Private individual being sued in the Small Claims Court

[mathepac]

It's shocking to me that someone in their 60's would have to go to these lengths to prove that they're not operating a business. Besides the fact that he bought the car 'as seen' 3 months prior to complaining and didn't have it inspected by a mechanic.

That seems clear enough. However, this is one of those situations where a Bill of Sale, old maintenance invoices, old NCT certs and the stamped service booklet for the car as well as credit card or bank statements showing payments for routine servicing/maintenance present a powerful history of the car being in one person's sole beneficial ownership.

There are a few Bill of Sale templates available on the net. Even if the buyer refuses to sign a Bill of Sale, the vendor should read the document to the buyer and note on their own copy the buyer's refusal to sign or accept a copy, as appropriate.

 

[Gordon Gekko]

Why on earth would she start engaging with mechanics etc?

The Small Claims Court isn’t relevant in these circumstances.

She should bring some sort of proof that she bought the car three years ago and perhaps her Nursing Board membership.

Then at the outset just say “this shouldn’t be in the Small Claims Court; I’m a private citizen and a practicing nurse who owned the car for three years and sold it to this person in good faith.”

End of story.

 

[Horatio]

I'm all for the rights of people but this to me is just another example of the entitlement culture.

Hear hear.

I'd be seeking to pursue for costs as I'd be sending a Solicitor to represent rather than attending in person. I assume that is permissible.

 

[Salvadore]

She should avoid making any efforts to determine whether or not the car is currently being driven. That conveys the impression that the condition of the car is relevant.

It isn’t. She simply needs to show that she’s not a business person. As has been said, proof of ownership of the car and of employee status should be enough.

Hopefully it will be seen for the vexatious attempt it is. She could consider a counter action against the nuisance and upset the buyer has unnecessarily caused.

 

[ClubMan]

This suggests that the small claims court can be used in this context although, in my opinion, the plaintiff doesn't have a leg to stand on given that private car sales are "sold as seen" and he took it for a test drive before agreeing to buy it. I think that only if it was not roadworthy would he maybe have a case but it doesn't sound like that was the case.

Problem with a used car

You have legal rights if you bought a used car and something has gone wrong. You may be entitled to a repair or some or all of your money back. Find out about your rights when you buy a used car from a car dealer, at auction or from a private seller.

www.citizensinformation.ie

I bought my car from a private seller
...You should still contact the seller to try to work out a solution to the problem. If you can’t resolve the problem you can take a civil case or use the small claims procedure.

 

[delgirl]

She should avoid making any efforts to determine whether or not the car is currently being driven. That conveys the impression that the condition of the car is relevant.

It isn’t. She simply needs to show that she’s not a business person. As has been said, proof of ownership of the car and of employee status should be enough.

Hopefully it will be seen for the vexatious attempt it is. She could consider a counter action against the nuisance and upset the buyer has unnecessarily caused.

She's photographing the car being driven, and we've downloaded various photos and video from his SM with dates and time, as the buyer has lied in both statements declaring the car "undriveable" and "off the road". It's more to prove that he's dishonest rather than to do with the condition of the car.

It is indeed a vexatious attempt to elicit money from an innocent party 3 months after the purchase!

 

[delgirl]

This suggests that the small claims court can be used in this context although, in my opinion, the plaintiff doesn't have a leg to stand on given that private car sales are "sold as seen" and he took it for a test drive before agreeing to buy it. I think that only if it was not roadworthy would he maybe have a case but it doesn't sound like that was the case.

Problem with a used car

You have legal rights if you bought a used car and something has gone wrong. You may be entitled to a repair or some or all of your money back. Find out about your rights when you buy a used car from a car dealer, at auction or from a private seller.

www.citizensinformation.ie

From the Consumers' Association of Ireland:-

Am I Eligible?​

"You can claim against a person or company for goods or services you purchased from them for private use, providing they were acting in the capacity of a business. If you bought goods or services from a person under a private, informal arrangement, the court won’t be able to take your claim.

If the person or company is not legally trading and is not registered with the CRO, the Judge might decide that the claim cannot be dealt with."

This seems very clear to me, unfortunately because this young man is insisting that she is a business person, I think he knows he can't sue a private individual, the Registrar has accepted the claim and the Seller has been informed that a court date will be set. She's going to call the Registrar of the SCC this morning to see if they can give her a week or so to come up with the confirmation from the CRO that there is no business name or company registered in her name or at her home address, plus letter from her employer, plus payslips, bank statements, etc. Hopefull the Registrar will allow her some time to collate this evidence and will strike out the case.

 

[RedOnion]

see if they can give her a week or so to come up with the confirmation from the CRO that there is no business name or company registered in her name or at her home address,

I'm not entirely convinced this alone would see it struck out. The buyer could argue that she's operating in a business capacity even without a registered business name or company - "she sells loads of cars all the time, I thought she ran a garage..."

I would have thought the proof of ownership and tax / maintenance of the car for 3 years would be a much stronger argument? Or maybe there's a benefit to having both.

Did she give him a receipt for the money when he bought the car?

Even if it's not struck out, if it gets to a hearing based on what you've said the buyer doesn't have a leg to stand on.

 

[delgirl]

I'm not entirely convinced this alone would see it struck out. The buyer could argue that she's operating in a business capacity even without a registered business name or company - "she sells loads of cars all the time, I thought she ran a garage..."

I would have thought the proof of ownership and tax / maintenance of the car for 3 years would be a much stronger argument? Or maybe there's a benefit to having both.

Did she give him a receipt for the money when he bought the car?

Even if it's not struck out, if it gets to a hearing based on what you've said the buyer doesn't have a leg to stand on.

Thank you RedOnion, she's going to send all proof of ownership of the vehicle too, she's got the registration, NCT reports, tax discs, Garage service invoices, etc. Hopefully that will be sufficient to convince the Registrar that this shouldn't be heard in the SCC.

The lady asked the buyer if he wanted a receipt and he declined saying he had the log book transferring the ownership and was happy with that. She should of course have given him a detailed receipt "sold as seen" for her own protection, but doesn't have much experience in selling cars and had no idea that this would come back to bite her.

 

[ClubMan]

From the Consumers' Association of Ireland:-

I wouldn't take what the CAI say at face value especially when it differs from what more authoritative official sources say. Anyway, seems like the small claims application has not been rejected yet which might contradict the CAI's opinion. I guess that the court itself could yet rule that it doesn't have jurisdiction though. In any case, if they don't, then I would be surprised if they upheld the claim based on the info posted to date.

 

[Leo]

She's going to call the Registrar of the SCC this morning to see if they can give her a week or so to come up with the confirmation from the CRO that there is no business name or company registered in her name or at her home address, plus letter from her employer, plus payslips, bank statements, etc.

Note, just because someone is in a full-time PAYE job does not in any way prove they are not also running a sideline business. Many people in full time employment have secondary income.

As also stated earlier, just because someone isn't registered with the CRO does not prove they are not operating as a trader. There are many selling via the online classified websites that by the letter of the law should be registered but are flying under the radar.

The onus is on the claimant to prove their case. It might be more effective just tell the Registrar that she isn't operating as a business and can prove she had owned the car in question for the previous three years. However, if the claimant has stated in their claim that she is operating a business, then it's only the judge who can decide.

 

[time to plan]

This suggests that the small claims court can be used in this context although, in my opinion, the plaintiff doesn't have a leg to stand on given that private car sales are "sold as seen" and he took it for a test drive before agreeing to buy it. I think that only if it was not roadworthy would he maybe have a case but it doesn't sound like that was the case.

Problem with a used car

You have legal rights if you bought a used car and something has gone wrong. You may be entitled to a repair or some or all of your money back. Find out about your rights when you buy a used car from a car dealer, at auction or from a private seller.

www.citizensinformation.ie

Above that it says:

You have very few legal protections when you buy a car from a private seller. Irish and EU consumer laws only apply to deals between a consumer (a person who buys a good or service for personal use or consumption) and a trader (a person acting for purposes related to their trade, business or profession). It does not apply when you buy from a private individual who is not a trader (for example, someone who is selling their own car to you but who does not sell cars as a profession)

You should still contact the seller to try to work out a solution to the problem. If you can’t resolve the problem you can take a civil case or use the small claims procedure.

 

[time to plan]

Note, just because someone is in a full-time PAYE job does not in any way prove they are not also running a sideline business. Many people in full time employment have secondary income.

As also stated earlier, just because someone isn't registered with the CRO does not prove they are not operating as a trader. There are many selling via the online classified websites that by the letter of the law should be registered but are flying under the radar.

The onus is on the claimant to prove their case. It might be more effective just tell the Registrar that she isn't operating as a business and can prove she had owned the car in question for the previous three years. However, if the claimant has stated in their claim that she is operating a business, then it's only the judge who can decide.

I would put is a subject access request under GDPR to the Driver and Vehicle Computer Services Division of the Department of Transport, requesting a complete list of all vehicles I had owned, bought and sold over the last 10 years.

 

[delgirl]

I would put is a subject access request under GDPR to the Driver and Vehicle Computer Services Division of the Department of Transport, requesting a complete list of all vehicles I had owned, bought and sold over the last 10 years.

Thank you time to plan, didn't think of that. We'll try that as well. The more evidence we have, the better.
She now has confirmation from the CRO that there is no record of any business name or company at present or in the past registered in her name.
She has been trying to contact the Court Registrar since yesterday morning and has left messages, but no response so far to 3 phone calls. They must be very busy.

 

[time to plan]

Thank you time to plan, didn't think of that. We'll try that as well. The more evidence we have, the better.
She now has confirmation from the CRO that there is no record of any business name or company at present or in the past registered in her name.
She has been trying to contact the Court Registrar since yesterday morning and has left messages, but no response so far to 3 phone calls. They must be very busy.

I've been trying to get a District Court case heard for 2 years. Covid has not improved matters.

 

[delgirl]

You have very few legal protections when you buy a car from a private seller. Irish and EU consumer laws only apply to deals between a consumer (a person who buys a good or service for personal use or consumption) and a trader (a person acting for purposes related to their trade, business or profession). It does not apply when you buy from a private individual who is not a trader (for example, someone who is selling their own car to you but who does not sell cars as a profession)

That's what I found on other websites too and this is why we think he's claiming that she's in business as he knows he can't claim from a private individual. The onus should be on him to prove she's trading, not on her to prove she's not.

Everyone has been very helpful, thank you, and I'll revert with the outcome at a later date.

 

[time to plan]

That's what I found on other websites too and this is why we think he's claiming that she's in business as he knows he can't claim from a private individual. The onus should be on him to prove she's trading, not on her to prove she's not.

Everyone has been very helpful, thank you, and I'll revert with the outcome at a later date.

My money is that he's trying to scare her into folding.

 

[Leo]

The onus should be on him to prove she's trading, not on her to prove she's not.

That's exactly how the court system works here.

 

[Páid]

Have you spoken with the Clerk in the Small Claims Office?

Has the Registrar contacted you about the case? They are supposed to try to come to a resolution before it comes to court.

 

[Salvadore]

This is just bizarre. Someone in the Registrar’s office screwed up.