just lost £500 in less than 24 hours cos i am stupid

Parks

thequant wrote: »

Hi Parks, can you give us some more info re. the hearing you had ?


Sounds like to me, you didn't actually have the formal hearing. But some sort of mini hearing before it. Did the other side make an application for you case to be dismissed ?

hi
no it was the actual hearing. The other side just brought the contract that we signed as their evidence and that apparently was a legal contract and the judge said realistically unless we can get some legal representation to say that the contract was not binding we didn't have a case and that it is a grey area about whether we should have had a cooling off period as the property that we were going to buy was were we signed the contract and was actually the property of the defendant so no cooling off period would be applied.
We are just going to give in now and put it down to a very expensive mistake

thequant

Parks wrote: »

hi
no it was the actual hearing. The other side just brought the contract that we signed as their evidence and that apparently was a legal contract and the judge said realistically unless we can get some legal representation to say that the contract was not binding we didn't have a case and that it is a grey area about whether we should have had a cooling off period as the property that we were going to buy was were we signed the contract and was actually the property of the defendant so no cooling off period would be applied.
We are just going to give in now and put it down to a very expensive mistake

Ok, provisionally this is good news, on the assumption that the judge hasn't ruled on the case yet and is giving you a chance to get your ducks in a row.


Reading between the lines, it sounds like the judge is on your side. They don't often do this, but it sounds like you "lost" in court on the day,but judge is on your side and is giving you a second shot before making judgement.


It sounds like the problem you had, is their side went into court with a legal argument as to why the contract should stand, you went in with a "moral" argument.


Two things to learn about judges, they don't like their judgement being overturned, because it makes them look bad. To overturn a judgement because they made an error in law is easy to do.


The upshot of this, is if one side goes in quoting the law and the other side doesn't. No matter how unfair it is, they will always side with that which has quoted the law.


The second thing about judges, is they don't know the law. It is such vast and complex area, that no one can know everything about it. Even the other side in your case, would of had to have a brush up on it before the hearing.


So what does this all mean ? It's means the judge wants you to go in and quote some fact of law to support your case.


Once you do this and the judge is in the position of two conflicting arguments, then they make a judgement on what is considered "fair".


Re legal representation, I don't think the judge meant you to go out and find legal representation. In fact they shouldn't do this full stop as you wouldn't be able to recoup the costs even if you won. But I think they meant you need to get some legal advice/info from somewhere, so you can go back and use it in court.


I presume you will have been given some sort of order after the hearing, can you post up the details.


Re. legal advice, try this place, it's free


http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?412-General-Legal-Issues


I've used them before ad they are pretty savvy, I've had court cases before where a judge has been against me and has sided with other side because they were using a solicitor. But through using the advice and arguments given on there, I have won.


Obviously all of the above is given on some assumptions I am making about the legal state of the case and also that any further costs are minimal (i.e. have you been given any indication of any other fees you need to pay to the court)

thequant

thequant wrote: »

Great that's what the OP needs to read.


Arguing this case further down the law, they need primarily a legal argument to rely on.


Which is then backed up by the code for housebuilders which should fill any gaps not covered by legislation.

The above from an earlier post

thequant

Parks wrote: »

i know, the judge did say we have to try and get legal evidence that it is either an unfair contract (cooling off period) but that the housing firm could state that as we signed on their property which was the house we were purchasing that cooling off period doesn't apply and so that is a very grey area.

Ok just looked in the further, as I feel responsible in encouraging you to follow this through


It looks like to be able to cancel the contract, you need to prove that it was signed on "excursion" away from the traders "business premises"


They are arguing the property is their business premises, then no excursion took place.


So we need to argue that the property does not constitute the business premises


Now read this


5. In these Regulations—






“business premises” in relation to a trader means—

(a) any immovable retail premises where the activity of the trader is carried out on a

permanent basis, or

(b) any movable retail premises where the activity of the trader is carried out on a usual

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265898/consumer-contracts-information-cancellation-and-additional-payments-regulations-2013.pdf


Now my interpretation (please note that this is mine and others more qualified may disagree)


That by definition of a)


1) the property for sale is not a "retail" premises


&


2) it would not be used on a permanent basis, how can it after being sold.?


Part b) can be used as supporting argument. That presuming the construction site had one of those mobile sales room, that this would actually constitute the business premises as, this would be moved to future sites.


It seems from the above a business premises is defined as anything, whether movable or immovable, where the business carries out it's activities and intends to do so in the future. A property they are selling is not this.


Ok, that was the good news.


There's some bad news, that is taken from the new legislation that came into force in June this year. Your contract happened before this and the law is not retrospective.


The old legislation is pretty similar the new, except it tighten up the regulations and clarifies a few points. One of them being the old legalisation didn't define what constituted "business premises"


Hence this is the grey area the judge is referring to. which is compounded by the fact there was no precedents to define what was a "business premise" previously


Now where does this leave you ?


I'm going to go out on a limb, but you would definitely need someone who is more versed with the law than me, to see if this argument would hold up.


I would argue that since the old law, didn't define a "business premise" then it was open to interpretation awaiting precedents and further legalisation.


Since no precedents were set, then new law sets this definition.


This would not be a case of using the law retrospectively, as the relevant part of the legalisation was in place at the time, just that the definition was not clarified and now it has been.


As I say, that is a bit speculative from me, so you will definitely need to get further advice.

hazyjo

Just looked this up to see how you got on. GUTTED too. OMG how can they not give you a cooling off period.


I'd definitely go public on that one


Jx

Parks

thequant wrote: »

Ok, provisionally this is good news, on the assumption that the judge hasn't ruled on the case yet and is giving you a chance to get your ducks in a row.


Reading between the lines, it sounds like the judge is on your side. They don't often do this, but it sounds like you "lost" in court on the day,but judge is on your side and is giving you a second shot before making judgement.


It sounds like the problem you had, is their side went into court with a legal argument as to why the contract should stand, you went in with a "moral" argument.


Two things to learn about judges, they don't like their judgement being overturned, because it makes them look bad. To overturn a judgement because they made an error in law is easy to do.


The upshot of this, is if one side goes in quoting the law and the other side doesn't. No matter how unfair it is, they will always side with that which has quoted the law.


The second thing about judges, is they don't know the law. It is such vast and complex area, that no one can know everything about it. Even the other side in your case, would of had to have a brush up on it before the hearing.


So what does this all mean ? It's means the judge wants you to go in and quote some fact of law to support your case.


Once you do this and the judge is in the position of two conflicting arguments, then they make a judgement on what is considered "fair".


Re legal representation, I don't think the judge meant you to go out and find legal representation. In fact they shouldn't do this full stop as you wouldn't be able to recoup the costs even if you won. But I think they meant you need to get some legal advice/info from somewhere, so you can go back and use it in court.


I presume you will have been given some sort of order after the hearing, can you post up the details.


Re. legal advice, try this place, it's free


http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?412-General-Legal-Issues


I've used them before ad they are pretty savvy, I've had court cases before where a judge has been against me and has sided with other side because they were using a solicitor. But through using the advice and arguments given on there, I have won.


Obviously all of the above is given on some assumptions I am making about the legal state of the case and also that any further costs are minimal (i.e. have you been given any indication of any other fees you need to pay to the court)

thanks. The judge did appear to be on our side and said we did need a legal case to take it further and that we needed legal guidance about a legal case against them. We have sought advice from CAB and they were sympathetic but again said it was a very grey area re the signing of the contract as that was the only way we could pursue. We would need to prove that the property was not their business premises so a cooling off period should have been given, HOWEVER they were very keen to stress that as it was the companies premises it was a very disputable case

franklee

There seems to be a story there especially if you tie it in the hardline taken by local builder over definition of their business premises and that there's new legislation that came into force in June this year as thequant posted. So you could try taking it to the local paper with the angle to warn people that a half built house can be business premises?

I'm sorry you didn't get the result you wanted in court but the way I'd look at it is that you has already lost the £500 so in effect you then spent £90 to try and rectify things. At least the £90 has brought you peace of mind that you did your best, if you had done nothing you could have been fretting about it for years. Plus you cost the builder some money as they had to turn up and defend their case so they didn't get to keep all your £500 as profit.