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James Mather
James Mather,
Category: Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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We have had a a small claim made against us as follows: I

Customer Question

We have had a a small claim made against us as follows:

I am claiming for the repair of a Laser Cutter I purchased. The advert listed the Laser Cutter with 8 months of the original 12 months manufacturer warranty remaining. When the machine became faulty I contacted the manufacturer to have the machine repaired it turned out that the machine was not covered under the warranty. The £450 I am claiming is the cost to repair the machine which I would not have had to incur if the machine had the 8 months warranty remaining as per the advert. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 15/06/2013 to 31/08/2013 on £450.00 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.10.

We intend to file a defence shortly as below:

The subject laser cutter was listed on eBay as an auction.
The Claimant contacted us to make a purchase outside of eBay to circumvent eBay fees, entering in to a contract intended to defraud an interested party. On this basis we feel the court should dismiss the Claim for illegality.
In addition or in the alternative:
The laser cutter machine was inspected and demonstrated working to the Claimant. The claimant made an offer based on this which was accepted and paid in cash for the machine; no warranty was provided or expressed save for that of the manufacturer.
3 months later we were contacted after the manufacturer of the machine about an issue with the machine. Presumably in these 3 months the machine had been working without fault. We feel that has discharged our duty under Sale of Goods Act.
The machine in question is a CNC laser cutter which requires professional set up, operation and daily maintenance. We submit that this has not been carried out
As a goodwill gesture only we would have repaired the machine for the claimant but because of the distance away from us this was not realistic. We therefore provided diagnostic advice which would determine the fault but all efforts to help the claimant were rejected as we believe the claimants only intention was to wait a significant period of time and pay a significant amount quoted at the date of £450 (+parts) for the manufacturer to inspect the machine.
Rejecting all goodwill from us this was the end of communication with the claimant.
We maintain that the balance of manufacturer's warranty remained at time of sale and this is something that should be addressed with the manufacturer as there is no stipulation in the warranty documentation that the warranty is not transferable and the machine must not be
physically moved.

Based on this we would like a independent view as to chances of a successful defence. Please tell us your true view, if it is again our interests that is fine. If we are unlikely to successfully defend we shall try to settle with a view to removing all future liability concerning repairing the machine.
Submitted: 4 years ago.
Category: Law
Expert:  James Mather replied 4 years ago.

Have the proceedings yet been transferred to your court or are they in his court?

He is claiming £450 it seems . How much was your goodwill offer?

Customer: replied 4 years ago.

In his court, he is an individual we are a LTD company. We will offer £450 to settle, our main concern is that judge finds in favour of claimant he will hold us liable for future repairs as warranty with manufacture should still be in place for 1-2 months. As a settlement we would offer £450 provided that ends all liability for the machine. However if we have a good chance of defence we will defend the case, we would like an honest view on the chances of a successful defence based on the evidence above.

Expert:  James Mather replied 4 years ago.
This will be held in their home court. How far away from you are they?
Customer: replied 4 years ago.

A long way we are in Kent, they are in Lincolnshire.

Expert:  James Mather replied 4 years ago.

I think you have an excellent defence. However this is small
claims court and you will not recover legal costs even if you instructed
solicitors. You will get expenses for your travelling and time on the day in
court but that is all and that cost might be more valuable to you in terms of

I think you make an extremely good argument that the contract is
void for illegality because clearly, this was a fraudulent contract designed to
defraud eBay from their rightful fees. A court will not enforce an illegal or a
fraudulent contract.

I agree with you that I think that the warranty is something
between the buyer and the supplier if the warranty terms do not mention that it
is not transferable and they do not mention that the machine cannot be moved
which I must admit I find most unusual.

You have not misrepresented the machine and under the Sale of
Gods Act your liability ends after one month in any event.

If he has claimed £450 and you have offered £450, I really cannot
see what his gripe is. It would be worthwhile, if you still feel like you would
like to settle this, to send an offer marked "without prejudice save as to
costs" telling him that you will offer him £450 to settle the claim, on the
strict understanding that it is in full and final settlement of all claims
against your company past, present and future.

You could consider sending a cheque with the letter and see
whether he cashes it but do send it stating that heavy does not accept it, he
should return it to you.

Timescale apart, I think you are an excellent chance of defending

Please remember however that every piece of litigation needs at
least two parties and each party goes to court having been told by their
respective legal advisers that they have a good chance of success nonetheless,
one of them always loses.

If it does go to court be sure to raise the fact that you have
offered £450 to settle the matter but that the claimant refused it wanting his

You need to make sure that any judgement (if you do lose) does
put a stop to any future claims. That will allay your fears which appear to be
met your main concern.

If ever you are advertising something again with manufacturers
warranty you might want to change the wording of the adverts likely to say that
the buyer will have to check whether the warranty is transferable. For the sake
of those few words, you would not have had this problem.

Production you also need to say specifically that buyers must
test the machine and satisfy themselves as to its condition and fitness for
purpose as it is being sold completely and utterly without any representations
and without any warranty, expressed or implied.

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Customer: replied 4 years ago.

Thank you for your help, as this claim is for such a small amount will it come down to a court hearing in lincolnshire or is it likely that the case can be decided based on the written evidence.

Expert:  James Mather replied 4 years ago.
I think it will be a whole court hearing am sorry. Usually it is just simple applications which are done without hearing
Customer: replied 4 years ago.
That’s a pain looks like we will settle then, is there any recourse available between us and the manufacturer they supplied the machine to us stating a 1 year warranty, there is no paperwork or terms supplied about the warranty. We know now we should have made it clear to the buyer this was the case, however we can’t help but feel that the manufacturer and the buyer from us have colluded somewhat so that we take the hit for the repair.

Expert:  James Mather replied 4 years ago.

I think the manufacturer, rather than colluding with the claimant
has simply use this as an excuse to get out of doing the work.

You can always sue the manufacturer for the warranty cost or better still..


bring the manufacturer in as a second defendant. That might be an idea. The
manufacturer will really not want to be involved in small claims court
proceedings for the same reason that you do not want to be

Customer: replied 4 years ago.
The manufacturer had a lot to gain by refusing the warranty repair, they are the company that repaired the machine so they made £450 out of the situation. We need to file our defence soon. Is it worth sending a letter first to the manufacturer stating intent to add them as a second defendant. Once I’ve submitted our defence can I still add a second defendant?

Expert:  James Mather replied 4 years ago.
I.e. ward send the manufacturer that letter and I would submit your defence and bring the manufacturer in as second defendant at the same time