Hello Andy,
Well, that has to be one of the most drawn out defences I have seen to date.
It is all a load of baloney and I will go through it with you line by line.
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1. The Defendant admits that under a Contract of Sale dated 25 March 2008, the Claimant purchased a HP DV2799EA laptop (the laptop) for the price of £986.00
Nothing wrong here, probably the only factual thing they have said.
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2. It is admitted that the Claimant first contacted the Defendant to report a fault with the laptop on 19 January 2010.
How is this a defence point?
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3. The Defendant was unable to locate the purchase details for the Claimant and therefore requested for further information from the Claimant on 27 January 2010 before they were able to assist in resolving the issues raised.
Again, how is this a defence point?
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4. Upon the Claimant contacting the Defendant in return on 27 January 2010, the Claimant informed that he wished to obtain his own engineer's report and will then contact the Defendant again.
Why are they making all this nonsensical statements here? These should be defence points!
I think the work experience lad is getting out of his depth here.
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5. On 3 February 2010, the Claimant provided the Defendant with an engineer's report dated 25 January 2010 informing of a graphics card issue on the laptop.
Now here we are again, twisting the actual words on the report. I never at any time stated that there was a "graphics card issue" I stated, quite clearly:-
"The fault that is present in this laptop is a classic example of the defect that is widely reported in Nvidia GPU’s and the fact that they are failing in huge numbers due to overheating. ......It is therefore our opinion that this laptop is failing due to the inherent fault in the GPU."
Notice the words "inherent fault in the GPU" - it does not say "graphics card issue"
Playing with words will not help them.
Quote:
6. The Defendant subsequently offered to repair the laptop free of charge for the Claimant, which the Claimant refused on the basis that the Defendant was unable to guarantee that the fault will not occur again. This is despite the Defendant confirming that repairs are guaranteed for 90 days.
The fact that the repair is guaranteed for 90 days is, in my opinion, totally irrelevant.
The fact is they sold you an inherently defective laptop. Then they want to use what could potentially be inherently defective mainboards to effect the repairs.
You asked them for a written guarantee that the board being offered will not be as defective as the board that was being displayed. They refused to give you this. If they did not have the confidence to offer you a written guarantee then how were you to have the confidence to accept it?
The 8400 in your laptop is doomed as is virtually all stocks of the same. They cannot escape this fact or the fact that numerous customer who have accepted a repair have had a second or third failure.
For them to say the repairs are guaranteed for 90 days is also totally irrelevant. If you allowed them to undertake a repair and that repair were to fail then all you would be entitled to would be another repair.
There are plenty of articles on the net that support the fact that huge quantities of the 8400 and 8600 processors are failing worldwide.
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7. The Defendant will aver that it is unreasonable for the Claimant to refuse the offer to repair on the basis that the Defendant was unable to guarantee that the fault will not occur again. No laptop repair service providers are able to provide such guarantee. The Defendant is in any event a retailer and not a manufacturer of the laptop/parts.
So what are they saying here? That they cannot guarantee that the parts they will be using will not be inherently defective?
It would be unreasonable for the retailer to offer a customer a repair when the parts that the said retailer would be using could be as defective as the parts they are replacing.
Why should you accept that?
If you read that a few times you will see that they are saying you are being unreasonable for not accepting a board that will probably fail prematurely.
As for their comment "The Defendant is in any event a retailer and not a manufacturer of the laptop/parts." well that is just pathetic and is not a defence.
It matters not that they are not a manufacturer. The fact of the matter is they sold the laptop and they are responsible for ensuring that any repair that is undertaken is done so in the best interests of the customer and the longevity of the life of the laptop.
I cannot believe their stance - one would expect this kind of behaviour and response from some back street company.
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8. In all circumstances, the Defendant denies that the Claimant is entitled to reject the laptop and recover the purchase price or any part thereof. The Claimant has accepted the laptop by keeping it for a reasonable period of time without rejecting it by virtue of Section 35 of the Sale of Goods Act 1979 (As Amended) and has by his actions affirmed the contract.
As soon as you realised that your laptop was inherently defective you immediately informed the retailer.
Their statement that you had kept it for a reasonable time holds no water. Remember, it clearly states in your report:-
"Unfortunately it can take up to 14 months before the defect starts to manifest itself which means, for the majority of customers, that they are out of warranty."
So, with that in mind their comment of "The Claimant has accepted the laptop by keeping it for a reasonable period of time without rejecting it by virtue of Section 35 of the Sale of Goods Act 1979 (As Amended) and has by his actions affirmed the contract." means that you have the best defence possible and that is the time to manifestation.
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9. Consequently, the Defendant contends that under Section 11(4) of the Sale of Good Act 1979 (As Amended) the Claimant has lost the right to reject the laptop for any defects that arise and thus can only treat any breach he may prove as a breach of warranty there having been no total failure of consideration. This is notwithstanding the fact that the laptop was 22 months old (approx. 2 years old) at the time the Claimant first reported a fault with the laptop to the Defendant.
The Sale Of Goods Act states that the customer has six years to take action against a retailer when the goods in question are inherently defective.
They keep referring the the inherent defect as a fault and you must, in your defence, keep referring to it as an inherent defect, which is what it is.
The fact that the laptop was approximately 22 months old at the time the inherent defect manifested itself is therefore well within the six years that the law allows.
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10. A full refund of the purchase price of the laptop is in all circumstances disproportionate in comparison to a repair or a depreciated value of the laptop. Accordingly, the Defendant avers that under Section 48B of the Sale of Goods Act 1979 (As Amended) the offer to repair the laptop was fair and reasonable.
A repair is not advised as is documented in my report. So, again the offer of a repair was neither "fair" nor "reasonable"
They wouldn't give you a written guarantee to confirm that the mainboard being used would not be as defective as the board it was replacing so how can they for one minute this this was either "fair" or "reasonable". They must know of the numbers of laptops that are failing for a second or third time?
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11. The Claimant is required to prove that he has suffered the alleged or any loss and damage, and that any loss and damage suffered by the Claimant was caused by the matters complained of.
Yawn, do you get the feeling they have thrown as much as they can at their defence to impress the Judge?
Almost every line of their defence is nonsense.
I bet you have already forwarded them copies of your invoices and costs?
Well those invoices and costs are directly related to the laptop in question and the inherent defect therein.
The invoice states "To prepare engineers report on HP Laptop - Serial number xxxxxxxxx" and that directly related to the report you submitted to them.
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12. In all circumstances, it is submitted that the Claimant is under a common law duty to mitigate his losses.
This basically means that you have a duty to keep your losses to a minimum, which you have.
You had to get an engineers report to prove your laptop was inherently defective, you had no choice about that. Your other costs are also direct consequential costs which are a result of the inherent defect in your laptop.
You have not been extravagant and you have, in my opinion, kept your losses to a minimum.
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13. Save as is hereinbefore specifically admitted or not admitted that the Defendant denies each and every allegation contained in the Statement of Claim as though the same were herein set forth and traversed seriatim.
This is just legal jargon and not a line of defence.
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.14. The Defendant believes that the facts stated in this Defence are true.
LOL well the defendant can certainly believe that the facts are true but whether they are or not is another matter.
Can you believe they have entered 14 lines of defence? They usually use four or five so like I said before, maybe they are trying to impress the Judge with all their so called lines of defence.
I wouldn't worry for one minute Andy - their defence is a joke and you can quite easily show this and prove your case.
Remember one thing. in court you do not have to prove that your laptop is inherently defective. You only have to prove that "on the balance of probabilities" your laptop is inherently defective.
There is plenty of evidence on the net relating to your laptop and the Nvidia 8400 GPU it contains. You should start to get a file together of evidence to use at court (should it get that far).
There are loads of links here:-http://www.nvidiadefect.com/dozens-of-links-of-evidence-very-helpful-information-t237.html and here:-
evidence-with-links-to-external-sites-t10.html this should provide you with more than enough evidence.
Regarding your question on whether or not to accept mediation I would say not. They are not going to comply through chatting and I think this would be a waste of your time.
I hope the above helps.
If you have any questions or queries then pleas let me know.
Good luck and best wishes
Paul
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