Money claim muddle (phone refund case)
Discussion
Any useful advice on this legal case please?
My wife filed a Money Claim Online to recover £650 she paid for an iPhone that turned out to be fake. We are relying on the Consumer Rights Act (item did not match ad description).
The seller acknowledged the claim but did not submit a defence, so the Court Service invited us to request a CCJ, which we did. Awaiting decision.
The confusing part is that on the same day that the seller was meant to send her defence, she filed a separate claim against my wife for the same £650, plus claim fees. I'm aware of counterclaims, but the seller's claim isn't really that, it's just a defence against the original claim. Maybe she misunderstood the process. And it makes no sense that the seller is claiming £650 from us, as that is our money that she already has.
Anyone know what the system is likely to do in this case? Would they grant our CCJ and then go on to consider the seller's claim separately, even if that is asking to overturn the CCJ? Or would they realise both are the same dispute and merge them into one case?
Also, I read online that a defendant can only file a counterclaim at the same time as submitting their defence?
We have to give our defence to the seller's claim. I'm wondering now if it would be better if the court does grant our CCJ by default, then in the second claim the onus is on the seller to prove the case... but I might be talking rubbish.
My wife filed a Money Claim Online to recover £650 she paid for an iPhone that turned out to be fake. We are relying on the Consumer Rights Act (item did not match ad description).
The seller acknowledged the claim but did not submit a defence, so the Court Service invited us to request a CCJ, which we did. Awaiting decision.
The confusing part is that on the same day that the seller was meant to send her defence, she filed a separate claim against my wife for the same £650, plus claim fees. I'm aware of counterclaims, but the seller's claim isn't really that, it's just a defence against the original claim. Maybe she misunderstood the process. And it makes no sense that the seller is claiming £650 from us, as that is our money that she already has.
Anyone know what the system is likely to do in this case? Would they grant our CCJ and then go on to consider the seller's claim separately, even if that is asking to overturn the CCJ? Or would they realise both are the same dispute and merge them into one case?
Also, I read online that a defendant can only file a counterclaim at the same time as submitting their defence?
We have to give our defence to the seller's claim. I'm wondering now if it would be better if the court does grant our CCJ by default, then in the second claim the onus is on the seller to prove the case... but I might be talking rubbish.
Looking at the bigger picture, have you any chance of recoverring any money from the Defendant? Are they an individual?
Is the Defendant claiming damages for the same amount for loss of reputation etc
Court will probably list for a Hearing
Is the Defendant claiming damages for the same amount for loss of reputation etc
Court will probably list for a Hearing
Edited by SydneyBridge on Tuesday 6th August 18:31
IMHO her claim is a separate matter and shouldn't be allowed to confuse the issue.
First, do you want to pursue your CCJ for payment when it arrives? I think you should as you're £650 out of pocket.
Second, her claim against you. What does she give as the reason/s for her claim? Whatever, defend it. That will force a court appearance, and if she doesn't turn up you win again.
First, do you want to pursue your CCJ for payment when it arrives? I think you should as you're £650 out of pocket.
Second, her claim against you. What does she give as the reason/s for her claim? Whatever, defend it. That will force a court appearance, and if she doesn't turn up you win again.
Thanks guys. If we get the CCJ in our favour, I feel we should pursue it within reason to try getting our money back. We'll put in a defence to the other case and see where that goes.
It isn't really clear what the defendant is claiming for. She doesn't mention reputational damage. She mainly focuses on saying she doesn't owe us anything. She complains that I banged on her front door, but they don't have a doorbell, so you have to knock loud enough to be heard. We didn't make a public scene on their doorstep.
It isn't really clear what the defendant is claiming for. She doesn't mention reputational damage. She mainly focuses on saying she doesn't owe us anything. She complains that I banged on her front door, but they don't have a doorbell, so you have to knock loud enough to be heard. We didn't make a public scene on their doorstep.
You must file a defence, otherwise she'll obtain a default judgment against you.
But at the same time write to the court, pointing out that her `claim' doesn't disclose any actual cause of action against you, and it should therefore be struck out by the court using its case management powers under CPR rule 3.4; but add that if they aren't prepared to do that then as the `claim' involves the same circumstances as your claim against her, the two should be consolidated, i.e. merged into one case.
But at the same time write to the court, pointing out that her `claim' doesn't disclose any actual cause of action against you, and it should therefore be struck out by the court using its case management powers under CPR rule 3.4; but add that if they aren't prepared to do that then as the `claim' involves the same circumstances as your claim against her, the two should be consolidated, i.e. merged into one case.
Granadier said:
Thanks guys. If we get the CCJ in our favour, I feel we should pursue it within reason to try getting our money back. We'll put in a defence to the other case and see where that goes.
It isn't really clear what the defendant is claiming for. She doesn't mention reputational damage. She mainly focuses on saying she doesn't owe us anything. She complains that I banged on her front door, but they don't have a doorbell, so you have to knock loud enough to be heard. We didn't make a public scene on their doorstep.
She sold you a fake iPhone so she owes you £650. What happened to the phone?It isn't really clear what the defendant is claiming for. She doesn't mention reputational damage. She mainly focuses on saying she doesn't owe us anything. She complains that I banged on her front door, but they don't have a doorbell, so you have to knock loud enough to be heard. We didn't make a public scene on their doorstep.
So she's claiming £650 for 'banging on the front door'. If that's the best shot she has, you have little to fear. She seems remarkably dim!
Pro Bono said:
You must file a defence, otherwise she'll obtain a default judgment against you.
But at the same time write to the court, pointing out that her `claim' doesn't disclose any actual cause of action against you, and it should therefore be struck out by the court using its case management powers under CPR rule 3.4; but add that if they aren't prepared to do that then as the `claim' involves the same circumstances as your claim against her, the two should be consolidated, i.e. merged into one case.
Thanks, that's useful detail. Yes, we'll definitely give a defence.But at the same time write to the court, pointing out that her `claim' doesn't disclose any actual cause of action against you, and it should therefore be struck out by the court using its case management powers under CPR rule 3.4; but add that if they aren't prepared to do that then as the `claim' involves the same circumstances as your claim against her, the two should be consolidated, i.e. merged into one case.
We made it clear from the start that we wished to return the phone for a refund. We have the phone for evidence but don't want to keep it. But you're right, we should make sure there's no possible misunderstanding about that.
As for proving it's a fake, I'm making a list things that are wrong. Maybe I should get professional confirmation. But for an example, how many real iPhone 15s are actually running on Android?
As for proving it's a fake, I'm making a list things that are wrong. Maybe I should get professional confirmation. But for an example, how many real iPhone 15s are actually running on Android?
Do you have a copy of the advert saved OP?
Does it state Apple iPhone 15 or just iPhone 15?
Was the photo showing the actual phone you bought, wasn't it clear by the photo it was an android handset?
Clearly someone somewhere has been scammed, however not sure Mrs Dundarach would honestly know the difference between a clone, android or apple OS, honestly. She simply has no interest in phones, other than whether they work.
Is it absolutely crystal clear it's a scam?
Does it state Apple iPhone 15 or just iPhone 15?
Was the photo showing the actual phone you bought, wasn't it clear by the photo it was an android handset?
Clearly someone somewhere has been scammed, however not sure Mrs Dundarach would honestly know the difference between a clone, android or apple OS, honestly. She simply has no interest in phones, other than whether they work.
Is it absolutely crystal clear it's a scam?
Ham_and_Jam said:
dundarach said:
Does it state Apple iPhone 15 or just iPhone 15?
Thst wouldn’t make any difference, iPhone is an Apple trademark.Did it say, I phone 15 like phone, or phone 15 or something silly.
It sounds to me like the OP is going to have a battle, and they need to be certain the evidence points their way.
As others have said, the photos should have indicated very, very clearly it wasn't an actual iphone, so what did the advert say, what was shown?
I'd want very, very clear photos and video before handing over £650 for a phone wouldn't you?
I have no dog in this race, however it could equally be, that the OP bought a clearly photographed phone, with an iphone skin on it, with no mention of iphone or apple and is understandably pissed off, however, do they have a claim, well not if it wasn't advertised clearly as an iphone.
But then again, INAL and all that jazz, just trying to give the OP something to consider!
dundarach said:
I'm not trying to win a patent war, I'm trying to gauge what the advert said and this is a perfectly reasonable assumption.
Did it say, I phone 15 like phone, or phone 15 or something silly.
It sounds to me like the OP is going to have a battle, and they need to be certain the evidence points their way.
As others have said, the photos should have indicated very, very clearly it wasn't an actual iphone, so what did the advert say, what was shown?
I'd want very, very clear photos and video before handing over £650 for a phone wouldn't you?
I have no dog in this race, however it could equally be, that the OP bought a clearly photographed phone, with an iphone skin on it, with no mention of iphone or apple and is understandably pissed off, however, do they have a claim, well not if it wasn't advertised clearly as an iphone.
But then again, INAL and all that jazz, just trying to give the OP something to consider!
The ad said "iPhone 15". The phone itself looked convincing to us, it came in a convincing box (or maybe one from another phone) and the OS has been disguised to look like iOS. It's only when you dig deeper that you find what's wrong. It's not that we're mainly concerned about Apple's copyrights - we're arguing this case because various functions don't work, the assumed warranty doesn't exist, and you can't ever update the software.Did it say, I phone 15 like phone, or phone 15 or something silly.
It sounds to me like the OP is going to have a battle, and they need to be certain the evidence points their way.
As others have said, the photos should have indicated very, very clearly it wasn't an actual iphone, so what did the advert say, what was shown?
I'd want very, very clear photos and video before handing over £650 for a phone wouldn't you?
I have no dog in this race, however it could equally be, that the OP bought a clearly photographed phone, with an iphone skin on it, with no mention of iphone or apple and is understandably pissed off, however, do they have a claim, well not if it wasn't advertised clearly as an iphone.
But then again, INAL and all that jazz, just trying to give the OP something to consider!
dundarach said:
I'm not trying to win a patent war, I'm trying to gauge what the advert said and this is a perfectly reasonable assumption.
Did it say, I phone 15 like phone, or phone 15 or something silly.
It sounds to me like the OP is going to have a battle, and they need to be certain the evidence points their way.
As others have said, the photos should have indicated very, very clearly it wasn't an actual iphone, so what did the advert say, what was shown?
I'd want very, very clear photos and video before handing over £650 for a phone wouldn't you?
I have no dog in this race, however it could equally be, that the OP bought a clearly photographed phone, with an iphone skin on it, with no mention of iphone or apple and is understandably pissed off, however, do they have a claim, well not if it wasn't advertised clearly as an iphone.
But then again, INAL and all that jazz, just trying to give the OP something to consider!
Fakes are easily good enough to look convincing in photos, with convincing boxes.Did it say, I phone 15 like phone, or phone 15 or something silly.
It sounds to me like the OP is going to have a battle, and they need to be certain the evidence points their way.
As others have said, the photos should have indicated very, very clearly it wasn't an actual iphone, so what did the advert say, what was shown?
I'd want very, very clear photos and video before handing over £650 for a phone wouldn't you?
I have no dog in this race, however it could equally be, that the OP bought a clearly photographed phone, with an iphone skin on it, with no mention of iphone or apple and is understandably pissed off, however, do they have a claim, well not if it wasn't advertised clearly as an iphone.
But then again, INAL and all that jazz, just trying to give the OP something to consider!
They're even good enough to fool the unwary/non-technical in the hand.
Granadier said:
The ad said "iPhone 15". The phone itself looked convincing to us, it came in a convincing box (or maybe one from another phone) and the OS has been disguised to look like iOS. It's only when you dig deeper that you find what's wrong. It's not that we're mainly concerned about Apple's copyrights - we're arguing this case because various functions don't work, the assumed warranty doesn't exist, and you can't ever update the software.
That certainly sounds a lot more scamming than ignorance. Might it also be worth talking to trading standards, sounds like fraud, don't know if it covers secondhand, however you might want to up the anti, especially if this is a routine scam!!
Granadier said:
We made it clear from the start that we wished to return the phone for a refund. We have the phone for evidence but don't want to keep it. But you're right, we should make sure there's no possible misunderstanding about that.
Normally you'd send the product back and then be refunded. You don't usually get refunds otherwise, because you then have the goods AND the money which isn't fair on the seller.I may have missed it but has the seller asked you to return the phone for a refund? Have you asked to return it for a refund?
You see I'm envisaging this in court, and the seller says to the judge 'I didn't refund him because he wouldn't send the phone back'. Suddenly they look reasonable and you look greedy... if you see what I mean...
Update:
The court service has granted us a CCJ against the seller of the fake phone (by default, as the seller didn't defend the claim). So now we're going to investigate how to enforce this. I understand it's sometimes impossible to get your money back, but it's worth a try.
As for the seller's counterclaim, we filed our defence, pointing out that it has no cause of action and makes no logical sense, and responding to the seller's individual points. Waiting to hear on that one.
We thought a lot about whether we should draw the court's attention to consolidating the two cases. In the end, we thought it might work in our favour if the claims are treated separately, as we'd then be virtually guaranteed a win for our claim, while the counterclaim didn't seem to have any merit, and even if it did, the other party would be lumbered with the burden of proof and any further court fees.
So our defence document doesn't actually suggest consolidation, but gives the information from our original case and refers to its number - so we're not hiding anything and the details are there if needed. It's up to the court how they deal with that, of course. We don't have any experience of litigation, but we're trying to research and understand everything and approach it as intelligently as we can.
One thing that dismayed me was how the online portal for responding to a claim just has a single box that strips out all formatting. I had carefully laid out our defence document with numbered paragraphs and plenty of space to make it easy to follow, but it ended up going in as a single paragraph of over 1,000 words. There didn't seem to be any way to fix this, or to attach your defence as a separate document, so I submitted the form, but also emailed them a PDF of how it's supposed to look, in case that helps.
The court service has granted us a CCJ against the seller of the fake phone (by default, as the seller didn't defend the claim). So now we're going to investigate how to enforce this. I understand it's sometimes impossible to get your money back, but it's worth a try.
As for the seller's counterclaim, we filed our defence, pointing out that it has no cause of action and makes no logical sense, and responding to the seller's individual points. Waiting to hear on that one.
We thought a lot about whether we should draw the court's attention to consolidating the two cases. In the end, we thought it might work in our favour if the claims are treated separately, as we'd then be virtually guaranteed a win for our claim, while the counterclaim didn't seem to have any merit, and even if it did, the other party would be lumbered with the burden of proof and any further court fees.
So our defence document doesn't actually suggest consolidation, but gives the information from our original case and refers to its number - so we're not hiding anything and the details are there if needed. It's up to the court how they deal with that, of course. We don't have any experience of litigation, but we're trying to research and understand everything and approach it as intelligently as we can.
One thing that dismayed me was how the online portal for responding to a claim just has a single box that strips out all formatting. I had carefully laid out our defence document with numbered paragraphs and plenty of space to make it easy to follow, but it ended up going in as a single paragraph of over 1,000 words. There didn't seem to be any way to fix this, or to attach your defence as a separate document, so I submitted the form, but also emailed them a PDF of how it's supposed to look, in case that helps.
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