Can a business legally pass on Consequential Loss to customers?

[OliverJames]

Morning people,

I hope you can help me on something here.

I ordered a lease car in September this year. The contract stated 16-20 weeks delivery, but the emails from the salesman stated 12 weeks ("the cars need to be delivered before Christmas".....or something along those lines), and then got told it would be early Jan, due to a delay. I was fine with that, but due to ongoing faults with my personal car I was holding off spending any big money to make repairs as i believed the new car was coming.

I chased him every day last week for an update on the delivery and he has palmed me off every way possible. On Friday I had reached the end of my tether so called the dealer myself and got an answer from them immediately! God knows why he couldn't do this, but my suspicion was that he didnt want me to find out that there were these delays based on my expression of urgency previously.

I found out that the car isn't due to go into production until the end of Jan and wont be delivered until the end of Feb (at the earliest!!!).

My personal car just won't last that long and as such will need me to invest in it asap.

I contact the salesman to advise him of the situation and regrettably need to cancel the order. I then get a polite email back from his manager explaining that as per the contract, if I decide to cancel I will owe them a £360+vat cancellation fee, plus they will pass on any consequential loss?

Firstly, what is this? And secondly can they do this? There is nothing that tells me what this relates to, or what it could potentially be on any of the paperwork. As for the £360+vat as a cancellation fee, I don't think I should have to pay this seeing as I have already paid the same amount as an "admin fee" when I placed the order.

Feels like a bit of a con and I don't want to get lumbered with a huge bill!

Thanks in advance

Ollie

[des8]

Re: Can a business legally pass on Consequential Loss to customers?

IMO they are having a laugh.
If anything, you may have a case for breach of contract against them.

1) you could possibly argue that time was of the essence, in that the dealer knew you would require the vehicle by a set date, and so it was an implied term of the contract

2)even if time is not of the essence as a delivery date was specified then damages might still be recoverable by you as there was a failure to deliver , in other words although time is not of the essence it is not immaterial.

The dealer will argue that the written terms of the contract allow them to vary delivery date, but the law implies a reasonable time.
It could be argued that such terms in a consumer contract are inherently unfair.

Interested to see what [MENTION=71570]R0b[/MENTION] might have to say

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

Thank you so much for your speedy response!

It may help you if i list out the timeline and comms....

This is the string of emails leading up to the contract being signed;

Me: 13/09/16 @ 11:16am

"Hi Matthew,
I will send this over shortly (referring to address history for credit check), just confirming one of the post codes with my partner. Before that, could you let me know when you expect the vehicles to be in stock?"

Matthew: 13/09/16 @ 11:19am

“Hi Ollie,
Ok that’s fine, The current delivery time is around 12 Weeks”
Me: 13/09/16 @ 11:28
“That makes it around the second week of December, does that sound about right?”
Matthew: 13/09/16 @ 11:31am
“Sounds about right , they have to be delivered by the end of the year.”

The contract was then signed and the order was placed on the 14^th September.

On the 20^th September I sent an email to them asking if there was anything else they needed from me or if it was just a waiting game, to which they advised me they would check with the dealer to see, but generally it was the latter. I heard nothing back.

23/09/16 : I received an email from them advising me that they needed me to pay the admin fee of £360 which arrived with them on the 27/08/16.

During this engagement I requested an ETA on the vehicle, which I was obviously expecting in December based on the emails that he sent me, even though the contract stated 16 to 20 weeks. The content of the email were:

Matthew: 23/09/16 @ 11:35am

“Its currently showing early January to the dealer. I am going to keep my eye on it though to see if it comes forward at all”

I later sent some requests about changing the specification and the implied cost changed. We had some back and forth about this, to which the salesman got clearly quite annoyed and dismissive (even got the details of my vehicle incorrect so I have concerns about whether or not he was even checking up with the dealer for me!)

I left them to it without chasing, but fast forward to last week, I thought I should check in with Matthew to see if he has any update on the delivery of the vehicle, seeing as it is now due in a couple of weeks (apparently)…

Me: 05/12/16 @ 10:17am

“Good morning Matthew,
I hope you are well.
I wanted to reach out to see if you have any update on the delivery date of the Golf? You mentioned most likely early in the new year, but not a fixed date.”
Matthew: 05/12/16 @ 10:19am

“Hi Oliver,

Yes I’m well thanks , yourself ?

I’ll send the dealer an email requesting an update and will let you know asap .

Me: 07/12/16 @ 11:19am

“Morning Matthew,
Did you hear anything back from the dealer?
Thanks
Matthew: 07/12/16 @ 11:23am

“Hi Oliver,

Not yet,

I re chased them this morning first thing , so hopefully will get it over to you today

I heard nothing back from him so I decided to call the dealer myself, and as you see above, I got an answer within 3 minutes of picking up the phone! Thy advised me that the car isn’t going into development until 3^rd week of Jan and end of Feb is the earliest possible date for completion. I am more than likely going to receive it in March so I sent this email to Matthew;

Me: 09/12/16 : 15:01

“Hi Matthew,
I have just spoken to the dealer handling the order and they have just advised me that the car hasn't even gone to build stage yet, and isn't due to until January. As such we wouldnt be looking at a delivery date any sooner than the end of Feb (earliest possible date!).
I am not sure why you were unable to get this information, seeing as it took me 30 seconds and 1 phone call.
The initial delivery time you advised me of back in September when I placed the order was 12 weeks, you then added another couple of weeks to the start of Jan, but I am now looking at a further 12 weeks from today!
I make it clear that time was not my friend due to issues with my current car, but I have pushed this out afs far as I can such I have no option other than to cancel this order today.
Please confirm what you require from me to do so.
Thanks
I didn’t hear back from Matthew this time, and he had obviously passed it up the food chain to his supervisor who sent me back the following email;

Jack: 09/12/16 @ 16:00

“Hi Oliver,

I am very sorry it has come to you having to call the dealership yourself.

The manager at the dealership has been off for most of the weak sick, and this wasn’t communicated to us.

This explains why Matt never got a response via email or wasn’t able to get through to him via telephone.

As per the attached signed Order Form, it does state on there that the anticipated delivery date is 16-20 weeks. This takes us into mid-February from the date you signed.

I have just spoken with the dealer and he has stated that your car is currently due in at the start of February, with delivery being mid-February.

If there are delays, unfortunately it is out of our control and all we can do is make sure you are kept updated.

If you do cancel then we have no option but to charge you a £360 Inc. Vat cancellation fee and pass on any consequential loss, this is also stated in the attached order form.”

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

I just found another email that I sent to Matthew on 14/04/16 @ 11:15am which i hope doesn't affect my position!

"Hi Matthew,Thank you for chasing up.
I will complete and send back (this is in relation to the order form). The timings for delivery seem further away than initially discussed (16-20 weeks) which I believe sends us beyond the end of the year deadline you stated earlier (12 weeks you quoted).
Can you just double check this as i was hoping to have this all sorted before the end of the year, if not considerably earlier.
Not a deal breaker, just need to understand how much longer i will need to drag my old car out for as it needs some serious money spent on it which i am holding off doing because of this.
Thanks again"

[des8]

Re: Can a business legally pass on Consequential Loss to customers?

Imo you have a defence to their claim for admin charges and possible consequential losses.

Regardless of that you advised them verbally when negotiating that you required the vehicle by the end of the year (implies time is of the essence)
This is confirmed in Matthews email of 13/09 when he acknowledges "they have to be delivered by the end of the year."
I assume the contract you signed was a standard printed form.
It would have been good if you had noted the required delivery date on the contract, but IMO that email should be enough.

A problem might be that you appear to have waived the deadline, without resetting it. e.g the email in post 4 (?date)

Nevertheless I would be inclined to WRITE back (signed for) pointing out that there was an implied term (time was of the essence) and they are in breach of contract.
You will robustly dispute any attempt to charge you.

Anyone else with comments????

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

I spoke to Citizens Advice as well and they advised me of the same, although i only found post 4's email after I got off the call to them!

They basically agree with you and say i should send them a recorded delivery letter outlining the claim, but the issue is i have absolutely no idea what to write without it sounding totally wet

Without asking someone else to write it for me, could you give me some pointers? Obviously not looking as anyone here as legal aid, just want to get an idea of the sort of thing you would write? I don't suppose there is a generic template for this sort of thing!!

Thank you so much for everything already! You've been amazing, and by the sounds of things spot on with you knowledge!!

Ollie

[des8]

Re: Can a business legally pass on Consequential Loss to customers?

So something along the lines of:

Date
Re order for polo XYZ ref no. 12345

DearXXXX

Following receipt of your email of 9th December concerning the above order, I would advise that any formal or legal attempt to charge me a cancellation fee and any consequential losses will be strenuously defended.

Regardless of the terms of the signed order form you were aware that time was of the essence in this contract.
An email dated 13th September from your employee XXXX acknowledges "they have to be delivered by the end of the year"
This is an implied term of the contract.
By not completing the contract within the time limits you will be in breach of the contract, and open to an action for damages.

I am now informed that the vehicle will not even commence being built until the third week of January, and delivery probably will not be made until March.
Obviously you will be in breach of contract, so to avoid any further problems I suggest that you arrange cancellation of the vehicle (which of course is still awaiting to be built).

I look forward to receiving your confirmation that this matter is now at an end.
Yrs
OJB

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

Thats amazing! OK, miles better than my politely drafted

"Dear Sirs,

Thank you kindly for your speedy response regarding my wish to cancel my contract with you"

haha :santa_wink:

Right, im going to get onto a strongly worded letter immediately!

You're a star!

Ollie

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

Letter is ready to go into the post, but i think i want to make it a slightly stronger worded one off the back of the following information;

Just to cover my bases, I called the main dealer again to get my notes together and they advised me that the car is definitely due to go into build stage on the 3rd week of Jan. The build takes around 3 - 4 weeks meaning i would definitely be looking at the back end of Feb, but "more likely early March".

Looking at the last email from Jack (bottom of post 3), he says in his email "I have just spoken with the dealer and he has stated that your car is currently due in at the start of February, with delivery being mid-February". I asked the lady on the phone if there was ANY chance of this, to which she replied "absolutely not".

I also asked if the order was cancelled before the build date, would there be any financial penalty....again answered "none from us, but the company you purchased through may have some conditions that could lead to a penalty".

Really think this needs to be highlighted because their lies are getting worse!!!!

Any thoughts?

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

This is the letter that I have amended to include the new information that came to light this morning. Is there anything you think should be either included, or taken out?

I am feeling in a much better position now, either way, so happy that they have no leg to stand on....

Dear Jack,

Following receipt of your email of 9th December, concerning the above order, placed on September 14^th 2016, I would like to advise you that any formal or legal attempt to charge me a cancellation fee and any consequential losses will be strenuously defended.

Regardless of the terms of the signed order form you present, you were aware based on my previous communications that time was of the essence in this contract.

An email dated 13th September from your colleague Matthew acknowledges "they have to be delivered by the end of the year".
This is an implied term of the contract. By not completing the contract within the time limits set by (company name), you will be in breach of the contract, and open to an action for damages.

I have now been informed by the dealer directly that the vehicle will not enter built phase until the third week of January, and delivery will “more than likely” not happen until early March. I also enquired about the delivery dates quoted in your email from 09/12/2016 @ 16:00 where you advise me “I have just spoken with the dealer and he has stated that your car is currently due in at the start of February, with delivery being mid-February” to which the telephone operative responded “no chance”. This is due to the fact that the build phase alone takes between 3 and 4 weeks.

Obviously you understand that you will be in breach of contract, so to avoid the need for this to be taken any further I would suggest that you contact Warrington Volkswagen to arrange cancellation of the vehicle immediately, who advised me personally is possible and will avoid you incurring any unnecessary charges.

I look forward to receiving your confirmation that this matter is now at an end.
Kind regards,

[des8]

Re: Can a business legally pass on Consequential Loss to customers?

:okay:

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

Hello Beageles,

I received an email back from Jack this afternoon, which reads as follows;

Hi Oliver,

Further to the letter I have received today.

Please see the below screen shot taken from the Volkswagen website regarding your order.

As you can see it states on there that your vehicle is due to be built week commencing the 16^th of January.

3 weeks after this date, takes us into early February, with delivery being mid-February.

I am not sure who you have spoken to, but the correct information is clearly stated below.

In relation to Matt’s email to you on the 13^th. Matt did find out after he sent this email that delivery could be up to 16-20 weeks, which is reflected on the Order Form you have signed.

With this screen shot taken into consideration, please confirm if you would still like to cancel. If so, we will inform the dealership and you will not be charged unless we are charged.

(I have attached the screenshot image below for you...)

Can you confirm how best to respond to this, to make it very clear that regardless of whether or not they get charged, I will not be liable?

Thanks so much up front, and thank you for giving me the confidence and support to push back in the first place!!!

OllieJB

[des8]

Re: Can a business legally pass on Consequential Loss to customers?

Soo..I would write:


The vehicle is due to be started IN THE WEEK BEGINNING 16th JANUARY which means it could be started on 21st January.
Build time upto four weeks takes one to 18th February,
It then has to be transported to the UK, where it will be checked, hence the main dealer saying delivery more than likely early March.


You (the dealer) reckon that IF build is started on 16th January (which is not certain) the car will be ready within 3 weeks (an uncertain minimum build time), ie 6th February and delivery will be by 14th February.
And in any event mid February is not within 12 to 20 weeks of order date.

Finally you were aware of the importance of the vehicle being ready by the end of 2016.
That, despite the order form, was an implied term of the contract.
I could have waited until we reached that date before taking action against you for breach of contract.
However being a considerate person I warned you that you were not able to complete the contract.
The main dealers XX had confirmed you would not only not be able to meet my required delivery date, but not even the extended delivery date of end of January 2017
To save everyone time, trouble and expense I suggested cancellation (which the main dealers confirmed coud be done without cost).

If you have chosen not to follow that course, that is your choice.
As I stated earlier I will strenuously defend any attempt to charge me as you are (or shortly will be) in breach of contract.

Now please p**s off!!!
Yrs
OJB

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

You've just won Legal Beagles with this response haha!

I may change the sign off slightly (removing the asterisks maybe...) and hit send!

Amazing...

[OliverJames]

Re: Can a business legally pass on Consequential Loss to customers?

You've just won Legal Beagles with this response haha!

I may change the sign off slightly (removing the asterisks maybe...) and hit send!

Amazing...

@des8 - I completely forgot to update you on this...feels like years back already, but thanks to you this went no further. They cancelled the order, apologised for the inconvenience they had caused me and didn't wish to take the matter any further!

So a big thank you for your time and energy!

Beagles 1 - Lying lease company - 0