I have been Threatened re;legal costs going to Small Claims Court.

niceirishfella

Mods - opps, cant edit subject line - apologies...just look for some observations/thoughts. - ta,,


Hi,

I need some thoughts and observations on this.
I have a product which i bought from a supplier over 2 years ago which went faulty and had to be replaced at the cost of a couple of hundred euros recently.

It was 4 months out of a 2 year warranty, but under goodwill, i respectfully asked for it to be replaced as clearly there is a design/manufacturing fault with it but I was BLUNTLY turned down by the supplier i bought it of.

I contacted the nice people in the consumers agency - and they told me about 'The Sale of Goods and Supply of Services Act, 1980', where goods should be:

• Of merchantable quality
• As described
• Fit for its purpose
• Corresponding to sample

I was told that i'm covered by the above act regardless of my product being out of warranty - as this act covers me regardless of any warranty.

I put it in writing to owner of the suppliers (in an email and then in a letter via registered post) and he has be been of little use to me disputing everything and sticking to his WARRANTY point - eventhough its not the issue and the basis to my valid claim.

I indicated that i will go the the small claims court about this.........and he has NOW THREATENED me in a letter saying that if it goes to court, he will counter sue me for all legal costs he will bear.
Can he does this?
Can he sue me if i loose my claim?
I thought the small claims mechanism was there to protect the consumer but yet be a fair way to resolve disputes for all.


Thanks in advance,

NIF.

seamus

The other mods can be free to overrule me on this, but I'm leaving it open on account of there being clear-cut answers to your last three statements.

From what I gather, the small claims court's primary purpose is to settle disputes over small amounts with little expense. The judge will only deal with claims in regards to the item or money in question, he won't deal with any other cash. So any costs incurred by you in going to the small claims court (witness expenses, days off, etc) cannot be claimed for.
Either the claimant (you) or the respondent (the retailer) can appeal the decision, but this goes to a higher, more formal court, where if the appeal is successful, you could lose a lot of money.

Anything I've read on this says that the respondent (the retailer) has the right to "counterclaim", but it doesn't say what the nature of this is. It's quite plausible that if your claim failed, the retailer could take you to a higher court to claim his/her costs back.

I recommend that you spend more time deciding on this. Something failing two years after it was bought, usually doesn't indicate any kind of manufacturing fault (depending on the item of course). Try to get the advice of someone who would know - e.g. if it was a car part, ask a mechanic, if it was some electronic goods, ask a knowledgable techie mate.

The National Consumer Agency gives the right advice, but they operate with something of an agenda, so don't take their word for it that you're in the right. You'll need to do more legwork.

hullaballoo

Contact these guys: http://www.nca.ie/eng/

I'm happy enough to leave this thread open on the basis that it relates to consumer law and that's something I think should be promulgated rather than restricted in terms of public access.

My take on it is that the company, whoever they are, are trying to brow-beat you down to dropping your claim. I think it costs very little to take a case to the Small Claims Court and there's no real need for them to counter you with lawyers. If they do so, I can only say that it's probably on their heads.

Edit: I see that it appears that you've already contacted the NCA. It won't do any harm for you to update them and let them guide you through the process. It's intended that the Small Claims Court removes the formality and general scariness around the legal procedure, so they should be quite helpful.

TJM

seamus wrote: »

It's quite plausible that if your claim failed, the retailer could take you to a higher court to claim his/her costs back.

This isn't correct. See S.I. No. 82 of 2007: District Court (Small Claims) Rules 2007, rules 10 and 13. Seamus was correct earlier in the post - if a small claim fails the claimant will not be liable for the respondent's costs.

As usual, this is not legal advice tailored to your particular situation and does not create a lawyer client relationship.

niceirishfella

Thanks for the infomation so far - very much so appreciated.
So, Am I to assume that regarless of the outcome of my small claim in the small claims court, the respondent cannot level his costs against me - so, he was bluffing basically!? right/wrong?

Thanks,
NIF

seamus

TJM wrote: »

This isn't correct. See S.I. No. 82 of 2007: District Court (Small Claims) Rules 2007, rules 10 and 13. Seamus was correct earlier in the post - if a small claim fails the claimant will not be liable for the respondent's costs.

Useful to know. What if it's referred to a higher court though, either by the judge, or by either party appealing the outcome? Do the rules change then? That is, if the small claims court rules in favour of the claimant, but the respondent appeals to the higher court (and wins), is the claimant then responsible for the costs incurred in the higher court? Or do the same rules still apply because the matter is still a "small claims" matter?

Edit: Although I think this is pretty clear, any "escalation" is still part of the small claims procedure.:

10. The claimant and the respondent shall be liable for their own legal costs and witnesses' expenses (if any) incurred in respect of any claim processed through the Small Claims Procedure.

TJM

seamus wrote: »

What if it's referred to a higher court though ... by the judge

There is no provision in the rules for this.

seamus wrote: »

if the small claims court rules in favour of the claimant, but the respondent appeals to the higher court (and wins), is the claimant then responsible for the costs incurred in the higher court?

Yes. Appeals fall outside the small claims procedure. However, this should not deter claimants. It is unlikely that most respondents will decide to incur the cost of a Circuit Court appeal. Moreover, if they do so the claimant is free to abandon their claim at this point before any further costs are incurred.

seamus

TJM wrote: »

Moreover, if they do so the claimant is free to abandon their claim at this point before any further costs are incurred.

Indeed, I never thought of that. That keeps it all relatively safe.

So I would say that the retailer in question is just bluffing completley and hoping you know nothing about the process.

I still stand by my original recommendation though:

I recommend that you spend more time deciding on this. Something failing two years after it was bought, usually doesn't indicate any kind of manufacturing fault (depending on the item of course). Try to get the advice of someone who would know - e.g. if it was a car part, ask a mechanic, if it was some electronic goods, ask a knowledgable techie mate.