SOG and CRA 2015

[paddyohdear]

Reversed burden of proof could anyone expand on this topic or if they have experienced this in play thanks

[R0b]

Reversed burden of proof

He who asserts must prove - the reverse burden is the opposite.

What exactly is it about the Sale of Goods Act or Consumer Rights Act are you trying to understand?

[paddyohdear]

Mine is SOG i feel uncomfortable being told i have to discharge burden of proof where it should be the retailer.
Having read it is binary the claimant could be right but lose on balance this does not seem fair,

[R0b]

So who has said that the burden of proof rest with you, and what exactly is it you are claiming? You are going to have to give us more information than drip feed it otherwise it becomes difficult in assisting you.

[paddyohdear]

The DJ said at last CMC but the product failed first week it was purchased document it required 4k work when 3 months old defense solicitor stated the discharge of burden of proof was at the trial date i was going to put app in before to establish which party should have to discharge they threatened with wasted costs so my question is at what stage of proceedings would this normally be deceided

[R0b]

I'm afraid I really don't understand some of what you are saying. Rather than paraphrasing, I think you are going to have to fully explain your situation. You've issued a claim but we don't know the contents of your particulars of claim or the defence so at the moment it's like finding a needle in a haystack.

I would suggest you give more information along the following lines:

1. What is this 'product' why you are claiming and on what grounds of the SOGA are you relying on, as well as the value of compensation/damages.
2. What is the trader's defence to your claim.
3. a better description of what happened at the CMC. I wouldn't know why you would issue an application if you have already commenced proceedings, a trial date would be given to hear arguments on both sides and then a judge decides.

[paddyohdear]

section 14 quailty and fit for purpose, CMC same DJ 5 hearings 2 Expert SJE in play ,what is not common both
parties have instructed independantly,2 non parties in contempt ,protected party litigant friend in place
quite alot going on may start committal porceedings against 1 non party waiting for report off 1
of the experts
Defendants documents limited mine over 300 if i could establish before trial date burden of proof reversed
i do not think they could succeed so back to original question is the trial date to late to determine who has to discharge burden of proof

[paddyohdear]

Someone has stated there is no burden of proof to discharge for the claimants case thats why the retailer has to undertake a detailed report at their cost to defend their case this has not happened at this present time i am heading for trial with the byrden when it should be reversed only a fresh application could change this
but is it to late to submit could they argue the case is that advanced its to late

[R0b]

Under normal circumstances where a claimant is bringing a claim against the defendant, the burden of proof lay with the claimant to prove his/her case. However, for the specific purpose of a business-consumer transaction to which the SOGA 1974 applies, if the product is faulty within the first six months of purchase, then it is deemed to have been inherently faulty at the time of sale. The onus is therefore on the business to prove that it was not faulty at the time of sale, hence the reverse burden of proof.

If the Defendant is suggesting that the burden of proof does not lie with them, then you might wish to refer them to S.48(A) of the SOGA. This provision was inserted under the Sale and Supply Goods to Consumers Regulations 2002 (Regulation 5 inserts the provision S.48(A) into the SOGA). This Section states that, if the goods do not conform to the contract or the implied terms under SOGA within six months of the date of delivery, the goods will be taken not to have conformed at the delivery date.

[paddyohdear]

Thankyou for that information and that was my understanding of the law i did write to the solicitors about
this and they side stepped the point and stated this would be dealt with by the trial judge.
My concern is at trial they seize the opportunity and argue the discharge is mine and i lose on the binary
matrix they except the unit is faulty today but i lose on sec 14 then walk into 20k plus in costs this
is amessy case hard for a lip where the true claimant is a protected party (disabled nurse) .
I said there may be an application to establish the discharge there answer wasted costs on a indem basis
plus there are other strange things going on in the case.

[paddyohdear]

Well folks the 2 expert witnesses have been today reports due in 3 weeks

[R0b]

The solicitors are right in that the matter will be dealt with at trial. If you are ploughing a lot of money into this then you should really consider some proper legal assistance.

If the judge gets the burden of proof wrong then that would be very easy grounds for an appeal. It is well established as I mentioned above in relation to the Regulations that the burden of proof within the first six months is with the trader to prove it was no faulty at the time of sale.

Confused about this application, and quite honestly I cannot follow what you are saying at all - you are giving things by drip feed and it doesn't make sense, we are not party to your claim so we don't have all of the facts that you know. I have no idea what extra application you want to make or are looking to make because you only need to turn up to trial and argue your case. Unless you are going for summary judgment which, if there are several experts involved, is highly unlikely to be successful and you will be slapped with costs.

[paddyohdear]

I understand your point of view drip feeding does not paint the whole picture,manufacturers use other
supplying manufacturers when building their product these are non parties .
A non supplying retailer looked at the product when it was just over 3 months took photos and ordered
parts and works up to 4k the supply retailer has the same dealer login to the manufacturer.
When tested the first non supply retailer gave a job ref number of manufacturer .
I then tricked the manufacturer to supply email of that ref and parts ordered, year later the non supplying
retailer stated to court very little information available the defendants solicitors questioned this event
on works required in the first 6 months.
The manufacturer has not been joined in part 20,however what all the parties were not aware of
i had a witness at the reception of the first retailer recording covertly on a iphone
this is the first non party in contempt.
As an lip i thought can i go back to court separate application prove the contempt sort out the discharge
of burden of proof before the trial and just to make it more complicated there is another non
party that has submitted a fake report would this require committal proceedings to prove.
So what starts off has sec 14 consumer moves on to fast track ,litigant friend,protected party,various
non parties,expert witnesses,contempt of court,many CMC,same DJ last 5 hearings,SJE where
both parties instruct then i will request a site visit for trial where the product is outside the court
on the day where the press will be aware quite a messy case alot for 1 LIP to take on.