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Irena

Taking a breeder to small claims court

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Right with you there, just pointing out it’s a risk you take.  You can’t prove the kitten was +ve when you bought it whereas they can (potentially) prove it couldn’t have been.

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I mean, what's the worst that can happen? (and that's a genuine question - what's the worst that can happen?)

 

Also, if anyone has any other thoughts, please share!

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if you were to go the small claims court route, your £total claim would determine your 'risks'

 

under a £10k claim total there are strict limitations upon cost even if you lose. few £100 if that.

over £10k claim, that would be whats deemed as fast track, if you lose there ...hats off to legal expenses they can claim if you lose +£10k's...esp if they get/use legal and expert witnesses to testify


..

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Thanks @dx100uk - are you able to link details on this?

 

If I just go with purchase price discount + insurance excess, that will be under £1k

If I go with the above + vet fees that would be probably about £4k if not slightly more (they can't make me claim on insurance I think), but most likely under £5k

Any other thoughts of wisdom / what to look out for etc would be also very much welcome!

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actually having a look at whats cag I found:

 


..

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6 hours ago, Irena said:

(they can't make me claim on insurance I think)

I think you’re probably right though if it is brought up that you have insurance it may be questioned why you choose to go after the breeder instead.

 

As a general point for anyone reading this, and as I wrote in the guidance on buying a kitten, there isn’t a single good reason for a breeder not to provide a free period of insurance.  It costs nothing, in fact we’re rewarded for doing so.  

 

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We are discussing a simple contract for the purchase of goods here. There may be an insurance in place but there is no duty to invoke the policy. The seller has a clear duty to sell goods which are in satisfactory condition and remain that way for a reasonable period of time. What is reasonable depends on the goods, description of the goods, price paid and reasonable expectations of a reasonable consumer.

I have to say that I think that this whole industry is poorly regulated and I'm all in favour of making life as tough for breeders as is possible. I'm sorry to say that my views about people who buy ornamental animals instead of rehoming the thousands of animals that are abandoned for some reason rather every year is not enormously different.
However, this is a legal advice and self-help forum and so that's what we do.

The Consumer Rights Act doesn't really change the existing sale of goods law in respect of goods – other than it confers a couple of extra rights to reject goods within 30 days in certain circumstances or to reject goods within six months under certain circumstances.

I expect that you don't want to reject this kitten – so for the most part these new rights conferred by the 2015 act don't particularly apply to you and so you fallback on your usual rules of contract. However, the presumption of the preexistence of the defect within the first six months is certainly useful and you are right to point this out.

You say that you are trying to contact the breeder and the breeder hasn't responded. I think this shows immediately that you are dealing with an irresponsible breeder. You also say that the breeder is producing more litters than you are comfortable with. Do you have any evidence for this.

You say that you don't want to name the breeder – I think this is wrong – but this is up to you. What you can tell us is either where the breeder is in the country – or how far away from you his/her animal farm is.

That will give us an idea of how keen this animal farm will be to defend the case.

Also, have you told us somewhere in this thread what your losses are so far?

 


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Posted (edited)
42 minutes ago, BankFodder said:

We are discussing a simple contract for the purchase of goods here

In theory yes but in my experience if these things get to court all sorts of things come up.  I've tried to suggest the sort of things I know have made a difference in the past so the OP is aware and ready.  I've never known it be as simple as a defective fridge.

Edited by hightail
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image.png.749c9e5b0f8516fc66691665383b7c39.pngimage.png.2aec3c5c7b076e6dcb7f9cfeec69285e.pngimage.png.c1099eaf653f8ebc5307b90595488fc9.png 

 

Actually people do bond with all sorts of things including fridges – and anyone of these objects above are worth tens of thousands of kittens

 

 

29 minutes ago, hightail said:

 I've never known it be as simple as a defective fridge.

 

You're leading a charmed life then. Don't push your luck!  😄


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I thought the Sale of Goods Act was replaced by Consumer Rights Act? 

 

Also, can you elaborate re: "the usual rules of contract"? 

I have a contract with the seller but it includes terms which are limiting my rights under CRA especially around some of the things we've been talking about, so presumably it wouldn't hold up.

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Please can you post up a copy of your contract in scanned PDF format.

This is clearly something that needs looking at.

Contractual terms are trumped by statute. Any contractual term which purports to limit or exclude the operation of statutory rights would be unenforceable and frankly it will be an example of unfair trading.

The Consumer Rights Act And the Sale of Goods Act – all the versions going back to the 19th century – have not created contractual rights, they have merely clarified them. Contractual rights are based on common law which is basically the unwritten law based on judicial decisions going back over 800 years.

What has happened is that there has been recognition that consumers and traders are not necessarily equal bargaining partners and so therefore the normal laissez-faire approach to contract law has had to receive some tweaks to either clarify the position of the consumer or to address the imbalance between the power of the trader as opposed to that of the consumer.

Some people might think that this is interference with the right to conduct one's affairs and to negotiate one's position freely – but in fact it is actually necessary – especially against very large companies who operate on standard form contracts. It also creates greater responsibilities upon retailers and manufacturers of goods to produce better quality products because they know that if their products are not up to muster then they will have to answer to the consumer before the courts.

Anyway, you are quite right. For the most part the Consumer Rights Act has replaced the Sale of Goods Act but neither of those acts has replaced the common law of contract which is the underlying set of rules which govern exchanges for value between individuals and between organisations


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You haven't told us how much your losses are


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25 minutes ago, BankFodder said:

You haven't told us how much your losses are

 

If I just go with purchase price discount + insurance excess, that will be about £1k

(if this is not what you meant, let me know)

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I'm not sure. I suppose what I'm asking is that if you brought a claim, what would you be claiming for and what would be the value of that claim.

What do you mean by the purchase price discount? How much is the insurance excess on its own?


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£105 insurance excess. Citizen's Advice told me that I could argue that tier 1 remedies would be a major inconvenience (repair/replace) and that I could argue for tier 2 remedies, one of which means that you can keep the product but get a discount on the purchase price.

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Admittedly I could just decide the whole thing is not worth the hassle and write it off as lesson learnt 😑 But I wanted to explore my options 

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Okay. In principle I think that you have a good claim – but it will all depend on the evidence that you will provide. If the breeder decides that they want to take you to a hearing then they will push you to a point where you will have to pay an allocation fee – about £100 or so in addition to your claim fee. They may do this simply to test your resolve – but they may go all the way to a hearing. If you do go to a hearing then I think that the odds are stacked in your favour but what will really help will be getting evidence. This means that you would need to get written evidence from a vet – or maybe even two vets – or other specialists – to show at the very least that it is likely that this animal was sold to you carrying this illness – whether or not it was apparent or not. It has nothing to do with the intention all precautions taken by the breeder. Contractual obligations are pretty strict and the breeder's intention or the breeder's care et cetera have very little to do with it – nothing in fact.

Without the evidence then I would say that your chances of success are probably better than 70%. These are not odds that I like – and if you lose then you will lose your claim fee, your hearing fee and of course you may well feel angry and humiliated.

If you can get the evidence I have suggested then your chances of success would be better than 85% and as far as I'm concerned these are odds that I would go ahead with. It may well cost you money to get these opinions and I would write to the breeder and inform them that this is what you are doing and that it will be incurring XXX costs and that when you eventually bring your court claim against them, you will be seeking to recover these as well.
If you do win then if you can show the judge that you've got a paper trail and that you warned the breeder that you would be incurring these expenses, then I am pretty certain that you will get them back from the breeder as well. In your letter to the breeder you should also offer them the opportunity to have the kitten inspected by appointment.

I understand that the breeder is relatively close to you which is a shame because had the breeder been across the country then it would have posed more serious logistical problems because as a trader, he/she would have been obliged to travel to your court for a hearing. This would have increased their own risk factor.

I can imagine also that the breeder may be very concerned about their reputation because I expect that this kind of reputation is extremely important for these kinds of small businesses. Because of this, maybe you could also tell the breeder that you will be asking in court that they disclose any of their records in respect to this illness and furthermore that if they press you to a hearing, your claim and any witness statements will be tendered in court, will form part the court record and will therefore be public documents and will be at large.

I think this might give the breeder something to think about because even in the event of you losing the case, these documents will suddenly become public documents.

As you have probably gathered, I think the whole industry of breeding animals need sorting out and probably shouldn't exist at all. I'm sorry that anyone goes ahead and buys these animals when there are so many abandoned animals available to be rehomed. I'm afraid this includes you.

But I think that because of this, it is necessary to put maximum pressure on these breeders to tighten up their act completely and to realise that their reputations will be exposed in the event that there are problems. This can only be good for the animals, for the customers who think that they need such an animal – and of course for the industry as well.



 


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8 minutes ago, BankFodder said:

As you have probably gathered, I think the whole industry of breeding animals need sorting out and probably shouldn't exist at all. I'm sorry that anyone goes ahead and buys these animals when there are so many abandoned animals available to be rehomed. I'm afraid this includes you.

 

I'm not going to argue on this point. I never had a cat before and a thought of starting with a kitten sounded less intimidating. I did approach rescues, but unfortunately the moment you tell them that you'd prefer a kitten to be mainly indoors (and let's not go into the whole indoor vs outdoor thing), it becomes difficult, no matter how many fancy shelves etc you install or how many hours of playtime you can provide to enrich their environment. So believe me, it wasn't a spur of the moment decision :(  Anyhow, I rather agree with what you said and would probably try to do things differently in hindsight. 

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What type of FIP does the kitten have?

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Quote

Thousands of people are falling prey to “dogfishing” scams in which they buy apparently healthy pets that then suddenly fall ill and, in some cases, die soon after.

A quarter of puppy buyers surveyed by the Dogs Trust said that within weeks of buying a pet it had developed serious health or behavioural problems such as diarrhoea or anxiety. A further one in six people said that health problems had emerged within a year of them buying their puppy, resulting in a vet’s bill of about £500.

One in eight of the 2,000 people questioned suspected that they had been lied to about their new puppy’s age, breed and whether it had been vaccinated or microchipped.

This rose to one in five among people who said that they had bought a dog after it was advertised online. Last year at least 201,300 dogs were advertised online on Gumtree, Preloved, Dragon Driving and Pets4Homes.

https://www.thetimes.co.uk/article/puppy-smugglers-sell-thousands-of-unhealthy-dogs-fqz0jj0p2?shareToken=b387f791ac973d5c43a61b64549baa3d


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Quote

Shocking new statistics released today by Dogs Trust reveals how thousands of unsuspecting dog lovers may have been conned or ‘dogfished’ into buying puppies illegally imported into the UK, leaving them heartbroken and almost £500 on average out-of-pocket.

 

Quote

Over half (51%) of puppy buyers were not allowed to see the puppy more than once while over two fifths (43%) were not allowed to see the puppy with their mum – two signs that all might not be what it seems. 

 

 

Quote

puppies were “locked in a small cage away from mum”, were so sick they “very nearly died”, or were “scared of their own shadow and very wary of humans”.

 

Quote

costing them on average almost £500 in additional vet bills. 

 

 

Quote

Many of these poor puppies suffer significant health conditions or lifelong behavioural challenges, and sadly some don’t survive, leaving their buyers helpless and heartbroken – as well as out of pocket.

 

https://www.dogstrust.org.uk/news-events/news/2020/dogs-trust-reveals-the-cruel-dogfishing-[problem]-duping-thousands-of-uk-dog-lovers


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