Claiming for loss of bargain

[gxsl]

Hi all,

First time poster, but been browsing this site for a while. Hope you can help.

About a month ago I contracted to purchase from a sole trader some equipment at the price of £270, this being significantly below the price you would pay new for the stuff, so a bargain. The person said they would send that to me the next day, next day delivery. After some time and bearing in mind we were then at Christmas eve the stuff had still not arrived and it was needed for some building work I was having done on the house. I had emailed the person several times between the order and Christmas Eve to ask where the stuff was and for them to provide tracking details, they had ignored all of the emails. I had also talked to the courier they used to see if they knew where the package was, they were very helpful and checked every address I have had in the last 5 years, no parcel.

The person who I bought the stuff from emailed in the early hours of Christmas Eve to say there was some kind of delay and that they would email the tracking number to me. They still to this day have not done so. I have gone out and purchased equivalent items now at a difference in cost of £700, still purchasing 2nd hand items in every case. I sent the person I paid for the originals a 7 day letter telling them that I held them in breach and they must provide evidence they had sent the parcel to avoid legal action. They failed to do so. I placed them on notice that I would sue for the difference in cost between what I had to pay to get stuff in time and what I had paid them.

I have since issued a chargeback and received a refund from the bank for the undelivered items.

Am I right in thinking I can legally claim from them the cost of the replacement items, minus the £270 I would have paid them?

Thanks greatly in advance

[des8]

Re: Claiming for loss of bargain

Hi and welcome to LB.

The quick answer is "yes".
The slow answer is you will have to prove the contract existed and the other party breached it.
Assuming you manage to do that and win a judgement against them, you then have to enforce it.
So the first step is to ensure they have the means of paying.

[gxsl]

Re: Claiming for loss of bargain

Hiya Des8 & thanks for the welcome, plus the friendly advice which confirms my thoughts. I've done plenty of small claims before, but never anything for loss of bargain, they've always been clear cut business cases for non payment.

The person I bought the original stuff from emailed on Monday to say they had sent it to the wrong address, but still no proof...so I think I'm going to go for it. They were sent 2 emails confirming my address before the shipment. How obvious do I have to make it to them? Jeepers. They asked if I still wanted them to send the stuff. Oh dear...they were told no as they were in breach & I had been forced to go elsewhere at significant extra cost.

I kept all the emails & payment receipts showing the arrangements etc so I expect that they will be plenty sufficient to prove the contract existed between the parties. Furthermore the failure of the other side to respond to a detailed & specific 7 day letter outlining the entire chronology of events I think speaks volumes. Any reasonable judge could, I think, be persuaded that 10 days to deliver something, then ignoring the customers emails requesting reasonable information is not reasonable behaviour for someone in a transaction. The courier the guy claims to have used (big guys...) are willing to back me up & have sent search evidence from their systems that the package was never sent to me as well. Quite epic.

Yes, they do have a means to pay - there are certainly assets there (at least 4 times the debt, if not much more) - some research (I used to work in investigations) reveals they have an 'OK' credit rating, own a vehicle & are a company director, so there is a very good prospect of being able to recover the funds. Sadly the business is run from residential premises, which may limit enforcement if it comes to that.

Many thanks again - good to have finally popped my LB cherry

[des8]

Re: Claiming for loss of bargain

Thanks for coming back and good luck

[des8]

Re: Claiming for loss of bargain

Here's link to statute: http://www.legislation.gov.uk/ukpga/1979/54/section/51

[gxsl]

Re: Claiming for loss of bargain

Cheers Des,

The defendant has put in a defence saying they made a mistake & none of this was intentional & they can't afford to pay, and they have refused an offer to settle out of court (which was much reduced!!).

Fancy my chances of getting this defence struck out as not capable of amounting to a defence??

[des8]

Re: Claiming for loss of bargain

Don't see why you shouldn't apply for summary judgement, as there is nothing to lose.
If court agrees you win and get costs, if court disagrees and disallow your application it goes to trial.

Still have to enforce judgement if it goes your way. I note they claim they are impecunious, but you have indications to the contrary!

Good luck

[gxsl]

Re: Claiming for loss of bargain

Thanks Des,

I suspect that they might well be playing games with the "no money, poor me" stance. I've seen it before, in fact it is a standard & "go to" trick in a certain UK country I lived in for a while.

I'll file the application today, the Defence reads more like an admission than a Defence - Defendant basically admits everything that happened & in not so many words says "I'm sorry sir, I didn't mean it". Oh dear!

Right...lets do this