obvious v itcsales.co.uk *** I WON ***

[obvious]

I bought some barebone PDA's from itcsales.co.uk with a view to buying all the bits and pieces to go with them (chargers,travel kits,batteries,styluses,battery covers,cases,software etc) from various other places and then selling them on in order to help clear off some of my credit card debt.

 

Short version of story:

In November 2005 the PDA's arrived but were not new. Some were OK but all were second hand. Some had foreign ROMS that couldn't be changed to English. Some wouldn't turn on. Some were the wrong (lower) model. Most of them were scratched and damaged to some extent.

 

I had already ordered all the other bits and pieces to make them into saleable sets so I decided to ask ITC for a partial refund, keep the units, fix them up as best I could and sell them on one at a time. After initially responding to emails they started ignoring attempts to communicate. They ignored my requests to negotiate about a fair level of compensation so I did the usual escalation (by email) and threatened to do a S.75 CCA credit card partial chargeback. They still didn't respond so I went ahead and got the chargeback actioned.

 

Anyway, this all takes us to around March 2006 when ITC realise that the chargeback has gone through and they decide it's time to start negotiating by email. Too little to late as far as I'm concerned. I emailed them back a couple of times to basically put my side of the story and ask them why they'd stopped responding to emails. They gave some gumph about their mail server. A likely story. I never had any 'failure to deliver' messages and previous emails had gone through just fine.

 

I tell them that I've already had a partial refund via the Consumer Credit Act Equal Liability chargeback and consider the matter closed.

 

So........toward the end of May I get an N1 court form through the door. Looks like I'm going to Small Claims as a defendant. Should be fun.

 

I bought the Small Claims procedure guide as recommended here () and am starting to prepare my defence.

 

I'll update this thread as I go. Any thoughts/tips welcome.

[obvious]

Thanks Rich44. I've printed out the emails and had a first stab at a timeline + defence draft + things to look into.

 

Hope this isn't too much of a post:-

Particulars of Defence

 

Key: Notes in the form E1, E2 etc within brackets denote copies of communications between ITC and myself that will be presented in court. Copies have already been provided to the claimant.

 

1. The chargeback was issued by the credit card company (LloydsTSB) after receiving and considering my written and photographic evidence to support a Section 75 Consumer Credit Act “equal liability” claim rather than as detailed in the ‘Brief Details of Claim’. Does this mean the credit card company should have been named as the defendant? Aren’t they equally and severally liable? ITC’s claim (if any) should have been directed at LloydsTSB.

 

2. In ‘Brief details of claim’ ITC say they see the goods as stolen. Why didn’t they inform the police? Were they obliged to do so before going to court?

 

3. Again in ‘Brief details of claim’ they say that I refused to return the goods. Apart from the fact that they never directly demanded that I return the goods (they just proposed offers by an unaccepted method), I considered the matter resolved as I had received the refund from the credit card company in response to the S.75 CCA claim.

 

4. ITC asked if I wanted to return the non-English and damaged items and claimed that the units had been ‘booked in wrong’ (E3) on their system ie they were booked in and sold as new English units when in fact they were non-English, second-hand, damaged, scratched, faulty, non functional and some were not the correct model. In short, many of the items were pretty much junk, especially in the UK market.

 

5. 24/11/05 - I provided provisional details of condition/status of the shipment and asked for a partial refund (E6,E6A)

 

6. 28/11/05 – I asked for an update (E7)

 

7. 29/11/05 – I proposed a settlement and threatened a S.75 CCA claim (E8)

 

8. 30/11/05 – After having had no response (to E6, E6A, E7, E8) from ITC I sent email (E9) to inform them that I was had started an S.75 CCA claim.

 

9. 20/01/06 - Two months later ITC confirm receipt (E10) of my previous emails (E1, E2, E4) so emails were getting through to them. ITC then claimed that all the following emails (E6, E6A, E7, E8, E9) were not received by them which seems unlikely as previous emails were acknowledged and I had received no “failure to deliver” messages.

 

10. 20/01/06 – I provide copies of ‘failed’ emails to ITC (E11).

 

11. 20/01/06 – ITC deny originally receiving the ‘failed’ emails (E12).

 

12. 20/01/06 – ITC ask if I tried to contact them by phone.

 

13. 21/01/06 – I confirmed that I’d tried to contact them by phone but had been

fobbed off. As they’d claimed that there were numerous failures to deliver while communicating via email I requested that any further communication be by recorded delivery (E14).

 

14. 23/01/06 – Email communication received (and disregarded) from ITC. Email is now considered unreliable + the situation is being dealt with by my credit card company. Too little too late from ITC.

 

15. 02/03/06 – Just over a month later, I email ITC (E16) and include a copy (E16A) of the document I provided to the credit card company in support of my S.75 CCA claim. This was a courtesy/backup copy. The main copy was sent by post direct from the credit card company. It amounted to a final invitation to settle.

 

16. 02/03/06 – Nearly 4 months since I first reported a problem and after I have rejected email as an accepted method of communication, I receive the first firm offer of a refund (E17). As far as I’m concerned it’s too little too late again. By this stage I have already purchased items to make most of these units functional and other items to include in a package of sale in an attempt to mitigate my losses. Returning them is no longer an option as I would also have to return the other items that make up each package to the respective suppliers. I’m under a duty to mitigate my losses so selling the units was a reasonable step. Also, I have already received a partial refund from the credit card company so at this date I consider the matter closed.

 

17. 02/03/06 – I emailed back (E18), explaining once again that email was unacceptable/unreliable according to ITC and now to myself as well. Mentioned that the boxes had ‘REUNS’ and ‘FOR’ written on them which indicated ‘Foreign’ and ‘Returns’. I reminded them that I’d received no communication at all (through the post) from them despite my requests and once again invited them to respond.

 

18. 02/03/06 – ITC confirm email is working and ask for a figure on items sold (E19).

 

19. 02/03/06 – I reply (E20, E20A) with details of items sold and query why my emails to ITC become marked as “{Definately Spam?}” (unsolicited, unwanted junk email).

 

20. 03/03/06 – They claim (E21) that emails from me had previously been automatically marked as Spam. So my emails to them either disappear or are marked as rubbish. If that is the case then why/how did my original and acknowledged (see point 9 above) emails get through to them? Something doesn’t seem right.

 

21. 07/03/06 – They offer (by a rejected method) to give a full refund (E23) for some items and a partial refund for others. The offer is not detailed but does include an offer of £20+VAT for each unit I wish to retain. This offer is ignored and I resolve to continue to ignore any further communication from them by email.

 

22. 02/06/06 – To date, no written communication (outwith email and court papers) has been received from ITC since I told them of the problems. Were they not obliged to try and settle the dispute rather than ignoring emails, claiming non-receipt of communications, refusing to discuss matters on the telephone and then taking me to court?

 

23. I have made no explicit response to ITC’s “Statement of Truth” following their “Particulars of Claim” as it is not a statement of truth.

 

24. There is no statement of truth on the attached documents to the claim which would seem to be in contravention of rule 22.1. Therefore I make an application (under 22.4) to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.

 

25. Three separate pages (the first titled “Particulars of Claim”) were included with the claim form but these pages do not contain any “Details of Claim”. Only one of the three pages is court stamped. I find no claim to answer in these attached pages. The only information under “Particulars of Claim” on the attached pages concerns contact information.

 

26. I do find an allegation (of theft) on the N1 claim form itself which I deny on the basis of the points raised in this defence. Does the County Court (Small Claims Track) deal with theft allegations? I made every effort to contact ITC. They ignored me and made up excuses about email problems so I refused email as an appropriate method of communication, invited ITC to make an offer by conventional mail and took the matter to the credit card company who eventually settled it to my satisfaction according to the provisions of the Consumer Credit Act 1974.

 

27. Striking out/Summary Judgement: I make an application (under 3.4) to strike out the whole Statement of Case which discloses no reasonable grounds for bringing a claim (rule 3.4(2)(a)) and also under Rule 24.2 and 1.4(2)© for summary judgment against the claimant where that party has no real prospect of succeeding on his claim. Further, the claim sets out no facts indicating what the claim is about, is incoherent and make no sense, if found to be coherent then those facts, even if true, do not disclose any legally recognisable claim against me.

 

28. I have provided photographic evidence to ITC and the credit card company regarding the condition of the items sold that I also intend to bring to the hearing. Please see attached evidence from Dell UK re the age and specification of each of the units sold by them to ITC. They were all supposed to be new English Dell Axim X50v handheld computers.

 

Statement of Truth

I believe that the facts stated in these particulars of defence are true.

 

Notes:

When the Allocation Questionnaire arrives do I want a month’s stay for Alternative Dispute Resolution? I think not. Although of course anything like that would have to be non-binding.

 

Is the Burden of proof reversed as per Sale of Consumer Goods and Guarantees Directive 1999? I bought and sold over 30 PDA's as a one off plan to get rid of some debt. Trader/Consumer?

 

A judge will not be allowed to see any letters that contain “offers of settlement”??? Whats that all about?

 

Charge for photos. What else can I claim costs for?

 

Will the transfer to local court be automatic?

 

Did not receive a ‘Letter Before Action’ or any written requests/demands/offers. Does this cause them a problem?

 

They have not given an “opportunity to settle”. Does this give them a problem?

 

No damages are requested in Particulars of Claim

 

Do I prepare a response to the second ‘statement of truth’ even though it’s mis-titled

 

They only included a small selection of the communication between us. Does this help?

 

Should I inform the credit card company about the case?

 

Should I counterclaim?

 

Check my credit record - have they defaulted me?

 

Provide detailed compensation expectations

[obvious]

double post - please delete

[obvious]

Dont suppose there's a friendly lawyer or anyone in the know reading who's willing to give an opinion (without liability of course)?

 

I can but hope.

[obvious]

Thanks powelll

 

I hadn't looked at the Overriding Objective. A potentially useful part might be the prospect of summary judgement - (1.4(2)©)

1.4

(1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes –

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b) identifying the issues at an early stage;

© deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

Now I'm considering an application for an Order based on

23. I have made no explicit response to ITC’s “Statement of Truth” following their “Particulars of Claim” as it is not a statement of truth.

 

24. There is no statement of truth on the attached documents to the claim which would seem to be in contravention of rule 22.1. Therefore I make an application (under 22.4) to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.

 

25. Three separate pages (the first titled “Particulars of Claim”) were included with the claim form but these pages do not contain any “Details of Claim”. Only one of the three pages is court stamped. I find no claim to answer in these attached pages. The only information under “Particulars of Claim” on the attached pages concerns contact information.

 

26. I do find an allegation (of theft) on the N1 claim form itself which I deny on the basis of the points raised in this defence. Does the County Court (Small Claims Track) deal with theft allegations? I made every effort to contact ITC. They ignored me and made up excuses about email problems so I refused email as an appropriate method of communication, invited ITC to make an offer by conventional mail and took the matter to the credit card company who eventually settled it to my satisfaction according to the provisions of the Consumer Credit Act 1974.

 

27. Striking out/Summary Judgement: I make an application (under 3.4) to strike out the whole Statement of Case which discloses no reasonable grounds for bringing a claim (rule 3.4(2)(a)) and also under Rule 24.2 and 1.4(2)© for summary judgment against the claimant where that party has no real prospect of succeeding on his claim. Further, the claim sets out no facts indicating what the claim is about, is incoherent and make no sense, if found to be coherent then those facts, even if true, do not disclose any legally recognisable claim against me.

[obvious]

Thanks :embarrassed:

 

Just got to pull it all together now.

 

The notes in the third post still need attention and I need to decide whether to counterclaim.

 

Things are getting clearer but it's confusing deciding whether an Application for an Order (eg Summary Judgement) needs to be separate or could be included in the defence. Also whether such applications can be made "without notice" to the Claimant.

[obvious]

Top advice. Thanks.

[obvious]

Defence and Counterclaim filed yesterday (two copies to the issuing court). I didn't send a copy to the Claimant though as I understand they'll be sent one of the court copies and I think my printer will melt if I give it much more to do.

[obvious]

Update:

 

All the paperwork is done including the Allocation Questionnaire and have just received a Notice of Allocation to the Small Claims track + an order for a 15 minute preliminary hearing to be held at my local Court.

 

This seems to be good news as it means that ITC will have to travel down for a short hearing. Perhaps they wont bother.

 

Anyway I'm thinking of sending them an Invitation to Settle. The terms being that they drop the action and I keep the chargeback + drop my counterclaim.

 

Have I got anything to lose (apart from the counterclaim) by doing this I wonder? :-|

[obvious]

Hi there Mad Ferret

 

Some good points there. I'll address them one by one as best I can :-

 

(a) "They offered a resolution" - The problem here is that I'd already ordered parts to make the saleable units complete ie batteries, battery covers, styluses, cases and software etc. so returning all the goods was never an option. I didn't ignore the offer (the first one) just told them it was unacceptable.

 

1. "Ignored emails" - I copied the ignored emails to them before issuing a chargeback and they acknowledged receipt.

 

2. See (a). I would have been in a 'loss of bargain' situation.

 

3. "Stolen Goods" - As far as I understand the Consumer Credit Act (Equal Liability), it is a legal method of claiming redress in a dispute situation. Both the credit card company and ITC's credit card processor (after some correspondence + proofs of the condition of the goods) allowed the chargeback to be processed without entering into dispute.

 

(b) "Thin ICE" - I asked them repeatedly to send me an offer via recorded delivery but they refused (in an email). Since they were the ones who claimed to be having email problems I feel I was acting reasonably by rejecting email as an appropriate form of contact.

 

I appreciate all the input as I dont want to fall into the trap of being over confident.

 

Cheers

Paul

[obvious]

You do realise that I didn't chargeback the full amount? Just an amount that seemed appropriate considering the condition of the goods. At the end of the day I guess it will be up to the court to decide if I understated or overstated the valuation (my counterclaim says I didn't chargeback enough!)

 

Re the email, they were the ones who said electronic communications had been subject to some weird mail server problems at their end so apart from carrier pigeon it seemed that snail mail was a reasonable alternative to insist upon

 

You're not an ITC spy by any chance? (half joking).

[obvious]

Hehe. I was a little worried I might have offended you. Thanks for your thoughts on it all. It's certainly given me a bit more food for thought. Will keep the thread updated.

[obvious]

Well thanks for that. Bit of a shock :O

 

I wont go into a detailed reply but I cant help wondering why the Defence Lawyer doesn't seem to feel that the overriding 'no costs rule' (Rule 27) applies as this has been allocated to the Small Claims track? Is he implying a 'vexatious defence'...if such a thing exists?

 

Tboner, you seem to be taking an unusual interest in this case. The forum you "use all the time" I'm assuming is http://forums.hexus.net/member.php?u=13460 where you've made a total of two posts, both of which were in the ITC thread. Curioser and curioser. Your defence lawyer can't spell either.

 

The phrase "See you on the 5th October" springs to mind

[obvious]

His tame 'lawyer' shares the same spelling and sentence structure. There are quite a few examples eg the 'lawyer' is quoted as saying

I am afraid the information provided By Peter ( Tboner) from both this forum and another confirms all of this in detail.

while Tboner refers to himself as

Tboner ( Peter )

..note the spacing and parentheses used. Coincidence?

 

Also the 'lawyer' seems to believe in something called "General Pursuant costs" which strangely don't get any hits on google

 

Perhaps he got his law degree out of a cracker? (Sorry, couldn't help myself)

[obvious]

I think that both TBoner and Obvious are basically putting their cases at real risk of failure by discussing the points of Law so clearly here. I think the wiser course would be to keep your counsel as far as the finer points of your case are concerned, and wait until the court date...

 

Thanks On the one hand I dont see why the facts should hurt me but that's probably naive.

[obvious]

Unless one of the above posters is actually ITC, then we are of course getting one side of the story. If your side (obvious) is a fair reflection of the case without undue bias, then I personally think that the prelim hearing will be of great concern to ITC.

 

I do not consider that your partial chargeback has resulted in goods 'not paid for in full' (post 19) and I'm certain the Judge will see the same too. Any reference to you making the most of the goods obtained is irrelevant and forms no part of the case in question.

 

I also think that ITC may have been hasty in starting legal proceedings. For that very reason, we here suggest 2 letters each of 14 days to try to reach settlement before starting action - this is 28 days min of course - and the court would normally look to a calendar month as a reasonable amount of time.

 

The fact that the dispute may have lasted longer is not the issue.

 

When is your prelim hearing?

Thanks jonni2bad. The prelim is on October 5th.

 

I'll take a little more care when posting details so please forgive me if I dont answer all questions fully from now on.

 

Tboner, if you are an ITC representative (and that's by no means certain) then it's pretty underhand to be posting here incognito solely with the purpose of wrong-footing me. It doesn't reflect well on your company.

[obvious]

I type up a telephone conversation with Peter and get slated

 

Umm.. I thought you were supposed to be Peter?

[obvious]

Tboner (and his alias) have just been busted over at hexus.net

 

Bogus legal advice eh? Continue like this and it will not go well.

[obvious]

I've been considering putting a copy of all correspondence between myself and ITC online so people can see the full picture. Things like ITC refusing to communicate via recorded delivery and stuff like that. I'm not sure if it's a good idea i.e. breaking confidentiality on what were originally private emails though. There were no privacy disclaimers. Making the entire sordid affair public would perhaps go some way to reinforcing my position with regard to honesty/integrity etc

 

Example: 7th March, they offered :-

 

Hi Paul

A decision has been agreed now on the PDA's with the following been offered:-

1) We would like you to agree the return the balance of the PDA's you currently have for a refund ... and the balance which have been sold or you wish to keep for outstanding sales (i.e. 5 units) a refund of £20 + vat per unit.

Please advise

Regards

Ian

 

This email came months after the initial purchase and after they'd refused to make an offer via recorded delivery. Since the partial chargeback was already done and dusted + I'd sold some of the units + I didn't like the offer, I didn't accept it.

 

A question I've got about the wording of the offer (which wasn't marked 'without prejudice' fwiw) is whether their use of "(i.e. 5 units)" can put a limit on the offer in terms of the number of units I "wish to keep". Surely the number of units "I wish to keep" is up to me rather than ITC and perhaps I could argue that this amounted to an offer of £20 per unit regardless of quantity?

 

Hope that makes sense.

[obvious]

...

Obvious

 

don't think there is a prob with posting the emails up on here - as has already been discussed it would be hard to prove it was you that had posted them and they probably wouldn't be admissable anyway.

 

As to their offers what was the market value of the items you requested and the ones that you received, also what sum did you charge back to them?

I'm not going to reveal what I paid, the chargeback amount or what I sold any of them for

 

...so I'm not asking if the offer was reasonable, just whether it could reasonably be interpreted as applying to all of the units I wished to keep i.e. all of them. It's not a major point, just something that sprang to mind and I dont mind if ITC are reading.

[obvious]

Just got back from the hearing. It was a bit nerve wracking but the district judge made everybody feel as comfortable as possible and the whole thing was reasonably informal.

 

In the end the court ordered that in addition to me keeping the money from the credit card company which they'd charged back from ITC, I be awarded a small additional sum.

 

ITC's claim was dismissed and my counterclaim was upheld. :D

 

Thought I should report back here. Thanks for (most ) of the help and advice.

 

Cheers

Paul

[obvious]

One thing of interest that I wasn't able to fully test is whether in the event of a chargeback by the credit card company, a supplier can claim against a customer.

 

I asked for summary dismissal to be considered on the grounds that I'd never received any monies from ITC ie I'd asked the credit card company to comply with their obligations under S.75 CCA. Since they (the card issuers) were equally liable for upholding the contract on the original sale, they had to pony up the dough when the goods weren't as described.

 

I argued that how the credit card company then decided to proceed (eg make a chargeback against ITC's merchant account) was entirely up to them and nothing to do with me.

 

In the end the Judge didn't rule on this point and dismissed ITC's claim on other grounds but it might be a reasonable idea (IANAL) for anyone else in a similar situation to carefully word the letter to the card issuer so as not to directly ask for a chargeback but just request that they credit your account in accordance with the terms of the Act