Misrepresentation Act

[Pezza54]

If there is a clause in a contract that states once the contract is signed and dated the company will contact you shortly to arrange a date for work to start, and the company fails to offer a start date after 6 weeks, is the company in breach of the Misrepresentation Act?
Thanks in advance for any legal advice.

[echat11]

What sort of contract is this? Is it a Consumer Contract?

https://www.which.co.uk/consumer-rig...t-aKJYx8n5KiSl

This explains Misrepresentation Act -

https://www.which.co.uk/consumer-rig...7-aeB321x7SwFV

[Pezza54]

Thanks. The contract is for building works, a home extension.

[Pezza54]

By not pointing this clause out to the company within a few days and waiting for 6 weeks before chasing the contractor for a start date, did I affirm the contract and lose the right to claim contract breach due to misrepresentation?

[des8]

I would suggest the company is in danger of breaching the contract, but it will revolve round the interpretation of "shortly".

The company may be in breach of the Misrepresentation Act if in persuading you to sign the contract they implied that "shortly" would be within a certain time eg few days, next week or whatever

[Pezza54]

Thanks Des8.I would have thought shortly would be defined as days rather than weeks.

[Pezza54]

Apologies for resurrecting this thread. Does misrepresentation have to be a statement of fact? Would a term in the contract as above be regarded as a statement of fact in the court or just the contractor's intention? The contractor later freely admitted they cannot provide accurate start dates. If this is misrepresentation, is it negligent or fraudulent?

[atticus]

It is a breach of contract, but I am struggling to see a misrepresentation here. Did you enter into the contract in reliance on this term?

18 months later, what has happened?

[Pezza54]

Thanks Atticus
Yes we did rely on the term, wanting a quick start. This was discussed with the estimator before I signed the contract. He said we would be contacted in a few weeks time by the ladies in admin to agree a start date. This did not happen.

The company owner turned up a week after we signed the contract to see what was possible and found a "problem" with our existing garage floor saying it didn't have enough depth for the required insulation and screed. He intended to build a ramp to a raised floor which we reluctantly agreed to. He did not offer our deposit back. It later transpired he was wrong, Building Control would permit a lesser amount of insulation to avoid breaking up the concrete garage floor.

When we couldn't get any info from the contractor, or a start date after 10 weeks from signing the contract we asked for our deposit back. The company refused. I made a claim to my credit card company and they refused my claim, so I made a complaint to the FOS

After 6 months of investigation the FOS investigator decided the trader had breached the contract when they failed to produce a survey report as per the contract, and said our deposit plus interest should be returned. The ccc asked for the case to be referred to the ombudsman who did not uphold the investigator's decision.

I did not accept the ombudsman's decision and filed a court claim under CCA 1974 maintaining the trader misrepresented the contract regarding the term about the start date and breach of contract for not taking reasonable care and skill when undertaking the "survey" and failing to prepare a floor plan.

[atticus]

The (mis)representation was made by the estimator in your pre-contract discussions.

But what you describe indicates a strong case for breach of contract. What do you know about this company's financial position?

[Pezza54]

Nothing really. I wouldn't understand a balance sheet and company accounts.

Why do you ask this? My claim is against the ccc and I am waiting to see whether they ask for the trader to be added as a 2nd defendant.

It is my understanding that if I win my case, the ccc will pay me and then seek recompense from the trader.

[atticus]

Sorry, I see you added that info at the end of post 9.

[Manxman]

1. What were the actual grounds of your claim against the CCC? (eg did you just rely on "misrepresentation"?)

2. What reasoning did the ombudsman give for agreeing with the CCC and denying your claim? (eg did he simply say there was no misrepresentation?)

3. What grounds have you put in your court claim?


As a general point, although your card provider can get your contractor added as a second defendant to any claim, they usually won't do so. s75 claims are often paid out from the card provider's own funds and they often won't bother to pursue any reimbursement they might be entitled to from the contractor.

This is why card providers are more reluctant to process s75 claims rather than chargebacks, where any refunds are paid out of the trader's funds and not the bank's.

[Pezza54]

We wasted a year with the FOS. Our hopes were raised by the investigator and then dashed by the ombudsman. Difficult to believe that two people in the same organisation can have different legal views. The investigator covered the lack of a start date and absence of a written survey report and decided this was a breach of contract. The ombudsman did not consider the start date and said the survey report did not have to be in writing. He also said I found a simpler solution even though I had provided evidence that the floor wasn't a problem and a solution wasn't needed. The ombudsman also said that he may not give the decision that you might get in court.
In short he thought it was fair and reasonable that the trader should keep my large deposit even though the company had done nothing on the job.
3. Misrepresentation and breach of contract.