Who exactly to sue?

Adviceplease1

About to start a claim against a Car Dealer who supplied a defective vehicle, failed to repair it after having it a long time, now exercising final right to reject under Consumer Rights Act.
The premises have a long history of different trading names, dozens of complaints stretching back over 10 years.

The dealer has a Trading Name, we will call it ABC cars. On the trading name's website, it has a company number which links to the man's limited company. This limited company business name is different to the trading name.
But the money for the car was bank transferred to his wife's limited company.
On the invoice, he has stamped over the business address making it illegible. The only thing visible is the Trading name. (I know this is an offence).

On money claims you can have only 2 defendants, so do we sue:

- The trading name (think not)
- The dealer personally (I have his home address)
- The wife personally (I have her home address)
- The dealer's limited company
- The wife's limited company

The man and his wife are each the sole directors in their own limited companies.
Also, do we still HAVE to go to mediation or mention it in the LBA as obviously he's had his chance to repair the vehicle and failed.
Thanks in advance.

tacpot12

I think you might need professional legal advice on this question. Do you have any home insurance, and if so, do you have legal expense cover? If you do, call the legal helpline provided by your insurer. They should represent you to the dealer, and in court. If not, ask a solicitor. They might give you some free advice on this, if you hold out the prospect of paying to do work on the case later on. 

You will have to go to mediation if the dealer offers to do so. At the mediation, you need to establish why it has taken so long for the repair, and what the dealer might do differently if you allowed them to do have more time. Also what the would offer as a refund to you, give the limited use of the car you have had. If the dealer makes an offer to repair the car, you should consider accepting, but I suspect that if you do, the same outcome will result. If this were me, I would ask the dealer to deposit my refund with a solicitor until an agreed timelimit for the repair has elapsed. If they won't do this, I would deny them the option of repairing the car - as you say, they have had enough time already. The solicitor can write an ESCROW agreement that releases the money back to the dealer if the car is returned to you repaired - subject to a reasonable time (e.g. 1 week) for you to check that the car is fixed, and an independent engineers report if the car isn't fixed - I'd suggust you try to pre-agree who the engineer will be at mediation (or with the solicitor) and agree that their report will be used if the case goes to court.

DullGreyGuy

You need to sue the legal entity that you were in contract with; paperwork filed under trading names, directors when it was the Ltd, incomplete names etc are all easily dismissed by the courts meaning you lose the court fees you've had to pay (no chance of adding them to a subsequent claim against the corrected entity).

Who you pay is irrelevant, I can send you an invoice for £2,000 of plumbing work but ask you to pay it to my B&Q trade account but that doesnt put you in contract with B&Q. 

You therefore need to read the invoice and/or contract to identify the company that was selling the car to you. If there are marks over the details on the invoice then try both photographing from different angles/ filters as sometimes the difference in ink makes it much clearer than it is to the eye. You seem to have shortlisted the contenders anyway so its not like you are fishing blind

tightauldgit

As DGG says you need to sue the entity that you have a contract with - so check the paperwork and be clear on who invoiced you for the car and who your agreement is with. If it's the Ltd company then you have the company number and can find address details via that at companies house. 

If the amount being claimed is significant I would consider getting a solicitor because we see quite a few people here having problems trying to implement a court order against traders because they've potentially messed up at this stage. 

With regards mediation my understanding is that it's recommended but not compulsory. It can only work in any case if both parties agree to it. 

RefluentBeans

tightauldgit said:

…
With regards mediation my understanding is that it's recommended but not compulsory. It can only work in any case if both parties agree to it. 

Is this still true if it’s written into a contract (not saying it is here, just curious). I know that reality TV shows often put in a clause stating that mediation is required before they can be sued. So if the contract stipulates it, is it then required? 

Adviceplease1

Re: Mediation - it's recommended good practice I believe, and if one party refuses to go, that reflects poorly on them.

I've gotten all the parties details from Companies House, and also have their home address thank you.

The invoice has ONLY the trading name on it, the registered company name which has been stamped over looks to be the name of the WIFE's limited company, (which is the same as where the money went to) but the ink on top of it is illegible. This practice (withholding business company details) can be a civil and criminal offence and has been reported to TS and others. 

They've done this 'stamping over' to another customer I am in contact with.  This person paid their money to the HUSBAND'S limited company.

So it looks like both limited companies (husband and wife's) are getting the money from the one trading premise and the same trading name - is this legal? Doesn't a trading name have to be linked to ONE registered company? (Although that registered company can have multiple trading names - I am talking about the other way around).

DullGreyGuy

Trading names are not registered (excluding certain regulated industries) and do not have to be unique however a business can certainly take exception at another "passing off" by using their marks in an attempt to fool customers into thinking they are or are related to another firm using the same branding. There case is much stronger if they're trademarked. 

Just look at all the places trading as McDonalds, of the 1,300 in the UK 1,100 are francises and so not a McDonald's legal entity but another company that pays a fee to be able to use the branding etc

Adviceplease1

DullGrey - thanks very much for taking the time to reply but I mean the other way around.  
I am talking about the legal requirement e.g. here  

https://www.gov.uk/invoicing-and-taking-payment-from-customers/invoices-what-they-must-include

to give customers the registered business details for the trading company.  In this case, there is only ONE premises, and one trading name, which has TWO limited companies associated with it.

Essentially the consumer has the right to know which legal entity is associated with a trader.  In this case, they have two entities.... that doesn't seem legal to me. 

Wonka_2

Honestly, given the lengths the dealer appears to have gone to over the years it's unlikely they'll be concerned whether they've breached the law on their business name.

As others have said it's time to lawyer up.

Given the lengths you've gone to already I'm assuming there's no finance company involved who would take on some of the risk ? 

DullGreyGuy

The invoice should certainly be clear as to whom you are dealing with. 

Fundamentally I dont think two companies trading with the same name at the same address is an issue, its commonplace in Group company situations for example if you take the Prudential they have different entities like Prudential Assurance Company Ltd for their annuities and Prudential Distributions Ltd which is their sales company but both trade from Fenchurch Avenue under the trading style Prudential. The fact there can be multiple entities, related or not, trading from the same address doesnt excuse them from not being clear of on the contracting entity on paperwork.

user1977

Adviceplease1 said:

In this case, there is only ONE premises, and one trading name, which has TWO limited companies associated with it.

I don't think there's anything wrong with that in principle, you have businesses who will contract with you under different group companies depending exactly what they're offering you. But in any event it ought to be clear which legal entitly you're contracting with.