Message Forums

Quote: Originally posted by Hobnobs on 19/7/2012

---

Hi Phil - Just to give you an update on this, I sent your letter to Jeff Bowen (signed for) just over a week ago and as of the present, I have not heard a word from him.

I have to assume that the guy is not interested, my next step now would be to contact the Trading Standards people to see where I should or could go. My problem is that I require this Awning for France in 3 weeks time and now feel that I'm not going to get it resolved in time.

After this, I will never use Bowen Awnings or Dorema in future,once they have sold an awning they are NOT prepared to resolve any issues.

What do you think and thanks for your help.

 

---

I would try one further letter asking a reply and then have a chat with Trading Standards. Their role is to advise rather than to fight your corner, unless they consider that there is an offence they can persue the seller for. Costs you nothing anyway.

Phil

Phil - I have now received a reply from Bowen Awnings, very similar to the first reply.

The first issue here is that this is not a claim under the Distance Selling Regulations and so their raising of that point is misleading and missing the point. This is a claim under the Sale of Goods Act. So you can respond by making it clear that whilst they try to rely on the Distance Selling Regs your claim is not under those Regs and thus they are in error in relying on those regs.

Second issue (the important one) is that you have, I am afraid, selected a rather poor choice of witnesses. It would have been better to have used someone who lives with you. Your witness evidence is easily defeated in court. I assume that you live alone otherwise you would have offered a wife/son/daughter/father etc. If the witnesses you have offered to the fact that the awning remained unpacked for all that length of time are the only folk you can offer, then you may as well stop this claim. You will simply be chasing a losing cause. Do you have anyone who can say that they saw the awning unopened for around a year?

If you go to trading Standards, they will need evidence that you never opened the awning prior to the date you have given on this board, and if you cannot support such a claim otherwise than from the parties you have provided to the seller, then I am afraid that Trading Standards will offer little or no help. As I said earlier, they need the bullets to fire 

No matter how much in the right you may be, in any dispute before the court it always comes down to evidence. From the contents of this thread, I am afraid you do not provide sufficient evidence to proove your case in court.

I am sure that this is not the answer you hoped for but we are where we are. Whenever we buy anything we must always check it out within six months to benefit from the law

Phil

Phil - yes, I do have my wife as a witness, but thought it would not be wise to use her. The reason I used these other guys was because I was out with them the first time I used it on that June Bank Holiday.

Moz

You have to remember that, when it comes to evidence, you know that what you are saying is correct, but the other guy doesn't. He wants proof. He isn't being unreasonable, just wants to be convinced. Give him your wife as a witness to the fact that the awning remained in the bag untouched for all that time, but I suspect that they may counter with something along the lines of "well she would say that wouldn't she". They have now set their stall out, with the law on their side in view of the length of time that has passed. It will be an uphill struggle. However if you are prepared to go up that hill..........perhaps.........

Dear Sir,

Thank you for your letter of the 23rd July 2012. With respect, in seeking to avoid a liability you are, I believe, mis-directing your mind and failing to appreciate the real issue. You are mixing two areas of law.

Firstly, this is not a warranty claim against the manufacturer, it is a claim aginst your company for breach of contract. Thus it matters not, between us, just what views the manufacturer may have. It may matter as regards your contractual relationship with that supplier to your company but that is not of my concern. The breach of contract here remains your breach of the conditions implied into our contract for the awning by the Sale of Goods Act and Regulations issued thereunder.

Secondly, you are quite wrong to rely on the Distance Selling Regulations to avoid your liabilities and, with respect, fail to understand just how those regulations operate and fit into a whole raft of other consumer legislation. Those regulations simply enable a purchaser of goods to change their mind about the  acquisition of those goods regardless of their condition - the cooling off period of seven days. Once those seven days have passed, any claim to reject the goods, or to have them repaired can only be based on a breach of the Sale of Goods Act. The rights I have under ths Sale of Goods Act (and subordinate regulations) are not negated by the Distance Selling Regulations just because I purchased the goods at a "distance". The Distance Selling Regulations do not stand in the place of the Sale of Goods Act rights of a consumer. They are merely an addition to those Sale of Goods Act rights.

So, can we please focus on the correct piece of legislation? I note that you decline to accept evidence from three persons willing to provide evidence to Trading Standards, (or a Court if required), simply because of where they live. In that case I also have an additional witness of fact, namely [name and address - don't say she is your wife - leave them to work out their own attack upon your witness!!!!].

So, as I set out in my previous letter your various breaches of the conditions of our contract (as impiled by the Sale of Goods Act etc) I would be grateful if you now set out your proposals for remedying your breach of contract within the next seven working days. That is to say, either how you will put right the defects in the awning or provide a replacement as required by the Sale of Goods Act. 

your faithfully

etc

Remember to date the letter. No point in threatening them with Trading Standards. Trading Standards role is to advise you of your rights. In this case, your rights are to sue the trader in the local small claims court. Trading Standards will not prosecute for selling defective goods. They have to have breached those parts of the legilsation that give Trading Standards a right to prosecute e.g providing misleading information. Such a prosecution would not get you the awning fixed. By all means have a chat with Trading Standards to see if they will talk to the dealer to put him straight on the law. Don't tell the dealer you are doing that. If they are willing to have a chat with the dealer that may assist you. Broadly, in my view, if Trading Standards will not have a chat with the dealer, and you are not prepared to go to court then just drop the issue. They have set their stall out, albeit on the wrong legal basis, but I would not expect their stance to change.....unless leaned upon by Trading Standards

Phil

PS if you do go to court you will need to fill out a form formally submitting your claim together with what is known as a "Particulars of Claim". This will set out the basis of your allegation against the dealer and the remedy you want. if the Poles are so defective then they cannot be rapaired but need to be replaced. So, it seems to me that you may as well claim the money to replace the awning. Remember, however, that the Court may just order, after this length of time, that you should have paid the value of a defective awning and thus the dealer should give you back the difference between what you paid and what would be a reasonable price for a defective awning.

On the plus side, in consumer cases, the courts tend to favour the consumer.

The particulars of claim are not the be all and end all of your case. If the dealer defends the action then you have to proove your case. The burden of proof is on a balance of probabilities and not "beyond reasonable doubt" so that stands in your favour. The court will ask itself, "On a balance of probabilities is it likely that the claimant did something to the awning to make the colour run or was it defective when sold". You will probably need to take the awning along to court as evidence, or perhaps suggest that the judge sees the awning attached to your van before reaching a decision. The Judge will also need to see the letters that you have sent trying to get the issue resolved. That helps to show that you have tried to avoid court and enables you to claim your costs for being in court. Thus, it helps where your letters show that you have politely stuck to the relevant legislation and the dealer has tried to fob you off quoting the wrong law.

Take legal advice, but a draft form of particulars of claim may be along the following lines...