Goods not as described

**ostell** · 22nd November 2015, 20:35:PM

Re: Goods not as described

Springing on is frowned on, anything that you intend to rely on in court has to be given to the other side prior to the case. If you do not declare the information you may not be allowed to present it to the court.

**Bananass** · 22nd November 2015, 22:59:PM

Re: Goods not as described

Thanks. So do I write directly to the defendant now ?

**ostell** · 23rd November 2015, 08:25:AM

Re: Goods not as described

If the information from the defendant has not been submitted to the court then they are trying to come to some sort of agreement with you. Not to respond would deemed to be unreasonable. You could point out the discrepancy to them and see what comes back. They may decide not to oppose.

**Bananass** · 23rd November 2015, 12:10:PM

Re: Goods not as described

Sorry, clarification - before making my legal claim I complained to a trade body. The trader gave a figure to that body which was important in part of that body's decision (which was to reject my complaint). Now in it's formal defence to my claim the trader has supplied an entirely different figure to the court.
There is no scope for confusion the 2 figures should be identical and the trader is not trying to reach agreement.

**ostell** · 23rd November 2015, 16:41:PM

Re: Goods not as described

If the figure has been given to the court then it is up to you to inform the court, as an answer to their statement, that the figures differ and give the previous figure he gave and the new figure. Copy to court, copy to defendant.

**Bananass** · 24th November 2015, 02:02:AM

Re: Goods not as described

Thanks for that. I'm still a little unclear as to the process, as I say, I have yet to receive the defendant's defence from the court, when I get that will there be instructions as to what to do ?
Am I to give a detailed rebuttal of the defence statement or simply identify any obvious factual errors/inconsistencies ? Is there a form or do I just write ?
Sorry for barrage of questions but I have never got this far into a claim before and I want to get it as right as I can.

**Amethyst** · 24th November 2015, 05:31:AM

Re: Goods not as described

Hi Bananass

Approx how much is your claim for ? ( only really need to know if it is below or above £10k )

Did you bring the claim through your local court using the N1 form, or through the online claims services (Moneyclaim Online (MCOL)) ?

The process differs slightly.

If MCOL and under £10k (as is most common) then the court will send you a copy of the defence from the defendant along with a letter like http://www.legalbeagles.info/forums/...8&d=1447316143 telling you to complete the N180 form.

Once that is completed and filed/served the court will send details on mediation and a court date with instructions for filing evidence and witness statements. It is at that point you would expand on the facts of the claim including this discrepency in figures with copies of letters as evidence.

1. a) I have asked for documents to assist in my claim but been ignored - should i write again to defendant and then ask the court to direct the defendant to provide the documents ?

How did you ask for documents ? ( and next step again depends how much the claim is )

b) Should I send any such request when I return the questionnaire ? (which I understand is the next thing to be sent to me by the court)

depends on answer to 1a. It is possible to request specific directions from the court.

2. I want to commission an expert witness - should that request be sent with the questionnaire ?

expert witness really depends on the situation, the amount of the claim. Are you after an independent expert witness ? If so then agreement needs to be made between the parties on the witness and costs of.

3. a) There is a significant discrepancy in the defence from what should have been the same information given by the trader prior to my starting proceedings - should I write to the defendant to try to show that this undermines their case and encourage them to make an offer or should I spring it on them in court ?

b) Is there an obligation on me to point it out now anyway ?

It is encouraged to communicate and try and reach a settlement outside court. Tactic wise it's tricky without knowing a bit more of the case whether it is a good idea to bring this up now or not.

**Bananass** · 25th November 2015, 01:27:AM

Re: Goods not as described

Hello Amethyst, Thanks for taking the time on this.

It is under £1,000 and I used the N1 form, not MCOL.

I added a list of requested documents to my Letter Before Claim and then wrote to the CEO when I had submitted the N1, informing him that I had submitted my claim to the court and again asked for the documents.

At issue is the supply of car parts and their early deterioration. 1 'pillar' of my case is that they cost a third more than the same parts by a maker of high repute and so should be of the highest quality. I have sought agreement with the defendant on the standing of the alternative maker and on the reasonably expected longevity of these parts but he has denied knowledge of the quality of the alternative maker and challenged my estimate of longevity. He has also questioned the seriousness of the deterioration. To settle these issues I feel an expert witness is needed.

**Amethyst** · 25th November 2015, 08:01:AM

Re: Goods not as described

mmm not sure you'd get your costs back for an expert witness. Is there any documentation from the other supplier which states quality, expected length of useability and price you can include with your witness statement ?

I don't know anything about car parts, but some others might do so might be worth putting a little more info.

What were the parts ? Were they official parts for the type of vehicle ? How were they fitted ? How long did they last / what was wrong with them ? What happened on complaining to the supplier?
Is your claim based on sale of goods act / consumer rights act etc ? are you acting as a business or consumer ?

you should get a N180 fromt he court next but may be worth calling the court and checking the defendant did send their defence to the court as well ( sometimes people don't realise they have to)

**Bananass** · 26th November 2015, 02:05:AM

Re: Goods not as described

The other maker is SKF, a Swedish company of more than one hundred years standing. I can refer to their website which charts their history and the numerous awards they have received (including one from General Motors the parent company of Vauxhall, the maker of my car). Their parts also come with a 2 year guarantee as opposed to the one year of the parts supplied. That's the closest I can get to expected longevity.

The parts are driveshafts, fitted by myself. I bought them believing they were "Vauxhall approved" as they were from a Main Dealer and their website indicated they sold only "Vauxhall approved" parts. I contend that the website constitutes a public statement of quality and as such the Sale and Supply of Goods Act requires the seller to show that I could not have relied on that.

The shafts have rubber gaiters to contain and protect the grease in the joints. In less than a year I noticed that these were beginning to perish, ie cracks had appeared. If the rubber cracks right through and grease leaks out then this is an MOT failure.

There are 4 gaiters. After inspection the aftersales manager offered to supply and fit 2 of them. I protested that all 4 should be replaced and at this point he asked to see the invoice. On sight of the invoice he declared that they were not Vauxhall parts and as such he would supply all 4 but labour was not covered by the warranty and I would have to fit them myself. It was only at this point that I became aware that they were not "Vauxhall approved".

Subsequently the manager has denied what happened and said he knew all along that they were not "Vauxhall approved" parts.

There was a witness to the conversation (a junior member of staff) who has subsequently left the company. I did want to make contact with her to see if she would act as a witness to show the management cannot be trusted to tell the truth. Not sure where to go with that. I have now received the questionnaire and see there is a question about witnesses. Would it be a problem if I indicated a witness and it turned out I couldn't get hold of her ?

As far as the invoice is concerned although it was clear to the manager it was not clear to me and even Motorcodes - the trade body I complained to - readily agreed the invoice did not make it clear that the parts were not "Vauxhall approved". I also made a Section 75 application to my credit card provider and the lady I spoke with, without prompting, declared "the invoice tells us nothing".
Both Motorcodes and the bank found against me as the seller said I had been told the parts would not be genuine in my initial telephone enquiry and there was no evidence that I hadn't been told. The closest to a record of that telephone conversation is an email sent moments later to confirm the order and it makes no mention of the parts not being genuine.

It was also found against me on price - I paid £320 incl VAT, the SKF price was £200 incl VAT. The seller told Motorcodes the Vauxhall price was £819 + VAT. Now in his formal defence the seller has stated the Vauxhall price as £355.20 incl VAT.

I am a consumer.

Sorry if this is a bit of a saga !

**ostell** · 26th November 2015, 08:31:AM

Re: Goods not as described

Find that "Vauxhall Approved" statement on their wesite and save it!

**Bananass** · 26th November 2015, 12:02:PM

Re: Goods not as described

Way ahead of you on that one !!

(And the "peace of mind" guarantee.....)

**Bananass** · 2nd December 2015, 01:02:AM

Re: Goods not as described

There was a witness (a junior member of the defendant's staff at the time) who I feel would probably be honest. Her honest testimony would show that at least one manager has lied.

The trader tells me she has left the company and hasn't responded to their attempts to contact her. They will not give me her address for "data protection" reasons - is there any more I can do ?

**R0b** · 2nd December 2015, 08:37:AM

Re: Goods not as described

Originally posted by Bananass View Post

There was a witness (a junior member of the defendant's staff at the time) who I feel would probably be honest. Her honest testimony would show that at least one manager has lied.

The trader tells me she has left the company and hasn't responded to their attempts to contact her. They will not give me her address for "data protection" reasons - is there any more I can do ?

Not giving those details because of "data protection" reasons is not correct. Where legal proceedings has commenced then there is the exemption to the non-disclosure rule albeit they do not have to give you those details but you can ask the court to order them to provide such details where you wish to rely on a witness. You could raise it in court and the likelihood is that your case may be adjourned (or you court request an adjournment) on the basis that due to the defendant's unreasonable conduct, you need further time to prepare your case and contact the witness.

Alternatively you could make an application to the court for disclosure and claim costs of the application back due to the unreasonable conduct of the defendant which, you could also request as part of the order to disclose the person's name and address/contact number who was party to the conversation.

Goods not as described