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Small claims court proceedings issued in wrong name
Comments
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mybestattempt said:CFWJOB said:To clarify- I made a formal response to the claim to say
1. This claim is against a non-existent entity
2. This claim is out of time
I assumed that someone would review the submissions and be able to make a quick decision in my favour. But instead it's been scheduled for a hearing in person.
Just my thoughts as this was the sale of a bottle of laying down wine.
If it at the point of sale it was meant or expected to lay for 5 to 10 years, on the time limit point might he argue the cause action, that is, the breach of contract, started within 6 years of the claim?
I'm thinking it may have lain for say 9 years before he he opened it and found it faulty so he will contend that's the date of the breach of contract.
As I say just my thoughts, I'm not a wine expert.
Yes. That might complicate the issue.
When posters respond (like I did!) with a kneejerk answer that it's over 6 years ago so there can't be any claim, I wonder how far they (or I) have taken into account that it's when "the cause of action accrued" that's relevant.1 -
Okell said:mybestattempt said:CFWJOB said:To clarify- I made a formal response to the claim to say
1. This claim is against a non-existent entity
2. This claim is out of time
I assumed that someone would review the submissions and be able to make a quick decision in my favour. But instead it's been scheduled for a hearing in person.
Just my thoughts as this was the sale of a bottle of laying down wine.
If it at the point of sale it was meant or expected to lay for 5 to 10 years, on the time limit point might he argue the cause action, that is, the breach of contract, started within 6 years of the claim?
I'm thinking it may have lain for say 9 years before he he opened it and found it faulty so he will contend that's the date of the breach of contract.
As I say just my thoughts, I'm not a wine expert.
Yes. That might complicate the issue.
When posters respond (like I did!) with a kneejerk answer that it's over 6 years ago so there can't be any claim, I wonder how far they (or I) have taken into account that it's when "the cause of action accrued" that's relevant.
We may be into lawyering and legal precedent territory here. One could argue that you haven't done anything in the last 6 years that is a cause of action. But I'm not a lawyer.
If it sticks, force it.
If it breaks, well it wasn't working right anyway.0 -
Ectophile said:Okell said:mybestattempt said:CFWJOB said:To clarify- I made a formal response to the claim to say
1. This claim is against a non-existent entity
2. This claim is out of time
I assumed that someone would review the submissions and be able to make a quick decision in my favour. But instead it's been scheduled for a hearing in person.
Just my thoughts as this was the sale of a bottle of laying down wine.
If it at the point of sale it was meant or expected to lay for 5 to 10 years, on the time limit point might he argue the cause action, that is, the breach of contract, started within 6 years of the claim?
I'm thinking it may have lain for say 9 years before he he opened it and found it faulty so he will contend that's the date of the breach of contract.
As I say just my thoughts, I'm not a wine expert.
Yes. That might complicate the issue.
When posters respond (like I did!) with a kneejerk answer that it's over 6 years ago so there can't be any claim, I wonder how far they (or I) have taken into account that it's when "the cause of action accrued" that's relevant.
We may be into lawyering and legal precedent territory here. One could argue that you haven't done anything in the last 6 years that is a cause of action. But I'm not a lawyer.
Sorry, but I'm not really sure what you mean.
The court may consider the time limit issue is arguable and is not prepared to strike out the claim on that point until it has heard full arguments on both sides.
0 -
mybestattempt said:Ectophile said:Okell said:mybestattempt said:CFWJOB said:To clarify- I made a formal response to the claim to say
1. This claim is against a non-existent entity
2. This claim is out of time
I assumed that someone would review the submissions and be able to make a quick decision in my favour. But instead it's been scheduled for a hearing in person.
Just my thoughts as this was the sale of a bottle of laying down wine.
If it at the point of sale it was meant or expected to lay for 5 to 10 years, on the time limit point might he argue the cause action, that is, the breach of contract, started within 6 years of the claim?
I'm thinking it may have lain for say 9 years before he he opened it and found it faulty so he will contend that's the date of the breach of contract.
As I say just my thoughts, I'm not a wine expert.
Yes. That might complicate the issue.
When posters respond (like I did!) with a kneejerk answer that it's over 6 years ago so there can't be any claim, I wonder how far they (or I) have taken into account that it's when "the cause of action accrued" that's relevant.
We may be into lawyering and legal precedent territory here. One could argue that you haven't done anything in the last 6 years that is a cause of action. But I'm not a lawyer.
Sorry, but I'm not really sure what you mean.
The court may consider the time limit issue is arguable and is not prepared to strike out the claim on that point until it has heard full arguments on both sides.
The point I was trying to make - and I think @mybestattempt was too - is that if a consumer purchases an item that both they and the trader intend should be "laid down" for a period greater than 6 years, and after that 6 years has passed the consumer discovers that the item "does not conform to contract", then when does the cause of action accrue for the purposes of the Limitation Act?
Did it accrue at the time of sale more than 6 years ago, or does it only accrue when the consumer discovers there is a problem?
I may very well be mistaken but I thought the whole point of limitation was to give a claimant adequate time to issue a claim once they discovered they had a cause of action. I'm not sure that it's purpose was to prevent claims that a claimant could not reasonably have known about before 6 years elapsed.
[Edit: I'm also curious that the OP/trader seems quite happy - even after 10 years have elapsed - to offer the consumer a full refund when, if the 6 year limitation applies, they would not be obliged to offer anything at all. I know the OP has described it as a "goodwill gesture", but I wonder if they believe the consumer has a reasonable case. Also if the consumer is a retired(?) solicitor, they may know more about the law than most people here...]2 -
mybestattempt said:Ectophile said:Okell said:mybestattempt said:CFWJOB said:To clarify- I made a formal response to the claim to say
1. This claim is against a non-existent entity
2. This claim is out of time
I assumed that someone would review the submissions and be able to make a quick decision in my favour. But instead it's been scheduled for a hearing in person.
Just my thoughts as this was the sale of a bottle of laying down wine.
If it at the point of sale it was meant or expected to lay for 5 to 10 years, on the time limit point might he argue the cause action, that is, the breach of contract, started within 6 years of the claim?
I'm thinking it may have lain for say 9 years before he he opened it and found it faulty so he will contend that's the date of the breach of contract.
As I say just my thoughts, I'm not a wine expert.
Yes. That might complicate the issue.
When posters respond (like I did!) with a kneejerk answer that it's over 6 years ago so there can't be any claim, I wonder how far they (or I) have taken into account that it's when "the cause of action accrued" that's relevant.
We may be into lawyering and legal precedent territory here. One could argue that you haven't done anything in the last 6 years that is a cause of action. But I'm not a lawyer.
Sorry, but I'm not really sure what you mean.
The court may consider the time limit issue is arguable and is not prepared to strike out the claim on that point until it has heard full arguments on both sides.It was a reference to the rather ambiguous wording in the Limitation Act: "An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."What actually is the "cause of action" here?If it sticks, force it.
If it breaks, well it wasn't working right anyway.0 -
I was rather amused by this thread. I bought a couple of cases of one of Platter's top South African Ports back in 1990 (still in the cask) for my children and nieces and nephews to have a bottle on their 21st and having a number of bottles still in an outdoor cellar I looked out a couple of bottles.
I then enquired with the vineyard whether they reckoned it would last until 2045. I think by the tone they were rather surprised it was still drinkable, trouble is I haven't tasted it since the late 90s so of course I promptly opened a bottle and it was fabulous.
The vineyard's concern is that the corks were not long enough and they bottles will not last until 2045 and I should get cracking on them.
Do I have a case?
The strange thing is I have a funny feeling they may well last for 55 years!!1 -
Ectophile said:mybestattempt said:Ectophile said:Okell said:mybestattempt said:CFWJOB said:To clarify- I made a formal response to the claim to say
1. This claim is against a non-existent entity
2. This claim is out of time
I assumed that someone would review the submissions and be able to make a quick decision in my favour. But instead it's been scheduled for a hearing in person.
Just my thoughts as this was the sale of a bottle of laying down wine.
If it at the point of sale it was meant or expected to lay for 5 to 10 years, on the time limit point might he argue the cause action, that is, the breach of contract, started within 6 years of the claim?
I'm thinking it may have lain for say 9 years before he he opened it and found it faulty so he will contend that's the date of the breach of contract.
As I say just my thoughts, I'm not a wine expert.
Yes. That might complicate the issue.
When posters respond (like I did!) with a kneejerk answer that it's over 6 years ago so there can't be any claim, I wonder how far they (or I) have taken into account that it's when "the cause of action accrued" that's relevant.
We may be into lawyering and legal precedent territory here. One could argue that you haven't done anything in the last 6 years that is a cause of action. But I'm not a lawyer.
Sorry, but I'm not really sure what you mean.
The court may consider the time limit issue is arguable and is not prepared to strike out the claim on that point until it has heard full arguments on both sides.It was a reference to the rather ambiguous wording in the Limitation Act: "An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."What actually is the "cause of action" here?
A cause of action is the legal right on which the claimant sues.
In this case, the cause of action is breach of contract.
The judge will have to decide if there has been a breach of contract and if so, when it occurred in order to determine if the claim has been made in time.
I don't understand why you find the wording you quoted from the Limitation Act ambiguous, it sets a clear 6 year time limit on bringing a claim after, in this case, the date of (if found) a breach of contract.
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Arunmor said:I was rather amused by this thread. I bought a couple of cases of one of Platter's top South African Ports back in 1990 (still in the cask) for my children and nieces and nephews to have a bottle on their 21st and having a number of bottles still in an outdoor cellar I looked out a couple of bottles.
I then enquired with the vineyard whether they reckoned it would last until 2045. I think by the tone they were rather surprised it was still drinkable, trouble is I haven't tasted it since the late 90s so of course I promptly opened a bottle and it was fabulous.
The vineyard's concern is that the corks were not long enough and they bottles will not last until 2045 and I should get cracking on them.
Do I have a case?
The strange thing is I have a funny feeling they may well last for 55 years!!
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Thanks to all those have taken an interest and offered their comments. I am very pleased to share an update!
We went to court a couple of weeks ago.
The judge started by explaining this was a preliminary hearing to determine whether the case should be directed to the Small Claims track. The first issue in this determination was to clarify the 2 points raised in our defence
1. 6 year limit
2. proceedings issued in wrong name
The claimant was invited to explain why he felt that the 6 year rule on limitations should not apply. The judge reminded him of the 3 specific circumstances for this- fraud, mistake, misrepresentation (if I have remembered correctly). The claimant was unable to put forward a convincing argument on any of these 3 grounds. The judge therefore struck out the claim and made the point that the 6 year rule is an important one because it provides a limit on the potential liabilities of traders.
So not only was the claim struck out, but the judge also agreed that the claimant acted unreasonably in bringing a claim after a full refund had already been offered. As we were not actually in the Small Claims Court, the judge was able to award costs. These were minimal as we were not represented, but we did at least have a receipt for travel costs.
5 -
Okell said:mybestattempt said:Ectophile said:Okell said:mybestattempt said:CFWJOB said:To clarify- I made a formal response to the claim to say
1. This claim is against a non-existent entity
2. This claim is out of time
I assumed that someone would review the submissions and be able to make a quick decision in my favour. But instead it's been scheduled for a hearing in person.
Just my thoughts as this was the sale of a bottle of laying down wine.
If it at the point of sale it was meant or expected to lay for 5 to 10 years, on the time limit point might he argue the cause action, that is, the breach of contract, started within 6 years of the claim?
I'm thinking it may have lain for say 9 years before he he opened it and found it faulty so he will contend that's the date of the breach of contract.
As I say just my thoughts, I'm not a wine expert.
Yes. That might complicate the issue.
When posters respond (like I did!) with a kneejerk answer that it's over 6 years ago so there can't be any claim, I wonder how far they (or I) have taken into account that it's when "the cause of action accrued" that's relevant.
We may be into lawyering and legal precedent territory here. One could argue that you haven't done anything in the last 6 years that is a cause of action. But I'm not a lawyer.
Sorry, but I'm not really sure what you mean.
The court may consider the time limit issue is arguable and is not prepared to strike out the claim on that point until it has heard full arguments on both sides.
The point I was trying to make - and I think @mybestattempt was too - is that if a consumer purchases an item that both they and the trader intend should be "laid down" for a period greater than 6 years, and after that 6 years has passed the consumer discovers that the item "does not conform to contract", then when does the cause of action accrue for the purposes of the Limitation Act?
Did it accrue at the time of sale more than 6 years ago, or does it only accrue when the consumer discovers there is a problem?
I may very well be mistaken but I thought the whole point of limitation was to give a claimant adequate time to issue a claim once they discovered they had a cause of action. I'm not sure that it's purpose was to prevent claims that a claimant could not reasonably have known about before 6 years elapsed.
[Edit: I'm also curious that the OP/trader seems quite happy - even after 10 years have elapsed - to offer the consumer a full refund when, if the 6 year limitation applies, they would not be obliged to offer anything at all. I know the OP has described it as a "goodwill gesture", but I wonder if they believe the consumer has a reasonable case. Also if the consumer is a retired(?) solicitor, they may know more about the law than most people here...]2
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