S.75 CCA 1974 ~ Who is the supplier?

[Bowlofcherries]

Hello! I could really do with some advice please: I’m in danger of having my S.75 claim against a bank struck out, as, having read the Defence, I realise that I’m out of my depth.

I instructed a barrister under the direct access scheme, and, to cut a long story short, he didn’t have experience in the area of law that pertained to my case and didn’t read the papers either, forcing me to adjourn the Hearing of my claim just a couple of days before trial, causing me financial loss. The experience was incredibly stressful.

I didn’t pay the barrister direct - I was introduced to him through a company that offers to match cases to a network of specialist barristers. My understanding is that this company charges customers a fee for this service and that, following the deduction of this fee, the bulk of the money the customer pays is remitted by the company to the barrister it introduces. It was necessary for me to provide paperwork and to stipulate what kind of barrister I needed in terms of expertise and to explain what work was needed to be done on my case.

The defence is quite difficult for me to understand, but I believe that the bank is trying to argue that there was no debtor creditor supply relationship that engages S.75, presumably on the basis that the supplier was the barrister, not the agency that made the arrangements for him to represent me.

Unfortunately, the whole thing was quite confusing as, coincidentally, the Chambers the barrister worked for had virtually the same name as the company that introduced him. As a result of this, I mistakenly thought that he worked exclusively for that company. In fact, before requesting the adjournment, I asked if they would be willing to substitute him with someone more suitable.

Do I argue that the company I paid was the supplier, and was in breach of contract, bearing in mind that the barrister it introduced was unsuitable and did not match my stipulated requirements? Alternatively, do I argue that the company was the agent of the barrister aka ‘the supplier’ and accepted payment on his behalf, and that this link is sufficient to engage S75?

Any observations/ideas would be most gratefully appreciated.

[atticus]

Do you have any documents setting out the terms of engagement?

[R0b]

If I understand correctly, it sounds like the bank are running the defence that there has been a break in the chain of the debtor-supplier-lender relationship. In order for s75 to apply, there must be a directly connected relationship between all 3 parties but if you use a third party agent for example, PayPal or a well known travel booking website to process the payment on behalf of the actual supplier, then s75 will not work because the chain is now broken.

However, the real question is whether or not this limited company are simply acting as an agent or if they are the real service provider but simply outsourcing the services to a direct access barrister. If the contractual relationship is between yourself and the limited company and there is nothing to suggest that they are merely acting as an agent, you may have a counterargument that the limited company is the service provider and not the barrister. Just because the barrister provides the end services does not mean s75 automatically does not apply because then that rule would be applicable to all sorts of situations which would be inherently unjust.

As Atticus mentioned, the terms of engagement should stipulate the kind of relationship you have with the limited company.

I do have a question, however. Have you not sought to bring a claim against the bank, the barrister and the limited company? For maximum chance of success, your claim ought to be presented that the bank and limited co are jointly and severally liable under s75 or if the court finds no s75 liability, then alternatively you claim directly against the barrister for professional negligence.

[Bowlofcherries]

Do you have any documents setting out the terms of engagement?

Below is a link to the current terms and conditions on the website, but I’m afraid that, although not dissimilar, they do appear to differ somewhat to the terms that applied when I paid them. You will see that they refer to themselves as a ‘portal’ and that they incorporate ‘example’ barrister’s terms, making the document quite clunky.

I cannot find anything that would cover their own obligations to me in terms of meeting my requirements and issuing a refund.

https://www.clerksroomdirect.com/terms

[Bowlofcherries]

If I understand correctly, it sounds like the bank are running the defence that there has been a break in the chain of the debtor-supplier-lender relationship. In order for s75 to apply, there must be a directly connected relationship between all 3 parties but if you use a third party agent for example, PayPal or a well known travel booking website to process the payment on behalf of the actual supplier, then s75 will not work because the chain is now broken.

However, the real question is whether or not this limited company are simply acting as an agent or if they are the real service provider but simply outsourcing the services to a direct access barrister. If the contractual relationship is between yourself and the limited company and there is nothing to suggest that they are merely acting as an agent, you may have a counterargument that the limited company is the service provider and not the barrister. Just because the barrister provides the end services does not mean s75 automatically does not apply because then that rule would be applicable to all sorts of situations which would be inherently unjust.

As Atticus mentioned, the terms of engagement should stipulate the kind of relationship you have with the limited company.

I do have a question, however. Have you not sought to bring a claim against the bank, the barrister and the limited company? For maximum chance of success, your claim ought to be presented that the bank and limited co are jointly and severally liable under s75 or if the court finds no s75 liability, then alternatively you claim directly against the barrister for professional negligence.

Thanks for your reply, Rob. Would it definitely break the chain if the introducer accepted the money as agent for the supplier?

As far as the definition of ‘supplier’ is concerned, the confusing thing is that both parties were providing a service and charging for their input.

I didn’t sue the barrister because he is now working offshore. I guess I could have sued the introducer, but I mistakenly thought that a section 75 claim against the bank would be quite straightforward.

[atticus]

You will therefore have read:

"Standard Terms and Conditions:

It is important that you understand your barrister's full terms as they will form a contract between you and your barrister...."


As R0b has indicated, a claim under s75 Consumer Credit Act 1974 is not as straightforward as you appear to have thought. That section makes the bank jointly liable with the supplier for the supplier's breaches of contract where there is a debtor-creditor-supplier agreement. If you did not pay the barrister, then the question arises whether the supplier committed any breach of contract.

Even if the barrister is now overseas, he may well still have insurance cover in respect of your instruction of him.

[R0b]

As far as the definition of ‘supplier’ is concerned, the confusing thing is that both parties were providing a service and charging for their input.

I think some further explanation around this is needed. Are you saying you received legal advice from both Clerksroom Direct and the instructed barrister? That doesn't seem to align with the terms and conditions on the Clerksroom website.

I could be wrong, but as I read their terms it would appear on the face of it that Clerksroom are just an introducer who receive a fee - presumably if you accept the quotation from the barrister. The terms and conditions clearly outline the contract being between you and the barrister but I think it does come down to whether the barrister was paid directly or if they were paid through Clerksroom. The example terms and conditions on the website suggests that you are paying the barrister directly rather than indirectly - I am assuming this was all set out in the client care letter so you may want to re-read or confirm how payment was made.

If you did pay the barrister direct then it may be that s75 continues to apply as there is no break in the relationship, rather there are two separate contracts: one contract between you and Clerksroom for the referral fee and another contract between you and the barrister for the services.

I am not aware of any cases where this kind situation has arisen. Logically, there is no break in the chain because the card is being used to pay the barrister directly. This situation is a whole lot different to other scenarios where Paypal or other third parties are involved because the payment is generally processed by them, they take their cut and then forward on the remaining amount to the end service provider, hence the break but this would not apply here. It would be down to the credit card co. to prove that there was a break in a chain but at the moment, I can't see that there is, unless you tell us otherwise.