Consumer rights for services

[Amethyst]

Amethyst - just seen your most recent post - I'll review in my lunch break later however the date of issue was 28 August making the date of service 2 September. I have filed the acknowledgement of service stating that we are defending the whole claim so now have until 30th September I believe (although due to personal circumstances we actually only have until 25th, and preferably well before this).

Cool, get the part 18 off asap then so you can give him 7 days to respond and include it in your defence.

[Julesg7]

Evening Amethyst. Thanks again for today's posts. Re your query as to counterclaiming, my husband has been speaking to a work colleague who had a similar problem. Mechanic working off-premises on their drive and charging them too much. They defended, it went to court and they won as the claimant hadn't given them any notice of their cancellation rights. The judge told them they should have counterclaimed and got their money back so this is the advice they have vehemently passed on. I'm trying to find out whether their timescale was similar to ours or not and currently await this information. Based on the quote that we've got we had been wondering whether to counterclaim for the difference between that quote and what we paid him ie what we feel we were overcharged especially given that we now know he spent time filming and narrating videos.

Re the Part 18, I think that he will fight back and I'm not sure I want to put him on notice of the things he hasn't provided before we file our defence. Having read the Money Claim Online user guidelines for claimants today it appears that before starting a claim he should have taken some pre-action conduct such as writing to us requesting payment. He hasn’t done that either! Looks like the court takes a dim view of anyone jumping straight into issuing a claim. Should we end up in court I don't want to have missed out on an opportunity to claim back from him if we have only filed a defence. I do appreciate all the work you have put in to drafting the Part 18 request though and even if we don't go down that route I can use a lot of this when drafting the defence. I'm also a little worried that there isn't enough time as CPR says it needs to be reasonable - is 7 days enough? - and the request needs to be sent ideally as a letter so it would all get a little tight for us.

This is so hard working out what do do for the best and I need to discuss with my husband once he's home too. You and this forum have been brilliant though. I truly can't tell you how much help this has all been. I'll certainly be recommending to anyone else in need.

[Amethyst]

Ahhh that's where your first query about cancellation came in...that would be the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 which he completely failed at as there simply wasn't a contract only verbal, and nothing in writing. Your problem that I can see there is that you allowed him to complete the work ( and it was completed to an acceptable standard - I'm still assuming?) the parts about completing the service in a reasonable time and for a reasonable price would apply and thats what should be included in your defence.

So sections 51 and 52 - http://www.legislation.gov.uk/ukpga/...ion/52/enacted

51Reasonable price to be paid for a service

(1)This section applies to a contract to supply a service if—

(a)the consumer has not paid a price or other consideration for the service,

(b)the contract does not expressly fix a price or other consideration, and does not say how it is to be fixed, and

(c)anything that is to be treated under section 50 as included in the contract does not fix a price or other consideration either.

(2)In that case the contract is to be treated as including a term that the consumer must pay a reasonable price for the service, and no more.

(3)What is a reasonable price is a question of fact.

and

52Service to be performed within a reasonable time

(1)This section applies to a contract to supply a service, if—

(a)the contract does not expressly fix the time for the service to be performed, and does not say how it is to be fixed, and

(b)information that is to be treated under section 50 as included in the contract does not fix the time either.

(2)In that case the contract is to be treated as including a term that the trader must perform the service within a reasonable time.

(3)What is a reasonable time is a question of fact.

(4)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.

You also have section 50 regarding the formation of the contract - so that it was an implied term it would be completed by Monday, and anything in his advertising ( that he holds insurance etc )

50Information about the trader or service to be binding

(1)Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if—

(a)it is taken into account by the consumer when deciding to enter into the contract, or

(b)it is taken into account by the consumer when making any decision about the service after entering into the contract.

(2)Anything taken into account by the consumer as mentioned in subsection (1)(a) or (b) is subject to—

(a)anything that qualified it and was said or written to the consumer by the trader on the same occasion, and

(b)any change to it that has been expressly agreed between the consumer and the trader (before entering into the contract or later).

(3)Without prejudice to subsection (1), any information provided by the trader in accordance with regulation 9, 10 or 13 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) is to be treated as included as a term of the contract.

(4)A change to any of the information mentioned in subsection (3), made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

(5)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.

The Part 18 is geared at obtaining information which, basically, evidences the breaches of the CRA and assists with forming your defence.

[Julesg7]

Thanks Amethyst - I'd already got sections 51 and 52 noted but hadn't noted section 50! Back at work so bye for now...

[Julesg7]

Hi Amethyst - sorry it's been a while but the proceedings got dragged out as after filing our Defence and Counterclaim we had to get an extension as we were away when the Court requested us to file a Directions Questionnaire and the claimant failed to file anything at all so the Court gave him extra time too. We did everything that was requested but the claimant didn't so just after Christmas we received notification that the Court had thrown out his claim and that our counterclaim was listed for a hearing. However, we decided on balance that even if we were to be successful we would probably struggle to get any payment from this guy and as it would cost us the hearing fee and a days lost wages for the hearing we decided we wouldn't pursue it. I do feel very aggrieved that we ended up overpaying this guy and have since found out that some of the goods provided weren't new as they were supposed to have been not to mention the fact that he lied in the particulars of claim and does not operate his business properly. We have also recently received a further notification from the Court that the documents they sent to him were returned saying not known at that address for at least 3 years however that is the address he used to issue the proceedings so yet more lies! He put us through so much stress yet he just walks away unscathed - in an ideal world he should be held in contempt of Court for his lies and wasting the Court's time!! As for the videos I filed a complaint with YouTube about his unauthorised filming (one for a profit) on private property so they have now taken these down. Anyhow, I digress as the purpose of this message was to say thank you for all the advice you provided as this was so very helpful and so very much appreciated at a very worrying time when I didn't know which way to turn. It has certainly been an education! Suffice to say I will definitely be recommending this forum to anyone in need. Thank you again!