Small claims court - will I get my fees back?

andyz0

Hi.
I have a question regarding the small claims court.

Background:

Back in October my Bluetooth on my car stopped working, so I ordered a replacement Bluetooth module for my car from eBay, as new ones were extremely expensive. The seller had a good rating and I had no reason to suspect him of being dodgey.

The unit arrived and I took it to a BMW specialist garage to fit it at a cost of £25. Fitting it involves reprogramming with specialist equipment so it can be read by the individual car. The garage informed me that the unit would not program at all as it was faulty. They tried to reprogram my original one that failed. It reprogrammed but didn't work when turned on. I went back to the seller and reluctantly they agreed to replace it but warned it would take a couple of weeks to send a replacement as they didn't have any in stock. I said this was fine and returned through recorded delivery. They didn't contact me and after about 4 weeks I contacted them to ask if they had a replacement. They did, and they said they would send it. I asked them to double check and test the item which they agreed to saying it is working. The replacement arrived just before Christmas.

I didn't have time or money to have this done before Christmas so waited til January (last week in fact, after being paid). Fairly confident it would work given the assurance of the seller I took it in to be fixed again. I left the car with them and they rewired some wiring in the boot as they thought that might be to blame. Later they called me up saying it would program but then wouldn't pair with the phone. They had tried to pair all sorts of phones (iPhones, Samsung Galaxies etc), but none would pair and after a few minutes the unit would pack in and turn off. If the engine was turned off for a few minutes and restarted it worked again but no pairing. The garage is a specialist who employs ex BMW trained 'Mastertech' technicians. They use the same programming equipment as BMW dealerships (called ISIS apparently). They confirm that the unit was definitely dead- it still didn't work. This whole thing cost me about £84 (on top of the £25 already spent trying to reprogram the original).

I didn't leave them with my original unit as I didn't see the point, but out of curiosity I tried the original again as they rewired the terminals in the car, and hey presto, it works! However the dud unit sold to me still doesn't work. Clearly the seller, if they had tested it at all, didn't try to pair a phone. Particularly annoying as I would have avoided this whole palava if the terminals were rewired in the first place, but there was no reason to suspect this, and is irrelevant with respect to the faulty unit.

I contacted them to ask to return for a refund which they said no to, making all sorts of excuses, like saying it had to go to an authorised BMW dealer, which is nonsense as BMW dealers do NOT reprogram second hand units, only new ones. He also went on to blame me saying I broke it, despite it not working straight away after being reprogrammed by professionals. The only time I touched the unit was to take it to the garage, and didn't fiddle with it at all as I don't have the equipment.

He was quite rude and his English is terrible - sometimes to the point of having to ask to clarify what he means, as the sentences make no sense whatsoever.

He is refusing to pay, and is now totally ignoring my emails. I have threatened to take him to the small claims court, but eBay won't help as it has been too long (45 day limit).

I am asking what I will likely have to pay if I take him to the small claims court. I understand from .gov.uk that it is £25 for an online claim, and if they don't respond I have to take further action. If they dispute it then I don't know what will happen but I have the garage on my side, a very reputable specialist in their field.

The item cost me £90. Each programming cost me £25, so a total of £140 out of pocket because of this individual.

Am I likely to be successful, will I get the £90 back, or the whole £140 I am out of pocket? And will I get my fees back? If so, all or some of them?
I don't want to end up more out of pocket than when I started but I am confident I am in the right and this person is dishonest.

Any advice would be really appreciated.

Thanks in advnace.
Andy

InsideInsurance

Which fees are you talking about? The court fees will be payable by the loser assuming the court doesnt believe sufficient attempts were made to resolve beforehand or that the action was vexatious (fairly rare and doesnt sound to be the case).

Assuming you win the case then there are reasonable prospects of being awarded the fitting costs. Always worth checking T&Cs that you agreed to first.

The other question of cause is if the other party is going to have the means to pay the judgement. Do you know the legal entity that you bought it from? Was it a limited company or a sole trader?

andyz0

Thanks for your reply InsideInsurance. They are a sole trader as far as I can tell, but you must be able to make a claim against an individual can't you? I have no idea if they can pay but given that they took my money it would be reasonable for me to ask for it back? I have offered to send back the item countless times.
I meant the court fees. In another words, if I proceed, does it seem likely that I should win and if I do, will I end up getting the £90 for the item, the £140 for the item and costs associated, or less than the above due to other fees?
I've never gone through this process before. I don't believe there were any specific T&Cs other than those of eBay. I am unable to check now as eBay remove listings after 90 days.

Thanks again
Andy

wealdroam

It is not easy to give a simple yes or no answer to your questions.

Have a read of MSE's Small Claims Court guide where you will find (amongst other good stuff):

The court will expect you to have already made your claim in writing, giving the other person a reasonable amount of time to reply (you should specify a time limit in your complaint letter). You should also warn them that you'll take court action if they fail to reply within the given time. You never know, just saying this may be the kick up the bum they need to cough up.

That letter is commonly known as a letter before action and this CAB webpage will help with that:

http://www.adviceguide.org.uk/england/consumer_e/consumer_taking_action_e/consumer_legal_actions_e/consumer_going_to_court_e/before_you_take_someone_to_court/step_one_write_a_letter_before_action.htm

andyz0

Thanks. I will send a formal letter, as they have been prompt in replying up until they have ceased communicaiton after I threatened the small claims court. I will email a letter than post recorded to them. Would this help if I had my mothers legal firm send a headed letter? I think two weeks is a reasonable amount of time for them to respond, then I will make a claim after that, if they don't buckle before which I doubt. I have read quite a lot of that guide yes.
They are being stupid in not just accepting my return. That will cost them the £90 and they can sell it on again if they honestly believe it isn't faulty, but if I go through the courts and win it could cost them hundreds!

InsideInsurance

andyz0 wrote: »

They are a sole trader as far as I can tell, but you must be able to make a claim against an individual can't you? I have no idea if they can pay but given that they took my money it would be reasonable for me to ask for it back? I have offered to send back the item countless times.

You need to know who you are dealing with, if you issue against the wrong legal entity then its easy to have the claim lost.

You can certainly issue against individuals and often it is better than with vSME LTDs as there is no distinguising between the person and their business. With tiny limited companies directors often just fold the company as soon as they receive the court papers and reopen a new business

What is reasonable and what you can achieve is not always the same. If they are broke, endebted up to the gills and already have a dozen outstanding CCJs you'll just be one more person trying to get their money back

hollydays

The cynical side of me wonders if you took it to a non BMW official specialist if they could fit it.
But , eBay goods plus official dealerships isn't a good mix.
There's probably a reason they are so cheap-cheap imports.

boo_star

Is the seller even UK based?

The broken English and cheap price smells of Chinese seller to me.

Was there EMS on the package?

If they're a foreign seller then you're wasting your money with a CCJ.