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  • FIRST POST
    • Allan1985
    • By Allan1985 8th Nov 18, 2:12 PM
    • 3Posts
    • 2Thanks
    Allan1985
    Car refund advice
    • #1
    • 8th Nov 18, 2:12 PM
    Car refund advice 8th Nov 18 at 2:12 PM
    Hello
    I bought a second hand car but returned it the following day to the dealership as found it to have many problems . With that the dealership agreed I would be refunded within 14 days. This time has now passed and they keep making excuses to why the fefund has not been given. What can I do next ?
    Thank you for any help.
    Allan
Page 2
    • David Aston
    • By David Aston 10th Nov 18, 1:29 PM
    • 897 Posts
    • 587 Thanks
    David Aston
    That means you don't know if registered would cover him?
    • atrixblue.-MFR-.
    • By atrixblue.-MFR-. 10th Nov 18, 2:02 PM
    • 6,608 Posts
    • 4,570 Thanks
    atrixblue.-MFR-.
    That means you don't know if registered would cover him?
    Originally posted by David Aston
    Of course it covers him, proof of postage covers him.

    • McKneff
    • By McKneff 10th Nov 18, 2:46 PM
    • 36,232 Posts
    • 46,690 Thanks
    McKneff
    Why not just hand deliver it?��
    make the most of it, we are only here for the weekend.
    and we will never, ever return.
    • David Aston
    • By David Aston 10th Nov 18, 2:52 PM
    • 897 Posts
    • 587 Thanks
    David Aston
    And take witnesses for handover Mc!
    • AndyMc.....
    • By AndyMc..... 10th Nov 18, 3:08 PM
    • 2,543 Posts
    • 1,570 Thanks
    AndyMc.....
    its evidence of its was delivered but rejected, theres a difference, if it wasn't delivered the tracking page would stipulate that it was due to being lost in transit etc,if its rejected the post office tells you it was rejected by occupier, plus the receipt is proof of postage. just like posting in mainstream with proof of postage as that is the minimum that is required to prove it was posted. Whether its rejected or not is moot point, the OP could prove it was posted that is the minimum that is required. This type of tittle for tattle does not fly with Small claims, "yes judge he may of sent it, but I refused it, therefore its not proof we received it" is not going to fly, its not accepted in the realms of refusal of signed for NIP's, S172's, Court Summons's, and it doesn't fly in small claims either. The judge will state You did receive the letter, its was your choice to then reject it, it is therefore evidenced it was SENT AND RECEIVED and proven WITH RECEIPT.






    OP only needs to proof of SENDING it it makes no difference to whether it was through recorded normal course of mail, as the receipt shows PROOF OF POSTAGE.


    And lets not forget 1.0 Interpretation Act 1978, Section 7

    This states:-
    "7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."
    2.0 Practice Direction - Service of Documents - First and Second Class Mail

    "With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.
    1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.
    2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-
    (a) in the case of first class mail, on the second working day after posting;
    (b) in the case of second class mail, on the fourth working day after posting.
    3. "Working days" are Monday to Friday, excluding any bank holiday.

    4. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.
    5. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.
    8 March 1985


    definition of deliver
    1.
    bring and hand over (a letter, parcel, or goods) to the proper recipient or address.
    .




    So there we have it, the law states that any document to serve Only need proof of service and bring and hand to the address for the purposes of that service.


    Find some case law that states otherwise ill gladly apologise and say I was wrong until then I think your mistaken from the evidence I have seen.
    Originally posted by atrixblue.-MFR-.
    Which is evidence it's not been served.

    Normal first class would put the onus on the trader to prove he never recieved it.
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    • casseus
    • By casseus 10th Nov 18, 3:45 PM
    • 103 Posts
    • 43 Thanks
    casseus
    Which is evidence it's not been served.

    Normal first class would put the onus on the trader to prove he never recieved it.
    Originally posted by AndyMc.....

    Pre action protocol states that the OP only need to write to the trader, there is nothing in the guidance in which way it should be sent!


    Proof he refused, is proof he received it, you receive something to reject something there fore its DELIVERED that's hardly a defense and your point is non evidence with any fact.






    All pre action letters can be refused anyway if the trader wishes, so long as the OP has proof of postage he sent them satisfies pre action protocol.






    It would be accepted by the court so long as the op has proof he sent documentation to the traders address, these documents are not legal documents either in essence they're more of a demand for money back or legal matters ensue there fore is merely a notice (like a letter from a debt collector they intend to take me to court theres nothing legal about it their just notifying me of their intentions). Op is pursuing a pre action protocol rules nothing more and sending a letter satisfies this rule.


    Once OP makes a MCOL, court letters are sent out, if he doesn't respond or states that "he didn't receive them" but the court sent them via royal mail first class post or royal mail first class recorded (or "signed for" as its commonly referred) delivery (it does happen) then it could be seen by the judge as a non compliance tactic by the trader See pre action protocol rules.




    if this argument is put before the judge he has the option to completely dismiss the defence or split the claim into two hearings one to show the validity of postage issues and one for the claim itself, this could prove costly for the trader because he would have to pay costs upon this separate issue if he lost, OP only need prove balance of probabilities unlike magistrates beyond reasonable doubt test so.











    Your theory which it is, has no standing, You MUST have had something delivered to your address and had received the mail in order to reject it therefore it is evidenced it was delivered that is MORE than is needed to prove service.

    interpretations act 1978 that has already been brought to you and pre action protocol rules prove your theory wrong yet your are insistent and bring nothing to the table to evidence your even remotely right.
    • waamo
    • By waamo 10th Nov 18, 4:42 PM
    • 4,684 Posts
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    waamo
    I'm not convinced that a LBC is not a legal document. There is a clear requirement in Court Procedure Rules that one should be sent.

    The Supreme Court have stated both the CPR and Practice Directions need to be followed correctly. To say something that must be sent as a requirement by the courts isn't a legal document would seem to be stretching it.
    This space for hire.
    • atrixblue.-MFR-.
    • By atrixblue.-MFR-. 10th Nov 18, 4:53 PM
    • 6,608 Posts
    • 4,570 Thanks
    atrixblue.-MFR-.
    I'm not convinced that a LBC is not a legal document. There is a clear requirement in Court Procedure Rules that one should be sent.

    The Supreme Court have stated both the CPR and Practice Directions need to be followed correctly. To say something that must be sent as a requirement by the courts isn't a legal document would seem to be stretching it.
    Originally posted by waamo
    Hmm i dunno, is it legal document or is it just a notice of intentions that has to be folowed in legal proceedures? I would have though a legal document is one that served by a court or someone authorised by the courts as it has a stamp or seal that gives legal orders or legal directions.


    i dont know?

    Im not going to make that determination, this thread been knocked off course as it is without another discussion on this.

    • Car 54
    • By Car 54 10th Nov 18, 5:00 PM
    • 3,513 Posts
    • 2,162 Thanks
    Car 54
    And lets not forget 1.0 Interpretation Act 1978, Section 7

    This states:-
    "7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."
    Originally posted by atrixblue.-MFR-.

    But the Act specifically applies only "Where an Act authorises or requires any document to be served by post".

    AFAIK a Letter Before Action is not authorised or required by any Act but by Court Procedure Rules, and so the Interpretation Act does not apply to it.
    • waamo
    • By waamo 10th Nov 18, 5:01 PM
    • 4,684 Posts
    • 6,070 Thanks
    waamo
    Hmm i dunno, is it legal document or is it just a notice of intentions that has to be folowed in legal proceedures? I would have though a legal document is one that served by a court or someone authorised by the courts as it has a stamp or seal that gives legal orders or legal directions.


    i dont know?

    Im not going to make that determination, this thread been knocked off course as it is without another discussion on this.
    Originally posted by atrixblue.-MFR-.
    I don't know either. I wouldn't like to argue it wasn't though.
    This space for hire.
    • waamo
    • By waamo 10th Nov 18, 5:33 PM
    • 4,684 Posts
    • 6,070 Thanks
    waamo
    But the Act specifically applies only "Where an Act authorises or requires any document to be served by post".

    AFAIK a Letter Before Action is not authorised or required by any Act but by Court Procedure Rules, and so the Interpretation Act does not apply to it.
    Originally posted by Car 54
    They are a statutory instrument.
    This space for hire.
    • atrixblue.-MFR-.
    • By atrixblue.-MFR-. 10th Nov 18, 5:52 PM
    • 6,608 Posts
    • 4,570 Thanks
    atrixblue.-MFR-.
    But the Act specifically applies only "Where an Act authorises or requires any document to be served by post".

    AFAIK a Letter Before Action is not authorised or required by any Act but by Court Procedure Rules, and so the Interpretation Act does not apply to it.
    Originally posted by Car 54
    The OP is bring forth a consumer rights act 2015 claim against the trader, the only way to communicate with a trader who shuts down verbal communication is writing the act allows for conusmers to make complaints so this i would assume would grant authority to communicate under the act.


    I could be wrong.

    • Car 54
    • By Car 54 10th Nov 18, 5:54 PM
    • 3,513 Posts
    • 2,162 Thanks
    Car 54
    They are a statutory instrument.
    Originally posted by waamo

    Exactly. They are not an Act, so the Interpretation Act does not apply.



    Schedule 1 of that Act makes this even clearer: “Act” means an Act of Parliament.
    • atrixblue.-MFR-.
    • By atrixblue.-MFR-. 10th Nov 18, 6:16 PM
    • 6,608 Posts
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    atrixblue.-MFR-.
    This is going way off topic now, if the act does not apply then i accept that and state im wrong, no shame in that.


    What i do honestly believe that the theory of rejecting a letter is proof and evidence it was never delivered or recieved is just too contraversioal for me to believe. The op is "serving" a ltd company not person it just needs to be at the address.


    http://www.aboutsmallclaims.co.uk/serving-court-papers-documents.html


    This website accurately describes my point of views on posting a document.
    Last edited by atrixblue.-MFR-.; 10-11-2018 at 6:23 PM.

    • custardy
    • By custardy 10th Nov 18, 9:35 PM
    • 34,142 Posts
    • 29,019 Thanks
    custardy
    That means you don't know if registered would cover him?
    Originally posted by David Aston
    Registered doesnt exist.........
    • unholyangel
    • By unholyangel 11th Nov 18, 10:20 PM
    • 12,984 Posts
    • 10,288 Thanks
    unholyangel
    This is going way off topic now, if the act does not apply then i accept that and state im wrong, no shame in that.


    What i do honestly believe that the theory of rejecting a letter is proof and evidence it was never delivered or recieved is just too contraversioal for me to believe. The op is "serving" a ltd company not person it just needs to be at the address.


    http://www.aboutsmallclaims.co.uk/serving-court-papers-documents.html


    This website accurately describes my point of views on posting a document.
    Originally posted by atrixblue.-MFR-.
    Its more complex than that page makes out. Theres a difference when service has a time limit.

    For example the court of appeals LJ Parker has said (albeit in relation to s26 of the predecessor 1889 act but its almost word for word identical to s7 of the 1978 act and has been often quoted since):
    The section, it will be seen, is in two parts. The first part provides that the dispatch of the notice or other document, in the manner laid down, shall be deemed to be service thereof. The second part provides that unless the contrary is proved that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play and only comes into play in a case where under the legislation to which the section is being applied the document has to be received by a certain time. If in such a case "the contrary is proved", i.e. that the document was not received by that time or at all, then the position appears to be that though under the first part of the section the document is deemed to have been served, it has been proved that it was not served in time.'
    Although I don't know of any act underpinning the sending of a LBC/LBA by post so I am of the opinion it can't be relied upon here.
    Money doesn't solve poverty.....it creates it.
    • waamo
    • By waamo 11th Nov 18, 10:43 PM
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    • 6,070 Thanks
    waamo
    Exactly. They are not an Act, so the Interpretation Act does not apply.



    Schedule 1 of that Act makes this even clearer: “Act” means an Act of Parliament.
    Originally posted by Car 54
    A statutory instrument is part of an act. It's secondary legislation. Given an LBC is mandatory in law I still wouldn't like to argue it wasn't a legal document.
    This space for hire.
    • waamo
    • By waamo 11th Nov 18, 10:55 PM
    • 4,684 Posts
    • 6,070 Thanks
    waamo

    Although I don't know of any act underpinning the sending of a LBC/LBA by post so I am of the opinion it can't be relied upon here.
    Originally posted by unholyangel
    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.
    This space for hire.
    • casseus
    • By casseus 11th Nov 18, 11:07 PM
    • 103 Posts
    • 43 Thanks
    casseus
    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.
    Originally posted by waamo
    A court served document is time sensitive would locked in under the act, I have 6 years in which to bring a Court action by commencing it with a Letter before Action does this make the LBA time sensitive or time crucial?
    • Money maker
    • By Money maker 11th Nov 18, 11:10 PM
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    • 11,629 Thanks
    Money maker
    Two copies from two different post offices with proof of posting. Should satisfy all requirements. Why make this so difficult?
    Please do not quote spam as this enables it to 'live on' once the spam post is removed.

    If you quote me, don't forget the capital 'M'

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