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Hi thanks for your question. My name is Tony.
Did you gift the bicycle to your ex? Did you say you would continue to own it?
She says I did. I bought it as a spare bike (identical to another I purchased shortly before) with the intention of buying a spare set of wheels for road use. One off-road, one road... and allowed her to use it so that we could ride together. I kept it at hers (we didn't live together) and I maintained it and continued to buy parts for it.
But what do you say - did you say she could have it?
Then you could sue for its return, or the monetary value of the bike. You could do this in your local county court.
If you wanted to sue just for the value of the bike, then you can do this online too, at www.moneyclaim.gov.uk
It would be down to your word against hers in reality I expect.
It will come down perhaps to whose evidence the judge accepts on the day of the hearing.
I know how to use MCOL. I've done so before. I have bank statements proving that I purchased the bike and continued to buy parts for it. Is this enough to win? She will maintain throughout that I gave it to her which is likely to be her sole defense, but I can't find the receipt for that bike, so I may have left it at hers. I do have the receipt for the first one.
Having proof of purchase yourself is important, as you say. So you have the basis for establishing ownership, so for her to win, she would need to convince the court that you gifted it to her.
This part might be down to who said what about the bike.
When typing I am often thinking faster than I type...I sent her a text message requesting the bike back and she refused. We have moved along a little from there, but the important bit is this:I was thinking 'I don't care if you think it was for your 40th'But I typed'I don't care if it was your 40th'Will she be able to use this error as the basis of her defense?
Yes, she would be able to cite that and rely on it in court.
So, i'm pretty well screwed, right?
Unless it was an exchange which was intended to genuinly resolve the issues between you and therefore was "without prejudice".
The message was not headed 'Without Prejudice'. I do understand what that means in legal terms.
So long as there was a genuine attempt to settle the dispute between you via these texts, you don't need to head them "without prejudice". They automatically have this status. It simply means the court will not be able to see them - they will be inadmissible.
It depends on how you define a 'genuine attempt'...I requested it. She refused. I told her I'd do it in court. She refused again. I gave her 'til the end of the week to return it or make arrangements to collect it from her or I would take legal action. (Messages sent Monday 28th July - Given 'til end Sunday 3rd Aug)Yesterday I reported it to Police and they have returned with 'She's stated that you gave it as a gift therefore there is no crime for us to get involved with'We split a year ago. When we did I took the bike back, but we went out again after that and we talked about doing so again, so I left it at hers again. Stupid I know! I've requested it back since then, but she ignored it.
Sounds like its arguably a genuine attempt to resolve!
It's difficult for me to say obviously as it could be seen as an attempt to just demand it back.
I understand your position. I know it's not an easy one since you only have my side.Additionally, I purchased and installed a RFID tag in case it got stolen and because I kept it at hers and she used it more than me I had it registered in her name, as the 'keeper' (thinking in similar terms to cars)Could this be in her arsenal of evidence against me?
It could be, it might be argued to be evidence that she was the owner. But as you appreciate, this is only one piece of the arsenal that either of you might deploy!
The only two she would be sure to have would be the text as above and the RFID registration. What she may also have (but I can't confirm) is the receipt because it's not where it should be (with the receipt for the other one)I can only deduce that it must be at hers or I've misplaced it. In my position I should plan that she has it, right?Apart from that she will only have her word against my evidence of purchase and continued purchases of parts.In your professional opinion, is it enough for me to take to court with at least a chance of winning?I am aware that she'll lose by default if she doesn't turn up on the day, but I'm willing to bet she will. What I can't be sure of is if she'll have a good enough defence or if I'll have a strong enough case.
Yes, you have a chance of winning, although obviously I can't quantify that for you. You have to convince a court of a balance of probability, i.e. more likely tha not, and so it's a case of whose side the scales tip in favour of. It's not like in a criminal court - i.e. beyond reasonable doubt.
When I last sat in a small claims court I lost. I was against my local council who sent a top-flight solicitor. The judge conducted it very quickly with the statement 'although this is not a criminal court it is STILL a court of law. WHAT law says that you can reclaim your money? ...'My case was that the council's agents (bailiffs collecting unpaid parking ticket) had acted unlawfully, for which the council were responsible.Because I hadn't stated the precise law that enabled me to claim it back from the council he ruled that I had no claim, despite showing evidence that the bailiff had no warrant of execution on the day.I don't want to go through that again! It is still a court to take seriously of course! It kind of negates your last sentence, because he was expecting firm, hard law to help make his decision. I didn't have it, therefore lost.If she has a stronger case as she is in posession and only needs to say 'It was a gift' then I'll be wasting my time AND my money.
Not necessarily, the burden is on her to show she owns it if that's her position. You have proof you owned it once, and she has to then convince a judge she owns it. If you both say different things, it's down to who the judge believes. It's a gamble, yes, but it would be wrong simply to say it's a complete waste of time and money.
Ok. Thanks for clarifying that. Will I need to state any applicable laws of ownership to open the case? With the council case, the judge ONLY heard evidence against the claims made against the applicable laws stated on the initial claim. He would NOT accept anything else as it had not been stated within the claim. Would this be an important factor in this nature of claim or is it a simple tit-for-tat style 'argument' whereby it is more an adjudication that a judgement?
No, you wont be expected to recite the law to the Court. This is small claims and very informal, although as you say, still a court of law. This is the type of dispute the district judge should be very familiar with.
Just make sure you set the factual background out in the claim form and say you want the money for your bike that she refuses to give back. It's pretty simple a claim to pursue really.
Thanks. Any pointers for inclusion into the claim to help it?Obviously the facts...Are there any precedents that can help me?
No, don't worry about precedents. Really, this is a small claim, all you need do is make the facts clear and ask for your money for the bike which she refuses to return to you.
You could, if you wanted, mention that you believe the law of "conversion" applies. This is where somebody takes your property or doesn't return it.
I'm not sure that would work in my case. Remember, I CHOSE to keep it at hers and allow her to use it. I then CHOSE to register it in her name. I think THAT is going to be my biggest hurdle to overcome...Does the above apply to 'conversion'?
You asked for it back, she hasn't provided it. It's conversion.
Thanks. Even though she will continue to claim it as a gift? It was picked up from the retailer in January 2011. Her 40th birthday is ***** Mar, but I have bank statements showing further purchases for both bikes even after her birthday. Is that enough to prove continued ownership despite her gift claim?
Yes, obviously, you have to show it's yours to succeed in a claim.
If it's hers, because you gifted it to her, then it's hers and she can keep it.
The purchases etc. are evidence that you MIGHT own it. it's not conclusive.
But ONLY if I gave it to her, which I didn't, but I have no contract to prove it.I still need to prove that I DIDN'T give it to her, but that is not an easy thing to do!Although, the flip side is that it is also difficult for her to prove that I did!My only hope (in my mind) is that she doesn't turn up and loses by default, right?Otherwise it's going to come down to the judge on the day. He'll seeme as a jilted ex with a bike already and just being vindictive.I gave her other gifts that I am not claiming back. They include a gold and diamond necklace worth £500, a surround sound amplifier worth £500, a sofa amongst others. They WERE given as gifts. I'm not bothered about them. Can I use this?
Yes, you can use this in evidence if you wish to.
Will it help?I can show evidence of the value of the necklace which was purchased around the same time and on the same statement as the bikes.Is the purchase of two identical bikes likely to seen as potential gift because 'why would anybody need two?'Sorry if these are trivial questions, but I just need to hear it from someone with more legal background than me.
Yes, it might assist, because it suggests there is something different about the bike, in fairness.
I purchased two with the intention of two purposes. I even purchased the spare set of wheels in order to do so. As it is now, I'm still able to use the bikeI have in my possession for both purposes by swapping the wheels, but that doesn't really justify the cost of two in hindsight!
:) No, it doesn't!
Is that likely to go against me?
It could do ... yes.
But again, it's one thing of many for the court to consider.
Ok. Million dollar question... I won't hold you to it...Would you pursue or write off?
Personally, I'd probably write off, but that's me, it's not to say what you should do!
But then I lose a £1000 bike to a greedy, conniving ex who who shouldn't have it...Big lesson here... Women - MUCH more trouble than they're worth!
From our conversation, what would you say my chances are?
It's impossible to say, maybe 50:50.
That's what I thought you'd say TBH. After talking to you I came to the same conclusion.
:) I hope this has been useful though? Are you happy with my service to you?
Yes I am. You'll be rated as excellent. Thanks. I've got a lot more to think about now and probably more unsure, but that's not your fault.
Thank you!!! :)
One quick one..Any advice? Even if unofficial.
Nope - I think we've done it pretty fully :)
Thanks. Time to ponder then...Have a good day. :-)