MCOL Small Claim and DQ

**Amethyst** · 9th August 2017, 12:16:PM

Re: MCOL Small Claim and DQ

You can file a reply to the defence when you send your DQ.

See CPR 15.8 https://www.justice.gov.uk/courts/pr...es/part15#15.8

Reply to defence

15.8 If a claimant files a reply to the defence, the claimant must

(a) file the reply with a directions questionnaire; and

(b) serve the reply on the other parties at the same time as it is filed.

(Rule 26.3(1) and (6) requires the parties to file directions questionnaires and specifies the period for doing so).

(Part 22 requires a reply to be verified by a statement of truth)

There should be opportunity for mediation before any hearing is booked. You are really best attending if you get to a hearing. You will be able to ask for costs to be awarded to you, although these would be pretty limited ( in region of £95 as it's normally only time for attendance, petrol, parking etc ) and of course even with judgment there's no certainty that you'd actually get paid. Don't forget you will also have a hearing fee to pay ( around £25 I think on a £100 claim ) so would need to add that to your costs. The court tell you when to pay that by.

**IronRoad** · 9th August 2017, 12:41:PM

Re: MCOL Small Claim and DQ

Thanks for the quick response. Good to know that I have the opportunity to reply to the defence. When you say serve on the other party do you mean I should send him a separate letter with my counter claims?
I would prefer mediation but suspect that the other party wont in which case it may end up in court, if I let it go that far ie for the small amount involved it's more a point of principal. I presume I can't force mediation on him if he won't agree.

**Amethyst** · 9th August 2017, 12:43:PM

Re: MCOL Small Claim and DQ

Serve means send a copy of what you send to the court, to the claimant as well.

Do you want to put a bit more detail about the case, maybe your claim and the defence, and we might be abel to give you a hand with the reply to send with the DQ.

**MIKE770** · 9th August 2017, 13:00:PM

Re: MCOL Small Claim and DQ

you will not get a chance of forcing mediation on him, the choice is his and informing a mediator as if if agrees to mediation you are not involved at that point but the other party

**IronRoad** · 9th August 2017, 13:19:PM

Re: MCOL Small Claim and DQ

Sorry hit wrong button -

Basically I ordered three types of transfers in Aug 2014. Total value approx £200. THese were a repeat of an order someone else had placed ie no new artwork etc. I had actually obtained the transfers from the original order and successfully applied them to my model. The quote for my new order was provided which I accepted knowing that delivery was not immediate. The model they were going on wasn't ready so happy to wait. Transfers eventually arrived in Jan 2015 and as they were the same as before I assumed they would be ok. Came to use them in Oct 2015 and all three types were faulty. Immediately made supplier aware . sent emails with pictures, sent samples of all three types. He agreed they were faulty, knew why ie fault in the transfer paper ie fault in his production process. He eventually replaced two out of three types by March 2016 and these did work. HOwever he has never replaced the third type which is the nature of the claim. The first two types only had two colours, the third has six colours and I believe he hasn't supplied them because he hasn't been able to make them . His comment is that after 30 years making transfers, he is having to relearn the process. After many broken promises, many illnesses on his part I eventually came to the conclusion I wouldn't be getting them and asked for a refund. This was the second time asking for a refund. The first time he hung up on me but we both calmed down and then he agreed to make the transfers. He never has. There are 12 of this third type and they cost £80. I have spoken to Citizens advice and have written to him twice before going down the MCOL route. In both cases he did not reply to my signed for letter. His T&C's say you have to return any faulty transfer for inspection and to him I haven't complied with that. For good reason. I had to use two to establish they were faulty. I sent him one example in Oct 2015 along with examples of the other two types. I sent him 3 more with my recent letter and have 6 left. I felt that if I sent them all I would have no evidence left. I also didn't have to send all of the other types before he sent the replacements. He says the fault is in the way I applied them. Not true. Used his instructions and same technique that was used to successfully apply the other. He says value is only £23. Not true. This is the value of one set of two transfer and not the value of all 12. Each set of an additional two cost £20 so I'm being generous with the claim.
He says as these are a bespoke order I have to wait until he can fill a full page and yet he didn't do this with the first and second type. I have waited almost 3 years now for the third type. I think that's long enough hence the claim. To be honest if I thought he would produce the third type in an agreed time frame eg 1 month I'd wait but I just don't believe he would. Hence I think mediation would work but don't think he would go for it. My claim is for £80 for the transfers and £12 for the cost of the two recorded delivery letters.
Sorry for the massive ramble.

**Amethyst** · 9th August 2017, 13:27:PM

Re: MCOL Small Claim and DQ

That's okay it's good to have an idea of what the claim is about, not that I'm particularly knowledgable about printing and transfers

but basically you placed an order for products that were provided but were not fit for purpose. You have given him plenty of time to remedy and the court claim really is last resort. Are the products for use in business ?

**IronRoad** · 9th August 2017, 13:52:PM

Re: MCOL Small Claim and DQ

No not for use in any business. Solely for personal use on my models.

**Amethyst** · 9th August 2017, 14:00:PM

Re: MCOL Small Claim and DQ

Cool. Consumer Rights Act 2015 should apply thenhttp://www.legislation.gov.uk/ukpga/...ntents/enacted

**IronRoad** · 9th August 2017, 14:18:PM

Re: MCOL Small Claim and DQ

.. and the sale of goods act possibly but unless it goes to court, are there any ways to win. I suspect not which is why I was interested in replying on the DQ form. Is it possible to ask for a decision in absence.
I would be happy with mediation to avoid court and I will try this option but I don't believe it can happen unless oth parties agree.
NOte that on another forum, a similar issues came up and this time the person had to go to the Tradin Standards Authority in Wales to recover a drawing from this person.

**IronRoad** · 10th August 2017, 08:16:AM

Re: MCOL Small Claim and DQ

The latest update on my claim is the DQ has been sent to the defendant. This was 2 days ago. I'd assumed there would be a similar entry saying the DQ has been sent to me. Will there be and should I just wait for that update?

**Amethyst** · 10th August 2017, 08:47:AM

Re: MCOL Small Claim and DQ

Yes, you should get a DQ from the court as well. You can find the form https://formfinder.hmctsformfinder.j...k/n180-eng.pdf

You can ask for the court to hear the case on papers if you do not wish to attend. To do that once you have a hearing date you can inform the court in writing ( at least 7 days before hearing ) and send your skeleton arguments if any. Of course there is then the risk that the other side will attend and have the Judge's ear, so you would only be able to rely on submissions ( witness statement / claim etc ) that you have filed.

Mediation of course, if the other side agrees, which seems like it may be unlikely.... the court will recommend mediation anyway so it's a case of seeing what happens.

Sometimes sellers are peeved at the rejection of goods and will just let things go through the whole court process being as awkward as possible just to cause problems / stress /cost to the other party. It sounds like mainly you were happy with his work but he oversold himself and was unable to deliver and has some serious trouble accepting it. Which is daft because it turns a good review/recommendation into a bad one which affects his business going forward. I never understand why people behave that way really, but they do, often.

The only bit I don't understand on your case, is the issue is with the six colour transfer, which the seller doesn;t seem to have the means to produce - the previous order you had from him didn't include a six colour transfer, so when you received this order for the 3 types, was there no way of telling that the six colour one wasn't correct ? The time for rejection is possibly your sticking point so think that might need exploring. The seller did offer to replace after your complaint, ( but hasn't and doesn't seem to be capable of) but the complaint wasn't for a few months after receipt?

Have you discussed with Trading Standards at all ?

**IronRoad** · 10th August 2017, 10:04:AM

Re: MCOL Small Claim and DQ

Is it best to wait until MCOL do send me the form and update the status?
The previous order did have the six colour transfers and they worked perfectly. The new order had the same six colour transfers hence I 'assumed' they would behave the same way. The problem is that the materials the supplier had to use had been changed by his supplier so in effect his production process had to change. I wasn't made aware of this at all (maybe no reason I should be) but only found the problem when I came to use them. The production process effectively lays down each colour one at a time on top of each other. His new materials made this process very different and I suspect that the main reason he never supplied the six colours transfers at the same time as he supplied the two colour transfers was because he couldn't make them work properly. He has more or less admitted this in our email exchanges. Whether he can now I don't know.
I have been in touch with the local TSA but they initially directed me at Citizens Advice which I'm been through with their process and did try TSA after that but it simply rand out.

**IronRoad** · 10th August 2017, 20:58:PM

Re: MCOL Small Claim and DQ

So MCOL have in fact sent me the defense and the DQ form. I can't see any option to reply to the defense in the DQ form. Is it possible to reply to the defense and if so how? Thanks

**IronRoad** · 11th August 2017, 12:17:PM

Re: MCOL Small Claim and DQ

Sorry to ask again, but is it ok to send both the completed dq at the same time as a letter outlining my response to the defense?
Do people normally send these by recorded delivery?

MCOL Small Claim and DQ