already completed the European Small Claims Court form and collated all our evidence, however, this was returned as the Registrar had a query regarding the Respondent. I'm afraid I don't fully understand your last paragraph. If you are asking why I am not naming the company - I got into trouble for naming someone on another matter on another forum site so am very cautious! I have reported the company to Trading Standards and to VOSA but I don't think anything will come of that because it's an across border issue.

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Simply being a business seller on eBay – or anywhere else, doesn't mean that you are a limited liability company.

 

If you want to say that they are company but they are not registered then essentially that means that they are an unlimited liability company – unincorporated.

 

If they represented themselves as "limited" before they were incorporated, then that is very naughty of them and you should point that out if and when you get to hearing, and the judge will be less than pleased.

 

As suggested above, contact your bank and get a copy of the cheque. It should be fairly straightforward. In fact you should ask your bank simply to provide you with the encashed original. Then you can take your own copies of it.

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Thank you Bankfodder for your very prompt reply. Just to be clear - although the vehicle was advertised by a company (the eBay site states the advertisement was placed by a business seller) am I right in thinking that the contract was with Mr DEF even though I have never actually spoken to him (I spoke on the phone with, I believe, his brother). We have already completed the European Small Claims Court form and collated all our evidence, however, this was returned as the Registrar had a query regarding the Respondent. I'm afraid I don't fully understand your last paragraph. If you are asking why I am not naming the company - I got into trouble for naming someone on another matter on another forum site so am very cautious! I have reported the company to Trading Standards and to VOSA but I don't think anything will come of that because it's an across border issue.

 

What country is this guy based in?

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Good point. What is a "European Small Claims" form

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Yup - thanks.

Just found it.

 

Looks very interesting. In force since 2009

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Courts.ie is the Republic of Ireland courts website. Better to use Moneyclaim online, the UK site.

I live in the Republic - if I use the UK site I will have to attend which I can't afford to do. Thanks anyway.

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Is your claim within the european small claims procedure threshold? The limit is currently EUR 2,000 which is only about £1,400.

 

I live in the Republic - if I use the UK site I will have to attend which I can't afford to do. Thanks anyway.

If you want to file an ESOP claim in England, it will just be treated as a small claim in the English system meaning that the hearing would be at the defendant's local court. The normal rule is that you are supposed to sue people in the country they are based. So, if you want to file the claim in Ireland, you'd need to show that the Irish court has jurisdiction.

 

The law says that the Irish court will have jurisdiction over a consumer contract if 'the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.'.

 

What this means is that you must prove that the defendant is operating a business AND you must prove that he either operates in Ireland or directs his commercial activities to Ireland. For example, if you bought the car from him in England and had it shipped across, that wouldn't cut it and in this scenario you could only sue him in England (meaning a hearing in England).

 

If you want to go through with court action, I think it is very likely that you'd have to attend to a hearing at some point. Even if you manage to get this dealt with in Ireland and get a judgment from the Irish courts, you'd still ask the English courts to enforce that if Mr ABC refuses to pay, and that would probably mean a hearing. Unless we are talking about serious money it might not be worth it.

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  • 6 months later...
Just thought you might like to know. We sued the vendor through the European Small Claims Court and won our case. It was very easy and only cost about €25.00.

That's excellent, very well done and thanks for letting us know.

 

Could we trouble you to let us know what you did and how you found the process? e.g. what form you completed and what happened next. The ESOP procedure is very rarely used, much less than you might expect. Hearing from people that have been through the process is really valuable, and will encourage others to take action rather than sitting on the fence.

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

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Will do shortly

That's excellent, very well done and thanks for letting us know.

 

Could we trouble you to let us know what you did and how you found the process? e.g. what form you completed and what happened next. The ESOP procedure is very rarely used, much less than you might expect. Hearing from people that have been through the process is really valuable, and will encourage others to take action rather than sitting on the fence.

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I don't want to appear rude by ignoring your questions but in this respect they are totally irrelevant. The post is about the legal process involved in suing someone not about the car itself.

Just out of curiosity, what car is it and what was the fault? Why didn't it come up on a test drive?
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