Faulty shower, lost small claim

unholyangel

Aristotle67 wrote: »

If he has decided the duty fulfilled, I would argue he has gone wrong, and that he has gone wrong in law for the reason I outlined above. From what the OP has been saying I am not clear that the DJ even considered this.

Sorry for mis-spelling your name, Equaliser.

Dont worry about spelling. Most of us dont care about spelling providing we can read/understand it

I only asked because I was wondering how you managed to do that while quoting his post word for word lol.

Ectophile

Personally, I wouldn't even attempt to teach a judge what the law says.

I suspect the reason why the judge wants the OP to go back to the manufacturer is to get a second opinion of why it failed.

At the moment, the OP's case seems to consist of "I think it should have lasted longer". Without any independent opinion of why the shower failed, it's very hard to say whether or not it was faulty at the time it was supplied.

Since the SOGA requires the claimant to demonstrate that it was faulty if the product is over 6 months old, then the OP needs to get an independent opinion from somebody, saying that it should not have failed.

Aristotle67

Ectophile wrote: »

Without any independent opinion of why the shower failed, it's very hard to say whether or not it was faulty at the time it was supplied.

This is something which earlier posts have referred to. Whilst I know what people mean (it is because the product is more than six months old) I do not think the need to demonstrate that the product was faulty at the time it was supplied is relevant to the OP's case.

As I outlined earlier, I maintain that reasonable expectation of durability is a matter of law and have explained why I believe that the purchaser was entitled to expect the product to last for longer than two years and two months.

Ectophile wrote:

Personally, I wouldn't even attempt to teach a judge what the law says.

If judges never went wrong, we would not need the Court of Appeal or any other court which enjoys appellate jurisdiction!

Equaliser123

LikesWhisky wrote: »

Can you explain further please? I understood that an expert report was required, because otherwise the two parties have a disagreement, and the judge needs technical info in order to decide.

What if the supplier of the goods in dispute pays for and commissions an 'independent' report that finds in their favour? - Despite facts and common sense showing otherwise. If going to Small Claims, does the consumer have to match that report with their own report?

In theory, expert evidence is dicouraged in small claims court cases. It simply isn't economically sensible to allow it. Further, experts are rarely allowed to give evidence so preventing the opportunity to cross examine.

In your example, if the supplier provides evidence, then the claimant would have to discredit it. That could be to show the holes in the evidence and does not necessarily require a further report.

Equaliser123

Aristotle67 wrote: »

If judges never went wrong, we would not need the Court of Appeal or any other court which enjoys appellate jurisdiction!

Yes, but the costs of a Court of Appeal case will be ENORMOUS! This case is about a faulty shower.

Aristotle67

Equaliser123 wrote: »

Yes, but the costs of a Court of Appeal case will be ENORMOUS! This case is about a faulty shower.

Absolutely; and I am not suggesting for one minute that it should go that far. In the appeals process the CA is still some way off.

My concern here is that the OP has been very unfortunate here with the DJ he has been landed with. You pointed out in a much earlier post that you felt he had been unfortunate and I agree with you, but I suspect for a different reason from you.

Many a DJ would have found in the OP's favour as they would start from the point of view of the claimant, as you have said. I actually don't have a problem with the DJ not doing that as such as he has judicial discretion when it comes to the facts.

Why I think the OP is unfortunate is because I suspect this DJ does not fully understand the SoG Act. That is a dangerous assertion to make and it is not one I do lightly, but on what I have been given to understand took place that is the conclusion I have reached. I maintain that reasonable expectation as to durability is a matter of law and that goods must reasonably be expected to be durable beyond their guarantee period. Thus, I do not think it is open to the DJ to make a finding which is contrary to that; yet that appears to be what he has done in not finding the goods unsatisfactory under s 14 (2). I do not think the OP need prove that the goods are faulty and were faulty when purchased in order to have a claim under s 14 (2) on the issue or durability.

My overriding concern here is that the judge has gone wrong in law. I know this is a small amount of money that the OP will be claiming here, but there are implications. Whilst small claims decisions in the County Court do not set a precedent it is not jurisprudent for a DJ to make an error of law in this way as one party will be justifiably aggrieved by this. What happens when a case on a similar point of law comes before this DJ?

Of course, future implications need not be a concern for the OP and he may not wish to appeal, assuming his case is lost following the adjournment. It may not be cost effective. I would understand that entirely. That said, I believe he certainly has very strong grounds for an appeal and if it was me I would be appealing it regardless of cost.

Equaliser123

Aristotle67 wrote: »

Absolutely; and I am not suggesting for one minute that it should go that far. In the appeals process the CA is still some way off.

.

Appeal would go to the High Court. Potential costs implications would probably still run into tens of thousands.

Even if the OP won and was awarded costs, there is likely to be a shortfall in what is recovered.

I have never known an appeal from Small Claims.

Aristotle67

Equaliser123 wrote: »

Appeal would go to the High Court. Potential costs implications would probably still run into tens of thousands.

The first level of appeal from a DJ in the small claims court is to a Circuit Judge, usually in the County Court.

Equaliser wrote:

I have never known an appeal from Small Claims.

I agree they are rare, but do occur from time to time. I was successful in one myself, about 16 years ago. It was the only time I ever appealed a DJ's decision. But that was me; not the OP!!!!

I want to stress again, Equaliser, that I would understand it if the OP did not appeal assuming he lost his case because of the potential costs involved. We must leave it to him to decide that, of course. I realise you are only giving your opinion and advice on the matter, as indeed we all are, and I am sure we all respect that. My problem is that from your posts you seem adamant that small claims cases should not be appealed. I apologise if I am doing you an injustice here. If you do feel that way, the approach that cases should not be appealed can only compromise justice and good law. That is unfortunate but is often the reality of the situation as access to justice is often compromised by the financial costs of such pursuit. Of course, if you are merely saying it isn't practical to appeal a small claims, then in the vast majority of situations I would agree with you.

I will state once more; I will understand if this was not appealed because of the financial implications and that should be the most important consideration for the OP in the circumstances.

unholyangel

Aristotle67 wrote: »

Absolutely; and I am not suggesting for one minute that it should go that far. In the appeals process the CA is still some way off.

My concern here is that the OP has been very unfortunate here with the DJ he has been landed with. You pointed out in a much earlier post that you felt he had been unfortunate and I agree with you, but I suspect for a different reason from you.

Many a DJ would have found in the OP's favour as they would start from the point of view of the claimant, as you have said. I actually don't have a problem with the DJ not doing that as such as he has judicial discretion when it comes to the facts.

Why I think the OP is unfortunate is because I suspect this DJ does not fully understand the SoG Act. That is a dangerous assertion to make and it is not one I do lightly, but on what I have been given to understand took place that is the conclusion I have reached. I maintain that reasonable expectation as to durability is a matter of law and that goods must reasonably be expected to be durable beyond their guarantee period. Thus, I do not think it is open to the DJ to make a finding which is contrary to that; yet that appears to be what he has done in not finding the goods unsatisfactory under s 14 (2). I do not think the OP need prove that the goods are faulty and were faulty when purchased in order to have a claim under s 14 (2) on the issue or durability.

My overriding concern here is that the judge has gone wrong in law. I know this is a small amount of money that the OP will be claiming here, but there are implications. Whilst small claims decisions in the County Court do not set a precedent it is not jurisprudent for a DJ to make an error of law in this way as one party will be justifiably aggrieved by this. What happens when a case on a similar point of law comes before this DJ?

Of course, future implications need not be a concern for the OP and he may not wish to appeal, assuming his case is lost following the adjournment. It may not be cost effective. I would understand that entirely. That said, I believe he certainly has very strong grounds for an appeal and if it was me I would be appealing it regardless of cost.

Have you actually read the SoGA? Specifcially the section about remedy for breach in consumer cases?

This part here:

(1)This section applies if—
(a)the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and
(b)the goods do not conform to the contract of sale at the time of delivery.

You cannot simply state that something hasnt lasted a reasonable length of time therefore you're entitled to a remedy. The reason why it has failed prematurely is key. If it was caused by overuse, then SoGA would not cover you.

Aristotle67

unholyangel wrote: »

Have you actually read the SoGA?

Read it, studied it, lived it, ate it, slept it, and you-know-what it for more years than I care to remember.

The part to which refer was added by the Sale and Supply of Goods to Consumer Regulations 2002 and concern additional rights of the buyer.

I do not believe it is relevant to the OP's case.

You cannot simply state that something hasnt lasted a reasonable length of time therefore you're entitled to a remedy.

I don't think I am going to post much more in this thread, perhaps to the relief of some. I seem to be repeating myself and feel that I have done so sufficiently. People do not have to agree with me if they do not want to; that is fine.

I maintain that the issue of reasonable expectation as to durability is a matter of law. As a point of law, goods must be reasonably expected to last longer than the period of their guarantee. That does not mean it must last just one day longer than the guarantee.

Of course, not all goods will come with a guarantee; the OP's shower did, it would seem, which is rather fortunate for him and, I would submit, his reasonable expectation as to durability has not been met.

I wish the OP luck if he chooses to pursue this and if he wishes to send me a PM that is fine.