Small claims, Claimant or not? |
Small claims, Claimant or not? |
Thu, 21 May 2020 - 17:33
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#1
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
Hi I'm looking for some informed opinion. I'm currently bringing a claim against a retailer. The defendant has stated that they did not contract with me and as such I do not have standing to bring a claim. They say that the contract was with a 3rd party (my partner who is an employee of a subsidiary company) and I was merely acting as an agent. The only evidence they provide of this is hearsay. The invoices provided (none were provided at time of sale) cloud the issue further by naming an employee of the retailer. So my question would be should I:
1, Carry on as I feel there is enough evidence that I did contract with them, and they don't seem to have evidence to back their assertion that I didn't. 2, Get a witness statement from my partner stating that they were not party to the contract and so I was not acting as agent. 3, Join my partner as a claimant to the claim I look forward to your responses. |
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Thu, 21 May 2020 - 17:33
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Thu, 21 May 2020 - 18:01
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#2
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Member Group: Members Posts: 33,610 Joined: 2 Apr 2008 From: Not in the UK Member No.: 18,483 |
Well... it would probably help if you gave some clue as to the circumstances...
-------------------- Moderator
Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed. |
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Thu, 21 May 2020 - 18:12
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#3
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
I paid for item over the phone by credit card. It was delivered/fitted and found to be faulty. The retailer then supplied a second item (they refused to replace the first item and said I would have to submit a warranty claim) charged to my credit card. Again it was delivered/fitted and found to be faulty. The defendant says the items were ordered by my partner and that I was merely an agent. The end user was my partner (but that's not what the defendant alleges).
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Thu, 21 May 2020 - 18:46
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#4
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Member Group: Members Posts: 56,198 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
Are you claiming using the consumer rights act or for them breaching the warranty?
The user (your partner) may be the person with the warranty contract, but my understanding is that the person who actually pays (agent or otherwise) is the person with a claim under the CRA. -------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
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Thu, 21 May 2020 - 18:59
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#5
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
Are you claiming using the consumer rights act or for them breaching the warranty? The user (your partner) may be the person with the warranty contract, but my understanding is that the person who actually pays (agent or otherwise) is the person with a claim under the CRA. I'm claiming under the CRA, obviously their defence is trying to deny me that. After that their defence is poor by my reckoning, basically referring to their T & C's. I'm just looking at the options. Will the court side with the Defendant or not? |
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Thu, 21 May 2020 - 19:19
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#6
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Member Group: Members Posts: 33,610 Joined: 2 Apr 2008 From: Not in the UK Member No.: 18,483 |
Considering we have next to no information, who knows?
-------------------- Moderator
Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed. |
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Thu, 21 May 2020 - 19:30
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#7
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
Considering we have next to no information, who knows? I was just trying to get a general feel from people who have experience of small claims. Since many Private Parking claims challenge on standing I was hoping to understand whether it is usually a strongly argued point or not. I could upload the full claim and defence? What information would help? This post has been edited by Foxy01: Thu, 21 May 2020 - 19:32 |
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Thu, 21 May 2020 - 19:55
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#8
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Member Group: Members Posts: 56,198 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
Well how about giving us more information?
Standing in PPC claims hinges on the details, you’ve given us pretty much none. Of course the T&Cs are irrelevant if they have breached the CRA, they cannot diminish your rights under the CRA. -------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
S172's Rookies 1-0 Kent Council PCN's Rookies 1-0 Warwick Rookies 1-0 Birmingham PPC PCN's Rookies 10-0 PPC's |
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Sat, 23 May 2020 - 22:37
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#9
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
I paid for item over the phone by credit card. Did the item cost more than £100? -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Sun, 24 May 2020 - 08:51
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#10
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
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Sun, 24 May 2020 - 09:06
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#11
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Member Group: Members Posts: 344 Joined: 9 Feb 2013 From: London Member No.: 59,866 |
Perhaps more importantly: Was it a Business to Business transaction or a Business to Consumer one? The original post suggests that it may be the former (or that the supplier in question thinks it is), in which case the CRA wouldn't apply.
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Sun, 24 May 2020 - 09:20
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#12
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
Perhaps more importantly: Was it a Business to Business transaction or a Business to Consumer one? The original post suggests that it may be the former (or that the supplier in question thinks it is), in which case the CRA wouldn't apply. I understand that argument. The defence merely states that they contracted with my partner not me, and as such I was only acting as agent and therefore don't have standing to bring the claim. The items were paid for with my personal credit card. |
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Sun, 24 May 2020 - 10:42
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#13
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Member Group: Members Posts: 3,074 Joined: 17 Nov 2015 Member No.: 80,686 |
Surely if you ordered and paid (as yourself and with your own CC?) you are not an agent, no different than me buying something over the counter for my elderly Mum who gives it to someone else etc etc (i.e makes no difference).
Was the warranty part of the purchase? It reads as if the partner has some sort of insurance and a claim is made via that? If so, the partner is the principal as it must be the partner's item to be able to claim? As others - not enough detail. |
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Sun, 24 May 2020 - 10:58
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#14
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
Surely if you ordered and paid (as yourself and with your own CC?) you are not an agent, no different than me buying something over the counter for my elderly Mum who gives it to someone else etc etc (i.e makes no difference). Was the warranty part of the purchase? It reads as if the partner has some sort of insurance and a claim is made via that? If so, the partner is the principal as it must be the partner's item to be able to claim? As others - not enough detail. I'm relying on your first point. There was no warranty purchased with the item. When the first item was found to be faulty and I contacted the retailer they said I would have to purchase a second item and submit a warranty claim for the refund on the first item (their T&C's). |
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Sun, 24 May 2020 - 11:08
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#15
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Member Group: Members Posts: 1,864 Joined: 2 Aug 2016 Member No.: 86,040 |
Since you paid by credit card then surely the card provider is jointly liable under the consumer credit act. Have you tried to progress via that avenue?
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Sun, 24 May 2020 - 16:32
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#16
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
I paid for item over the phone by credit card. Did the item cost more than £100? Yes, there were two purchases. Both over £400. Your best bet is to pursue the credit card company, I've recently done this for a botched garage repair. The garage first fobbed me off, then said they would fix the vehicle but if they determined they were not at fault, I'd be charged the cost of the additional repair, and when I politely declined and asked for a refund they decided to ignore my correspondence. I claimed off the credit card company and didn't even have to issue proceedings, they simply agreed the garage was liable and refunded the money, all it took was a few letters and photographic evidence. It's easy for credit card companies to just issue a refund as they simply debit the merchant and if the merchant wants to take issue with this, well basically they'd have to sue the bank to get the money back. As you might guess, no merchant is going to bother if they were in any way a fault. A couple of useful links: https://www.moneysavingexpert.com/shopping/...your-purchases/ https://www.which.co.uk/consumer-rights/reg...umer-credit-act In the fist instance I'd go after the credit card company. They have much, much deeper pockets than the merchant. This post has been edited by cp8759: Sun, 24 May 2020 - 16:33 -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Sun, 24 May 2020 - 17:33
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#17
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
I paid for item over the phone by credit card. Did the item cost more than £100? Yes, there were two purchases. Both over £400. Your best bet is to pursue the credit card company, I've recently done this for a botched garage repair. The garage first fobbed me off, then said they would fix the vehicle but if they determined they were not at fault, I'd be charged the cost of the additional repair, and when I politely declined and asked for a refund they decided to ignore my correspondence. I claimed off the credit card company and didn't even have to issue proceedings, they simply agreed the garage was liable and refunded the money, all it took was a few letters and photographic evidence. It's easy for credit card companies to just issue a refund as they simply debit the merchant and if the merchant wants to take issue with this, well basically they'd have to sue the bank to get the money back. As you might guess, no merchant is going to bother if they were in any way a fault. A couple of useful links: https://www.moneysavingexpert.com/shopping/...your-purchases/ https://www.which.co.uk/consumer-rights/reg...umer-credit-act In the fist instance I'd go after the credit card company. They have much, much deeper pockets than the merchant. Since I've already started the claim I would then lose the cost of the claim if I discontinue? Also if as you suggest the card company debit the merchant I wouldn't put it past the merchant to then 'take it out' on my partner, this was one of the reasons I didn't request a chargeback. |
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Sun, 24 May 2020 - 17:47
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#18
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Member Group: Members Posts: 1,864 Joined: 2 Aug 2016 Member No.: 86,040 |
Surely if you proceed to court and win they will be just as likely to "take it out" on your partner ?
If you have issued proceedings you are beyond amicable resolution anyway. But I understand your dilemma. Was there a "staff discount" type of pricing ? This post has been edited by Slapdash: Sun, 24 May 2020 - 17:55 |
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Sun, 24 May 2020 - 18:22
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#19
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Member Group: Life Member Posts: 247 Joined: 4 Mar 2016 Member No.: 82,764 |
Surely if you proceed to court and win they will be just as likely to "take it out" on your partner ? If you have issued proceedings you are beyond amicable resolution anyway. But I understand your dilemma. Was there a "staff discount" type of pricing ? The 2 invoices that have been provided do have a line saying 'Staff cash sale'. However neither make any mention of my partner or of the subsidiary company. The name on them is that of a different employee. Also the first invoice total doesn't match up with the amount charged to the credit card. I did make every effort to resolve the matter and got ignored. They didn't respond to the letter before claim, only acting after I raised the claim. This is a large national company and the consensus was I wouldn't get my money back. |
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Mon, 25 May 2020 - 10:53
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#20
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
You should not lose the cost of the claim as the credit card company has joint and several liability. If it's a large national company I'm tempted to say you might as well press on, as you should be able to collect if you get a judgment.
-------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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