New Member Advice

[John3421]

Hi to everyone and thanks to Enaid for a warm welcome.

I am need of some advice regarding consumer law. I will try to make the story as short as possible. Basically I paid a 50 % deposit up front on my credit card for a gas fire supply and fitted. The job was started and after two days i could see there were a number of faults with the instalation. I asked for the owner of the company to visit the job and asked him if he was happy with the work that had been done. He stated he was and just told me to let him finish the job.

I then got an independant installer to examine the work and was informed of a number of faults some serious. I informed Gas Safe who inspected and also confirmed the faults. Not wanting the company to return to my property i asked for a refund as the work was poor and I had lost all confidence in there ability to fit the fire.

Since then I have wrote letters to the company and my credit card as advised by consumer direct and have spoke with trading standards with no joy.

What I need to know is do I have a right to a refund and if i have to go to court with this will the court look at it and say I should have given them a chance to correct the work. My main reason for not allowing this is that i told them the problems with the fire before, so they have had a chance to correct them. I do not want these cowboys putting mine and my family at risk.
Thanks for any advice on this as it has dragged on now for 3 months and my house is like a building site.
John.

[Guest]

Re: New Member Advice

You may issue a claim against your credit card issuer. Section 75 of the Consumer Credit Act 1974 allows this because any claim you make would be based on a breach of contract. Section 75 of the Act makes a connected lender jointly and severally liable with any supplier for any breach of contract or mis-representation by the supplier. The provisions apply to any single item to which the supplier has attached a cash price of between £100 and £30,000. Thus your card issuer is potentially liable not only for the value of the card transaction itself but also the value of the item (if greater) and any consequential losses caused to you arising from the breach or misrepresentation.

This might be a great deal simpler than issuing a claim in the County Court against the supplier.

I would not be concerned with the fact that you may be asked to allow the original supplier to rectify the faults, in particular as you have had two independent reports that stated that their work was faulty, some of which were serious.

[John3421]

Re: New Member Advice

Hi Cetelco,
Thanks for the quick response. I have been in touch with credit card company via letter and then spoke to them yesterday. Think they were trying to make me go down the court route. I will contact them again and see what response I get with reference to the points you have made.
Thanks John.

[Guest]

Re: New Member Advice

They cannot make you go down any route and in any case, any court claim you issue would be against them, under s.75 of the above Act. They cannot force you to bring a separate action against the supplier and why on earth would you when the remedy you seek is available to you in law?

In short, you issue a claim against your card provider and you are not obliged to do anything else. You do not need to have first sued the supplier, although this is often suggested by the credit card issuers.

Section 75 states (among other things)

75. — (1) If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

In short, tell them that you are issuing a claim against them under s.75 of the Act and that they need to send you a claim form.

[John3421]

Re: New Member Advice

Spoke to credit card company today and was told that due to the fact the company had offered to correct the work I would have to take court action to recover the money. I informed them that I had been advised that any court action would be against them. The reply was that they would be happy to assit me in taking court action against the supplier.
Totally confussed with the way to go with this, do I allow the company to correct the faults which will in my view still be wrong. Then take them to court after giving them two chances to put right? Or should I take court action now against credit card company????????????
Which ever way I go it is going to be a long process I think. Already been living in building site since May11th not sure how much longer wife will put up with this.

John.

[Guest]

Re: New Member Advice

Stop listening to their call centre agents because clearly they are either misleading you, they do not understand their employer's obligations to you, or both.

You do not need to allow the company to rectify the faults because a) you already pointed out several faults at an early stage, but the company failed to rectify them and b) you have had two separate and independent checks made and both of which have found faults. It is understandable that you do not wish to have the original company back, since some of the faults that your independent checks uncovered are serious.

Section 75 does not, in itself, provide grounds for a claim against a supplier. You must have a valid claim of breach of contract or misrepresentation under other law, such as the Sale of goods Act 1979, Supply of Goods and Services Act 1982 or Sale and Supply of Goods Act 1994. Since you do, then you have a like claim against the card provider for the full amount of the claim, this means the full sum, not just the 50% deposit.

You are not obliged to pursue the supplier and your claim is not limited to the amount of the credit card transaction. You can claim for all losses caused by the breach of contract or misrepresentation and this applies even if all you have paid so far is the deposit. You paid the deposit using your credit card and this gives you the choice of claiming for the cost of goods and any consequential losses against the supplier of the goods, your credit card issuer, or both. You are not entitled to double recovery however and will only be paid once.

Stop telephoning them altogether and contact them in writing explaining that you require a refund under Section 75 of the Consumer Credit Act 1974. Explain the problem and include details such as you have provided above. Specify a time limit within which you expect the matter to be resolved. I would suggest that you should receive a form within a few days and should have had a refund within 21 days of you returning the completed form. If they fail to comply, come back here and we can advise further.

[John3421]

Re: New Member Advice

Hi Cetelco,
Thanks for the reply. I have already sent a letter as you suggest. I then received a letter asking for the evidence of faults, which I returned the Gas Safe customer defect notice. The credit card company then sent me a letter see below.

"I note that you wish to make a claim against Natwest Bank under section 75 of the Consumer Credit Act 1974.
The bank fully accepts its responsibilities under the Consumer Credit Act and considers each claim on its own merits. Section 75 does not provide you with an automatic entitlement to a refund. It allows you to pursue a claim against the retailer and/or the credit provider for breach of contract or misrepresentation. You still have to prove that a breach of contract or misrepresentation actually occurred and that any reimbursment claimed is justified in the circumstances. Where the retailer denies liability or disputes the amount claimed, court action may be required to decide whether you have a valid claim, and if so what award is appropriate.
In this case, it is not clear from the information you have provided whether the retailer has rejected your claim.
I also recommend that you seek independant legal advice from a solicitor or Citizens Advice if you are in any doubt as to your options"

I then spoke to them this morning and stated that the retailer was not willing to refund me and asked them to send me a claim form as you stated. The reply was that they did not send ourt claims forms and I would have to take court action against the retailer to recover my deposit.

Thanks for your help in this John.

[Guest]

Re: New Member Advice

Read this and pay particular attention to 62/03

issue 62 - insurance case studies

Nat West are wrong, they are misleading you and as the above site states;

We often encounter some common misunderstandings when assessing these cases. The first is the belief among some lenders that consumers can only claim against them after they have first sued the provider of the goods or services. In fact, no such requirement exists and consumers can choose which party to claim against.

Where consumers come to us to check the position, we can point out the lender's mistake. But of course we cannot know how many consumers take the lender's assertion at face value and then spend time and effort trying to pursue a trader who may prove difficult to trace. If it seems to us that the lender has misled the consumer about the provisions of Section 75, and this has caused the consumer unnecessary expense or inconvenience, then this is likely to be reflected in any award we may make. (My emphasis)

I would suggest a final letter before action to Nat West, pointing out their error and your disappointment at their apparent attempt to mislead you and inform them that they have 14 days to agree to process your claim or you will issue a claim against them, as is your right, under s.75 of the Consumer Credit Act 1974 and your claim at that time will include court costs, interest pursuant to statute and an element of compensation for their conduct to date.

Then, at the expiry of the 14 day deadline issue your claim.

[Sapphire]

Re: New Member Advice

Hiya, I'm thinking that as well as following Cetelco's excellent (as always) advice. :kiss:for you Cet hun.

Do you know if the guy is Corgi Registered ? If he is then the threat of reporting him to Corgi should concentrate his mind somewhat, I shouldn't think any gas fitter would like their registration taken away would they.
If he's not registered then well I suppose you could report him to Rogue Traders.

[John3421]

Re: New Member Advice

Thanks once again Cetelco 62/03 is an interesting read. It has given me alot more information regarding this.
Thanks also to Sapphire in reply to your question the company is Gas Safe registered whch was the old Corgi. I have had Gas Safe out and received a customer defect notice. All they can enforce though is for the company to come and correct the faults. I am not happy for this to take place as my property is not some training ground for gas fitters.
Will let you know how it develops and thanks again for all your help.
John.

[John3421]

Re: New Member Advice

Just received letter this morning from Nat West which is basically the same as the previous letter except it asks for the following.

" In order for me to consider your claim, it will be necessary for you to provide me with an independent report, from a reputable retailer, detailing the current faults along with an estimate to repair"

I have contacted a local company that are going to provide me with this. Is this the correct way to go?????????

Thanks again John.

[Guest]

Re: New Member Advice

No.

NatWest are wasting your time and you are allowing them to.

When did you write the letter that I advised you to write in post #8? If you wrote it during the week you read and replied to my post, you will be a few days away from issuing your claim, which you should do this week, in order for it to be served on 10th August. This is provided that you told them you would sue them.

Your claim is for breach of contract. Your evidence of this is the customer defect notice from Gas Safe and the other independent report that you have obtained - unless the contract was specifically for an unsafe, defective and poor quality gas fire installation, which presumably it was not.

An estimate of repair can come later, unless you simply want the whole lot removing and having the job made good and in any event, none of this has any bearing on whether or not you have a claim. You may issue a claim for an unspecified sum and fill in the details at a later stage in the process. What is important here is that NatWest understand something. You are in charge, not them. They have no authority to "consider your claim" unless you cede it to them, which you do every time you obediently jump through the hoops they present to you.

Of course, you should not issue legal proceedings needlessly, but in this case NatWest are attempting to evade their statutory obligation to you under an Act of Parliament and you must not allow this to continue.

Depending on whether or not you want a working fire or have the lot taken out, you may wish to instruct another independent report, but it should not stop you issuing a claim against NatWest for the sums you have lost to date and further as yet unspecified sums, including an amount for the unnecessary expense and inconvenience caused by NatWest.

Do that without delay or you will be waiting many more months for this to be resolved.

[John3421]

Re: New Member Advice

Thanks for the reply again Cetelco.
This is a case of me not knowing my rights and Natwest trying to bully me into giving up I think. I am away on holiday for two weeks now so will have to leave it until I get back. Hopefully it will be sorted when I return, I will let you know.
Thanks again for your continued help in this matter.
John.

[Guest]

Re: New Member Advice

Another point you might want to consider reminding NatWest of is that since 2003 following Clegg v Olle Anderson (2003) the Court of Appeal stated that the rejection of unsatisfactory goods does not need to be reasonable.

"There is an implied term, in English Law a condition, that goods sold in the course of a business must be of satisfactory quality...Seller and buyer often agree to try and put defects right but neither is obliged to do so. The fact that the remedy supplied by English law may be thought disproportionate by some is irrelevant to a consideration of whether the implied term has been broken." Lady Justice Hale - Clegg v Olle Anderson (2003)

At this point it is not your responsibility to justify why you want to reject the fire and nor need your rejection be reasonable and if NatWest wish to successfully defend your claim, they must prove that the fire and the installation was of satisfactory quality. They may contend that you could have had a repair and that the work and materials are covered under a warranty, yet a warranty cannot remove the legal right to reject goods or services if those goods and services, as you have pointed out here, are of poor quality and in any case, you have lost faith in the ability of the supplier to carry out satisfactory work.

[John3421]

Re: New Member Advice

Well back off holiday today so looked through all the post only to find another letter from Natwest asking for more information. Before I went I posted the estimate as requested just to try and get it sorted without all the legal stuff. Well what a waste of time they now state.
" I note from our records that you spoke to my colleague on the 21st July 2009 as the retailer was willing to repair the fireplace and you advised that you would allow the retailer to do this. However , if this failed you would be pursuing a claim with your solicitor.
In the circumstances, I would appreciate clarification of the current situation regarding this together with copies of any further letters sent to the retailer and any replies received. I look forward to receiving your reply by return."

Am I best replying stating that I have had no correspondance with the retailer and that it is them that i will be pusuing a claim with?