Caravan Blackhorse - Caravan HP problems.refund issues..**WON VIA FOS**

[Surfer01]

I am going for £300 as that seems the average price difference or a full refund. It seems that the difference in models is type of upholstery, length of caravan, width of caravan, weight of caravan, payload of caravan so qute a number of factors. There is also a difference in the type of material used to build the caravan. There is no easy way you can tell unless you deal with caravans on a regular basis. I will be offering this info to TS and leave them to deal with it. This guy has sold 11 caravans that we know of since January 2010.

[perplexity]

You cannot realistically prove that he KNEW it was a 1990, although he possibly did. What you can say is that because of the model, it is misdescribed and thus you have some options to persue.

 

 

There is no need prove that the seller KNEW, in order to convict.

 

It is a strict liability offence to falsely describe goods. In order to defend himself the seller would have has to pass the test of due diligence, to show that everything reasonably possible was done to avoid a mistake.

 

This, in any case is an offence defined by (22) of Schedule 1 of the Consumer Protection from Unfair Trading Regulations 2008:

 

Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.

8) Edited November 22, 2010 by perplexity

[buzby]

The caveat is, does he have the money? If he's in debt up to his ear lobes , you'll be wasting even more money. You need to look at it dispationally and only spend what you can afford to lose.

 

Traders trying to pass themselves off as private usually means their finances will be in disarray - assuming they have anything worth speaking of.

 

You may get limited satisfaction passing on the info to TS and the DHS, but that is for them to pursue and you'll not even be kept in the loop. I am still of the opinion that you may be lining yourself up for an increase in your losses, so only do this if you can bear the loss. Being successful in court is no guarantee of your action and costs bring paid, unless you have an inside track to where his assets are.

[Surfer01]

He obviously has the money to buy and sell caravans as he has been doing it on a regualr basis, but a good point anyway. We are having a damp test done tomorrow by a local workshop and if no issue, we will just chase him fo £300 for the stress caused. If he pays, then all is okay, but if not I have to consider the pros and cons of taking it further. However TS will be onto his case and also Inland Revenue.

Don't really need the stress but satisfactoin if TS hound him will be satisfaction. Then again my actions may help stop someone else coming onto this forum with a similar story.

[Dragons Dennis]

Just out of interest, what has the seller said when you poiinted out that this is in fact a differenet and older model? I presume you have phoned him about it? He may well be totally innocent of any wrongdoing as such and may have just not done his homework. A softly softly approach usually works best under many circumstances, so if you haven't already I would certainly be making a nice phone call first before sending any 'you broke the law' letters.

[buzby]

Stress will not be a valid pursuit within small claims. Judges are very scathing at how litigants reach their figures and routinely discount them unless there is real stress (medically proven), not because you need something to bulk up a liability.

 

As to his ability to buy and sell, unfortunately this goes for nothing, as a bailiff cannot easily attach to these goods where the provenance cannot be assured - add to this all he needs to do is stop trading for the period yup are actively seeking to get his money, and with no identifiable assets that are his, you'll have a judgement but precious little else.

 

If you cannot identify goods and property that are actually his then use the threat of bailiffs to take it from him, you've got nothing to secure your claim and get your money back.

[Surfer01]

As the seller is a trader, he had ample opportunity to verify the age, model and spec of the caravan as he had accessed to that info from the time the caravan came into his possesion. Not claiming for stress just the difference in price between caravans that are two years older and a lower spec. He has other goods and as he is not a limited company, household goods or vehilces coudl be attached if it went that far. As I said I would need to weigh up the pros and cons if ti ever got to that stage.

 

On checking through all his adverts over the past year, he has changed his telephone numebr 5 times. something to hide? Obviously needed to avoid people contacting him about their caravans when they discovered something was amiss.

Edited November 22, 2010 by Surfer01

[buzby]

Don't be too sure. Bailiffs seldom take household goods ( someone else in the household claims ownership). The vehicles probably will not belong to him, as even the most rich-looking individual will probably owe more than they actually own, and out only find this out when you try to force bankruptcy - £400 is about the lowest limit you can do this. Think long and hard, it may be worth more as a threat than actually following through. good luck!

[Vanderpelt]

If its England and Wales then the lowest amount that you can petition for bankrutpcy is £750, but you will easily spend another £500 on top for the deposit. So you have to ask yourself is it worth it

[Surfer01]

I have no interest in pursuing it that far down the line, but it is worth reporting it to TS and getting him hassled. Turns out also that he has changed the mobile phone number for contact 5 times in less than a year so obviously shady and knows that he is on dodgy ground. I wonder if he is declaring this income to Inland Revennue?

[Crazy Diamond]

What a load of gloom and doom merchants we have here, and I thought this was supposed to be a consumer advice site, not a put-them-off site? And who cares about alleged offences, like the police are going to get involved and prosecute for such a small matter.

 

Long and short of it is, yes you have a recourse, no you don't have to prove whether the guy knew or not as it's irrelevant, I think that you asking for the £300 difference is very reasonable under the circumstances, and I would definitely pursue this and report the guy to TS just in case he makes a habit of it. TS might even give you some back-up on this, which would help "convince" the chap to pay up, no guarantee of course.

 

In theory, you could of course return the caravan and get your money back, but I understand you're happy with it, just not the fact you paid more than you should have, so it would work best for all if he agreed to the £300 refund, and that's definitely the tack I would pursue.

[Dragons Dennis]

I couldn't agree more. All this chat about bailiffs! Nobody has even asked for a refund or compensation yet. Frankly ridiculous.

[Surfer01]

I hadn't even thought fo bailiffs etc TBH as had not even considered going that far. I think reporting him to TS woudl probably be enough. We have had a damp check done on the caravan and to rectify it is going to cost about £110. So would be happy if he covers that costs as the ad ddi say "damp free". As it has been proved he is a trader, it is covered udner SOGA, but lets wait and see what TS have to say on the matter.

[MARTIN3030]

Not sure where the bailiffs come into it at this stage since they can only act on a warrant issued by the Courts-and no court action has taken place right ?

Whether or not the trader has assets that are recoverable or accessible is neither here nor there at this stage-that would be a job for the bailiffs or HCEO if you went down that route and did obtain judgement.

I think the first thing you need to do is to establish a view from Trading Standards,as with them onside you will be suitable armed with all you need should you file a claim in the small claims Court.

It will cost nothing to do this.

You will need to know also what name to summons,since people like this tend to operate under different names.

I think you need to find out as much as you can and put it all together,reconcile everything you have and speak to TS in your area.

Before any Court action you will need to have demonstrated that you have followed pre action protocols-this is important.

[buzby]

I think Martin is not looking to the end game. There is little point involving the courts if you're not going to see it through (as it is an expensive process that you have to pay, in the hope it is recovered later). Same too goes for TS, just what relevance does having them 'onside' do? I certainly can't see any!

 

The bottom line before any pursuit is to ensure the person has assets you can access. As for tins being a task for the bailiffs, Martin cannot have instructed many, their involvement will be in the 10 minutes are the debtors address. They are not investigators, but if you provide them with banking details, they'll take it up with the bank, but they'lll only do this if you've done the footwork first!

[perplexity]

As it has been proved he is a trader, it is covered udner SOGA, but lets wait and see what TS have to say on the matter.

 

 

Nobody has to prove that anybody is a trader to be covered by the Sale of Goods Act. The Act in general applies to any legitimate contract of sale, and to the extent that parts of the Act especially apply to a consumer, the burden of proof is upon the seller to show that the contract is not a consumer contract.

 

The Consumer Protection from Unfair Trading Regulations 2008 refer to "commercial practice" and the "average consumer", so the extent of a trader's activity would thus be material.

 

None the less,

 

It shall be the duty of every enforcement authority to enforce these Regulations.

 

8-)

 

It does make sense, none the less, to beware of the financial circumstance of the seller.

 

If you shout at a dog with a stick in its mouth, the dog may be scared into dropping the stick or bringing it back, but without the stick, all you've got is a frightened dog.

 

[Dragons Dennis]

Oh I agree perplexed.... If you chase a rabbit with a shotgun and it juggles paper towels with its hind legs, and there is an 'r' in the month it still rains on a bank holiday. Clear as mud now. I am not sure how CAG ever managed without your input.

[MARTIN3030]

I think Martin is not looking to the end game. Before any end there has to be a begining.There is little point involving the courts if you're not going to see it through (as it is an expensive process that you have to pay, in the hope it is recovered later).I did not see any indication that the OP has said they would not see it through-yes of course you have to pay. Same too goes for TS, just what relevance does having them 'onside' do? I certainly can't see any!Having them onside will give considerable weight to any claim-its not exactly rocket science -or do you think a Court would disregard breaches of Consumer regs ?

 

The bottom line before any pursuit is to ensure the person has assets you can access.So are you suggesting the Op writes to the trader for an inventory ? As for tins Did I mention Tins ? being a task for the bailiffs, Martin cannot have instructed many, their involvement will be in the 10 minutes are the debtors address.A County Court Bailiff maybe-but they all work differently-how can you be knowing how the Bailiffs work in the Ops area ? Anyway I would use a HCEO -Dont try to tell mer that they would not do the business. They are not investigators, but if you provide them with banking details, they'll take it up with the bank, but they'lll only do this if you've done the footwork first!

 

Sorry Raymond,I have to say that Your opinions and assertions may reflect personal opinion,but cant represent forward thinking when having regard to everything said in this thread.

[perplexity]

I am not sure how CAG ever managed without your input.

 

There was a previous case of an old bloke who didn't want to pay for a caravan. In search of advice he turned up to several online forums and eventually lost the case when it went to court, nor was he the first to lose because a widespread myth about the law was believed. In his position I would rather have been alerted to the correct advice.

 

If in doubt about the law, my advice is to look it up, not to rely upon a personal opinion of any sort. The legislation is available to see, online, and speaks for itself.

 

P.S.

 

Were those who depend on others to help themselves instead, none would be any more glad of that than I. There are other things to do with the time.

 

8)

Edited November 23, 2010 by perplexity
P.S.

[Crazy Diamond]

The CPUT is not a recourse open to private consumers, it's only for a body like the OFT to take action and they won't do that for a one by one case. The legislation doesn't speak for itself, far from it, it is open to all kind of interpretations, and the danger of a copy and paste internet would-be lawyer like yourself means that you bury people under documents which may or may not be relevant (more often than not NOT relevant from what I can see), and end up being no help whatsoever.

 

Were those who depend on others to help themselves instead, none would be any more glad of that than I. There are other things to do with the time.

Then I BEG you to go use your time elsewhere, none would be more glad than those who have to waste so much of their time correcting your, for want of a better word, "advice".

[Dragons Dennis]

Shine on you......... well, you know the rest.

[perplexity]

The CPUT is not a recourse open to private consumers, it's only for a body like the OFT to take action and they won't do that for a one by one case.

 

 

Really?

 

Which is to be believed then, that or this?

 

There have already been some prosecutions under CPUT,both by the regulators and also private cases.

 

Would do no harm to contact your Trading Standards Office.

But they will only take it up after seeing that Tesco have given a final response,or shown no willingness to resolve.

 

[MARTIN3030]

Trading Standards bring first prosecution under Unfair Commercial Practices Directive (UCPD)

 

Wiltshire County Council’s Trading Standards Department have become the first consumer protection agency to obtain and enforcement under the new Consumer Protection from Unfair Trading Regulations 2008. Yet many businesses are unaware of the far-reaching implication of the Regulations.

 

On August 4th 2008 the Office of Fair Trading reported the first use in court of the new Unfair Commercial Practices Directive (UCPD) following a case against two Wiltshire traders engaged in general home handy man services; one might imagine fertile ground for consumer authorities such as the Trading Standards, who are expected to enforce the law nationally, to obtain enforcement under the 2008 Regulations. Although the new regulations are meant to enable Trading Standards and the OFT to crack down on rogue traders and will put in place a comprehensive framework for dealing with “sharp” practices, their implications are far wider and deeper than many have realised.

 

“The Consumer Protection from Unfair Trading Regulations 2008 came into force on 26 May 2008 having been formerly adopted by the EU in May 2005. They implement the Unfair Commercial Practices Directive (UCPD) in the UK, and replace several pieces of consumer protection legislation that were in force prior to 26 May 2008. The Regulations introduce a general duty not to trade unfairly and seek to ensure that traders act honestly and fairly towards their customers. They apply primarily to business to consumer practices but elements of business to business practices are also covered where they affect consumers.” (OFT)

 

The vast majority of UK businesses' dealings with consumers are fair and should not need to change any of their business practices. However, a breach of the rules will, in most cases, be a criminal offence. In addition to a fine, directors and managers could be sentenced to up to two years in prison.

 

The rules make it an offence to mislead through omission as well as commission and outlaw aggressive practices.

 

Objectives of the UCPD

 

The key to the Directive is maximum harmonisation of differences in the Member States’ regulations of unfair commercial practices. This means that national measures within its scope cannot impose greater requirements or prohibitions. It is anticipated that consumers' rights be clarified and cross-border trade facilitated by providing EU-wide protections against aggressive or misleading business-to consumer marketing, giving consumers the same protection when buying from, for instance, a website in another Member State.

 

Scope of the UCPD

 

The Directive is a far-reaching attempt to regulate the whole relationship between businesses and consumers. It replaces current sector-specific laws and is designed to outlaw unfair practices across the business spectrum, before, during and after a transaction, falling into three broad categories:

 

1. The general prohibition;

 

2. The prohibition of misleading actions or omissions and aggressive commercial practices; and

 

3. The prohibition of 31 specific practices that will be deemed unfair in any circumstances.

 

The Regulations state that a misleading action or misleading omission on the part of a ‘trader’ in relation to ‘products’ will amount to an “

unfair commercial practice

”.

 

A “trader” is a natural or legal person acting in the course of his trade, business, craft or profession.

 

A “consumer” is not a natural or legal person acting in the course of his trade, business, craft or profession.

 

“Products” includes goods and services, rights and obligations and range from simple products such as an item of food to the complex services involved in selling property.

 

A commercial practice (includes acts, omissions, a course of conduct, representations or commercial communications by a trader promoting, selling or supplying a product to a consumer) becomes a misleading action, and therefore a criminal offence, if it:

• "contains false information and is therefore untruthful […] or if it or its overall presentation in any way deceives or is likely to deceive the typical consumer […], even if the information is factually correct; and
  
  
• causes or is likely to cause the typical consumer to take a transactional decision he would not have taken otherwise"
  
  

Examples

 

The rules give examples of what may make up false and thus, illegal information, from how readily available a product may be, the geographic origin and even the seller's "awards and distinctions".

Displaying a kite mark without approval or falsely claiming the support of another body will be deemed unfair. As will advertorials that fail to indicate that they were paid for by the trader.

 

Any entertainment or establishment restaurant that quotes selectively from reviews can face prosecution. The rules ban promotions that are “likely to deceive the average consumer, even if the information is correct”, provided that it is expected to influence and initiate a transaction.

 

Most commercial practices occur directly between a trader and consumer but any commercial practice that has the potential to affect a consumer may be covered. For example, a wholesaler selling food to a super market must be compliant with the regulations under the UCPD directly connected with the promotion and sale of food.

 

Conclusion

 

The Unfair Commercial Practices Directive will affect many businesses including wholesale and retail but also the likes of estate agents, financial advisers, insurers, manufacturers of consumer products; these businesses will need to be aware of how changes in the legislative regime may potentially affect their practices.

 

The UCPD by being more broadly framed and flexible brings under its remit well defined practices which may in the past have been good enough to escape prosecution by adhering to the letter of the law and not its spirit.

Given the wide extent of the Regulations, businesses should take steps to understand the implications of the new legislation and to assess their current trading practices to ensure compliance by themselves and their staff.

[Crazy Diamond]

Really?

 

Which is to be believed then, that or this?

 

I'm not aware of any private cases, nor do I see how the CPUT could have been used for that, so unless Martin can provide us with some links, I stand by what I said. Surely if you know so much about the law as you would have us believe , you can provide these examples yourself instead of relying on a 3rd person's say-so? You were after all the one mentioning the CPUT as a possible recourse and you wouldn't have quoted that without knowing in which circumstances they were applicable or not? Would you?

[MARTIN3030]

I have emailed the OFT for them to clarify.