s75 consumer credit act

[unclebobby]

Thanks for all the advice so far.

Another question if I may. If the credit card provider is equally liable under s75 as the service provider, does that mean they are also liable under the consumer rights act ?

[Amethyst]

Yes - S 75 gives you the same rights against the card company as you have against the seller/trader.
Example 62/3 http://www.financial-ombudsman.org.u...mer-credit.htm. ( kitchen worktop supply and fit )

[unclebobby]

Yes - S 75 gives you the same rights against the card company as you have against the seller/trader.
Example 62/3 http://www.financial-ombudsman.org.u...mer-credit.htm. ( kitchen worktop supply and fit )

Sorry, I'm not sure if I have explained my question clearly enough.

If s75 states the credit card company is equally liable as the tradesman, does that mean that the credit card company is also liable under the consumer rights act?

[R0b]

Yes. What Amethyst was trying to explain is that the CC company 'steps in' to the shoes of the trader and any causes of action you might have had against the trader at the time are also applicable against the CC company. Equally, the CC company also has the same defence options as the trader should they wish to defend any claim.

So if you are alleging that the trader failed to carry out the services with reasonable care and skill or there is a fault with the goods and you wish to exercise your option to repair or replace the goods but the trader refused to so, then you will have a right of action against the CC company.

[unclebobby]

Thanks again for all the continued guidance peeps.

If there has been anyone who has put together a successful claim under s75 (and the consumer right act 2015) please could you give me some tips on how to structure my letter? What points need to go into it?

When explaining S75, correct me if I am wrong, but I need to show:

1. Under a 3 party agreement;
2. I paid a portion of my final bill to the tradesman, on my credit card (I have now established it does not matter when the payment was made);
3. The tradesman breached our contract and therefore so does the bank
4. Therefore the bank is equally liable for the breach of contract.

Have I missed any "points to prove?"

Then onto the consumer rights act 2015. Given that the bank is equally liable as the tradesman, then they are also liable for the following:

1. the contract is to be treated as including a term that the tradesman must perform the service with reasonable care and skill;

2. The bank should either pay for the work to redo the element of the service that's inadequate or pay for the whole service again at no extra cost, within a reasonable time and without causing significant inconvenience.

3. Or the bank should pay back money for a reduction in the price of the service, up to 100%.

Anything that I have missed out?


thanks again!

[unclebobby]

Also if any of the kind people, who posted messages to help me, are solicitors, who specialise in s75 claims/ consumer, please PM me with your details.

[R0b]

Sounds about right, though your remedy for breach of contract is to put you in the position had the contract been performed properly. Have you assessed what it is going to cost you to have the issue remedied?

When drafting a letter before action, I would suggest you set it out clearly and concisely, perhaps with headings if it helps you. The letter before action should sufficiently identify the breaches, how and why they are liable and what next steps need to be taken to resolve the issue. Here's a very quick letter below to get you going.

In terms of sending your letter, you should send it to their registered office address. If you have an email address that you've been corresponding with you should perhaps send it by email too.

Dear Sir or Madam

LETTER BEFORE CLAIM

I refer to my previous correspondence where I explained that Nationwide Building Society ("Nationwide") is liable for breach of the agreement between myself and [name of supplier] and I repeat the points previously made in the said correspondence. You will know that I have previously tried to pursue a claim for [supplier's] breach of contract but this has been rejected by Nationwide.

In the circumstances, I have no other option but to put you on notice of my intention to commence legal proceedings should the matter remain unresolved to my satisfaction. Please note that this letter before claim is sent in accordance with the Practice Direction Pre-Action Conduct and Protocols (the "Practice Direction") as set out in the Civil Procedure Rules 1998. I would suggest that you pass this letter on to your legal team as they will need to see this letter as soon as possible and ignoring it may result in a further increase of costs against Nationwide.

Background and nature of the claim
Explain the background leading up to this e.g. On or about [date] I [verbally entered into OR entered into a written contract] with [supplier] ("DEFINE SUPPLIER") to carry out/supply/provide ... As the type of contract was a business to consumer contract, there were certain implied terms under the Consumer Rights Act 2015 that [supplier] would provide the services with reasonable care and skill, that the goods would be of satisfactory quality [insert any other terms relevant under the CRA].


Breach of the contract
It is my reasonable belief that [supplier] was in breach of the implied terms, namely [explain what terms have been breached and how].

As a result of the said breaches, I have suffered loss and damage. Because it was agreed between the supplier and myself that transaction will be financed using my Nationwide credit card (of which I paid [£amount]), the agreement was a debtor-creditor-supplier agreement within the meaning of section 12(b) of the Consumer Credit Act. Therefore, pursuant to section 75(1) of the said Act, Nationwide is jointly and severally liable for [supplier's] breaches of the contract in respect of the loss and damage set out below:

(a) losses type 1

(b) losses type 2

Next steps
In order to bring this matter to an end, I require Nationwide to pay [£amount] and in cleared funds, within 14 days from the date of this letter. My payment details are as follows:

Bank name:

Sort code:

Account number:

If Nationwide believes that it is not liable for the above-mentioned breaches, I should require detailed reasons as to why it is not liable no later than 4:00pm on [14 days from date of letter], including any evidence or documentation it seeks to rely upon. In the event that I do not hear back from Nationwide by [date], either to make payment or provide a full written response to the allegations, then I shall:

(a) without further notice commence legal proceedings against Nationwide for the recovery of [£amount];

(b) claim interest on the damages sought at a rate of 8% per annum;

(c) seek all other recoverable costs and expenses incidental to my claim including my application fees.

I would hope that this course of action is not necessary and I look forward to hearing from you in due course.


Yours faithfully,


[name]

[unclebobby]

Sounds about right, though your remedy for breach of contract is to put you in the position had the contract been performed properly. Have you assessed what it is going to cost you to have the issue remedied?

When drafting a letter before action, I would suggest you set it out clearly and concisely, perhaps with headings if it helps you. The letter before action should sufficiently identify the breaches, how and why they are liable and what next steps need to be taken to resolve the issue. Here's a very quick letter below to get you going.

In terms of sending your letter, you should send it to their registered office address. If you have an email address that you've been corresponding with you should perhaps send it by email too.

Dear Sir or Madam

LETTER BEFORE CLAIM

I refer to my previous correspondence where I explained that Nationwide Building Society ("Nationwide") is liable for breach of the agreement between myself and [name of supplier] and I repeat the points previously made in the said correspondence. You will know that I have previously tried to pursue a claim for [supplier's] breach of contract but this has been rejected by Nationwide.

In the circumstances, I have no other option but to put you on notice of my intention to commence legal proceedings should the matter remain unresolved to my satisfaction. Please note that this letter before claim is sent in accordance with the Practice Direction Pre-Action Conduct and Protocols (the "Practice Direction") as set out in the Civil Procedure Rules 1998. I would suggest that you pass this letter on to your legal team as they will need to see this letter as soon as possible and ignoring it may result in a further increase of costs against Nationwide.

Background and nature of the claim
Explain the background leading up to this e.g. On or about [date] I [verbally entered into OR entered into a written contract] with [supplier] ("DEFINE SUPPLIER") to carry out/supply/provide ... As the type of contract was a business to consumer contract, there were certain implied terms under the Consumer Rights Act 2015 that [supplier] would provide the services with reasonable care and skill, that the goods would be of satisfactory quality [insert any other terms relevant under the CRA].


Breach of the contract
It is my reasonable belief that [supplier] was in breach of the implied terms, namely [explain what terms have been breached and how].

As a result of the said breaches, I have suffered loss and damage. Because it was agreed between the supplier and myself that transaction will be financed using my Nationwide credit card (of which I paid [£amount]), the agreement was a debtor-creditor-supplier agreement within the meaning of section 12(b) of the Consumer Credit Act. Therefore, pursuant to section 75(1) of the said Act, Nationwide is jointly and severally liable for [supplier's] breaches of the contract in respect of the loss and damage set out below:

(a) losses type 1

(b) losses type 2

Next steps
In order to bring this matter to an end, I require Nationwide to pay [£amount] and in cleared funds, within 14 days from the date of this letter. My payment details are as follows:

Bank name:

Sort code:

Account number:

If Nationwide believes that it is not liable for the above-mentioned breaches, I should require detailed reasons as to why it is not liable no later than 4:00pm on [14 days from date of letter], including any evidence or documentation it seeks to rely upon. In the event that I do not hear back from Nationwide by [date], either to make payment or provide a full written response to the allegations, then I shall:

(a) without further notice commence legal proceedings against Nationwide for the recovery of [£amount];

(b) claim interest on the damages sought at a rate of 8% per annum;

(c) seek all other recoverable costs and expenses incidental to my claim including my application fees.

I would hope that this course of action is not necessary and I look forward to hearing from you in due course.


Yours faithfully,


[name]

Have you assessed what it is going to cost you to have the issue remedied?

No yet, just want to confirm I have a claim, then I will pay for an expert report. (in case there are problems internally with the plumbing etc)!

[unclebobby]

Another question if I may?!

Does the service provider and CC company need to have a contract in place before a contract is signed between a client and service provider (in order to have s75 protection)?

In other words- If a contract is signed between client and service provider (but at that time there was no service provider and CC company relationship formed), then a few days later the service provider sets up his CC service with the CC company. Client then makes payment for service after completion of work- does client have s75 protection?

Having looked at the wording of s75, I don't see why (even s12 of the act). Anyone have any thoughts?

[unclebobby]

Also, having looked on the FOS websites, there a seriously very few cases where an ombudsman has decided in favour of the consumer...... Does anyone have a list of stated cases/ legal precedents for s75 claims? Tried to google it, but couldn't find anything

[R0b]

You seem to have grounds for bringing a claim, but no-one is going to tell you that you have an iron clad one because it all depends on the day based on the evidence and facts in front of the judge.

The FOS in my view is a shambles and is very inconsistent and anything beyond a straightforward complaint issue, they tend to trip over themselves but that is my view.

I'm not sure I understand your question about the CC provider and supplier having a contract in place. Contracts can be agreed verbally or in writing and as I understand it, you both agreed that the payment method would be by credit card. It's irrelevant whether the payment was done prior to any works being carried out so long as it was confirmed prior to entering into the agreement, credit card payment was the preferred method.

If Nationwide are suggesting that they are not liable for the amount because you paid after the services had started then I would think they are on stick ground and that in itself would be a very poor defence. As I mentioned above, payment terms could be agreed prior to, during or after the works have been carried out. Then again, whoever initially gave that decision is more than likely not from their legal department so might not have a solid understanding of contract law and how s.75 actually works.

It would be helpful to obtain an independent report as that's what a court would expect you to do in order to represent your losses. If that report can also incorporate an opinion on the state of the bathroom and also any other errors which lack reasonable skill and care that would also go in your favour if you issue legal proceedings. You should be able to claim back the cost of the report as that is a direct loss arising from the issue.

Hope that helps.

[unclebobby]

You seem to have grounds for bringing a claim, but no-one is going to tell you that you have an iron clad one because it all depends on the day based on the evidence and facts in front of the judge.

The FOS in my view is a shambles and is very inconsistent and anything beyond a straightforward complaint issue, they tend to trip over themselves but that is my view.

I'm not sure I understand your question about the CC provider and supplier having a contract in place. Contracts can be agreed verbally or in writing and as I understand it, you both agreed that the payment method would be by credit card. It's irrelevant whether the payment was done prior to any works being carried out so long as it was confirmed prior to entering into the agreement, credit card payment was the preferred method.

If Nationwide are suggesting that they are not liable for the amount because you paid after the services had started then I would think they are on stick ground and that in itself would be a very poor defence. As I mentioned above, payment terms could be agreed prior to, during or after the works have been carried out. Then again, whoever initially gave that decision is more than likely not from their legal department so might not have a solid understanding of contract law and how s.75 actually works.

It would be helpful to obtain an independent report as that's what a court would expect you to do in order to represent your losses. If that report can also incorporate an opinion on the state of the bathroom and also any other errors which lack reasonable skill and care that would also go in your favour if you issue legal proceedings. You should be able to claim back the cost of the report as that is a direct loss arising from the issue.

Hope that helps.

I'm not sure I understand your question about the CC provider and supplier having a contract in place.

Hi Rob, many thanks for your consistently helpful advice.

Let me rephase the question:

Three people in the scenario- client, plumber and nationwide CC.

Client agrees in writing to buy plumber's services to install new bathroom. Client wants to pay a deposit on his CC, but plumber says he will bring his machine with him the following week. The plumber then goes home and registers with a credit card processing company to enable him to take CC payments (which he was unable to do when the contract with the client was signed). A few days later he gets his machine and the plumber takes the final payment from the client via CC.

Question- If the plumber does not have an agreement with a CC payment processing company until after the contract was signed, does this affect s75 protection? I'm guessing not, but not entirely sure.

Just looking for other people's opinions. Thanks again.

[R0b]

Client agrees in writing to buy plumber's services to install new bathroom. Client wants to pay a deposit on his CC, but plumber says he will bring his machine with him the following week. The plumber then goes home and registers with a credit card processing company to enable him to take CC payments (which he was unable to do when the contract with the client was signed). A few days later he gets his machine and the plumber takes the final payment from the client via CC.

Based on the above, I don't think the position changes. It was contemplated by both parties that payment would be by credit card and not any other method, regardless of the fact that the supplier has to register for CC processing that in my view would assist rather than hinder your case as it is evidence that there was an intention to pay using the Nationwide card.

To rely on s.75, both you and the supplier have to have in your mind that you would be paying using the credit card. Quite frankly, I would go as far as suggesting that even if you initially wanted to pay by cash but then changed your mind and paid by credit card, you would still be afforded protection as you have still made payment on card and the supplier has agreed.

[pt2537]

Thanks again for all the continued guidance peeps.

If there has been anyone who has put together a successful claim under s75 (and the consumer right act 2015) please could you give me some tips on how to structure my letter? What points need to go into it?

When explaining S75, correct me if I am wrong, but I need to show:

1. Under a 3 party agreement;
2. I paid a portion of my final bill to the tradesman, on my credit card (I have now established it does not matter when the payment was made);
3. The tradesman breached our contract and therefore so does the bank
4. Therefore the bank is equally liable for the breach of contract.

Have I missed any "points to prove?"

Then onto the consumer rights act 2015. Given that the bank is equally liable as the tradesman, then they are also liable for the following:

1. the contract is to be treated as including a term that the tradesman must perform the service with reasonable care and skill;

2. The bank should either pay for the work to redo the element of the service that's inadequate or pay for the whole service again at no extra cost, within a reasonable time and without causing significant inconvenience.

3. Or the bank should pay back money for a reduction in the price of the service, up to 100%.

Anything that I have missed out?


thanks again!

No, you dont have the right to pursue the creditor under the CRA 2015, the Consumer Credit Act 1974 however does give you the right to pursue the creditor can seek an indemnity from the supplier for any losses it sustains. That is certainly my view on that point.

However, i dont think you need the CRA at all, s75 gives you everything you need here.