taking microsoft to court - Date I can request a judgement??

[andie_303]

Quick question, I filed a claim using MCOL on 16th January. It was issued to the defendant on 18/1/16 the papers from the court say it will be deemed as served on 23/1/16, however the defendant filed an acknowledgment of service on 21/1/16. Not wishing to tempt fate but since then I haven't received anything nor MCOL showing anything.

 

So my question is what date can I request a judgement? Is it 28 days from when the court deem it served (so 28 days from 23/1/16) or 28 days from the day they acknowledged service as they were obviously served before the 21st to be able to reply??

 

Hope this makes sense

 

Andie

[BankFodder]

As you come up to the deadline, start logging on and see if it allows you to apply for judgement. It will only allow you to apply once the 28 days has elapsed.

 

Make sure that you apply for the judgement the very moment that the 28 days has elapsed and no defence has been filed.

 

Who is the defendant?

[andie_303]

Microsoft

 

I've just tried to request and it says the required number of days haven't elapsed so it must be the date the court deemed it served not the date they acknowledged service.

[panther12]

Yes I'm fairly sure the time starts from the date deemed served even if they file the AoS sooner. Just keep checking nearer the time but don't get too exited just yet if it allows you to enter judgment as they may have sent the defence on time by post and the court are playing catch up before it's entered on the system.

[andie_303]

I know I've totally tempted fate in asking I didn't realise it wouldn't let you do it if the right number of days hadn't elapsed. I didn't want to do it and get told off for jumping the gun

[citizenB]

I dont think you will get "told off" - sadly the courts appear to be about 10 days behind in their administration - despite so much of it being done electronically !

[andie_303]

We'll just have to wait and see - I'll just keep trying to request a judgement and hope their big guns have forgotten all about lil'ole me

[panther12]

Yes, request judgment as soon as it allows otherwise if the defendant does file defence late and you haven't requested judgment then their defence takes priority and will be accepted if the claimant hasn't already requested judgment. If you do obtain judgment in default just sit tight for a while before doing anything else.

[andie_303]

I've just seen this entry on MCOL

A bar was put in place for Microsoft UK on 19/02/2016

 

I guess this means they filed a defence?

[Guest]

looks like you were a little too trigger happy, them still being in time

 

microsoft the defendant! interesting. do elaborate.

[andie_303]

It seems the entry "a bar has been put in place" etc is because they filed on the 28th day (from when they were deemed served, 29 from when they filed the AOS) and it's to prevent a judgement overlap.

 

It's quite mundane really (except for the defendant ) my mum bought a Suface 2 - it had little use (probably once a week) and 13 months after purchase it decided to not turn on anymore - 100% no damage it hadn't been dropped etc - nothing that would warrant it no longer turning on.

 

Contacted Microsoft customer service and got the "it's out of warranty" spiel and they wanted £200 just to look at it parts would be extra, I refused and escalated the complaint citing the Consumer Rights Act 2015 and the item being fit for purpose all the way to the CEO who I know got my complaint as he handily has out of office turned on (it also gave his mobile number too but I was a good girl and decided not to bother him on his holiday) I emailed twice more on his return and still received no reply so I sent a letter saying if he or Microsoft didn't respond with an offer to repair or replace if have no option but to pursue it in small claims.

 

I got no response so here we are.

 

Their lawyer will more than likely be costing them more than my entire claim amount

[Guest]

deemed service is 5 days after claim issue date (even if they received it before the 5). if acknowledged within 14 days from the deemed service date, a further 14 is allowed. ie 33 days from claim issue date.

[panther12]

If they filed defence the bar in place is to prevent claimant requesting default judgment so just have to see what the court send in the next few days. You then have 28 days to inform court if you want to proceed with the claim. See what they have to say in the defence and take it from there.

[andie_303]

Thanks - happy to wait and see what they say but fully prepared to keep going as long as costs don't become an issue as you know they'll have fancy pants lawyers

[Guest]

as you say

Their lawyer will more than likely be costing them more than my entire claim amount

[andie_303]

. ie 33 days from claim issue date.

 

Today being the 33rd day - typical Anyway let's see what they have to say in the next few days.

[andie_303]

Agh having just read something on another forum (different companies but same fit for purpose issue)I think I may have made an error!! I believed that after 6 months issues regarding "fit for purpose" we're to be taken up with the manufacturer (I.e Microsoft) but advise on another thread says it's the retailer still - have I made a big error? Should it be the retailer I'm pursuing??

[andie_303]

Oh I've definitely made an error - Damn it!! Completely by accident I've come across another thread and as the item I bought pre-dates the consumer rights act it's still SOGA in this case which means I need to take on the retailer (who I did contact initially and they sent my on to Microsoft) I'll wait and see what Microsoft say but I have a feeling that may well be their defence!

 

At least I've realised now though - better head back to the retailer.

[Ganymede]

If the tablet broke 13 months after purchase then the retailer will just refer you to the manufacturer anyway.

 

I don't see that you've done anything wrong.

[panther12]

It's the retailers responsibility under SOGA. If they refer you to the manufacturer, depending on the item it's often easier and quicker to get the manufacurer deal with it if they are prepared to but if no one is playing ball and passing the buck then under soga it is ultimitaly down to the retailer. Any rights against a manufacturers warranty are in addition to your legal rights under soga.

 

I think you'll just have to see what they have to say when the court send you their response to your claim. The 6 month issue means that after 6 months the onus shifts from the retailer to you to prove there was an inherent fault at time of purchase.

[steampowered]

Your contract is with the retailer, not the manufacturer. The position was the same under SOGA as it is now under the Consumer Rights Act.

 

It sounds to me like this claim should have been brought against the retailer.

 

You could possibly make a claim for breach of a warranty thee manufacturer has issued, but you couldn't rely on general 'fitness for purpose' against the manufacturer - only against the retailer.

 

If Microsoft file a defence stating the above, you may need to be prepared to withdraw your claim and issue a fresh claim against the retailer instead.

[andie_303]

Thanks all - I've yet to see the defence so I'll know more when I receive it. In the first instance I did contact the retailer who referred me on to the manufacturer and it's gone from there. I'll wait and see what the defence says.

 

Thanks again for the advice

[panther12]

Has the mcol status changed or still showing the bar. I'd give mcol a call for status update and enquire about the bar in place. They should tell you if they have received a defence or an application - or if you're lucky the bar might just be an error and you can still request judgment.

[andie_303]

As of yesterday it was still showing the bar in place but nothing further, I called and they said a defence had been filed but has not yet been transferred on to the system so couldn't tell me much more than that.

 

In another twist though the retailer - despite being the ones who insisted it was a Microsoft problem at the beginning, replied to my complaint I sent on Friday saying they now "acknowledge an early life failure" and will offer a refund of 50% of the purchase price "taking into account depreciation". They are unable to repair (I already knew this as the surface 2 was a sealed unit so couldn't be opened!). They say whilst they recognise the "early life failure" they don't recognise the product as being faulty and not fit for purpose so will not recognise my rights under SOGA for a replacement, repair or refund.

 

I'm not sure how you can accept one without the other being implied but they assure me they are separate and that for an item to be unfit for purpose it has to be unfit from day 1

 

Having still not heard from Microsoft I've left everything up in the air but am thinking now maybe take the £200 for the retailer and the pursue a s.75 (I think that's right) for the remainder from my credit card company - if that's possible of course.

 

Jeez who knew it could be so complicated?!?

[Guest]

they recoginise an 'early life failure'? so, its not satisfactory/fit then. and they have offered a partial refund taking that into account. which they wld have to do anyway in such (a repair not being poss).

yes, if there is an inherent fault then wld be entitled to the whole back. but, as its after 6 mths, the onus wld be on you to show that there is such a fault.

see what the guys say