Can a claimant sue a defendant trading as a company?

[nje1411]

I brought a ‘new-other’ Reebok treadmill from a small business via eBay (buy it now, not auction) on 15 August 2012 for £260 plus £48 delivery. When the treadmill arrived, the belt was half off and my brother in law had a friend called out to help him put it back on again (which subsequently cost me £50). I contacted the seller and told them what had happened and that I had to pay someone to put the belt on and after months of chasing, had the £40 reimbursed.

 

In November 2012 I contacted the seller again regarding an issue with the wheels, and that if the problem couldn’t be resolved; I intended to return the product. They responded saying that the year’s guarantee I got with the product was no longer applicable as someone had put the belt back on! Which is rubbish because I still have my statutory rights.

 

Since August, I have used the treadmill twice for around 15 minutes each time (what I waste, I know!) and my brother in law took it to his house on 23/02/2013 to get some use from it. He phoned me in the evening saying that the treadmill is completely useless and that the motor is out of alignment which is subsequently causing the belt to come off. As a result it is burning the rubber which is obviously very dangerous. It appears as though this has been the fault from the very start.

 

I have since applied to take the seller to a small claims court and I'm confident based on the time span that is reasonable for such a product and that it is not fit for purpose, I will be successful.

 

The help I need is an example of a case where a buyer has successfully taken a seller to court following the sale of faulty goods and failure to consider the buyers statutory rights.

 

I have snippets from the Sale of Goods Act 1979 but what I really require is a real life example of this scenario. I would be most grateful for any comments regarding this matter.

 

Many thanks

- Nje

[nje1411]

Just to add - I have recently been made aware of this case: Clegg v Olle Andersson t/a Nordic Marine, 11 March 2003, Court of Appeal. [2003] EWCA

Civ 320; [2003] All E.R. (Comm) 721; [2003] 2 Lloyd’s Rep. 32; (2003) 100 (20) L.S.G. 28;

The Times, 14 April 2003.

 

However, anything a little bit more relative to the situation would be be apt.

 

Thanks

- Nje

[Conniff]

August is a long time ago and you might just have lost your right to reject under the 'reasonable' time limit. If that is so, there is still a breach of contract and you would be entitled to damages.

[Conniff]

Thread moved to the General Retail section

[nje1411]

Conniff - thanks for your comment.

 

Initial contact was first made on 08/09/2012 explaining the problem (which was acknowledged and responded to in part) and a further chase email sent 25/11/2012. Contact continued until 18/12/2012 when a partial refund was given. Then contact was re-established on 23/02/2013 when the problem reoccurred and it appears as though it cannot be fixed. There is no defined time as 'reasonable' in law, each situation is considered individually and seeing as though this comes with a two year manufacturer warranty, I'm not sure why they think they can revoke warranties and completely disregard statutory rights. Given that contact was made within a few weeks and has been ongoing ever since, I don't see what they can argue?

[Conniff]

Don't mix up the statutory duties of the seller and the manufacturers warranty.

 

I might be prudent to drop the maker a line explaining what is wrong and ask it they can deal with it or if you should continue to go through the seller.

 

I did this with a speaker system and I had a label by email with a date a courier would come and pick it up. The service was superb. So without relinquishing your rights to pursue the seller, that is an extra that could be worth following if all you want is satisfaction and a working product.

 

Other than that, yes you are correct the 'resonable' has no set time and a court upheld a rejection claim two years after the purchase.

 

You should send them a letter by recorded delivery laying out in bullet form what has happened and their responses and what you would now like to happen quoting the Sale of Goods Act 1979 (as amended) and the The Sale and Supply of Goods to Consumers Regulations 2002

[Last Of The Time Lords]

I might be able to help you further on this front. The case law is plentiful in this area but each case will be judged on it's own facts. There is an EU Directive (can't recall the number) which means you have to give the seller a chance to repair it. The onus is on the seller to do just that though as opposed to you having to contact the manufacturer. The repair remedy must not cause significant inconvenience to you as the buyer though.

 

I have just completed my law degree and consumer law was a strong subject for me. I can support this with 'real world' employment and life experience as opposed to being a student just out of school. I have many cases as examples and have lifted the following from a recent post I made in the motoring area of this forum. It just shows the principle that just because goods are capable of being used in some way, that does not render them 'satisfactory.'

 

Rogers v Parish. Here, numerous attempts had been made by the seller to repair many faults on a new Range Rover (I know the car in question here is used but the principle applies). They argued that Rogers had no right to reject the car because it was road worthy and could be used etc. The court held, that where goods as delivered are defective, they are not of merchantable quality and do not become so simply because they are capable of being used in some way.

[assisted blonde]

Are you sure you havent just changed your mind about it? only using it twice is very little in 9 months?

[nje1411]

I'm pretty sure if you read the comments you'll see that I contacted them within weeks with problems. If you haven't got anything productive to add, don't comment.

[nje1411]

Hi Last Of The Time Lords, thanks for your reply - I will certainly look into the example you gave. I am confident that when a judge sits down and hears all the facts justice will prevail. I just wanted to be armed with an example where I can say that it's not acceptable. I have said that I would be willing to engage mediation so hopefully they will too and realise that actually statutory rights must be considered! Remains to be seen. PS congratulations on completing your law degree

[johnym]

You should have rejected it outright when you found the damage on delivery.

 

Since you have admitted to the seller that someone has repaired it could this not be classed as accepting the goods? I think the seller has been quite reasonable upto a point, giving you a partial refund for a friend of a friend repairing it without giving the seller a chance to rectify the issue first.

 

To me it seems like a long time to wait.

[Last Of The Time Lords]

You are welcome nje1411 and thanks for the congrats. The fact that you have made an attempt of repair yourself does not dismiss your statutory rights but he will argue that you should have gone to him first and given him chance to repair. That said, he did reimburse you according to your first post.

 

Each case is judged on its own facts but you have nothing to lose (other than the cost of starting the case if you lose)

 

I know it sounds odd but I keep wanting a member of my family to have a genuine argument under SOGA but to be fobbed off by some smirking store manager so that I can go in and tell them that I have a very particular set of skills that I have acquired over a very long career. Skills that make me a nightmare for people like them:lol:

[nje1411]

Haha very good - Taken is a great film! Well the reimbursement is acknowledgement of the fault right? But was only partial to my costs so I'm still out of pocket there too. I have a scheduled attempted mediation for this week so we'll see how that goes although I suspect we'll be going straight to court. I have spent hours doing my homework so hopefully it will pay off!

[nje1411]

Hi Last Of The Time Lords - I was wondering if you might be able to help me.

 

Mediation was unsuccessful and so I have had to continue with the small claims process. I completed a directions questionnaire to have it heard at my local court in Kent and she objected, as a result it has been allocated to Burnley, her local court, which is more than 3 hours away from me (because she's the defendant and says she has children to look after). I'm trying to look at this unemotionally but can't see how that is an adequate reason. I know that unless its limited company it's heard in the defendants local county court but I have informed the court that I will be calling a witness, therefore to mitigate costs I requested it be heard locally to me. I came across something the other day (which I can't find right now) on the government's website saying that if both parties agree there doesn't need to be a hearing, so the case and both arguments can be sent to the judge who will make a decision. This is ultimately going to be the route I take if I don't manage to get it heard local to me.

 

I believe her trading as a business and me having to call a witness would have been adequate to have the case transferred. I am not in a position to travel up there and I am already put of pocket.

 

Do you know of any cases where a claim has heard in the claimants local court? Could you offer any more advice on the matter?

 

Last question, can I claim for my witness' expense? I will be claiming for mine if I am successful although I'm not 100% sure what I can claim for other than time and actual costs.

 

Thanks

[Last Of The Time Lords]

Hi Last Of The Time Lords - I was wondering if you might be able to help me.

 

Mediation was unsuccessful and so I have had to continue with the small claims process. I completed a directions questionnaire to have it heard at my local court in Kent and she objected, as a result it has been allocated to Burnley, her local court, which is more than 3 hours away from me (because she's the defendant and says she has children to look after). I'm trying to look at this unemotionally but can't see how that is an adequate reason. I know that unless its limited company it's heard in the defendants local county court but I have informed the court that I will be calling a witness, therefore to mitigate costs I requested it be heard locally to me. I came across something the other day (which I can't find right now) on the government's website saying that if both parties agree there doesn't need to be a hearing, so the case and both arguments can be sent to the judge who will make a decision. This is ultimately going to be the route I take if I don't manage to get it heard local to me.

 

I believe her trading as a business and me having to call a witness would have been adequate to have the case transferred. I am not in a position to travel up there and I am already put of pocket.

 

Do you know of any cases where a claim has heard in the claimants local court? Could you offer any more advice on the matter?

 

Last question, can I claim for my witness' expense? I will be claiming for mine if I am successful although I'm not 100% sure what I can claim for other than time and actual costs.

 

Thanks

 

By all means put on the form whatever it costs you for the witness to be there, can't say I've done any costs before but if the court didn't accept it they would tell you so.. It will depend on both you and her agreeing to submitting everything to a judge for a decision but you won't get the chance to put your view across in person.

 

Case wise, all cases I know of are about points of law etc hence they get reported, significant arguments using particular legislation etc. Never read a case that places any emphasis on which court it is heard in.

 

Did they state which rule or guideline etc was used to decide in her favour with regard to which court to use? They will have seen your reasons for wanting it at your court but felt that she had the stronger argument. They must have criteria or guidelines etc for such things. The fact she has children could mean she has played the human rights card because under Article 8 of the European Convention on Human Rights, the state must show respect for her private and family life. That right is qualified as opposed to absolute but I dare say it is considered.

[nje1411]

No they haven't said why, I called and they said she has said she has a job/child. I have written with further reasons as to why it should be heard locally to me but if that fails I would like to do it without a hearing. Do both sides have to agree because I suspect she will object just to be difficult.

[Last Of The Time Lords]

No they haven't said why, I called and they said she has said she has a job/child. I have written with further reasons as to why it should be heard locally to me but if that fails I would like to do it without a hearing. Do both sides have to agree because I suspect she will object just to be difficult.

 

I would say both need to agree. Not encountered that situation but short of a significant reason for the court to instruct both parties to proceed without a hearing, then consent of both parties would be needed.

[IdaInFife]

The selection of the court local to the defender is the norm.

 

As LOTTL has advised, I would attend in person as written and verbal arguments can be the same but come over different in the varied formats.

 

I am not sure down there, but up here in a small claims there is no expenses awarded for witness' etc so that should be checked.

[ericsbrother]

you will get your travel and stop out costs where applicable. Witnesses should be listed beforehand along with their statements. If they are expert witnesses then you should ask for them to be considered as judges frown on parties arguing over differing expert witness testimony as it only racks up costs so they often insist that any presence is agreed between the parties beforehand. If you are taking a witness with you then you will get little in the way of expenses. Better to get a witness statement lodged with your case and the statement should be sworn as an affadavit. This costs about a fiver from your local solicitor as long as you write the wording of the swear and take it with you otherwise they charge you for typing it up.

You wont get very far asking for the case being transferred to your local court unless you are disabled.

[nje1411]

Hi all. thanks for your replies - I really appreciate it. As I said, I wrote to the Court explaining that 1. The defendant had already said she was trading as a business and has been since 2008. 2. I intended to call a witness, to which she had referred to in her defence (and acknowledged by paying part towards the costs of getting the treadmill fixed). 3. That it was incredibly difficult if not impossible for me to travel 300 miles because I am a full time student at University.

 

I received a response acknowledging my letter but stating the defendant is being sued as an individual and not a business which actually is not accurate. I brought proceedings against the person trading as XYZ. So, can you sue as a sole trader for example and would the rules be different if so? The judge has said they are writing to the defendant for her views before a final decision is made which makes no sense whatsoever as she clearly isn't going to agree to have the case heard local to me instead of her.

 

I brought it from the 'business', she has admitted to being a business and all of the legal documentation has been served at the business address - so why is this not being taken as an individual (me) suing a business (her t/a XYZ)?

 

As always, any comments and legal cases/quotes etc are greatly appreciated. Where possible please provide legal examples as this is the language the Judge speaks in and is something they are unlikely to argue against so much.

 

Thanks again

[nje1411]

I am in the process of taking someone to the small claims court and will post the link for more details under this thread.

 

I brought the product from the 'business', the defendant has admitted to being a business and all of the legal documentation has been served at the business address - so why is this not being taken as an individual (me) suing a business (her t/a XYZ)?

 

Ultimately, I am looking to have the case heard at my local court as opposed to her 300 miles away.

 

I have been unable to find the company at companies house but that doesn't mean to say it doesn't exist, just that the name isn't the same as what I have searched for.

 

I would be grateful for any legal examples or solid cases, unfortunately mere opinion will not be sufficient as this case is being presented to the judge directly.

 

Thanks

[nje1411]

http://www.consumeractiongroup.co.uk/forum/showthread.php?391472-URGENT!-Small-Claims-Court.-Buyer-takes-proceedings-against-seller-for-faulty-goods-under-Sale-of-Goods-Act-1979&p=4297789#post4297789

[ims21]

If it is a sole trader then there will not be a record at Companies House.

 

Is there any reason for starting another thread for this issue?

[nje1411]

I am unsure as to their entity, they could be a company or sole trader - is there any way of seeing if they're a sole trade?

 

No real reason for starting a new thread except the matter is slightly different to the title of the old thread and wanted to ensure it was seen. Is that an issue?

[ims21]

OK I'll merge the threads and have the title as per this one. It helps because all of the history is in one place and it makes it easier for people to help you.