Ee: Small claims & reply to defence help please

s2016

Hello everyone.,
Please can anyone help here? I need someone with experience of Small Claims without a solicitor (as I am doing) and also potential help with legalese. I have put in a claim against EE under the Sale of Goods Act (as Amended) upon the advice of a consumer expert who helped initially but isn't helping anymore. EE gave me a faulty iphone 5 handset in 2013 but replaced with a non-like for like model, only a refurbished model which was also faulty 14 months later. The replacement phone was heating up dangerously and then shattered and smoked. EE couldn't care less of course (It shattered as my 4 year old passed it from one table in my office to another mere footsteps away). Instead of replacing this phone (which was out of line with the law I was told in the first place by the consumer person) they delivered three more faulty handsets (refurbished). I spoke to Apple and asked why the handsets were over heating (March 2016) after EE told me to go to the manufacturer) Apple rejected me and said they stopped selling and making i phone 5 parts in 2013 so it could be that EE were giving me phones with non genuine parts etc. EE rejects this - they would rather deliver and make me wait indoors day after day for faulty refurbished phone sets than simply adhere to the Sale of Goods Act 1979 (as amended) as the consumer person told me. I filed with small claims. Exec office at EE were awful. Ombudsman did nothing. EE have now replied and are defending the claim. I thought this was unusual but maybe I am the first.
Anyway I need to reply to the claim today, and also have been advised to return the court questionnaire stating I will go for mediation if EE also agree (though their defence is FULL of lies and also lots of legalese which I do not understand and is either designed to make me feel overwhelmed as I do right now, or is regarding the personal injury part of my claim. I am not claiming a large amount and I think they are asking a judge to strike out a claim under CPR 3.4.(2) (a) - is this them accusing me of fraud??? Please can anyone help? There is nothing fraudlent about my case. I have letters and phonecalls to EE about everything..

Also can anyone help me set straight that I am claiming under the Sale of Goods Act 1979 and which parts of this please? Is it SOGA 1979 (as amended) in brackets? I don't think it is Consumer Act 2015 as this relates to an original iphone in 2013.

The defence is trying to make out they replaced phones out of goodwill but I am stating they were replacing original faulty iphones with more faulty phones. I need my phone for work - of course I would not want to stay in for an entire week of my life waiting and swapping sims instead of just going about my work and life! The are claiming the photos I sent of phone are in nature of the phone being dropped which was not the case! Plus I asked for evidence of the phones engineering test reports but they have not given them. Also once the phones were given to couriers I have no knowledge of where they are or what damage could be incurred after (and I do not trust EE any more after being a customer for 13 years!). They are also trying to lie and pretend I want a new phone because I left the network and am switching providers.. I left after months of stress and lies and incorrect billing and even defaults on my credit because of EE mistakes (one stupid person in Exec office was applying discounts on my account every month for a new contract in 2013 which she would frequently fail to do and I would get whacked with high data charges which NO one in normal customers services had any idea about. I queried this flawed system time and time again. 'if she left the company - would my contract not stand??!' it was and is absurd. I left because I had had enough and complained about my faulty replacement phone heating up and they KNEW about this before I left and then it overheated and stopped working totally.. I am now with GiffGaff which is as far from EE as I could get and great in every single way.

They are trying to taint my credibility in their defence by stating:
a) it is unusual for an iphone to overheat. (Can I reference major cases of lithium batteries exploding/ causing fires in my reply to defence here please?)
b) it is unusual for consecutive phones to have the same problem (YES! So then why SEND me those phones!!? If it was a software problem or hardware problem surely this is EE problem and not mine? Also after seeing the phone smoke in my four year old's hand, it would be crazy for me to NOT to flag up overheating in the three replacement phones they sent, including the one I have now...)
Please help if anyone can, Thanks so much.

vuvuzela

Lot of text there. Can you prove you were only using genuine Apple chargers with these phones ?

steampowered

It sounds like the main point of dispute is that you are claiming the phones were faulty, but EE are claiming the phones are not faulty.

In this case the judge would have to look at the evidence and decide, on a balance of probabilities, whether it is more likely than not that the phones were faulty.

For the judge to do this, you would (at a later stage, before the hearing) need to provide a detailed witness statement explaining exactly what actually happened.

What do you mean by the "personal injury part of my claim"?

This forum might not be the best place to get detailed help on court processes, for that kind of thing you may find it helpful to make a thread on a site like CAG.

Elle_Woods

s2016 wrote: »

Anyway I need to reply to the claim today, and also have been advised to return the court questionnaire stating I will go for mediation if EE also agree (though their defence is FULL of lies and also lots of legalese which I do not understand and is either designed to make me feel overwhelmed as I do right now, or is regarding the personal injury part of my claim. I am not claiming a large amount and I think they are asking a judge to strike out a claim under CPR 3.4.(2) (a) - is this them accusing me of fraud??? Please can anyone help? There is nothing fraudlent about my case. I have letters and phonecalls to EE about everything..

Hi OP, I can help with the reference to CPR 3.4(2)(a), which provides that: "The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim..". This is not them accusing you of fraud, it just means that they think that part of your claim doesn't have a legal basis or has no reasonable prospect of succeeding at a hearing. It is difficult to comment further about their reasons for applying for strike out without seeing either your claim form or their defence.

What is the personal injury that you are claiming for? To succeed in a claim for personal injury you have to provide evidence that: a. the defendant has breached its duty of care to you; and b. that breach caused the injury. As steampowered has helpfully said, the standard of proof is the balance of probabilities i.e. more likely than not or 51%- so the judge has to be satisfied that it is more likely than not that your injury was caused by the defendant's actions.

I would consider going to a CAB or, depending on where you live, a Personal Support Unit. I know that the amount of help the CAB can give varies from branch to branch. The Personal Support Unit (PSU) are excellent help for litigants in person (people bringing claims without a lawyer); they can give advice on court procedure and provide moral support. However, they aren't able to give legal advice i.e. they can't tell you whether or not they think you have a good claim.

I'm sorry that I can't answer all of your questions but hope that some of this is helpful.

s2016

Hi Everyone! I am am so sorry for the lack of reply on this thread - for some reason I didn't get email notifications of your posts and so didn't log back on thinking no one had replied. Sorry! Andd THANK YOU for your kind and prompt replies. So the case went to mediation, I waited all day but then mediation said they had not heard back from EE and so the case is going to court now. So I have no idea. I think CAB is prob my best bet and thanks for the guide to the CAG forum - I had never heard of it before today! Re Elle Woods, actually while I have complained about the personal injury happening, at the time I didn't take my son to the doctors or report it professionally so I haven't put in an official complaint for a set amount for the person injury. Thanks for clarifying the legal points too - really helpful. Let's see now. I will update when I hear something back from the courts or EE. the fact I am claiming only for the handset I think will indicate to the judge that I am not seeking personal injury compensation. Thank you all again!

s2016

Re proving I was using genuine Apple chargers - yes I can. Have all receipts etc.

bris

I take it your consumer rights expert told of your need for expert reports to back up your case? Did you get independent reports done?


Essentially you have a contract that started in 2013, this is 4years ago so the value of your claim may very well be insignificant. The courts will take into consideration the 4 years use you have had from the phones despite the replacements. The replacements are not considered in law as new phones but just the same phone bought in 2013.


Personal injury, without doctors reports or even the fact you failed to mention it to anyone would not even be taken into consideration anyway.

steampowered

bris wrote: »

I take it your consumer rights expert told of your need for expert reports to back up your case? Did you get independent reports done?

An independent expert report would be inadmissible as evidence, unless the court's permission had been obtained to obtain such report through the directions questionnaire.

s2016 wrote: »

Re proving I was using genuine Apple chargers - yes I can. Have all receipts etc.

Doesn't really matter if phone charges etc. is not something they have raised in their Defence.

the fact I am claiming only for the handset I think will indicate to the judge that I am not seeking personal injury compensation.

The only thing you get to claim for, is what you said you are claiming for in your particulars of claim.

If a personal injury claim is not in your particulars of claim, then it isn't part of your claim to begin with.

bris

steampowered wrote: »

An independent expert report would be inadmissible as evidence, unless the court's permission had been obtained to obtain such report through the directions questionnaire.

Eh no, one of the major points of going to a small claims court is to get the independent expert reports, it a necessity.

steampowered

bris wrote: »

Eh no, one of the major points of going to a small claims court is to get the independent expert reports, it a necessity.

This is a bit of an urban myth. You don't need an independent expert report to use small claims.

In fact the courts restrict it. The court rules on small claims say "No expert may give evidence, whether written or oral, at a hearing without the permission of the court".

This was added to the rules for small claims track rules deliberately because it is felt that experts should not usually be necessary for small claims.

The Op will shortly get a form looking like this - https://formfinder.hmctsformfinder.justice.gov.uk/n180-eng.pdf. If the Op wants to use an expert report, he/she needs to complete section D with an explanation why an expert report is necessary.

waamo

Would an independent report necessarily be an expert report? I can see an argument both ways.