Private sale item misdescribed - is it worth filing a small claim?

lalalaliv

Hi,

I did something incredibly stupid which I now regret. I should have listened to my partner! Anyway, I bought a mobile phone from a Facebook buy and sell site at the value of £110.

The lady advertised an iPhone 4s, 16gb, unlocked. What I have received is an iPhone 4, 8gb, locked - not to my network so it's unusable for me. The money was given to her ex husband (who she told me was her husband) and the phone was not hers, she was advertising for her daughter, therefore she is saying she is not responsible for refunding me and it has turned quite nasty, only replying to my texts to argue with me. The man in question doesn't answer my texts or calls despite numerous attempts. I have all the evidence necessary such as screenshots of the advert etc.

Under section 13 of the sales of goods act 1979 an item must be properly described and if it isn't you are legally entitled to a refund - hence why I believe the woman is responsible for giving me the money back despite the fact it wasn't her I gave the money too.

My question is, is it worth filing a small claim for £110 at a cost to myself if I don't win (and at potential cost to myself even if I win - my partner says judges don't always award your costs back to you)? I have her address so I can file the claim to her personally but I'm worried the judge would rule the man should pay me back and I'm also worried because she is a legal consultant and would find it very easy to have legal advice and help whereas I can't afford it!

timbstoke

While it would be your right to file a claim, chances are it's not going to be worth it if the phone works and is in good condition. CEX sell a network locked iPhone 4s 8GB for £115-160 depending on condition, so a simpler and less hassle approach would be to just resell it. Even if you sold it at a loss, it'd be a smaller loss than the cost of going to court.

pimento

.. and then send her a turd in a box. )

InsideInsurance

lalalaliv wrote: »

My question is, is it worth filing a small claim for £110 at a cost to myself if I don't win (and at potential cost to myself even if I win - my partner says judges don't always award your costs back to you)? I have her address so I can file the claim to her personally but I'm worried the judge would rule the man should pay me back and I'm also worried because she is a legal consultant and would find it very easy to have legal advice and help whereas I can't afford it!

It depends what "costs" he means. If he is talking about the court fees then the only time they wont award these to a successful claimant is if the defendant successfully argues that there was no appropriate attempts to settle the claim prior to going to court.

If he is talking about legal fees, expert reports etc then this depends on which level of the court it goes through. Anything under £10,000 without personal injury normally goes through Small Track (aka small claims court) and here legal fees are almost totally barred though ultimately the judge does have some discretion in exceptional cases.

The case itself sounds straight forward but the real question is even if you get a CCJ against the person are they actually going to pay up or are you throwing good money after bad as they already have a mountain of debt and CCJs and this just becomes yet another one.

agrinnall

When you say it's unusable to you, it really isn't, you just need to get it unlocked. I know nothing about iPhones as I've steered clear of them, but a quick search found this:

http://www.macworld.co.uk/how-to/iphone/how-unlock-your-iphone-3501427/

bris

You also have to mitigate the loss, you would do this by first writing to them with an LBA giving the 14 days to refund you.


When this fails you mitigate the loss by getting the best possible price for it. So if you get £70 then you sue for £40,(plus costs) that's the way it works, makes it less worth the hassle.

lalalaliv

timbstoke wrote: »

While it would be your right to file a claim, chances are it's not going to be worth it if the phone works and is in good condition. CEX sell a network locked iPhone 4s 8GB for £115-160 depending on condition, so a simpler and less hassle approach would be to just resell it. Even if you sold it at a loss, it'd be a smaller loss than the cost of going to court.

Thanks for the advice, unfortunately it is an iPhone 4 rather than the iPhone 4s advertised therefore it is significantly less valuable, I'm going to make about £30 max considering neither person can/will tell me what network it's locked to - mazuma etc pay less when it's locked to an unknown network.

lalalaliv

InsideInsurance wrote: »

It depends what "costs" he means. If he is talking about the court fees then the only time they wont award these to a successful claimant is if the defendant successfully argues that there was no appropriate attempts to settle the claim prior to going to court.

If he is talking about legal fees, expert reports etc then this depends on which level of the court it goes through. Anything under £10,000 without personal injury normally goes through Small Track (aka small claims court) and here legal fees are almost totally barred though ultimately the judge does have some discretion in exceptional cases.

The case itself sounds straight forward but the real question is even if you get a CCJ against the person are they actually going to pay up or are you throwing good money after bad as they already have a mountain of debt and CCJs and this just becomes yet another one.

Thanks for clarifying that for me, I did mean court fees. That makes me a little more inclined to file a claim but as you say she might not pay up. Although I have reason to believe she/he has the money - she told me she wasn't short of money and that she was going to get the money for me at first as she 'felt sorry for me', however she didn't tell me she was doign this, so after being routinely ignored by the man I text her to indicate that if I didn't receive any contact I would be taking further action. It was after that point she said I could forget about getting the money back, so she's basically just being spiteful and petty. I wonder if she may continue to be petty and not pay up even if I win the case.

lalalaliv

agrinnall wrote: »

When you say it's unusable to you, it really isn't, you just need to get it unlocked. I know nothing about iPhones as I've steered clear of them, but a quick search found this:

Thanks for the link, I've done a lot of research into unlocking it but because the people involved can't tell me what network it's locked to it can't be done. I believe I can pay a small cost online to find out what network it's locked to so I may do that but apparently it's illegal and there's a lot of scam sites so I need to be careful. It's just the principle that angers me, it's unfair to sell someone a phone that is completely different than what was advertised, no one in their right mind would pay £110 for an iPhone 4, 8gb, locked so I've basically been duped into giving them more money which is fraud. People shouldn't be allowed to get away with this kind of crap.

lalalaliv

bris wrote: »

You also have to mitigate the loss, you would do this by first writing to them with an LBA giving the 14 days to refund you.


When this fails you mitigate the loss by getting the best possible price for it. So if you get £70 then you sue for £40,(plus costs) that's the way it works, makes it less worth the hassle.

Thanks for the advice, what does LBA mean? I've done a quick Google but couldn't find out what it meant in relation to this issue.

I will look into doing that should they not pay after the letter, when you say plus costs do you mean the court fees?

wealdroam

lalalaliv wrote: »

People shouldn't be allowed to get away with this kind of crap.

And as long as no-one takes them to court they will continue to get away with it.

LBA = Letter Before Action.