Ajw71 wrote:
...and if you don't win you don't get it back. It's a risk.
More a statement of the bleedin' obvious?
Ajw71 wrote:
...Yes specific performance would be the best remedy for the Claimant. Very unlikely however.
A court would be unlikely to give the best remedy to a successful claimant? Why on earth not? "Well, OP, you win, and the best remedy we could give you is specific performance. But we're not gonna give you that, but something less good..... because...????
Ajw71 wrote:
...The OP is hardly going to wait around 6 months in case the highly unlikely event occurs that 1) Judgment is entered for him and 2) Specific performance is ordered. He will just go out and buy another car and his claim will be for damages.
Why? If he goes out and buys another car, that won't alter the fact that if the court grants specific performance, then he will get a 2.0L motor at a tidy price. There is no law to say he can't have 2 cars at one time, is there?
Ajw71 wrote:
...He has a duty to mitigate his loss as you well know. Whether it makes people look stupid is irrelevant.
I do not "well know" that he has a duty to mitigate his loss. He has no such thing. It is entirely up to him what he does or doesn't do. What I think you are getting at is that if the court thinks a claimant could reasonably have reduced the amount of his loss by doing something he didn't do, then the award of damages will be correspondingly limited, that's all. The point you overlook is that we already know it is THE DEFENDANT'S claim that the 2.0L model is £1300 more. That figure cannot be disputed unless they at the same time make an admission that this is not true.
And making people look stupid in court, far from being irrelevant, is one of the best ways to win. In this case, try to think it through.
* if OP does not buy a replacement, the only way that fact becomes relevant is if the car dealer says he has failed to mitigate his loss, so less than 1300 damages should be awarded;
* but it is then up to them to put forward a case as to how OP could reasonably have mitigated his loss;
* to succeed in that, they would have to disprove their own case, that the reason the 2.0L car could only be sold at that higher price was, well, you can't buy one cheaper than that;
* but now they must not only prove that you can, but also that it is easy enough to do so, such that it was unreasonable not to do so!
So the case is that they made a big mistake in pricing the car up; and then they made another mistake in repricing the car when they realised their first mistake. Hearing a major car dealership trying to put
that argument would be bloody entertaining, I'm cringeing even just thinking about it.
