We are often asked to advise on matters where parties claim that they had agreed something either over the telephone or in person but there is no written record of that agreement. In the recent case of Pebble v Costa, the Court of Appeal stated that where there is no evidence of an agreement in writing, it was open to a judge to decide what had been agreed based only on what appeared likely in the circumstances and how the witnesses appeared in court.
Consumer law in England is heavily weighted in favour of the consumer since they are considered to be in need of greater protection under the law than businesses. Therefore in any dispute involving consumers, businesses need to ensure that their procedures are as solid as possible to refute any claims against them.
A key recurring issue when we act for dealers is the lack of available documents to prove the case, which leaves the way clear for the consumer`s story to be accepted. Contemporaneous documents absolve clients.
We therefore set out some simple advice for motor dealers to assist them in resisting spurious claims.
There is no better way to refute allegations than to be able to produce some written evidence that proves that no issue exists. Even if the advice or information is over the telephone, remember to make a note of what was said in the customer`s file. Even a handwritten note with the date is better than nothing. A couple of practical examples are:
Obviously, getting things in writing is useless if it subsequently cannot be found and used. Therefore it is imperative that all records are kept up to date and stored in dry, safe places for a period of time. We normally recommend that our clients keep all written records for at least six years before disposing of them because that is the deadline for most claims. It is also best to have a filing system allowing you to locate old records with ease.
If you do end up in proceedings, the records will almost certainly have to be disclosed and this runs to electronic records which nowadays have to be searched as well.