Breach of Contract case?

[Cottage_life]

We entered into a contract with a window company. They tried to increase the price 3 months after we signed the contract. We tried to make a compromise but they would not entertain it. We terminated the contract but subsequently UPVC prices have increased. We are now taking them to court for the difference in price we are having to pay out with our new supplier. Is there any case law to back up our argument?

Any advice much appreciated!
Thanks

[R0b]

It is not necessarily case law that you need since it sounds like a straightforward breach of contract dispute. The question is whether you contracted as a business or consumer.

It's not clear whether you have initiated legal proceedings yet but the starting point is to review the terms and conditions as that is the contract you signed up to in relation to the windows and installation. The key questions are why they suddenly increased the price after signature, whether the window company had a right to increase said price and also whether you had a valid right to terminate the contract because of the price increase - if you didn't you may have unlawfully terminated the contract and could be in breach yourself.

A little more background to your story would help us work out what steps/actions you should take.

[dslippy]

If you terminated the contract, you may not be entitled to anything. As has been said it depends on the factual detail.

[Cottage_life]

Thanks for the response.

We entered to contract as a consumer. Spec was chosen then on 28/06/21 Accepted quotation and paid 25% deposit up front.

14/10/21: Call from Anthony (Sales) to state that there had been a pricing error and that XXXX required a further £2428.36 inc. VAT. We asked for this request to be followed up in writing.

We then went back saying we signed a contract and asked them to fulfil the contract. They would not budge, citing 'force majeure' and that we were in a pandemic. We explained that doesn't cover incompetence.

They then came back with clause 8.4 from their contract stating:
Is the price of materials or services increases during the period between customer acceptance of the quotation and the agreed start date the installer will inform of the increase and any difference to the final fee.

We then said there was no price increase. The price we was quoted was in the contract we signed. Also the agreed start date was September and this was beyond that period.

We offered £1000 more but they said no. They wanted £2500 more and wanted us to waive our consumer right to 14 day cooling off period.

We said we were not prepared to accept this and if they were not prepared to carry out the signed contract (or £1000 more) then after 7 days asked them to cancel the contract and refund us.

We had heard around then that this company has a history of really low prices, only to have a pricing 'error' and then bump up the price thereafter.

We found the cheapest alternative within weeks but in the interim prices for raw materials had jumped by 40% so the cheapest we could find was around £15k. We had them installed and they look fab.

We then took the original installer through the small claims for the difference. they didn't defend, we entered judgement. Only then did they take it seriously and asked for it to be set aside.

Today we had a CPR meeting where the district judge has set this aside pending a court hearing as they met the criteria for 'having an argument' so get their day in court.

The judge said that it mainly hinges on the above clause 8.4, and also if our argument for consequential damages holds water.

We believe that the clause is part of an unfair contract under the consumer rights act 2015, which states, Consumer contract terms which may be regarded as unfair if (15) A term which has the object or effect of permitting a trader to increase the price of goods, digital content or services without giving the consumer the right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded.

In our claim we are arguing that they intentionally sought to inflate the price post binding contract. We cannot prove that unless we find someone to sign a witness statement to that effect. Without that we are looking at some kind of case law to help us prove that their actions of trying to inflate the price after contract signing meant we had to cancel the contract but as a direct result we were not back to where we started, but in a much worse position and that caused consequential loss.

We do not believe this claim to be frivolous (we have since found out that this windows installer has spent many thousands getting any negative reviews removed from reviews sites) and they are not as genuine as they appear in their online profile. We just need some more weight to our argument to say their actions caused us financial loss.

[R0b]

Thanks, I have some clarification questions so I will ask them in the order you mention them.

1. Apart from the initial call, were any of the communications in writing about citing force majeure or the pandemic?

2. When they cited Clause 8.4, did they provide any evidence of the cost of increase of materials?

3. When you said you didn't want to pay the full £2,500 and asked for the contract to be cancelled with a full refund, did they agree and refund what you paid?

4. Are you able to provide the exact particulars of claim you submitted when you issued the claim? It would be helpful to see what you had written.

5. When the company made an application to set aside the judgment, did they solely rely on clause 8.4? Are you able to upload a copy of their application and any witness statement(s) connected to the application for the company?

6. Why did the judge refer to consequential damage, did you argue the damages are consequential? did you argue the additional loss was a direct loss (rather than consequential) attributed to the company's breach of contract? A lot of consequential loss damages are also direct loss damages.

7. Regarding the reviews, have you checked all review websites for any recent reviews that have similar situations yours? It might be worth taking screen printouts now and keeping them as evidence if they have a habit of attempting to remove negative reviews.

Also, any documents you upload make sure the personal details are redacted including the claim number as this is a public forum accessible to anyone. You may want to consider making an amendment to your claim as there could be other lines of argument you may have missed out but unable to confirm without seeing the original particulars. It would cost you, but might have a better chance of being successful than what you are trying to argue now. However, that's a call you have to make once we have all information to be able to come to a conclusion.

[Cottage_life]

Many thanks for the reply. In response to your questions:

1. They initially stated their supplier had made a 'pricing error' in writing after they said verbally. They then put in writing the 'force majeure' excuse secondly.

2. The did not provide any proof.

3. Yes they did.

4. We have attached as 4 - claim with name redactions.

5. They did state 8.4. Please see attached - 5. they said we made a material change but there were no changes after the contract was signed.

6. Apologies. This was incorrect terminology in our last response. We argued the damages incurred were a direct loss attributed to the company's breach of contract.

7. Yes we have checked and not managed to find any negative ones yet. We are checking all the time though.

Our argument is based on the following legal principle:
When a contract is breached, the courts will put the innocent party in the position they would have been in had the contract been performed.

If the contract had been performed we would have paid £10576.04.

Thanks in advance.

[R0b]

Thanks I will have a look at the documents and let you know my thoughts but point 3 might be the killer to your claim. If you asked for a full refund and cancel the contract which they obliged, that might be construed as full and final settlement of the matter. The court may take that view unless you qualified that statement that you reserve the right to seek compensation for any additional losses based on the agreed performance of the contract.

Its possible that you could counter-argue that by suggesting that was not the case but it comes down to facts and the court will need to decide what both parties had intended based on the statement you made.

[Cottage_life]

Thanks for the reply. We sent an email on Oct 21 (see attached)

[Cottage_life]

We sent an email to the window installer company on 22 October stating the following;

Below is your clause:

8.4. If the price of Materials or Services increases during the period between your acceptance of the Quotation and the agreed start date, we will inform you of the increase and of any difference in the Final Fee.

Your statement is spurious and vexatious. It clearly states ‘agreed start date’. The agreed start date was September.
We request for you to proceed with the installation and completion of the signed contract under the Consumer Rights Act 2015. We await your confirmation of when the work will start.

If confirmation of this is not received by 27th October, we request you to terminate the contract, refund our deposit in full, and we will be seeking legal action.

Without prejudice.
Kind regards



We did not specify that we reserved the right for compensation for all additional loses but did state we would be seeking legal action. This could only be for losses incurred.