Case Dismissed wrong remedy

[jaxs]

Although the Judge ruled in my favour stating that the contractor had not acted in a professional manner or with due care and attention and that I had proven my case. She dismissed the claim on the grounds that I had applied under the wrong remedy.

The claim was for money to put right a poorly installed artificial lawn. There is nowhere on the form that asks which remedy I am claiming under. I do not understand this at all.

There was a hearing to set aside a default judgment (the respondent didn't get the paperwork in on time). At that hearing the judge set aside and ordered that a jointly appointed Expert Report be obtained. That judge had the claim form and would have been aware of the remedy being sought.

On Tuesday the case was heard and I won on the facts however the remedy for money in order to get the work done is not available under the Consumer Rights act 2015 so the judge dismissed the case and I got nothing.

Notes taken during the hearing were:
That the defendant had not provided an Invoice, Written contact or Terms and conditions.
That she found me to be a good witness & had good recollection, standing firm and stance.
That the defendant failed to perform with the degree of care and skill under the consumer rights act 2015 section 9 not withstanding no written contract. Therefore I am led to the conclusion of breech of implied conditions of performance with requisite care and skill.
Ms A satisfies the court that she has proven her case.
Section 9 (s23/s49/s20) right acts states right to repair or replace or reject or price reduction.
Sum not yet incurred so claimed wrong remedy to be carried out. Regrettably unable to claim.
Dismissed but valid claim.


I think
The remedies available under that act are: the cost to put it right but the work must have already been done or a price reduction in the initial charge ie a refund (full or partial). The judge erred in law as she applied the wrong sections for the remedy - she applied the sections for Goods but should have applied those for Services, but had she got it right would the outcome would have been the same?

My questions are :-

1. Can I change the remedy on Appeal (given she erred)
2. Could she have used her judicial powers and simply construed that the remedy sought was a price reduction (the reduction being the amount of the claim)?
3. Can we bring the claim again with the correct remedy ?
4. The judge at the set aside hearing ordered an expert report, (had the work already been done there would have been no point as all the evidence would have gone ... so how would I be able to defend the case). There was a £400 cost for the parties and that judge made the order but must have known that the remedy was invalid, unless the remedy wasn't invalid.... is there any recourse here ?
5. Could the judge have applied the Civil procedures rules and practice directions, section 1 – Case management?
6. Could the judge have made an order to change the remedy sought, knowing it to be incorrect ? (after all it’s small claims and on their site it repeatedly says that the claimant need not be fluent in the law and are not expected to be so.

[Amethyst]

des8 R0b

[R0b]

Hello

Need to see the Claim Form and what you've written in there - can't make any comment until we have seen that.

Did the judge say what remedy you should have claimed? There would be obvious grounds for appeal if the judge dismissed the claim on the basis that "it was the wrong remedy" without actually giving any explanation.

Section 54(6) of the CRA says:

"This section and sections 55 and 56 do not prevent the consumer seeking other remedies for a breach of a term to which any of subsections (3) to (5) applies, instead of or in addition to a remedy referred to there (but not so as to recover twice for the same loss)."

S.54(7) goes on to say:

"Those other remedies include any of the following that is open to the consumer in the circumstances—

(a)claiming damages;

(b)seeking to recover money paid where the consideration for payment of the money has failed;

(c)seeking specific performance;

(d)seeking an order for specific implement;

(e)relying on the breach against a claim by the trader under the contract;

(f)exercising a right to treat the contract as at an end."

If you said you were seeking damages for breach of contract resulting from a failure to take reasonable care and skill etc. then the judge would appear to have erred. Even still, if you sought a reduction in price or repeat performance you would be entitled to that also. So on the face of it, there is a problem somewhere, whether that is based on your claim or the judge's error in interpreting the CRA.

All comes back to the Claim Form and what you had written in the Particulars of Claim so once we see that we can perhaps answer your questions.