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Re: Sale of Goods Act and Used Vehicle
Yes, it was a default hearing and they have now set a date (mid Sept).
So from what you're saying the present judgement is effectively suspended.
We had a General Form of Judgement or Order:
It is ordered that:
1) Judgement is set aside
2) The Defendant do file and serve a defence within 14 days in default of which the defendant be debarred from Defending.
I realise in this process I am meant to try and actually avoid court but given they refuse to reply to letters or any written communication this seems rather pointless. Any dealings I have they have shown they will just lie barefaced about.
I made a reply to the DEFENCE (edit: numbers messed up in cut/paste into forum) .. as you will see I asked they provide proof for the claims they made (which I know they don't have).
This being the case I'm wondering (and have for a while) why they would take the risk of being caught out and shown to have perjured themselves?
They are using a solicitor so I'm wondering what their game is.....
My biggest questions are really what happens in court? Will it be questions/answers etc. or at the other end do we basically just turn up for the judge to make a judgement?
REPLY TO DEFENSE (as submitted) - I also made a notice to admit with the phone records
In the matter between (The Claimant) (Co Nr. 00000 The Defendant) in the Northampton (CCMCC) County Court, Claim Number xxxxx.
The Claimant refutes the following claims made by the Defendant in their Defense:
1.) In paragraph 6 the Defendant claims that ‘the vehicle is now in full working order’. The Claimant views this claim as unfounded. The Defendant had replaced the Turbo prior to the Claimant purchasing the vehicle following which the Turbo failed again less than 2 months and 1000 miles after the purchase. Following this 2nd failure, the Defendant claimed to have replaced the Turbo and the vehicle to be in full working second time. This then failed again after only 200 miles/1week.
The Claimant has therefore been told by the Defendant 3 times that they have repaired the car and it is in good working order. The Claimant finds it implausible that the Defendant has sourced a turbo that would fail almost immediately, twice, and that this was the cause of failure on both occasions. The Claimant believes that either the car has an underlying fault causing the Turbo to fail or the Defendant is not capable of replacing the Turbo correctly.
2.) In paragraph 8, the Defendant claims that ‘The Claimant has made no contact, not raised any issue with the Defendant since the Vehicle was returned to them...’. This is not the case, the Claimant hand delivered a letter the day the car was collected (12 March 2012, Enclosed) and sent a letter by registered mail the following day (13th March 2012, Enclosed).
In these letters the Claimant informed that, if the Defendant wished to discuss this matter that they could do so in writing at any point.
3.) The Defendant claims in Paragraph 7: ‘The claimant was kept up to date with the full progress of the work and time scales involved by telephone whilst their vehicle was with the defendant’.
The claimant asserts that this was not the case and that the Defendant systematically avoided putting anything in writing:
After the Vehicle was returned the second time on 19th January 2012 the Claimant sent 3 registered letters to the Defendant asking specifically for communication in writing. These letters have previously been submitted as evidence with the initial submission on 12th March 2012.
The Claimant did not answer any of these letters including the Final Letter before legal action sent on 21st February 2012. The Defendant instead claims to have telephoned the Claimant despite the Claimant asking specifically for communication in writing. The Claimant informs the court that the Defendant did not call the Claimant at all between 19th January 2012 and 12th March 2012 when the courtesy car was returned except on the 12th March to inform the Claimant that the car was repaired.
The Claimant called the Defendant on three occasions because the road tax of the courtesy car had expired. These occasions were 28 February 2012 at 11:50am and a second time at 13:30 the same day. All of these occasions were after the 3rd letter (Final Demand before legal action). The Defendant informed the Claimant that the tax would be purchased the same day and put in the post. The road tax had not arrived by 1st March and the Claimant called the Defendant again at this time.
The Defendant did offer to explain the current progress over the phone at the time however the Claimant whose first language is not English and is not competent to understand repairs or vehicle parts requested that the Defendant made this in writing and reminded the Defendant that the Claimant had sent 3 registered letters to this effect.
Despite the tax disk arriving on 3rd March in an envelope the envelope contained only a compliment slip (Enclosed) and tax disk and no update nor explanation.
The Claimant requested the telephone operator (T-Mobile) for a record of calls made and received during this period. However, T-Mobile informed the Claimant that they would only provide a record of calls received unless issued a court order.
The Claimant would request that if the Defendant means to use this as a Defense they should provide the evidence of the telephone calls they claim to have made to the Defendant. The Claimant has provided copies of registered letters, receipts for registered letters and a copy of her phone records and maintains that this claim is false.
5 ) The Claimant states in paragraphs 2, 3, and 5 that the replacement turbo fitted was new.
In a letter handed to the defendant on 12-March-2012 entitled “Confirmation of a Turbo Replacement on Ford Focus RY05 YRR” (Enclosed) the Claimant states the Turbo was refurbished. The Claimant maintains that under the Sale of Goods Act 1979 (as amended) , “new” should mean “new” and not “refurbished”. The Claimant wishes to raise this due to the history of the car and their ability to resell the car. The car was initially purchased with a 6 month or 6,000 mile guarantee on the turbo however the refurbished turbo states a 3 month or 3,000 mile guarantee.
Further; this is one of the reasons that the Claimant requested to deal with the Defendant in writing after the second turbo fitted by the Defendant also failed as during the first repair of the vehicle the Defendant’s spouse requested by email (submitted as evidence in the initial claim) a copy of the work done and a guarantee for the replacement turbo equivalent to the one when purchased (6 months or 6000 miles). The Defendant promised to provide this with the vehicle but at the time it was collected claimed to be too busy and promised to send it by post. This has, despite being requested again in the letters from the Claimant not been sent. The Defendant would also draw the courts attention to the letter dated 12th March which was originally dated 12th February and was only corrected at the insistence of the Claimant’s spouse.
In paragraph 3 the Defendant states that ‘The Claimant first reported an issue with the turbo on 20th November 2011, some 2 months after purchase’. The claimant would point out that the matter was reported by telephone on the 19th November and that this is not 2 months after the purchase on the 25 September but almost a week before.
6.) In Paragraph 8, the Defendant maintains that ‘this claim is unmerited and vexatious’. The Claimant believes that it was always the intention of the Defendant to avoid putting anything in writing and to rely on a Defense of ‘keeping the Claimant up to date by telephone calls which were never made’. The claimant believes that the reason the Defendant did not issue the promised guarantee on the first replacement is that they know that the vehicle has an underlying fault and will fail again and that this is the reason the manufacturer that supplied the Turbo (which the claimant believes to be a supplier of refurbished auto parts, not a manufacturer as claimed in the Defense) would not uphold the warranty they supplied with the part.
STATEMENT OF TRUTH
The Claimant believes the facts in this statement are true.
Yes, it was a default hearing and they have now set a date (mid Sept).
So from what you're saying the present judgement is effectively suspended.
We had a General Form of Judgement or Order:
It is ordered that:
1) Judgement is set aside
2) The Defendant do file and serve a defence within 14 days in default of which the defendant be debarred from Defending.
I realise in this process I am meant to try and actually avoid court but given they refuse to reply to letters or any written communication this seems rather pointless. Any dealings I have they have shown they will just lie barefaced about.
I made a reply to the DEFENCE (edit: numbers messed up in cut/paste into forum) .. as you will see I asked they provide proof for the claims they made (which I know they don't have).
This being the case I'm wondering (and have for a while) why they would take the risk of being caught out and shown to have perjured themselves?
They are using a solicitor so I'm wondering what their game is.....
My biggest questions are really what happens in court? Will it be questions/answers etc. or at the other end do we basically just turn up for the judge to make a judgement?
REPLY TO DEFENSE (as submitted) - I also made a notice to admit with the phone records
In the matter between (The Claimant) (Co Nr. 00000 The Defendant) in the Northampton (CCMCC) County Court, Claim Number xxxxx.
The Claimant refutes the following claims made by the Defendant in their Defense:
1.) In paragraph 6 the Defendant claims that ‘the vehicle is now in full working order’. The Claimant views this claim as unfounded. The Defendant had replaced the Turbo prior to the Claimant purchasing the vehicle following which the Turbo failed again less than 2 months and 1000 miles after the purchase. Following this 2nd failure, the Defendant claimed to have replaced the Turbo and the vehicle to be in full working second time. This then failed again after only 200 miles/1week.
The Claimant has therefore been told by the Defendant 3 times that they have repaired the car and it is in good working order. The Claimant finds it implausible that the Defendant has sourced a turbo that would fail almost immediately, twice, and that this was the cause of failure on both occasions. The Claimant believes that either the car has an underlying fault causing the Turbo to fail or the Defendant is not capable of replacing the Turbo correctly.
2.) In paragraph 8, the Defendant claims that ‘The Claimant has made no contact, not raised any issue with the Defendant since the Vehicle was returned to them...’. This is not the case, the Claimant hand delivered a letter the day the car was collected (12 March 2012, Enclosed) and sent a letter by registered mail the following day (13th March 2012, Enclosed).
In these letters the Claimant informed that, if the Defendant wished to discuss this matter that they could do so in writing at any point.
3.) The Defendant claims in Paragraph 7: ‘The claimant was kept up to date with the full progress of the work and time scales involved by telephone whilst their vehicle was with the defendant’.
The claimant asserts that this was not the case and that the Defendant systematically avoided putting anything in writing:
After the Vehicle was returned the second time on 19th January 2012 the Claimant sent 3 registered letters to the Defendant asking specifically for communication in writing. These letters have previously been submitted as evidence with the initial submission on 12th March 2012.
The Claimant did not answer any of these letters including the Final Letter before legal action sent on 21st February 2012. The Defendant instead claims to have telephoned the Claimant despite the Claimant asking specifically for communication in writing. The Claimant informs the court that the Defendant did not call the Claimant at all between 19th January 2012 and 12th March 2012 when the courtesy car was returned except on the 12th March to inform the Claimant that the car was repaired.
The Claimant called the Defendant on three occasions because the road tax of the courtesy car had expired. These occasions were 28 February 2012 at 11:50am and a second time at 13:30 the same day. All of these occasions were after the 3rd letter (Final Demand before legal action). The Defendant informed the Claimant that the tax would be purchased the same day and put in the post. The road tax had not arrived by 1st March and the Claimant called the Defendant again at this time.
The Defendant did offer to explain the current progress over the phone at the time however the Claimant whose first language is not English and is not competent to understand repairs or vehicle parts requested that the Defendant made this in writing and reminded the Defendant that the Claimant had sent 3 registered letters to this effect.
Despite the tax disk arriving on 3rd March in an envelope the envelope contained only a compliment slip (Enclosed) and tax disk and no update nor explanation.
The Claimant requested the telephone operator (T-Mobile) for a record of calls made and received during this period. However, T-Mobile informed the Claimant that they would only provide a record of calls received unless issued a court order.
The Claimant would request that if the Defendant means to use this as a Defense they should provide the evidence of the telephone calls they claim to have made to the Defendant. The Claimant has provided copies of registered letters, receipts for registered letters and a copy of her phone records and maintains that this claim is false.
- The only correspondence from the Defendant has been from their solicitor dated 20 March 2012 (Enclosed) in which the Defendant’s solicitor informs the Claimant that ‘The vehicle has been repaired; you cannot look to reject it under the relevant legislation...’. This appears to be in direct contradiction to the December 2009 OFT Guidance for second hand car dealers, Compliance with Consumer Protection from Unfair Trading Regulations 2008 and Sale of goods Act 1979 (As Amended) which states in Para 8.16 ‘Within a reasonable period after the sale, buyers do not lose their right to reject the car and require their money back merely because they ask for or agree to let you repair the car. Where a consumer agrees to allow you to repair the faulty car (within a reasonable period after the sale) he is still entitled to a refund if the repair turns out to be unsatisfactory or was not done promptly enough’. The OFT document also states: ‘Where a fault or defect emerges with a car in the first six months after purchase, it will be presumed that the fault was present at the time of sale’. Regardless of the time issues the car cannot be said to have been satisfactorily repaired when the turbo failed again after only 1week and under 200 miles.
5 ) The Claimant states in paragraphs 2, 3, and 5 that the replacement turbo fitted was new.
In a letter handed to the defendant on 12-March-2012 entitled “Confirmation of a Turbo Replacement on Ford Focus RY05 YRR” (Enclosed) the Claimant states the Turbo was refurbished. The Claimant maintains that under the Sale of Goods Act 1979 (as amended) , “new” should mean “new” and not “refurbished”. The Claimant wishes to raise this due to the history of the car and their ability to resell the car. The car was initially purchased with a 6 month or 6,000 mile guarantee on the turbo however the refurbished turbo states a 3 month or 3,000 mile guarantee.
Further; this is one of the reasons that the Claimant requested to deal with the Defendant in writing after the second turbo fitted by the Defendant also failed as during the first repair of the vehicle the Defendant’s spouse requested by email (submitted as evidence in the initial claim) a copy of the work done and a guarantee for the replacement turbo equivalent to the one when purchased (6 months or 6000 miles). The Defendant promised to provide this with the vehicle but at the time it was collected claimed to be too busy and promised to send it by post. This has, despite being requested again in the letters from the Claimant not been sent. The Defendant would also draw the courts attention to the letter dated 12th March which was originally dated 12th February and was only corrected at the insistence of the Claimant’s spouse.
In paragraph 3 the Defendant states that ‘The Claimant first reported an issue with the turbo on 20th November 2011, some 2 months after purchase’. The claimant would point out that the matter was reported by telephone on the 19th November and that this is not 2 months after the purchase on the 25 September but almost a week before.
6.) In Paragraph 8, the Defendant maintains that ‘this claim is unmerited and vexatious’. The Claimant believes that it was always the intention of the Defendant to avoid putting anything in writing and to rely on a Defense of ‘keeping the Claimant up to date by telephone calls which were never made’. The claimant believes that the reason the Defendant did not issue the promised guarantee on the first replacement is that they know that the vehicle has an underlying fault and will fail again and that this is the reason the manufacturer that supplied the Turbo (which the claimant believes to be a supplier of refurbished auto parts, not a manufacturer as claimed in the Defense) would not uphold the warranty they supplied with the part.
STATEMENT OF TRUTH
The Claimant believes the facts in this statement are true.
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