A (deliberately) vague question at the moment. Has anyone ever taken action against their caravan dealer under the SOGA and would they be prepared to share their experience?
Sale of Goods Act
- Thread starter PaulT
- Start date
Tried to but could not find a solicitor who would even look at the case. This despite usuing the Law Society 'find a solicitor' service, identifying 8 solicitors in our area who claimed SOGA expertise, only one replied to email enquiry.
Law Society didn't want to know, referred me to CAB which is where I had started anyway.
If you are considering it, suggest you try legal aid service of Caravan Club or other Clubs, and look at your insurance to see if you have legal help cover. The legal aid services will generally give you advice but will not help in individual litigation.
Quite good advice on websites about SOGA, but all this nearlly always ends up - get professional legal advice but without saying ' if you can'
Failing this study the Small Claims Court route. Others have said this is not too arduous. I did not follow it on medicl grounds, but still wish I had.
Another possible route (depending on the cause of the complaint) is to look at Trading Standards coverage.
If you have bought new it is very important to notify the dealer of any problems within 6 months of purchase date if at all possible.
Having talked with a number of other sufferers, i get the impression that retailers are well aware of the difficulty the customer may have in following the SOGA route and behave accordingly.
Law Society didn't want to know, referred me to CAB which is where I had started anyway.
If you are considering it, suggest you try legal aid service of Caravan Club or other Clubs, and look at your insurance to see if you have legal help cover. The legal aid services will generally give you advice but will not help in individual litigation.
Quite good advice on websites about SOGA, but all this nearlly always ends up - get professional legal advice but without saying ' if you can'
Failing this study the Small Claims Court route. Others have said this is not too arduous. I did not follow it on medicl grounds, but still wish I had.
Another possible route (depending on the cause of the complaint) is to look at Trading Standards coverage.
If you have bought new it is very important to notify the dealer of any problems within 6 months of purchase date if at all possible.
Having talked with a number of other sufferers, i get the impression that retailers are well aware of the difficulty the customer may have in following the SOGA route and behave accordingly.
Hello Paul,
I did not reply earlier as frankly you have not supplied any details. Ray has passed his comments before, and its unusual to ask IF a solicitor will act on your behalf you normally instruct a solicitor, and that could be why he had a nil response. Whilst not against a caravan dealer I have used the sale of goods act or more precisely the threat of using SoGA on several occasions with success.
Its a matter of getting your facts straight, not being unreasonable but being firm about exercising your legal rights.
For most retail purchases the soga action resides in the county courts small claims, so its possible for you to mount an action without a solicitor but often cases are not always as straight forward as it might seem, so having professional cast an eye over your case.
I did not reply earlier as frankly you have not supplied any details. Ray has passed his comments before, and its unusual to ask IF a solicitor will act on your behalf you normally instruct a solicitor, and that could be why he had a nil response. Whilst not against a caravan dealer I have used the sale of goods act or more precisely the threat of using SoGA on several occasions with success.
Its a matter of getting your facts straight, not being unreasonable but being firm about exercising your legal rights.
For most retail purchases the soga action resides in the county courts small claims, so its possible for you to mount an action without a solicitor but often cases are not always as straight forward as it might seem, so having professional cast an eye over your case.
Have you tried ringing the Consumer Helpline. (Tel. 0345 404 05 06).
They will give you initial advice, and refer the matter to your local Trading Standards Service if it needs further advice.
They will give you initial advice, and refer the matter to your local Trading Standards Service if it needs further advice.
ProfJohnL said:
Thanks Prof, I deliberately kept it vague as I didn't want to discuss the case on an open forum. As a chartered accountant I've got quite a few friends in the legal profession and the informal advice that I've received is that I have a good case - but as we all know, there is no such thing as a "dead cert"! As has been said, it's a case of following the procedure and making sure the facts are right.
Not sure how big the claim is but if it is within the small claims limit then you can do it yourself quite cheaply and the dealer has to use a solicitor assuming it is a limited company so it is expensive for them. We used the small claims court to pursue a holiday company for my daughter when she complained and to put it simply there defence was a pack of lies. They paid up and indeed the result was that it cost the company more than if they had just admitted their mistakes and made a sensible offer.
I would not be afraid of the small claims court, it is user friendly and can be done on line if you are in England or Wales.
Do see if you have a legal helpline available to you though, either with one of the clubs, your household insurance or a trade body.
If you are over the small claims limit then a solicitor will probably be needed but you do not say what figure you are looking at or where you are so cannot advise on that.
I would not be afraid of the small claims court, it is user friendly and can be done on line if you are in England or Wales.
Do see if you have a legal helpline available to you though, either with one of the clubs, your household insurance or a trade body.
If you are over the small claims limit then a solicitor will probably be needed but you do not say what figure you are looking at or where you are so cannot advise on that.
The reason I enquired whether solicitors had experience of SOGA legislation rather than instructing them to take the case ( which they could have declined to do anyway) was to avoid the situation whereby I may have instructed a specialist in conveyancing or divorce or any other common[lace situation who then would have taken hours getting up to speed with SOGA legislation but at my expense.
The Law Society website sort of recognises this by offering a selection of areas of expertise when you use their 'Find a solicitor' service. The fact that it didn't work for me is annoying, but I really can't see using the 'stick a pin in a page and then instruct them' method when looking for a so-called professional.
If starting again, I would go straight for the Small Claims Court route closely followed by Trading Standards.
The Law Society website sort of recognises this by offering a selection of areas of expertise when you use their 'Find a solicitor' service. The fact that it didn't work for me is annoying, but I really can't see using the 'stick a pin in a page and then instruct them' method when looking for a so-called professional.
If starting again, I would go straight for the Small Claims Court route closely followed by Trading Standards.
Even if the solicitor you spoke to cannot take that sort of case they should be able to suggest one who can. If you can let us know where you are someone might know a suitable local firm.
Raywood said:
Thanks Raywood, I'm in France but am confident that I can find my way around the small claims court procedure. I've had lots of advice from legal profession friends in the UK so am following the route they have suggested.
I have to agree with Raywood, Solicitors are in much the same position as GP's. They are the front door to the wider system. An individual solicitor may not have the necessary skills to resolve the case, but they will find either other solicitors (possibly within their own firm) or seek advice from more specialised consultants, like barristers.
http://www.which.co.uk/news/2013/10/success-for-which-members-using-sale-goods-act-338879/
Paul
The above article may help to answer your question.
I know of three forumites who have been successful and one failure.
Timescales and attention to fine detail are crucial yet initial letters of claim are quite straight forward.
Paul
The above article may help to answer your question.
I know of three forumites who have been successful and one failure.
Timescales and attention to fine detail are crucial yet initial letters of claim are quite straight forward.
Thanks Dustydog, I've read the article before and found it very helpful. I am trying to settle the dispute with the dealer without recourse to legal action and am making some progress. However, I have a feeling that it will end up in the Small Claims Court.
Could I have some thoughts on the "not fit for purpose" part of the Act? Do I have to prove that it wasn't fit for purpose when I purchased the 'van or is it sufficient to prove that it has developed a fault which renders it unfit for purpose now?
Hello Paul,
It is a feature of SoGA that in most situations the judgment about whether a product was "fit for purpose" or the corollary whether a product has been used unreasonably is put to the "Reasonable person " test.
I suggest you look up:-
https://www.google.co.uk/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=reasonable%20person%20test%20in%20law
Each case has to be considered on its own merits, so without details of what your issue is, its not possible or judicial to offer an opinion.
It is a feature of SoGA that in most situations the judgment about whether a product was "fit for purpose" or the corollary whether a product has been used unreasonably is put to the "Reasonable person " test.
I suggest you look up:-
https://www.google.co.uk/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=reasonable%20person%20test%20in%20law
Each case has to be considered on its own merits, so without details of what your issue is, its not possible or judicial to offer an opinion.
.........surely the Sale of Goods act is UK legislation?
If the OP lives in France how does that affect the situation or is the caravan kept in the UK?
If the OP lives in France how does that affect the situation or is the caravan kept in the UK?
ProfJohnL said:
A bit more history here. The fault is the common one on a Bailey Unicorn 2 - the leaking shower. The dealer has told me that I should not use the shower until it is repaired (sometime in the autumn). Does this render the caravan "not fit for purpose"? The number of similar cases on this and other forums would indicate that this is not an isolated incident and the fault would therefore seem, to a reasonable person, to be a manufacturing one present from the start. Can I therefore use the "not fit for purpose" argument in this case?
Paul
Forget France. I assume you purchased your Bailey in the UK.
Fit for purpose is imo very simple.
If the caravans shower doesn't perform as the described shower the it isn't fit for purpose.
Let the Court decide. I assume you have taken a reasonable approach and allowed the dealer the chance to remedy the problem?
Forget France. I assume you purchased your Bailey in the UK.
Fit for purpose is imo very simple.
If the caravans shower doesn't perform as the described shower the it isn't fit for purpose.
Let the Court decide. I assume you have taken a reasonable approach and allowed the dealer the chance to remedy the problem?
Dustydog said:
I agree, the industry tries to give consumers the brush off and it needs people to take action to change their attitude.
Raywood said:
Yes, I consider I've taken a reasonable approach and suggested various options all of which have been rebuffed. It seems that the only course of action left to me is Court action but I want to make sure of my facts before hand re "fit for use".
PaulT,
I'm sure you have come across this topic here:
http://www.ukcampsite.co.uk/chatter/display_topic_threads.asp?ForumID=8&TopicID=306472
If you haven't then its well worth a read as it contains a wealth of important information.
There have been many informative posts in the topic but those made by cwdc56768 seems to be particularly well focused and accurate.
It's interesting that later on in the topic the OP reports complete success with the claim.
As a litigant in person,( if you are so acting) your Chartered status will stand you in good stead, as the disciplines of your studies and professionalism should mean that the process is not too overwhelming.
Do be prepared for the other side to have had solicitors acting for them and its not unknown for one to be up against counsel at the court hearing, ( which as you know is informal) however if you have prepared diligently and your own file of papers is indexed and in "apple pie" order. you should be Ok
It's not unknown for barristers to be briefed very late in the day and for them only to see all the papers half an hour or so prior to the hearing..... this places you at a considerable advantage if you have prepared diligently. However because of their own training and professionalism their ability to very quickly, absorb large amounts of information, forensically analyse it and determine the strong points of their own case and the weakness of yours does generally make them formidable opponents.
Remember if you refer to own file of papers the District Judge may ask to see them even though they may not have been subject to the normal disclosure..... hence make sure they are perfect in every way!
A lot of District Judges do not look too kindly upon counsel being appointed ( but of course it's perfectly legal to do so.) and sometimes this can act to the benefit of the litigant in person
I'm sure you are up to speed on the small claims court and its procedures, but it's particularly important to remember when preparing your case that it's best to assume that the District Judge may not be a caravanner, or have any experience whatever of caravans and caravanning....be sure that your documentation is self explanatory and makes no rash assumptions of any degree of prior knowledge or experience. That it is clear, complete and leaves out nothing that is relevant and perhaps more important does not include anything that is irrelevant,,,,, it should be sufficient on its own to make the case for you, with the District Judge only seeking clarification on any points and to satisfyhim/herself of the truthfullness of your claim and the reliablility of your evidence.
Bear in mind that you only get one shot at the court case..... in broad terms there is very little chance of appealing the District Judge's decision ( unless in the rare case of procedural error or of law) so hence the importance of preparation........... if the District Judge forms the impression that you or the other side are being less than honest or have or are acting unreasonably, then generally that's the end of it!
Good luck, and if you can, do please let us know the outcomes.
Regards
paws
I'm sure you have come across this topic here:
http://www.ukcampsite.co.uk/chatter/display_topic_threads.asp?ForumID=8&TopicID=306472
If you haven't then its well worth a read as it contains a wealth of important information.
There have been many informative posts in the topic but those made by cwdc56768 seems to be particularly well focused and accurate.
It's interesting that later on in the topic the OP reports complete success with the claim.
As a litigant in person,( if you are so acting) your Chartered status will stand you in good stead, as the disciplines of your studies and professionalism should mean that the process is not too overwhelming.
Do be prepared for the other side to have had solicitors acting for them and its not unknown for one to be up against counsel at the court hearing, ( which as you know is informal) however if you have prepared diligently and your own file of papers is indexed and in "apple pie" order. you should be Ok
It's not unknown for barristers to be briefed very late in the day and for them only to see all the papers half an hour or so prior to the hearing..... this places you at a considerable advantage if you have prepared diligently. However because of their own training and professionalism their ability to very quickly, absorb large amounts of information, forensically analyse it and determine the strong points of their own case and the weakness of yours does generally make them formidable opponents.
Remember if you refer to own file of papers the District Judge may ask to see them even though they may not have been subject to the normal disclosure..... hence make sure they are perfect in every way!
A lot of District Judges do not look too kindly upon counsel being appointed ( but of course it's perfectly legal to do so.) and sometimes this can act to the benefit of the litigant in person
I'm sure you are up to speed on the small claims court and its procedures, but it's particularly important to remember when preparing your case that it's best to assume that the District Judge may not be a caravanner, or have any experience whatever of caravans and caravanning....be sure that your documentation is self explanatory and makes no rash assumptions of any degree of prior knowledge or experience. That it is clear, complete and leaves out nothing that is relevant and perhaps more important does not include anything that is irrelevant,,,,, it should be sufficient on its own to make the case for you, with the District Judge only seeking clarification on any points and to satisfyhim/herself of the truthfullness of your claim and the reliablility of your evidence.
Bear in mind that you only get one shot at the court case..... in broad terms there is very little chance of appealing the District Judge's decision ( unless in the rare case of procedural error or of law) so hence the importance of preparation........... if the District Judge forms the impression that you or the other side are being less than honest or have or are acting unreasonably, then generally that's the end of it!
Good luck, and if you can, do please let us know the outcomes.
Regards
paws
Hello Paul,
I think some careful thinking needs to be done before jumping on the courts bandwagon.
Claiming something is "not fit for purpose" is not always as simple as it may at first appear.
For example A car where the engine won't run is not fit for purpose, But a car where there is a scratch on the paintwork will certainly still drive. So is that "not fit for purpose"?
In essence to claim something is "not fit for purpose", the fault must seriously restrict or prevent the normal or safe usage of the product. If the product retains some practical use, and the fault can be repaired to a standard where it will be undetectable, then it's less likely the product can be declared "not fit for purpose" more likely just "defective" and it's likely a repair or possibly a replacement rather than a full refund can be negotiated.
Whilst a leaking shower is a distinct inconvenience, it does not prevent the rest of the caravan from being used. Especially where a camp site has a shower block available.
Under SoGA you are entitled to have the fault repaired to a standard at least equal to the condition the caravan would be in if the fault had not arisen, at no cost and minimal inconvenience to yourself.
Waiting for till Autumn is unreasonable, and if you read down the thread that Paws has pointed to you will see the format of letters you need to send to your seller (or your finance provider if used) to chivy the process along.
Do not make unreasonable demands, such as setting a too short a time for the repairs to be carried out.
Do make the point the dealer sold a caravan with a defect, that is in breach of the SoGA, and consequently the dealer is liable for the cost of repairs. Tell them you expect the repair to be carried out under SoGA not the manufacturer's warranty, and consequently the manufacturer's approval is not required, and must not be used to delay the repair.
I think some careful thinking needs to be done before jumping on the courts bandwagon.
Claiming something is "not fit for purpose" is not always as simple as it may at first appear.
For example A car where the engine won't run is not fit for purpose, But a car where there is a scratch on the paintwork will certainly still drive. So is that "not fit for purpose"?
In essence to claim something is "not fit for purpose", the fault must seriously restrict or prevent the normal or safe usage of the product. If the product retains some practical use, and the fault can be repaired to a standard where it will be undetectable, then it's less likely the product can be declared "not fit for purpose" more likely just "defective" and it's likely a repair or possibly a replacement rather than a full refund can be negotiated.
Whilst a leaking shower is a distinct inconvenience, it does not prevent the rest of the caravan from being used. Especially where a camp site has a shower block available.
Under SoGA you are entitled to have the fault repaired to a standard at least equal to the condition the caravan would be in if the fault had not arisen, at no cost and minimal inconvenience to yourself.
Waiting for till Autumn is unreasonable, and if you read down the thread that Paws has pointed to you will see the format of letters you need to send to your seller (or your finance provider if used) to chivy the process along.
Do not make unreasonable demands, such as setting a too short a time for the repairs to be carried out.
Do make the point the dealer sold a caravan with a defect, that is in breach of the SoGA, and consequently the dealer is liable for the cost of repairs. Tell them you expect the repair to be carried out under SoGA not the manufacturer's warranty, and consequently the manufacturer's approval is not required, and must not be used to delay the repair.
Many thanks Paws and Prof for your replies.
I'm still waiting for a reply from the dealer and Bailey (although Bailey refuse to speak to me direct as my contract is with the dealer - it's funny, they would talk to me earlier but once I mentioned legal proceedings they stopped talking).
Just one other point (at present). Am I right in thinking that the Small Claims Court can only make an order regarding money? They can't order the dealer to do something can they?
I'm still waiting for a reply from the dealer and Bailey (although Bailey refuse to speak to me direct as my contract is with the dealer - it's funny, they would talk to me earlier but once I mentioned legal proceedings they stopped talking).
Just one other point (at present). Am I right in thinking that the Small Claims Court can only make an order regarding money? They can't order the dealer to do something can they?
Rather than repeating what has already been put togther by experts I suggest you look here
https://www.citizensadvice.org.uk/law-and-rights/legal-system/taking-legal-action/small-claims/#h-types-of-case-dealt-with-in-the-small-claims-track
https://www.citizensadvice.org.uk/law-and-rights/legal-system/taking-legal-action/small-claims/#h-types-of-case-dealt-with-in-the-small-claims-track
https://www.citizensadvice.org.uk/l...e-dealt-with-in-the-small-claims-track[/quoteProfJohnL said:
Thanks Prof - now getting all my ducks in a row! I've given the dealer until close of business on Monday to respond with an offer acceptable to us both otherwise I'll start the next process.
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