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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69380
Experience:  Over 5 years in practice
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Ive recently commenced a claim via the online service for

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I've recently commenced a claim via the online service for the return of £500 paid as a holding deposit on a car. The transaction was over the telephone. Nothing was signed and I was assured that the money was fully refundable. I did not at any point agree to buy the car. I have seen the vehicle and I haven't even visited the defendant's premises. The defendant has submitted a defence stating that my claim is a complete fabrication - which it isn't. In fact it is their defence that is the fabrication. They are also counterclaiming for loss of profit on the subsequent sale of the car. The Court has sent a questionnaire for me and have asked if I want to go to mediation. Because there is no supporting documentation it is really going to be a question of whom to believe. Should I continue to go to Court or should I use the mediation service? I've never been in a situation like this before but could not let the garage get away with keeping £500 of my hard earned money. Because of the content of the defence I feel that the representative at the centre of this matter has lied to me and his employers regarding the circumstances of our dealings.
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi

How can I help with this?
Customer: replied 3 years ago.

FOR JOMO1972 I need to know whether or not it is going to be in my best interest, to employ a solicitor and take the matter as far as going to Court or should I use the mediation service? As I mentioned before, it is the Defendants defence that is the fabrication and not the details of my claim.

Expert:  Jo C. replied 3 years ago.
Why did you pay a deposit if you didn't agree to buy the car? That would seem rather inconsistent.
Customer: replied 3 years ago.

FOR JOMO1972


On the 17th January I saw a vehicle advertised on Autotrader that I was interested in seeing. On the 18th January I telephoned Randles Suzuki to register my interest. I spoke to a sales representative called Shane. I explained that I was interested in seeing the vehicle but that I was going away for the weekend and would not be able to drive over until the following week. I would add that I live in Nottingham and the vehicle was in Stoke.


I was told that wouldn’t be a problem and if I paid £500 they would stop advertising until I had seen it. I was assured that there would not be a problem returning the money in the event that I didn’t like the car and this was a process that they did all the time. It was only after this assurance that I agreed to pay the £500. We arranged for me to call on Tuesday 22nd to arrange a time for me to visit and drive the car. On the 22nd I rang and it was agreed that I would go to the garage on Friday 25th between 2-3pm.


I received a call on Wednesday evening just after 6pm asking me to call the garage. When I called Shane on Thursday morning he asked if I could make it at 3pm or later as he was involved in another vehicle handover and didn’t want me to be sitting around waiting if I arrived earlier than 3pm. Initially I agreed to this. After some reflection I called back and asked if I could see the vehicle earlier that day but was told it wasn’t on site. I explained that by coming later my return home would be through the rush hour and it would probably be better if we re-arranged for early Saturday morning.


On Saturday (26th January) Shane called early to say that they had had very bad snow through the night and the roads were treacherous and that I shouldn’t drive over. I concurred as we had had similar weather in Nottingham.


On Sunday (27th) I called Shane to say that I wouldn’t be coming over to see the vehicle because of a change in my plans. He said he would call back. He didn’t call back until 2.35pm on Monday. I explained that there was no point in my seeing and/or driving the car as there had been a change in my plans. At this point he told me that ‘company policy’ was to retain the £500. I was shocked and reminded him that that was not what he had told me. He said he would discuss this with the ‘Controller’ and either he or the other person would call me back. To date no-one has called me regarding this matter.


I have called on two further occasions only to be told that he ‘was with customers’ and left messages for him to call back but no-one has.


There isn’t an invoice. In fact I have nothing from the garage not even a receipt for the £500. Not only have I not driven the vehicle or even said that I would purchase it I haven’t even seen or touched it. Clearly no attempt was made to send any documentation. In fact I can’t remember giving my postal details only my phone number, email address and credit card details.


 


Hope this clarifies the situation.


 

Expert:  Jo C. replied 3 years ago.
Yes, so why did you pay a deposit if you didn't agree to buy the vehicle? Please don't put yourself to detail. Just one or two lines on that point is fine.
Customer: replied 3 years ago.

FOR JOMO1972 I was given to understand that the deposit was solely to stop the advertising of the car until I had seen and driven it. I didn't do either.

Expert:  Jo C. replied 3 years ago.
Ok.

I'm really sorry but I'm afraid you are underestimating the case against you.

I can see immediately that they are saying that you agreed to purchase and paid a deposit to do so. I'm afraid that might be accepted since it would be the usual method of purchase. If the court finds that took place and then you cancelled without basis then you might be liable for loss of profits although it would depend on what efforts they made to resell. If you paid £500 already then their claim is unlikely to exceed that.

It is a defence to say that you never agreed to the purchase and if your account is accepted then you will win.

I'm afraid though that it would be irresponsible of me to tell you that there is not a realistic chance that a court could find against you on that particular point.

Mediation would be an extremely good idea here.
Jo C., Barrister
Category: Law
Satisfied Customers: 69380
Experience: Over 5 years in practice
Jo C. and 3 other Law Specialists are ready to help you
Customer: replied 3 years ago.

FOR JOMO1972



Thank you for the information so far. I have re-read the Defendants defence and they are alleging 2 pertinent telephone calls took place. These telephone conversations did not happen. Will it strengthen my case and undermine theirs if I am able to produce phone records that show those calls never took place?


 


 

Expert:  Jo C. replied 3 years ago.
It will obviously weaken their case if they are saying that phone calls took place that can be disproven.

However, you should bear in mind that the fact that you can produce telephone records which do not record the call does not prove that the call was not made. It just proves that it wasn't made from that particular phone
Customer: replied 3 years ago.

FOR JOMO1972 Thank you. They only have my mobile number and I wondered if the phone records would help. Unfortunately my carrier, 02, only records both sets of numbers (incoming and outgoing) if you are on a monthly contract with them not PAYG which is the tariff I use. Which is a bind to say the least as with that information I would have been able to unequivocally prove that I did not receive any calls from them on the days in question regardless of the number they were calling from.


 


I also discussed the content of the original phone call - when I was told the money was refundable - with family and work colleagues the same day. Would their testimony, to that effect, be of any consequence?

Expert:  Jo C. replied 3 years ago.

They won't record incoming calls. You would not believe how hard I have tried to get mobile phone companies to declare incoming records. Cases have turned up it. The plain fact is though that mobile phone companies are not evidence gathers for the legal profession. They only record what they are paid for and that is outgoing calls. If they are saying that they phoned you then you could ask them to produce their telephone records to that effect.

 

The fact that you spoke to others is evidence that you believed that the deposit was refundable. It does rebut recent fabrication. If I were running the case for them though I would put this on the basis of miscommunication. That said, quite often parties to claims don't take the points that they should.

Customer: replied 3 years ago.

FOR JOMO1972




As I am going to elect to use mediation should I introduce the matter of the telephone records in the additional information that I am in the process of writing or should I mention it during the discussion.


 


Also at what point would you advise I mention talking about the refundable deposit with others?


 


Bearing in mind they are saying my side of events is a complete fabrication I'd really like to have as many ticks is as many boxes as I possibly can. I'm sure you have heard a multitude of sob stories but I really do dislike being called a liar when, in fact, I'm only guilty of being naive and not asking for the detail in writing. A lesson learnt even at the age of 59!!!

Expert:  Jo C. replied 3 years ago.
1 Not at mediation. You want to try to find a solution rather than raise challenges.

2 You can tell the about it at any time. Its not the best point you have I'm afraid. If you intend relying on evidence though you need to tell about it as early as possible. There should be capacity to tell the Court if you rely on witnesses at the time of the original claim. If not, just write a letter informing.
Customer: replied 3 years ago.

FOR JOMO1972




Thank you - I don't intend to rely on that fact but I think it's useful to mention that I did have those conversations after the original phone call and that I could be supported if it was necessary particularly as the defence have two individuals stating they have spoken to me when they haven't.


 


If you were me how would you play it?

Expert:  Jo C. replied 3 years ago.
Well, if I can be wholly honest I would never have paid the deposit at the outset. It becomes difficult to argue you didn't agree to purchase when you've paid a deposit.

They may well cave in a few days before court. Probably they won't get loss of profits.

The truth though is that you may as well try to achieve something at mediation. It does not harm and it might bring an end to the issue.

Customer: replied 3 years ago.

FOR JOMO1972




Well yes - with hindsight I wouldn't have handed over any money either and, as I said above, it is a lesson learnt...but we are dealing with the here and now......


 


I too am hoping for resolution at mediation but it really depends on how obstinate the MD of the company is. The tone of the defence he entered is obdurate and strikes me as being that of a man who gets his way by being bullish rather than conciliatory.


 


How would you argue the loss of profit claim of £1900? How do you quantify that when the car has been sold?


 


I would agree to the re-advertising at £45 and also the re-cleaning of £35.


 


I would argue the reinspection through the workshop at £25 as the car has been nowhere so why would it require reinspection?


 


I would argue loss of sales commission at £100 as the vehicle has been sold so commission would have been paid out on the sale.


 


I would also argue the alleged scuff repair to the mirror of £40 as I would expect if I am selling a vehicle for £10,000 pounds I'd do that anyway.


 


What would be your approach to the above?

Expert:  Jo C. replied 3 years ago.
Presuming the court finds against you on the contract point you are liable for the cost of readvertising.

The reinspection is not a proper claim.

The loss of profits is going to be difficult to maintain. They shouldn't have taken a sale at rock bottom price.
Customer: replied 3 years ago.

FOR JOMO1972 Thank you




Forgot to mention they are also claiming for £57.68 interest awaiting new sale which is allegedly an 'approximation' as the MD was waiting for actual documentation from the accounts department.


 


Is this a claim and if it is should they be expected to produce documentation to support it?

Expert:  Jo C. replied 3 years ago.
Yes the court will demand that they prove their loss and I can see immediately that some of it will fail.
Customer: replied 3 years ago.

FOR JOMO1972 Once again thank you

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Will the mediator also be aware of the potential failures in the defendant's counterclaim? I'm assuming they are either solicitors or have been trained to know the law in this particular area?

Expert:  Jo C. replied 3 years ago.
No, their goal is to try to reach a solution that will have no basis in law.
Customer: replied 3 years ago.

I don't know if that's good or bad news............are mediators training in dealing with bullies? I've met the kind of man the MD appears to be and they aren't pleasant if they aren't getting what they want..........

Expert:  Jo C. replied 3 years ago.
Yes, mediators will deal with that.
Customer: replied 3 years ago.

FOR JOMO1972




Will the mediator lead the discussion? If the mediation has no base in law then for us to reach middle ground I'll be expected to meet the defendant half way which is paying them even more than I already have.


 


Yet if the matter goes to Court worse case scenario seems to be that the money I have paid more than covers the additional costs the defendant is claiming or are you saying that the I could be expected to pay the additional amounts identified from the counterclaim?


 


 

Expert:  Jo C. replied 3 years ago.
Mediators do generally control the mediation.

If the matter goes to court and you lose and the court thinks their losses are reasonable then you could be asked to pay more. That isn't very likely.
Customer: replied 3 years ago.

FOR JOMO1972



I have now checked with friends and colleagues who have confirmed to me they are happy to attest to the fact that within minutes/hours of the conversation I had with the defendant's representative taking place I told them about the payment being for the removal of the car from sale prior to me seeing it and it being fully refundable.


 


 


I have also have a text to my brother, dated 25th January, where I state I am going to see the car on the 26th and asking if he would like to come with me. I say 'see' not buy or pick up but see. This is the same day that the defence alleges that I told them that I didn't want to buy the car. The defence also fails to mention further calls to me on the 26th and 28th.


 


Does the foregoing add weight to my case and can you advise if I should mention during mediation that I have taken advice?


Expert:  Jo C. replied 3 years ago.
Not really for the reasons above. As I said above, that just establishes that you believed it was fully refundable which doesn't mean that you weren't wrong. That is always supposing their evidence is accepted on that point. It seems an odd thing to mention.

Its not a good idea to mention taking advice for two reasons. The first is that this is not advice. its a question and answer site for general information. I have had no vision of the case against you so could not reliably advise. The second is that making an assertion like that in mediation will just be seen as a threat.
Customer: replied 3 years ago.

FOR JOMO1972 ok so how do I argue against their counterclaim for £2200?


 

Expert:  Jo C. replied 3 years ago.
I covered that above really and I don't want to waste your time by repeating myself.

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