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bulb763

Original Poster:

757 posts

119 months

[news] 
Friday 2nd April 2010 quote quote all
What exactly does this mean I have to do (I am the claimant)?

This relates to a claim I am bringing against a supplier who refused to accept a return under the DSR. Part of their defence is the following line:

"The Defendant also believes that the Claimant has registered the owner's Warranty which would disentitle him to rely on the DSR in any event and the Defendant puts the Claimant to strict proof on this matter."

Thanks

TooLateForAName

2,563 posts

69 months

[news] 
Friday 2nd April 2010 quote quote all
Check the DSR.


I suppose that their argument is that if you've registered/activated the warranty then you've accepted the item.

I'm not convinced, but check the wording of the DSR and talk to trading standards.

Did you register the warranty? What are the circumstances?

JustinP1

11,214 posts

115 months

[news] 
Friday 2nd April 2010 quote quote all
bulb763 said:
What exactly does this mean I have to do (I am the claimant)?

This relates to a claim I am bringing against a supplier who refused to accept a return under the DSR. Part of their defence is the following line:

"The Defendant also believes that the Claimant has registered the owner's Warranty which would disentitle him to rely on the DSR in any event and the Defendant puts the Claimant to strict proof on this matter."

Thanks
I remember your situation...!

What that phrase usually means is that the party wants to see proof of a matter. For example, if someone had made a loss of £500 and was suing for damages, this would be informing them that they would have to provide proof that this is the case.

What I believe has happened, reading between the lines is that the seller has written the Defence himself, or got a solicitor to write it for him in order to throw up a smokescreen.

Effectively what he is asking is that he is asking you to prove he has not followed the DSRs. Reading between the lines here, if there was a part of the DSRs which provided an exemption in such a situation, a fully 'tooled up' Defendant would have quoted it. Because of course, quoting the exact part of the DSRs would null your case from the off. Also a solicitor would have referred to the proper name of the DSRs.

However of course, this exception does not exist.

Put simply, the DSRs give you the right to cancel, so that effectively the contract did not exist.

Registering a product, 'activating' a manufacturers warranty, or running naked down the street shouting 'I accept, I accept you stuff!' does not override this.

Your 'proof' in this matter is simply to quote the DSRs.

Your case is simple

Mojooo

8,586 posts

65 months

[news] 
Friday 2nd April 2010 quote quote all
IIRC you must take reasonable care of a product when it is in your position - i.e not start using it. although you can inspect it as you would in a shop.

If you had registered the warranty then that would seem to me that you had 'taken ownership'

you would have to read the DSRs I guess.

http://www.opsi.gov.uk/si/si2000/20002334.htm

bulb763

Original Poster:

757 posts

119 months

[news] 
Friday 2nd April 2010 quote quote all
It's just the "strict proof" bit I don't understand, I've already been through the warranty stuff.

Thanks Justin. Quite right - same problem rolleyes
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bulb763

Original Poster:

757 posts

119 months

[news] 
Friday 2nd April 2010 quote quote all
It's just the "strict proof" bit I don't understand, I've already been through the warranty stuff.

Thanks Justin. Quite right - same problem rolleyes

JustinP1

11,214 posts

115 months

[news] 
Friday 2nd April 2010 quote quote all
Mojooo said:
IIRC you must take reasonable care of a product when it is in your position - i.e not start using it. although you can inspect it as you would in a shop.

If you had registered the warranty then that would seem to me that you had 'taken ownership'

you would have to read the DSRs I guess.

http://www.opsi.gov.uk/si/si2000/20002334.htm
I would reiterate the last point...

"Reasonable care" *does not* mean you cannot unwrap the product and test it out, and in the course of that, use it (as long of course it is not a perishable item or an item excepted under the Act). Take reasonable care just means that you can't just leave an electrical item outside in the rain when you decide you don't want it... As a side issue, the consumer does not even have to keep the original packaging.

In fact, the whole point of the DSRs is that a consumer *can* see the product with his own eyes.

Again, I reiterate the importance of your last point - the DSRs give no exception for 'taken ownership' in the way you have described. Of course, contractually, the OP (the consumer) takes ownership as soon as he has bought the item. However, the DSRs give the consumer the right to cancel that contract unilaterally as if he had never taken ownership - as long as of course he gives the correct notice.

After that point, under the DSRs he has no right to cancel his 'ownership' of the goods.

JustinP1

11,214 posts

115 months

[news] 
Friday 2nd April 2010 quote quote all
bulb763 said:
It's just the "strict proof" bit I don't understand, I've already been through the warranty stuff.

Thanks Justin. Quite right - same problem rolleyes
Specifically, what you mean to satisfy this in the 'strict proof', is prove that you gave the notice. You would probably be best doing this in the form of a witness statement backed up by the document.

Further to that I would simply add (as I believe you had explained it) that you did not accept the goods, and indeed the only reason you rang up for technical help was because you were unhappy with the goods, and in the course of that the only way you could get this manufacturer help was to give the serial number of the product. When the manufacturer confirmed the issue with the monitor you exerted your right to cancel the contract with the retailer.

That fact actually supports your case.

Doing what you have done does not mean you lose your legal rights as all. If they did, a document as easy to understand as the DSRs would say so.

Reading between the lines the seller knows he is bang to rights. However, if he takes the matter formally and asks a judge to look at the case formally, you would need to present the 'evidence' of cancelation, which should be as a witness statement properly disclosed to him before trial. His loophole is if you don't do this, you have no admissible evidence in trial, and your claim fails.

bulb763

Original Poster:

757 posts

119 months

[news] 
Saturday 3rd April 2010 quote quote all
JustinP1 said:
bulb763 said:
It's just the "strict proof" bit I don't understand, I've already been through the warranty stuff.

Thanks Justin. Quite right - same problem rolleyes
Specifically, what you mean to satisfy this in the 'strict proof', is prove that you gave the notice. You would probably be best doing this in the form of a witness statement backed up by the document.

Further to that I would simply add (as I believe you had explained it) that you did not accept the goods, and indeed the only reason you rang up for technical help was because you were unhappy with the goods, and in the course of that the only way you could get this manufacturer help was to give the serial number of the product. When the manufacturer confirmed the issue with the monitor you exerted your right to cancel the contract with the retailer.

That fact actually supports your case.

Doing what you have done does not mean you lose your legal rights as all. If they did, a document as easy to understand as the DSRs would say so.

Reading between the lines the seller knows he is bang to rights. However, if he takes the matter formally and asks a judge to look at the case formally, you would need to present the 'evidence' of cancelation, which should be as a witness statement properly disclosed to him before trial. His loophole is if you don't do this, you have no admissible evidence in trial, and your claim fails.
Witness statements? You're not saying that I need to find someone who actually watched me "pen" the email and saw me click "send" are you? He has replied directly to my cancellation email - wouldn't this be enough evidence that I had sent it correctly and that he had received it?

TomJS

891 posts

81 months

[news] 
Saturday 3rd April 2010 quote quote all
bulb763 said:
What exactly does this mean I have to do (I am the claimant)?

This relates to a claim I am bringing against a supplier who refused to accept a return under the DSR. Part of their defence is the following line:

"The Defendant also believes that the Claimant has registered the owner's Warranty which would disentitle him to rely on the DSR in any event and the Defendant puts the Claimant to strict proof on this matter."

Thanks
Strict proof is a hangover from pre CPR days. CPR requires:

Civil Procedure Rules said:
Content of defence
16.5

(1) In his defence, the defendant must state –

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and

(c) which allegations he admits.
Obviously, the claim is decided on balance of probability; so 50%. Concentrate on passing that threshold. For these purposes, consider strict proof as 'put to proof' beyond 50%.

Edited by TomJS on Saturday 3rd April 00:10

Jasandjules

50,894 posts

114 months

[news] 
Saturday 3rd April 2010 quote quote all
bulb763 said:
Witness statements? You're not saying that I need to find someone who actually watched me "pen" the email and saw me click "send" are you? He has replied directly to my cancellation email - wouldn't this be enough evidence that I had sent it correctly and that he had received it?
No, YOU can write a witness statement saying you did this, that, and the other. On-line I believe there are examples of a witness statement. You just put Witness Statement and "I Mr Bulb763, of ... (your address) will say as follows: (then write the stuff). At the end you put a statement of truth and sign and date it.

But in your WS you say for example, I wrote to Mr Retailer on this date and cancelled the contract. I exhibit the cancellation communication at Bulb1 (so the exhibited e-mail is at page one of your evidence bundle - exhibiting it is a way to get it adduced as evidence - though in a small claim it won't be necessary to do this quite so formally). Mr Retailer replied to the cancellation e-mail on X date (exhibited at Bulb2) thus confirming that he had been formally notified of the cancellation within the time period required by the Distance Selling Regulations.


JustinP1

11,214 posts

115 months

[news] 
Saturday 3rd April 2010 quote quote all
Jasandjules said:
bulb763 said:
Witness statements? You're not saying that I need to find someone who actually watched me "pen" the email and saw me click "send" are you? He has replied directly to my cancellation email - wouldn't this be enough evidence that I had sent it correctly and that he had received it?
No, YOU can write a witness statement saying you did this, that, and the other. On-line I believe there are examples of a witness statement. You just put Witness Statement and "I Mr Bulb763, of ... (your address) will say as follows: (then write the stuff). At the end you put a statement of truth and sign and date it.

But in your WS you say for example, I wrote to Mr Retailer on this date and cancelled the contract. I exhibit the cancellation communication at Bulb1 (so the exhibited e-mail is at page one of your evidence bundle - exhibiting it is a way to get it adduced as evidence - though in a small claim it won't be necessary to do this quite so formally). Mr Retailer replied to the cancellation e-mail on X date (exhibited at Bulb2) thus confirming that he had been formally notified of the cancellation within the time period required by the Distance Selling Regulations.
That's exactly what you need to do OP.

The easiest way to think of this situation is that you treat the process as having a 'solicitor' hat who is bringing the case, and a 'witness' hat where you are saying what you saw and when.

As I mentioned previously, you can't introduce evidence you have not disclosed to him. So, if you intend to rely upon the fact that you are a witness and you *know* that you sent and email on a particular date, and for example, you *know* that you did not 'accept' the goods then you need to have this as 'evidence'. You do this by acting as a separate witness and providing a statement.
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