Goods not as described

[Bananass]

Re: Goods not as described

Short answer - yes. Once I have money from both trader and bank then I have ammunition. I have something in mind but any suggestions as to best way to proceed against the 2 'consumer protection bodies' would be welcome.

[R0b]

Re: Goods not as described

Update - received cheque for just over 70% of claim which should by now have cleared. My sincere thanks to all who helped - it is one thing knowing the law it is quite another knowing how to use it.

The detail from R0b was priceless but all the contributions were very much appreciated.

Now I take on the credit card provider...

Glad to hear what you got what you wanted So just to clarify you are looking to recover the last 30% of the money from the CC provider or have I misunderstood

[Bananass]

Re: Goods not as described

Yes, paid in cheque from trader, just sent 'Letter Before Claim' to CCP for balance of roughly 30%. Main objective is to get something from the bank as well to add weight to my argument that they did not handle my section 75 application in the way that they should have done. ie whilst I will never say no to more money this is more about putting a spotlight on the failure of the consumer protection mechanisms.

[R0b]

Re: Goods not as described

Well, in all honestly I shouldn't see any reason why you cannot claim the remaining amount - s.75 claims (as far as I recall) is a joint and severable liability, so you could pursue CCP for the outstanding amount.

[charitynjw]

Re: Goods not as described

The cost of the transaction must be over £100, but less than £30,000.

But you don't have to pay over £100 via the card; even a deposit of, say, £10 will secure your rights under the CCA.
(I see in your case you have paid more than this, so ok!)

http://www.which.co.uk/consumer-righ...mer-credit-act

[Bananass]

Re: Goods not as described

Yes, and it is joint and several so all boxes are ticked as they say. They can quibble over whether the amount I'm claiming is reasonable but if I were in their position I would just pay and then lean on the trader to reimburse them. As I understand it they can fight it and make the trader party to it, I presume that would be treated as an entirely new action, that is to say the fact that I have agreed to end my case against the trader doesn't stop the bank bringing them into my action against the bank. (Hope you get what mean).
Let you know what happens...

[charitynjw]

Re: Goods not as described

Yes, and it is joint and several so all boxes are ticked as they say. They can quibble over whether the amount I'm claiming is reasonable but if I were in their position I would just pay and then lean on the trader to reimburse them. As I understand it they can fight it and make the trader party to it, I presume that would be treated as an entirely new action, that is to say the fact that I have agreed to end my case against the trader doesn't stop the bank bringing them into my action against the bank. (Hope you get what mean).
Let you know what happens...

I would imagine the bank will try & argue that you have arranged a F & F settlement.

If it were me, I'd make absolutely clear that's not the case.

[Bananass]

Re: Goods not as described

Quite so.

[Bananass]

Due to sudden illness of a friend I had to delay further action but was in court yesterday.

Tried to argue two causes of action -

First was outstanding balance as previously discussed -

Second (separate and overlapping) was breach of contract by the Credit Card Provider (CCP) - when I made my Section 75 application I quoted SOGA to support the original breach argument - reply of the vice president was "...you have commented on several legislations, such as The Sale Of Goods Act......it is only Section 75 of the Consumer Credit Act 1974 which imposes joint liability against a credit card issuer, so I will only be referring to this legislation.''

By striking out SOGA the CCP surely set itself above the law.

Anyhow my posterior had hardly hit the chair before the judge announced his regret at not having read the Particulars Of Claim earlier because he would have struck it out before reaching a hearing.
The wording of the Consent Order was irrelevant - I had reached a settlement and that was it - case closed.
Always knew I could lose but thought I might at least get a fair hearing.

[R0b]

Sorry to hear it didn't go as planned, did you only mention s.75 in your claim form or did you also refer to the relevant legislation that they were jointly liable for?

Unfortunately some judges do as they please which is not always fair and the only way to remedy that is to make an application to appeal the decision. However, that costs more money and sometimes it's simply not worth it. Also, it depends on how you've presented your case which might have a factor in how the judge comes to their decision.

There might be grounds for appeal on the basis that the wording of the consent order is relevant and the fact that you only submitted a claim against the trader in respect of their liability only. Since s.75 is joint and several liability, you can have the choice of going after both or only one of them which in this case you chose to pursue the trader first, settling for 70% meaning the remaining balance can be recovered from the CCP. Countering that argument, it could be said that you ought to have pursued the trader and the CCP on the same claim (known as res judicata) or that the consent order barred you from pursuing the CCP. There may very well be some kind of precedent that confirms this position already but I am unaware of any to date.

As you've already settled for 70% you need to decide whether it's worth spending further money to try and recover the last 30% or chalk to up to experience and learn from it. In my view, I don't think it is.

All I can say is that if you have a potential s.75 claim, you would be wise issuing a claim against the trader and the CCP so then you have the best chance of securing the settlement you want and make sure you get 100% of the settlement or as close to it as you may accept

[Bananass]

Hello again Rob. When you say it depends on how I presented my case do you mean the Particulars Of Claim (POC) or at the hearing itself ?

[R0b]

Mainly the POC but also the hearing.. though it sounds like you never got a chance to say much since what you've said suggests the judge had already made his mind up.

[Bananass]

Yes, Myself and the chap for the defence were led to our respective seats by the Usher (we each had a table/desk side by side about 2' apart and the judge was already in place looking down from on high behind the bench. Then the first words spoken were (roughly) "I wish I had read this earlier I would have struck out your claim as having no reasonable prospect of success." The few words I got out were brusquely knocked back and then he proceeded to criticise my "lengthy" POC saying I hadn't even put in such and such before finding it (he did at least acknowledge whatever it was, was there after all).

So no, I said little of substance, the defence said nothing at all.

So I did wonder if the POC could have been presented better (and it was lengthy). In it I did mention s75 and SOGA and cited Lord Bingham in Heaton and Others v Axa Equity etc (2002). I also claimed nominal damages also mentioned in the same judgement. I also claimed a separate and overlapping cause of action that being the refusal of the CCP to consider my s75 application in the light of SOGA