Car refund advice

casseus

Money_maker wrote: »

Two copies from two different post offices with proof of posting. Should satisfy all requirements. Why make this so difficult?

well the argument is if you send it first class royal mail signed for if its rejected its not served apparently. although you have receipt to prove you sent it, which even without the act and dances over legalities of whether its served no judge will walk down that road look at proof of postage and tell the defendant to jog on with this defense.

casseus

waamo wrote: »

Don't know and don't care.

OK if its a legal document surely then I cant ignore it without any legal ramifications if its "served on me" ,the LBA that is.

waamo

casseus wrote: »

OK if its a legal document surely then I cant ignore it without any legal ramifications if its "served on me" ,the LBA that is.

I have no idea what you are going on about.

unholyangel

waamo wrote: »

I'm not sure there is one. I'm not actually 100% convinced either way but a Supreme Court ruling has said that the CPRs and Practice Directions must be followed except where completely impractical.

An LBC therefore must be sent. This is underpinned by secondary legislation.

Arguing to a lower court that this isn't a legal document because secondary legislation isn't an act frankly is a big ask. I could see this going to appeal. If it went to the Supreme Court you would be asking them to essentially contradict themselves.

Like I said I'm not 100% convinced either way but I now which I would rather be arguing.

Of course the civil procedure rules must be followed - its still legislation. Thats not what I'm arguing though.

It is only where ordained by an act of parliament that a document is required or authorised to be sent by post, can s7 of the interpretation act 1978 be relied upon.

Such as under the Housing (Scotland) Act 1987 which states:

63.— Application to purchase and offer to sell.

(1) A tenant who seeks to exercise a right to purchase a house under section 61 shall serve on the landlord a notice (referred to in this Part as an “application to purchase”) which shall be in such form as the Secretary of State shall by order made by statutory instrument prescribe, …

(2) Where an application to purchase is served on a landlord, and the landlord does not serve a notice of refusal under sections 68 to 70 it shall, within 2 months after service of the application to purchase, serve on the tenant a notice (referred to in this Part as an “offer to sell”) …

84.— Service of notices.

(1) A notice or other document which requires to be served on a person under any provision of this Part may be given to him—

(a) by delivering it to him;

(b) by leaving it at his proper address; or

(c) by sending it by recorded delivery post to him at that address.

Or the Road Traffic Offenders Act 1988 (there are lots of examples but I'll just quote one):

(1)Subject to section 2 of this Act, [F1a person shall not be convicted of an offence to which this section applies unless]—
(a)he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or
(b)within fourteen days of the commission of the offence a summons (or, in Scotland, a complaint) for the offence was served on him, or
(c)within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was—
(i)in the case of an offence under section 28 or 29 of the M1Road Traffic Act 1988 (cycling offences), served on him,
(ii)in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.


[F2(1A)A notice required by this section to be served on any person may be served on that person—
(a)by delivering it to him;
(b)by addressing it to him and leaving it at his last known address; or
(c)by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address.]

waamo

unholyangel wrote: »

Of course the civil procedure rules must be followed - its still legislation. Thats not what I'm arguing though.

It is only where ordained by an act of parliament that a document is required or authorised to be sent by post, can s7 of the interpretation act 1978 be relied upon.

Such as under the Housing (Scotland) Act 1987 which states:



Or the Road Traffic Offenders Act 1988 (there are lots of examples but I'll just quote one):

I'm not entirely sure of your argument. Are you saying that primary legislation needs to specifically mention the requirement to send a letter?

You may indeed be right, I can't find any case law on this but personally I would argue the secondary legislation that says an LBA has to be sent would be sufficient.

It would seem perverse for it to be a requirement but not to be able to rely on legislation used for every other document such as a NIP.

As I have said numerous times I may well be wrong but I still wouldn't like to argue the Interpretation Act didn't apply using that argument.

unholyangel

waamo wrote: »

I'm not entirely sure of your argument. Are you saying that primary legislation needs to specifically mention the requirement to send a letter?

You may indeed be right, I can't find any case law on this but personally I would argue the secondary legislation that says an LBA has to be sent would be sufficient.

It would seem perverse for it to be a requirement but not to be able to rely on legislation used for every other document such as a NIP.

As I have said numerous times I may well be wrong but I still wouldn't like to argue the Interpretation Act didn't apply using that argument.

I'm repeating what car 54 (I think it was him anyway, apologies if not) said earlier about s7 only applying to Acts (defined as acts of parliament) and also addressing an additional issue that it may be moot anyway because while civil procedure rules do have set protocols depending on the type of claim which specifically state a letter of claim is to be sent (and what should be included in that letter), in these circumstances there is no relevant protocol that I'm aware of and so it falls under a generic instruction to "exchange information" with no specific mention to letters of claim having to be sent (interpretation act would also accept wording saying the letter has to be given or served) and no precise instructions on what it should include. 6.7 of the civil procedure rules 1998 would be a better bet although still debatable due to the above imo.

I provided quotes from the housing act and road traffic offenders act to show examples of when s7 would apply - because the acts specifically set out that notice is to be "served" and then goes on to say it can be served by post.

waamo

unholyangel wrote: »

I'm repeating what car 54 (I think it was him anyway, apologies if not) said earlier about s7 only applying to Acts (defined as acts of parliament) and also addressing an additional issue that it may be moot anyway because while civil procedure rules do have set protocols depending on the type of claim which specifically state a letter of claim is to be sent (and what should be included in that letter), in these circumstances there is no relevant protocol that I'm aware of and so it falls under a generic instruction to "exchange information" with no specific mention to letters of claim having to be sent (interpretation act would also accept wording saying the letter has to be given or served) and no precise instructions on what it should include. 6.7 of the civil procedure rules 1998 would be a better bet although still debatable due to the above imo.

I provided quotes from the housing act and road traffic offenders act to show examples of when s7 would apply - because the acts specifically set out that notice is to be "served" and then goes on to say it can be served by post.

Gotcha. Thanks you for that comprehensive reply. Much appreciated.

FWIW it's probably all moot anyway. As a defence in a "small claim" not receiving an LBA would be very low down on my list of potential defences.

I wouldn't even rely on it to get a set aside. Theoretically it could get you one but I wouldn't like to try it.

unholyangel

waamo wrote: »

Gotcha. Thanks you for that comprehensive reply. Much appreciated.

FWIW it's probably all moot anyway. As a defence in a "small claim" not receiving an LBA would be very low down on my list of potential defences.

I wouldn't even rely on it to get a set aside. Theoretically it could get you one but I wouldn't like to try it.

Yes, not receiving an LBA isn't a defence to a claim (well, not a valid one imo - a defence only has a prospect of success if its based in law). But it could potentially (depending on the facts of each case) affect how costs are awarded, since a judge will consider the effect/disadvantage to the other party as a result of non-compliance.

Im also not sure it could get you a set aside - they might give you a set aside if you didn't receive the service of claim from the courts and have a reasonable prospect of defending (reasonable enough for the courts to hear the case). But not for the LBA itself.