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WotEver

Anyone with legal knowledge of Consumer Rights?

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This is nothing to do with boating but I’m trying to help out a chap who’s being taken to Small Claims Court by a nutter. I don’t believe he has any case to answer (neither does anyone else he’s spoken to including CA) but I could do with some advice on a couple of details. 

If you have the knowledge and the time please PM me. 

Thanks,

Tony. 

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19 minutes ago, WotEver said:

This is nothing to do with boating but I’m trying to help out a chap who’s being taken to Small Claims Court by a nutter. I don’t believe he has any case to answer (neither does anyone else he’s spoken to including CA) but I could do with some advice on a couple of details. 

If you have the knowledge and the time please PM me. 

Thanks,

Tony. 

I would think a little read through this legislation might help whatever the problem might be;

 

http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted

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Many thanks but I’m already finding it difficult to find even the basic stuff in there. I’ll keep persevering though. 

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The term "Consumer Rights" embraces a vary wide variety of possible circumstances. Unless you are able to indicate the nature of the claim , i doubt that anyone here can offer much help. Although Citizen's Advice may be able to offer some help, I would suggest that your friend makes an appointment with a Solicitor for Legal Advice.

Edited by David Schweizer

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10 minutes ago, WotEver said:

Many thanks but I’m already finding it difficult to find even the basic stuff in there. I’ll keep persevering though. 

Perhaps this document might help see you through the process;

https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/CJC/Publications/Other+papers/Small+Claims+Guide+for+web+FINAL.pdf

Personally I'd wait until the particulars of the claim have been served upon me before worrying about anything. If it looks like the plaintiff has a case then either settle up or take on a solicitor (bear in mind that if the plaintiff loses his case, he/she will be paying for your solicitor). The nearest I personally have got to a small claims court was the receipt of a solicitors letter when I refused to pay the annual charge on a Time Share. My reply to the solicitor, possibly in slightly more legalistic terms, was 'bring it on' since my case was pretty solid (they were no longer giving me the services I had paid for), we came to an agreement out of court (that cost me nothing).

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Hi David. In brief the guy bought some goods  (car parts) from an Ebay trader (car breaker). When he received them the quality was poor and they were also faulty so he returned them through the Ebay system. 

Seller is now taking him to small claims court for, effectively, breach of contract (although he’s not calling it that). 

My take is that based on this legislation:

http://www.legislation.gov.uk/uksi/2013/3134/contents/made

(thanks to Wandering Vagabond for pointing me in the right direction) there is no case whatsoever whatever the quality of the goods. He is permitted to simply change his mind if he so wishes. 

There are just a couple of details I wanted to discuss with someone who might have specific knowledge of this area of law 

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would also say in the defence that ebay has a dispute resolution service that (presumably) the seller didn’t use. Courts take a dim view of folk who bypass arbitration and go straight for suing. They think their courts should be a last resort, not a first resort.

Anyway the seller is probably trying it on and will back off (if he has any sense) at the last moment.

Edited by nicknorman
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2 minutes ago, nicknorman said:

Thanks. This bit confirms what we all believed to be the case:

Online, mail and phone order sales

Online, mail and telephone order customers have the right to cancel their order for a limited time even if the goods aren’t faulty. Sales of this kind are known as ‘distance selling’.

You must offer a refund to customers if they’ve told you within 14 days of receiving their goods that they want to cancel. They have another 14 days to return the goods once they’ve told you.

You must refund the customer within 14 days of receiving the goods back. They don’t have to provide a reason.

My biggest query is about the return postage - is that down to the seller too, or should the buyer pay it?

Just now, nicknorman said:

would also say in the defence that ebay has a dispute resolution service that (presumably) the seller didn’t use. Courts take a dim view of folk who bypass arbitration and go straight for suing. They think their courts should be a last resort, not a first resort.

Thanks. My thoughts too. Hence my advice for him to try arbitration even though it just wastes more of his time I thought it would reflect well on him with the judge. 

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6 minutes ago, nicknorman said:

Anyway the seller is probably trying it on and will back off (if he has any sense) at the last moment

We’re waiting to see if he pays the next fee due by early January. 

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4 minutes ago, nicknorman said:

would also say in the defence that ebay has a dispute resolution service that (presumably) the seller didn’t use. Courts take a dim view of folk who bypass arbitration and go straight for suing. They think their courts should be a last resort, not a first resort.

Anyway the seller is probably trying it on and will back off (if he has any sense) at the last moment.

I think I'm in agreement with your assessment, the seller is trying the old line 'pay up or I'll take your to court' in the hope that the buyer, afraid of the hassle, will fold. Some of us aren't afraid of the Court however since the one who has to prove his case is the plaintiff, I don't have to prove my innocence, he has to prove my guilt. Although the SCC is based on 'balance of probabilities' rather than 'beyond all reasonable doubt' he/she is still going to struggle to make a case against the OP's friend.

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I'd have thought the distance selling regulations give the protection he needs. The right to cancel an order for up to 14 days and return the goods at seller's expense for no reason. Seems unreasonable, but that is what the law says AIUI. 

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1 minute ago, Mike the Boilerman said:

return the goods at seller's expense

That was one of my questions. Is that definitely correct?

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When I sent in my claim form it was returned as I had omitted to explain something, ie one is really expected to make a full statement: if the guy is a nutter, very likely nothing will come of it unless he uses a solicitor.

I've had real chancers claiming from me, one wanted a fence replaced at a cost of hundreds because I had touched it with my van, it moved the fence about  six inches, I lifted it back those six inches, pretty ropey fence!

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On 03/12/2017 at 23:13, WotEver said:

That was one of my questions. Is that definitely correct?

 

IANAL, but last time I checked a few years ago this was the case. Buyer holds ALL the aces. Or used to. Why not read the regulations to find out for sure? They used to be on line, I doubt this has changed. Google "Distance selling regulations".

They dont (IIRC) apply to auctions but ebay is not an auction site. It is an 'auction style' site. real auctions don't have a cut-off time, they continue until everyone has finished bidding. Ebay 'auctions' stop and a pre-stated time regardless of who wants to bid. 

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3 minutes ago, Mike the Boilerman said:

 

IANAL, but last time I checked a few years ago this was the case. Buyer holds ALL the aces. Or used to. Why not read the regulations to find out for sure? They used to be on line, I doubt this has changed. Google "Distance selling regulations".

They dont (IIRC) apply to auctions but ebay is not an auction site. It is an 'auction style' site. real auctions don't have a cut-off time, they continue until everyone has finished bidding. Ebay 'auctions' stop and a pre-stated time regardless of who wants to bid. 

From here: https://www.gov.uk/online-and-distance-selling-for-businesses

it appears to me that those details should be itemised in ‘the contract’ which I doubt he supplied (although I’ll check that).  

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On 03/12/2017 at 23:23, WotEver said:

From here: https://www.gov.uk/online-and-distance-selling-for-businesses

it appears to me that those details should be itemised in ‘the contract’ which I doubt he supplied (although I’ll check that).  

There used to be an obligation for the seller to supply a 'cancellation form' for the buyer to cancel the order in 14 days. if this form was not sent, the buyer had the right to cancel and get a full refund for ever. Most unfair on sellers, maybe this has changed now.

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Applying common sense (always dangerous with the law!) it would be reasonable for the buyer to pay the return costs if they just return it because they decided they didn’t want it. Whereas if it was faulty it would be reasonable for the seller to pay the return costs. So probably a good idea to explain to the court that the condition of the goods was the primary reason for wanting to return them.

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1 minute ago, Mike the Boilerman said:

There used to be an obligation for the seller to supply a 'cancellation form' for the buyer to cancel the order in 14 days. if this form was not sent, the buyer had the right to cancel and get a full refund for ever. Most unfair on sellers, maybe this has changed now.

From the scanning that I’ve done tonight istr that’s still in place. The link I gave above states that the form must be supplied and I believe that one of the other links stated that ‘rolling term’. 

1 minute ago, nicknorman said:

Applying common sense (always dangerous with the law!) it would be reasonable for the buyer to pay the return costs if they just return it because they decided they didn’t want it. Whereas if it was faulty it would be reasonable for the seller to pay the return costs. So probably a good idea to explain to the court that the condition of the goods was the primary reason for wanting to return them.

Thanks, yes, that’s all covered in the email trail that I printed out for him. 

My suggestion to him (that I was hoping someone would voice an opinion on) was that he phones the arbitration service tomorrow and if the seller agrees to arbitration (unlikely) the chap can offer the £15 carriage. Even if he doesn’t need to I figured it would put him in a good light with the court. 

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Thinking about the ebay process, what did the returns section of the advert say? Some stuff you buy has “no returns” - typically stuff you could copy like software or music. I suggest you’ll need to find out what the advert said on the matter. If the advert said no returns or returns only at buyer’s expense - if that’s allowed - then the case might succeed for carriage costs because that was the contract.

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6 minutes ago, nicknorman said:

Thinking about the ebay process, what did the returns section of the advert say? Some stuff you buy has “no returns” - typically stuff you could copy like software or music. I suggest you’ll need to find out what the advert said on the matter. If the advert said no returns or returns only at buyer’s expense - if that’s allowed - then the case might succeed for carriage costs because that was the contract.

He’s already offered the seller the carriage costs which were refused as he insisted on the cost of the goods plus (now) two lots of carriage. That’s all in the email trail. 

Here’s a listing from the same seller. His returns policy appears illegal to me:

https://m.ebay.co.uk/itm/JAGUAR-XJ-XJ6-Xj8-XjR-X350-REAR-PARCEL-SHELF-With-Electric-CURTAIN-BLIND/202057734151

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However, he returned the goods because they were faulty, not because he changed his mind, so I don’t believe that the onus is on him for carriage anyway. Nevertheless he’s going to offer it. 

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