Taken somebody to small claims and now they've retaliated
Discussion
I'm pretty sure you can (pardon the pun) blow this claim out of the water.
"They acknowledge a deposit was given and that it was returnable on the basis the item was "it was not a sieve", and the survey found the item not to be a sieve (perhaps they've what I've said quite literally)"
- did it leak? Did the report show that it would? If so they haven't got a leg to stand on
"They'd taken several days off work to empty the item of their possessions"
- were the possessions part of the sale, ie were you buying it with their possessions? If not then it is unreasonable to expect that someone could gauge the condition without a thorough inspection
"They'd taken time off work to show me around the item as part of the sale"
- not your fault they couldn't go through the sales procedure without taking time off, unless you specified that the guided tour took place during their working hours and you could not budge
"The surveyor/inspector found no faults (they've not had sight of the report!!)"
- just submit the report as evidence, if I recall they need a copy too. That alone should be enough for a judge to decide they have no basis for the claim despite the above.
Incidentally I believe you can ask that their claim is dismissed due to its 'vexatious or frivolous' nature. That is, it's only been created as a response to your claim for 100% of your deposit back.
"A key principle to consider before commencing any litigation is the validity of the claim. If a claim is made that is unmistakably without merit, considered to be a “vexatious or frivolous” claim, the court has powers to cease the proceedings. These claims can be easily defended. By reliance on the Civil Procedure Rules you are able to apply to the court under Part 3.4 to strike out any claim where the other party’s “Statement of Case discloses no reasonable grounds for bringing or defending the claim”. "
https://www.duncanlewis.co.uk/litigation_news/Stri...
"They acknowledge a deposit was given and that it was returnable on the basis the item was "it was not a sieve", and the survey found the item not to be a sieve (perhaps they've what I've said quite literally)"
- did it leak? Did the report show that it would? If so they haven't got a leg to stand on
"They'd taken several days off work to empty the item of their possessions"
- were the possessions part of the sale, ie were you buying it with their possessions? If not then it is unreasonable to expect that someone could gauge the condition without a thorough inspection
"They'd taken time off work to show me around the item as part of the sale"
- not your fault they couldn't go through the sales procedure without taking time off, unless you specified that the guided tour took place during their working hours and you could not budge
"The surveyor/inspector found no faults (they've not had sight of the report!!)"
- just submit the report as evidence, if I recall they need a copy too. That alone should be enough for a judge to decide they have no basis for the claim despite the above.
Incidentally I believe you can ask that their claim is dismissed due to its 'vexatious or frivolous' nature. That is, it's only been created as a response to your claim for 100% of your deposit back.
"A key principle to consider before commencing any litigation is the validity of the claim. If a claim is made that is unmistakably without merit, considered to be a “vexatious or frivolous” claim, the court has powers to cease the proceedings. These claims can be easily defended. By reliance on the Civil Procedure Rules you are able to apply to the court under Part 3.4 to strike out any claim where the other party’s “Statement of Case discloses no reasonable grounds for bringing or defending the claim”. "
https://www.duncanlewis.co.uk/litigation_news/Stri...
Edited by ReverendCounter on Monday 3rd May 19:27
thenortherner said:
Cheers. On the basis it just looks like a load of diatribe off the back of my claim, and it not being clear exactly what the sum being claimed for relates to other than coincidentally the same sum as I'm claiming for, I'll likely do this.
No probs. BTW, in case it's not clear, I am not a lawyer as the saying goes.thenortherner said:
Monkeylegend said:
"Not a sieve" would suggest it is not full of holes and is watertight.
What faults were found on the survey?
I think that's down to interpretation. We'd discussed in person the equipment on board etc and I was told everything works as it should and there were no faults. I advised I'd like a surveyor to confirm this is the case and the seller agreed.What faults were found on the survey?
In the surveyor's own words, there was an "extensive list" of faults, from a fridge that didn't appear to work through to incorrectly earthed electrical equipment, through to very expensive electrical equipment not working. I think I counted a list of 40 recommendations on their report.
I think it is that interpretation that could be a contentious argument about what you and the vendor understood it to mean.
thenortherner said:
Monkeylegend said:
An unfortunate choice of phrase maybe in the context of buying a boat if you were referring to condition in a wider sense.
I think it is that interpretation that could be a contentious argument about what you and the vendor understood it to mean.
I understand your point. That said, we discussed in person the condition of the sale during which I was assured everything worked. I think it is that interpretation that could be a contentious argument about what you and the vendor understood it to mean.
If it comes down to what's reasonable to believe, I'd hope it would look more reasonable to believe somebody wouldn't agree to buying a boat if most of the onboard and necessary equipment didn't work so long as wasn't actually sinking. At the moment, that's the seller's argument.
I could have opted for a hull survey only. Had I have done this and it were found not to have holes in it, then pulled out, then perhaps. However, I opted for a full survey to make sure everything worked.
'Sieve' is a widely used term to describe a crap boat.
thenortherner said:
Monkeylegend said:
Only playing devils advocate, hopefully a small claims court would see it your way.
That's OK, I didn't intend on my response sounding like I was shooting you down, if that's how it came across. Apologies.
I’ve bought two boats in my life. The first one was through a broker; the second one was a private sale. I struck lucky both times as the sellers were both delightful people. However the second one was at the kind of value where I was a bit nervous. There is a reason why brokers can make sense - in this case you would almost certainly have avoided the issue if you had tried to buy a broker-listed boat. I know that the second hand boat market is red hot and I’m going to guess that the boat is a Westerly? But there are still brokers listing older boats and they’re not all going like hot cakes. If you’re going to bin this and have a go at another one, it might be better to go through a broker. Good luck with your search and with the resolution of this one. I can’t believe the seller will be successful in their claim and I suspect you might lose your deposit, but try to negotiate the value off the price of the next one!
OP, if you have access to legal advice through your insurance, go get it.
Most immediate issue might be to find out whether there is an active claim/counterclaim against you. If there is, there are strict time limits for you to respond. If you miss deadlines you may be at risk of a judgment in default against you. Possibly worth phoning the court to find out whether there is an active (counter)claim.
Courts usually have more common sense than you think they might. Try and keep it very simple and don't over think or look too much at minor technicalities.
From your description,
- a deposit was placed on condition the boat passed an inspection; and
- you discovered it was misdescribed in the advert
As for their counter claim, they were trying to sell the boat. As a result there could be any number of people who want to view and inspect it. Any number of enquiries, phone calls or related. That is part and parcel of selling a boat. That will generate work. Not your problem.
Just out of interest, when they took the deposit, was there anything oral or written that the deposit was to cover the time/costs of preparing the boat for inspection or sale? Was it for anything other than to prevent another person buying the boat from underneath you before you could collect?
Most immediate issue might be to find out whether there is an active claim/counterclaim against you. If there is, there are strict time limits for you to respond. If you miss deadlines you may be at risk of a judgment in default against you. Possibly worth phoning the court to find out whether there is an active (counter)claim.
Courts usually have more common sense than you think they might. Try and keep it very simple and don't over think or look too much at minor technicalities.
From your description,
- a deposit was placed on condition the boat passed an inspection; and
- you discovered it was misdescribed in the advert
As for their counter claim, they were trying to sell the boat. As a result there could be any number of people who want to view and inspect it. Any number of enquiries, phone calls or related. That is part and parcel of selling a boat. That will generate work. Not your problem.
Just out of interest, when they took the deposit, was there anything oral or written that the deposit was to cover the time/costs of preparing the boat for inspection or sale? Was it for anything other than to prevent another person buying the boat from underneath you before you could collect?
Have you spoken directly to them to let them know of their mistake? It's going to get very messy if you end up with two concurrent claims and I suspect some shenanigans around judgments in default and set asides.
I'd speak to them in writing and let them know they need to file a defence to your claim and that they can counter claim if they believe they're owed more than the money they have retained (otherwise it's not a counter claim but a defence to your claim, I would have thought).
I'd speak to them in writing and let them know they need to file a defence to your claim and that they can counter claim if they believe they're owed more than the money they have retained (otherwise it's not a counter claim but a defence to your claim, I would have thought).
thenortherner said:
I don't want to get in touch now that it's gone down this route. I'll see what the court says when in terms of how to approach.
I'm happy theirs times out, I've told them by which date they need to respond, it's their responsibility. I'll respond to their claim depending on how the court advises.
You do have a duty to keep things as efficient as possible. There is no blockage to you contacting the other side (quite the opposite). The court will take a dim view if you knew things were messy and you didn't try to sort it out between you. I'm happy theirs times out, I've told them by which date they need to respond, it's their responsibility. I'll respond to their claim depending on how the court advises.
It's up to you what you do, but you're heading towards the thing ballooning and taking much more of your future time, when it didn't need to.
thenortherner said:
Monkeylegend said:
An unfortunate choice of phrase maybe in the context of buying a boat if you were referring to condition in a wider sense.
I think it is that interpretation that could be a contentious argument about what you and the vendor understood it to mean.
I understand your point. That said, we discussed in person the condition of the sale during which I was assured everything worked. I think it is that interpretation that could be a contentious argument about what you and the vendor understood it to mean.
If it comes down to what's reasonable to believe, I'd hope it would look more reasonable to believe somebody wouldn't agree to buying a boat if most of the onboard and necessary equipment didn't work so long as wasn't actually sinking. At the moment, that's the seller's argument.
I could have opted for a hull survey only. Had I have done this and it were found not to have holes in it, then pulled out, then perhaps. However, I opted for a full survey to make sure everything worked.
'Sieve' is a widely used term to describe a crap boat.
Good luck whichever way this goes...
Bear in mind the court won't offer any legal advice, but if you speak to the court they may get a judge to order the cases are joined.
I'd expect once everything's put together (and assuming their defence is a defence) the judge will suggest mediation (it's free). You should go down that path before heading to trial.
Are you familiar with the Civil Procedure Rules? Might be worth hunting them out and becoming familiar. Be aware- there are specific rules for the small claims track (for example, I don't think the strict rules of evidence apply).
I'd expect once everything's put together (and assuming their defence is a defence) the judge will suggest mediation (it's free). You should go down that path before heading to trial.
Are you familiar with the Civil Procedure Rules? Might be worth hunting them out and becoming familiar. Be aware- there are specific rules for the small claims track (for example, I don't think the strict rules of evidence apply).
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