Do I have a case here?

[schooleydoo]

Morning Beagles,

I am once again seeking advice from yourselves, after receiving excellent guidance on a car purchase issue last year.

In June this year we moved house, using a local removal company. An anniversary present to my wife; a custom made picture frame was damaged during the move. The moving company have refused to repair the frame or even get back to me. I started a small claims court dispute to try and force communication from them. It worked and I finally got an email response back and a copy of their insurance terms, but they are still refusing the repair of £460. They are also now once again refusing to communicate with me.

I had hoped mediation would occur and allow a resolution, however the removal company have refused mediation and the case has now been transferred to the local County Court Hearing Centre. The fact that he has gone quiet and refused to mediate makes me wonder if he has sought legal advice. That advice perhaps being, I have no case and he should go to court. Honestly, I have very little evidence as no original paperwork was supplied.

Should I drop this case?

Our communication to date is as follows:

Mr Removals,

As mentioned in my previous email, no terms or job sheets were supplied before your email just received (03/11/17 12:41PM). Had a copy of these terms been presented, I would have known that you require written notice of the damage and done so. However, I did not know this so trusted that the fact that your employees were aware of the damage when it occurred, would be enough to support any future claim.


Regarding the insurance terms, I note that clause 9.2.1 states that if your valuation form providing a declaration of value is not returned to you before the move (again, this was not provided to me) any limited liability is a maximum of £40 unless negligence has occurred. If negligence has occurred, you are liable (see clause 3.2). I believe negligence has occurred. Your employees loaded the van and were responsible for doing so to avoid damage. Damage occurred, therefore they were negligent in the loading and the £40 limited liability does not apply.


I also note clause 16.2, stating that you reserve the right to subcontract the work but the insurance terms you provided will still apply. This refutes your previous email denying liability due to the move not being carried out by Beemoved.


XXXXX, this is taking up both of our time and I think I can speak for both of us when I say we don't want to be poring over insurance terms on a Friday afternoon. I paid you to move my belongings, you did a great job but broke something. Please do the right thing and rectify it. Your movers told me immediately and said they would let XXXXX know and I should get a quote for repair. I did so and contacted you after the repair quote was received. If I have to pay the excess, fine - lets just draw a line under this and get it sorted.


Regards,
xxxxx.


On Fri, Nov 3, 2017 at 12:19 PM, REMOVALS COMPANY wrote:

xxxxx first correspondence from you was on the 5/09/2017 i am looking into your matter.
XXXXXg only works for REMOVALS your email was in my junk folder.
Have you got a job sheet for the day you moved with are insurance terms and conditions on it.
If so can i have a copy so i can look into it. I have been in touch with my insurance company all damages must be reported within seven days, i have asked them for a copy so i can send to you.
Many thanks Mr REMOVALS COMPANY


From: xxxxxxxx
Sent: Thursday, November 2, 2017 1:56 PM
To: REMOVALS COMPANY
Subject: Re: Fwd: Damaged picture frame




Hello REMOVALS,
Thanks for getting back to me, two months after my original email was sent. Despite my 8 subsequent phone calls with xxxxx, it has been impossible to get any answer from your company regarding this. It's a shame it has resorted to legal action when this could have been resolved by you keeping your promise and returning any of my phone calls.
At no point throughout my dealings with you has it been mentioned that my move was not through REMOVAL COMPANY. Indeed a recent phone call with xxxxxx actually confirmed that the move was insured, your insurance does cover this type of damage and that "xxxxxx" had spoken to the insurance company and was just sorting out the details before authorising the repair.

If I was not insured because this move was not performed by REMOVALS COMPANY, why would it have not been mentioned by xxxxxx during the many previous phone calls instigated by myself to try and resolve this?
Why would xxxxxx have contacted the insurance company to "sort out the details" if this job was not a REMOVALS COMPANY job?
I initially contacted REMOVALS COMPANY via your quote section on your website. xxxxxx called and verbally provided his quote later that day. The day before the move, xxxxxx called and verbally offered a reduced price against the original quote, because he had suffered a last minute cancellation and he had already paid his movers for the cancelled job. He therefore wanted to recoup some of those costs. I accepted his offer. I did not receive any original or revised quotation and no terms were supplied. The vans and equipment used had REMOVALS COMPANY detailing and this email response has come from a REMOVALS COMPANY address - as far as I am concerned I have been dealing with REMOVALS COMPANY throughout.


Of course no damage was reported - your movers made ME aware of the damage when it occurred during transport. Therefore from that point onwards, your company was aware and responsible.

If there is indeed an excess required for your insurance policy, please provide the necessary paperwork.

Regards,
xxxxxxx.



On Thu, Nov 2, 2017 at 12:41 PM, REMOVALS COMPANY wrote:

Dear xxxxx you took the option of having a man and van option to move your contents as my price from my company REMOVALS COMPANY was too expensive.
On all my quotations i send to my customers it states about my insurance terms you opted out as i was too expensive so you paid for two men and a van i do not offer insurance for man and van work.
All damages should be reported within 24-hours if you took out my insurance and there is a excess of £200.00 payable by you that's if you took out REMOVALS COMPANY insurance.
Regards REMOVALS COMPANY


From: xxxxx
Sent: Monday, September 4, 2017 11:07 AM
To: REMOVALS COMPANY
Subject: Fwd: Damaged picture frame




Good Morning,
Further to my conversation with xxxxx this morning, I attach a photo of the damage that occurred to a frame during our move on 23rd June 2017 from ADDRESS, to ADDRESS. Your movers made me aware of the damage and advised on next steps.

I delivered the frame to a local framers and requested a quote to repair back to its original condition, with a frame as close to the original as possible and replacement of the damaged styrene panel. This quote is attached. I understand REMOVALS COMPANY are insured for this type of damage and request you authorise the repair as well as organise payment to the framers as quoted.

The framers are:

xxx


Regards,
xxxxx

I have made some notes for the mediation session, based on their comments on the original claim form that summarises my position:

Response to D's defence.

Claimed they never viewed the property.
Wrong: C dropped moving crates off to us (Next yellow and grey) and viewed the property and assessed how many vans would be required.
Claimed I asked about a man and van service.
Wrong: C called me and offered a discount from their original quote that I requested on the REMOVALS COMPANY website, because a booking had fallen though for that day. There was no mention that this would be a reduced service.
Claimed if I had taken his company quotation he would have offered insurance.
To my knowledge it was his company quotation, at a discounted price.
Claims I received a man and van service which is not insured.
Movers arrived with specialist equipment including mattress bags and TV bags. They moved all heavy furniture and already packed items themselves into REMOVALS COMPANY branded vehicles.
These were not the actions of a “man and van” service.
Claimed he had no knowledge of this until he got the letter from the court (dated 02/11/17).
Wrong: Framers confirmed a phone call from D on 05/09/17. Conversation recalled by the Framers was:
D phoned after receiving my email and quote. Wanted a trade price for the repair. Framers responded that it was already heavily discounted and the best they could do. D remarked “it’s not worth that for a silly picture frame” and refused to pay. Framers advised D that it was a specialist custom frame and contents and are welcome to gather comparable quotes from other companies.
At this point, I feel that D admitted liability and only refused to pay for the repair because in his opinion, the frame was not worth it.
The framers are willing to supply a signed statement of this conversation.
Claimed damage should have been reported within 24 hours.
Their movers reported the damage to me when it occurred. At that point REMOVALS COMPANY were aware of the damage and it was his employees responsibility to notify the relevant person in Beemove.
Claimed insurance was not taken.
During previous phone call with C to try and resolve this, he confirmed to me that he had spoken to you, the move was insured, it covers this damage and D was sorting out the details before authorising the repair.

[Diana M]

Re: Do I have a case here?

Your personal email address is accessible to anyone who clicks on your name/link in your post.

You need to remove that to protect your identity.

Di

[Amethyst]

Re: Do I have a case here?

done

[Kati]

Re: Do I have a case here?

Your personal email address is accessible to anyone who clicks on your name/link in your post.

You need to remove that to protect your identity.

Di

sorted

- - - Updated - - -

done

we must have both been doing that at the same time lol xx

[des8]

Re: Do I have a case here?

Do you have a case? most certainly yes.
Consumer Rights Act 2015 Chap 4 sec 49 (http://www.legislation.gov.uk/ukpga/2015/15/section/49) requires that Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill.

If he hasn't insured his liabiity he cannot opt out of it by using a disclaimer! (that would probably come under an unfair contract term)

You said you had started a county court claim which has now been transferred to your local court.so presumably it is a defended case.
Have you received a copy of his defence?

[schooleydoo]

Re: Do I have a case here?

Hello Des,

Apologies for the delay in responding. I'm relieved you think I have reason to continue with this.

I have a copy of his initial defence on form N9B (Defence and counterclaim). It states as follows (vertabim):

A Mr Schooleydoo phoned my company up for a quote when I told Mr Schooleydoo the price of my services he told me it was to high so I never viewed his property so I never had a contract with him.
He then asked me about a man and van so I asked a couple of chaps that do some work for my company, if they were interested in man and van work. Mr Schooleydoo liked that option so went with the man and van option.
I did not have any knowledge of this until I got a letter today from County Court so I looked at my emails around the 04/09/17 and found him in my junk folder so I replied to him. If Mr Schooleydoo had taken my company quotation I would had offered him my insurance all of my customers with a binding contract get insurance, and Mr Schooleydoo didn't take this option as it was to expensive.

I based my notes above, on this defence statement.

Most of his defence is incorrect and I can prove most of that (although the details on who said what and when are likely irrelevant). I cannot dispute however, that I do not have any kind of formal contract with him. It was all verbal unfortunately and it's this that concerns me.

Is the onus on the defendant to prove I did not accept his insurance, or is it mine?

PS - thanks both for the email and name edits

[des8]

Re: Do I have a case here?

The onus is on you to prove your claim.

You need to show the person you are suing was liable?responsible for damaging your goods whilst moving them by not using reasonable care and skill.
I'm assuming you have based your claim on a breach of contract rather than the common law remedy of bailment

So can you prove you employed the man to move your goods?
Can you show that the actual removers were employed by or acting as his agents?
Who did you pay and do you have receipt?
Can you show that the goods were broken because they did not employ reasonable care and skill (altho' the breakage would show this is probably a given)?

Whether or not they offered you insurance is beside the point, the liability is theirs and if they wish to insure their liability that is their choice.
They cannot opt out of a statutory liability, or include clauses in a contract which limit that liability.

Talking about insurance did your contents cover 9if you have any) cover your household goods whilst moving house?

[schooleydoo]

Re: Do I have a case here?

Good Evening Des,

Answers to your queries below.

The onus is on you to prove your claim.

You need to show the person you are suing was liable?responsible for damaging your goods whilst moving them by not using reasonable care and skill.
I'm assuming you have based your claim on a breach of contract rather than the common law remedy of bailment I hadn't considered bailment but it does seem to fit here.

So can you prove you employed the man to move your goods? Only via his admission that he did so in his defence statement.
Can you show that the actual removers were employed by or acting as his agents? Only via his admission that he did so in his defence statement.
Who did you pay and do you have receipt? The actual remover, in cash when the move was complete. No receipt.
Can you show that the goods were broken because they did not employ reasonable care and skill (altho' the breakage would show this is probably a given)? As you say, only the fact that the frame is broken.

Whether or not they offered you insurance is beside the point, the liability is theirs and if they wish to insure their liability that is their choice.
They cannot opt out of a statutory liability, or include clauses in a contract which limit that liability.

Talking about insurance did your contents cover 9if you have any) cover your household goods whilst moving house? It did but the excess makes any claim impractical.

[des8]

Re: Do I have a case here?

So was the picture frame packed in a case/box, and if so by yourselves or the movers?

As you have already initiated a county court claim, how far has it progressed?

[schooleydoo]

Re: Do I have a case here?

So was the picture frame packed in a case/box, and if so by yourselves or the movers?

As you have already initiated a county court claim, how far has it progressed?

Not packed at all. It was very large (1M X 1.5M).
The removers moved it from the garage to their truck.

The defendant has refused mediation and I received a letter last week from our local county court. But this was just a notification of transfer to them.

[des8]

Re: Do I have a case here?

So it is going through and don't think Beemove have a snowballs

They moved it,
They broke it
They admitted breakage
They discussed with renovators

Then their defence is "you should have insured it"
hmm don't think so!

[sloane82]

Re: Do I have a case here?

Get information as to how you paid the company did you pay by cash or card, and get as much evidence as you can if you have payment evidence a bank statement etc at least, this is a start.

[schooleydoo]

Re: Do I have a case here?

It was cash unfortunately, with no receipt but I can show a withdrawal from my current account for the full amount, the day before the move.

Des, if you feel that's the case, I will continue fighting the good fight!
I'm not planning on using a solicitor as I don't think the case is complicated enough, or worth spending the money on for a relatively low claim. Does anyone disagree with this?

My only evidence that the mover has admitted A) performing the move, B) damaging the frame and C) admitting liability (by contacting framers)... is with the framers themselves.
Putting myself in their shoes, although they have verbally agreed to help prove my case, I doubt they will want to get involved too much and risk any comeback or loss of business through word of mouth.
I plan on visiting them soon and asking them to sign the following:

Conversation between D from B Removals of D and M from P Framers of L
D called our company, Print it and Frame it in relation to a damaged frame belonging to schooleydoo on 5^th September 2017.
D wanted to negotiate a trade price for the repair.
I informed D that it had already been heavily discounted and was as cheap as possible.
D proclaimed, “its not worth that for a silly picture frame and I’m not paying it”.
I told them they were free to look for comparative quotes from other companies but they would all be more than my quote as it was already discounted.

Signed M of P Framers.


Would this be allowed as evidence in a future hearing or would they need to be present?

[des8]

Re: Do I have a case here?

It won't hurt to visit them and ask if they recall the conversation, and if they will be prepared to submit a witness statement in due course.
What you have drafted does not comply with Civil Procedure Rules and will need rewriting if it is required.

You won't need a solicitor!

[schooleydoo]

Re: Do I have a case here?

I have a court date of 22 March. I am required to submit all my evidence and statements to the court and the defendant. Here is my statement so far, opinions gratefully received.

Exhibits include:
A - bank statement showing a £500 withdrawal day before move
B - website screenshot offering free moving crates and a photo of the crates in my garden
C - damage to frame
E - Emails from above
F - quote from framers
G - statement from framers (TBC)

IN THE L COUNTY COURT
Claim No. D

BETWEEN:
Mr C
Claimant
- and –
B Removals
Defendant


WITNESS STATEMENT OF C

I C being the Claimant in this case will state as follows;

1. I make this Witness Statement in support of my claim.

2. This claim is for breach of contract under Consumer Rights Act 2015 Chap 4 sec 49.
I am claiming damages under Consumer Rights Act 2015 Chap 4 sec 54. The claimed amount will be used to repair the picture frame and contents to as close to it’s original condition as possible.

3. On 12^th June 2017, I requested a quote to move the contents of our house, using the B Removals website form. CR telephoned and offered the quote. The quote was not competitive and was declined.

4. On 22^nd June, I received a phone call from CR of B Removals, offering to perform the move at a reduced rate, as they had suffered a last-minute cancellation. We verbally negotiated a price of £500 [EXHIBIT A]. CR visited our house to assess the items to be moved and deliver the free moving crates as mentioned on their website [EXHIBIT B].

5. On 23rd June, B Removals moved the contents of our house, using Bbranded vehicles and specialist equipment to protect fragile items such as mattress bags and padded TV bags. During this move, a large custom-made frame and contents suffered damage to the styrene panel (cracked), wooden frame, cardboard mount and paper inserts. This damage occurred during transit whilst inside the B Removals lorry [EXHIBIT C]. The movers made me aware of the damage immediately once discovered.

6. On 18th July I delivered the broken frame and contents to *framers*
I requested they quote to repair the frame to its original condition. They offered to search for a frame which was a close as possible to the original. On 24th August, M (Managing Director of *framers* ) offered a quote of £390 +VAT for the repair, after I revisited and selected the frame [EXHIBIT F].

7. On 4th September I emailed the quote to B Removals and requested they organise the repair directly with *framers*. [EXHIBIT E.1]

8. On 5th September D from B Removals telephoned framers and attempted to negotiate over the price [EXHIBIT G].

9. On 28^th October, after receiving no response to my email from B Removals, I began telephoning using the number listed on their website. I was told during these calls that it was being sorted out with their insurance company and D would contact me soon. This never occurred, and I began court proceedings.

10. On 2nd November I received defence form N9B [EXHIBIT H]. In this form D claimed he had no knowledge of the issue until the court claim documents were received. I also received a response to my email, refusing the repair as I did not take the “company quotation” which would include the option of insurance [EXHIBIT E.2].

11. An email exchange began, resulting in D sending a copy of his optional insurance terms to me. To resolve the issue amicably, I told D I was prepared to meet the terms of this insurance and pay the excess charge. No response was received [EXHIBIT E.3].

12. As this statement shows, I have done everything possible to resolve this without legal action.
I found a company willing to perform a repair on a difficult custom frame.
I visited the framers three times to organise the repair.
I have called and emailed B countless times to try to reach an agreement, to no response.
I was willing to contribute to the repair cost.
I agreed to mediation, B Removals did not.
I have done all the work and in all this time all I have received from B are two short emails.

13. Consumer Rights Act 2015 Chap 4 sec 49. States
(1)Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill.
(2)See section 54 for a consumer's rights if the trader is in breach of a term that this section requires to be treated as included in a contract.
14. Consumer Rights Act 2015 Chap 4 sec 54. States
(1)The consumer's rights under this section and sections 55 and 56 do not affect any rights that the contract provides for, if those are not inconsistent.
(2)In this section and section 55 a reference to a service conforming to a contract is a reference to—
(a)the service being performed in accordance with section 49, or
(b)the service conforming to a term that section 50 requires to be treated as included in the contract and that relates to the performance of the service.
(3)If the service does not conform to the contract, the consumer's rights (and the provisions about them and when they are available) are—
(a)the right to require repeat performance (see section 55);
(b)the right to a price reduction (see section 56).
(4)If the trader is in breach of a term that section 50 requires to be treated as included in the contract but that does not relate to the service, the consumer has the right to a price reduction (see section 56 for provisions about that right and when it is available).
(5)If the trader is in breach of what the contract requires under section 52 (performance within a reasonable time), the consumer has the right to a price reduction (see section 56 for provisions about that right and when it is available).
(6)This section and sections 55 and 56 do not prevent the consumer seeking other remedies for a breach of a term to which any of subsections (3) to (5) applies, instead of or in addition to a remedy referred to there (but not so as to recover twice for the same loss).
(7)Those other remedies include any of the following that is open to the consumer in the circumstances—
(a)claiming damages;
(b)seeking to recover money paid where the consideration for payment of the money has failed;
(c)seeking specific performance;
(d)seeking an order for specific implement;
(e)relying on the breach against a claim by the trader under the contract;
(f)exercising a right to treat the contract as at an end.


Statement of Truth

I, C, the Claimant, believe the facts stated within this Witness Statement to be true.


Signed: ________________________________

Dated: