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BankFodder last won the day on October 14

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  1. It now seems that one of their companies has changed its name so beware:
  2. I hope you noticed that your posts have had to be restructured first of all my my site team colleague and then your second post by myself. Please can you present your posts properly spaced and punctuated. It's extreme difficult for people to follow when they are in solid blocks of text – especially when people using small screen such as telephones. Thank you. Please stand by for a fuller reply later
  3. Yes it will be straightforward – but you may as well give us better information so we can check that everything is in a row. What was in the parcels? When were they sent? Was the value correctly declared? I understand you had insurance. Have you been formerly declined compensation? If so then what was the reason given?
  4. Everything that you think you might need during the hearing – you have to disclose in advance to the other side. If you're making allegations of false representation then he has to have a chance to know about it in advance so he can then consider his position and decide on his responses. On the other hand, you disclose this evidence but you don't need to disclose in advance the comments you are going to make about it. So you don't need for us to say that this is a false representation. You simply need to include documents which show the website et cetera. He may ask himself why on earth are these documents being disclosed – but he will have to wait until the hearing in order to discover that. We are going back once again to the beginning where it was a shame that this wasn't included as a head of damage. It would have been extremely serious and the damages available to you would have been far greater.
  5. The court bundle is not about key points. The court bundle is only about disclosing to the other side in advance the documents that you intend to rely upon in court when you are challenging them. So from this point of view, you sent me need to make sure that the bundle you have already prepared is fully up-to-date. Presented in a correct and discernible order and that the indexing system works et cetera. And the answer is – yes – you must disclose it to the other side in advance. It's a question of presenting your case on the facts and winning on the facts and not simply winning by ambush – by taking the other side by surprise. If you have surprising conclusions to arrive at based on the documents you present – then those would be presented to the judge at trial. However your particular opinions and conclusions do not form part of the court bundle and you don't need to reveal the other side any weaknesses that you have discovered in their case or any weaknesses that you have discovered in the logic of what they are trying to say. Does that help?
  6. I'm afraid that I don't believe it's worth chasing the police or anybody else at the moment – other than Aviva using the other thread in relation to data protection issues. You can see that by and large nobody really wants to get involved. They all choose the path of least resistance. As far as they're concerned Aviva will get their money and they reckon that it will all die a death. I understand that you may have a source of funds to buy off Aviva and if that's correct then it may well be worth paying them simply to get a quiet life and to mitigate your losses but do so under protest. We need to discuss how this might happen
  7. You are right that the relevant statute for a business is the Unfair Contract Terms Act 1977. By and large a business which is operating on its own standard form contract cannot disclaim liability for negligence or breach of contract unless the disclaimer of liability or the circumstances satisfies the test of reasonableness – whatever that is. What were the contents of these lost parcels?
  8. In terms of your comments about whether or not it's a severable contract, that's precisely the point I've made that it is not a severable contract Therefore the correct approach is to ascertain the value of any work which needs doing to complete the contract and then subtract that from any money which is due to him under the contract so that at the end of the day you pay exactly the amount that you promise to pay for the work and you have a gate system which is complete.
  9. Just a quick comment – you have constantly referred to the fact that he applied a fee of £100 for a site visit and a quotation. What I don't notice anywhere is that apparently the £100 site visit would be deducted from the final price if you decided to go ahead. I hope you won't think I'm coming down against you – because I'm not – but I think we need a clear and honest picture of what is going on here. I don't know anything about the site visit but certainly the idea that one pays a certain amount of money for time spent and then that sum of money will be credited against a final bill is not unfamiliar to me. I don't think it will be unfamiliar to anybody and so I don't see it as at all unreasonable. Even if it wasn't going to be credited against the final bill, you agreed to it and on that basis I don't think you have any position to challenge it. As it is, we now see from the exchange of texts that the site visit fee was far more reasonable than you led us to believe that the outset. I really am trying to untangle the mess here because both of you are being disingenuous in your presentation of the facts. When this goes to court, it will only make a judge very angry and less patient dealing with you if you have a good case. I'm trying to understand the final picture here. It has probably been said in the thread but frankly it's becoming so involved, maybe you could stated very succinctly. He quoted a figure for gates – including materials et cetera – what was that figure? You have paid a certain amount of money – how much should you pay him? You have suffered additional losses – how much are they? The gates are still not working – correct? How much more money will it take to put the gates into a position that they should have been if the original contract and proceeded satisfactorily. Have you had any independent assessments or quotations for completing the work? Have you had any independent assessments of the quality of the work which has been done by KR? Some or all of these questions may already have been answered in earlier posts – but I'm afraid that the thread has been diverted so often just trying to get you to present information et cetera that I think it's a good idea to get it all stated again.
  10. Still waiting to hear if you have decided to post this letter of claim
  11. He's only entitled to 80% of the work if you can say that it is a "severable contract". This means that the contract can be easily divided into constituent parts and price of each constituent part is easily determined. For instance, if the job had been to build a patio at the front and a patio at the back, then this would be a severable contract. I'm not sure that here it is a severable contract. It looks like a single job to me and so he wouldn't automatically be entitled to claim 80% of the money for 80% of the work – even if that's what he had carried out. If the contract is not severable then your position is that you are entitled to get independent quotations for completing the work and then eventually calculate exactly what your outlay has been and paid to the original contractor as much money as it takes to put you into a zero position – in other words that the money you have eventually paid out to have the work completed is exactly the same as that which was originally quoted. I'm still looking through it and trying to understand it. I'm afraid that whatever you say about the cash nature of the job, it is troubling and I think that both of you might draw some criticism from the court which won't be helpful to either of you. There is a certain amount of he said/she said here. I'm gonna say that if you are in the business then I think it was pretty unhelpful that you didn't put things in writing and that you want a little more careful about how the contract was conducted.
  12. I've been looking through your comments and also been looking through the correspondence between you. I'm coming away with a slightly different impression from the one that you've given originally. You may think that this is not the correct impression, but at the moment on the evidence that you have provided to us – and presumably that is the same evidence that you would provide to a court, I think the court might also form a slightly different impression. This doesn't mean that the installer is not in breach of contract – but I think that the behaviour may not be quite as reasonable as you have been suggesting. Obviously we would need to look through it again. The first thing I see – or rather I don't see – is any evidence that you were to be the purchaser of the material to be used in the gates installation. I do see that you are quoted for the cost of materials and that in a way that was quoted as a separate element of the contract, but I don't think it is uncommon for small businesses to ask for money for materials upfront so that they don't have to invest their own money. If that is correct that KR is actually the supplier of the materials – and not the company which sold them to him – then it seems to me that you would be entitled to any receipts. Receipts would be his business – and the VAT would be his business – not yours. Maybe you can point to some specific evidence that shows that there was always the intention that you would be the direct purchaser of the equipment and you would then supply to KR who was merely an installer. I think I'm assisted in this view not only by the fact that there doesn't seem to any evidence what you say, but also I think it would be most unusual in this industry to have the customer supply complicated technical non-consumer equipment to an installer simply to fit into place. This will be particularly so where it is the installer who has specified what material needs to be used. I'm troubled also by the fact that this was apparently a cash transaction. From the evidence that you have supplied, it is yourself who asked for the job to be done "cash" and it seems to me that there is a clear intention here that if you don't ask for any receipts for any of the work, then it can be done off the books giving a price advantage to you and also an additional benefit to the installer. You need to be aware that if this goes to court, this will come out and neither of you seem to realise that the courts will take an extremely dim view of an arrangement which appears to be an agreement to evade the Revenue. I also see in the exchange of correspondence between you that even before the work started, KR seems to have given you notice that if there was bad weather, that he wouldn't be able to work. In other words this is not a situation where he told you after having stopped working that it was as a result of wet weather – although I have to say that as this is an outdoor job, I don't think anybody would think it would be unreasonable for someone not want to work in the rain. These are some of the early impressions that I have. Maybe you would like to comment briefly please
  13. Excellent. The tracking information will be very useful. I have amended the proposed letter above in red. I don't think there's anything you can do now except to send it – but also send a copy of the letter to your finance company and also write a separate letter to your finance company saying that you are attempting to redeem the finance agreement but the dealer who is holding money is at the moment refusing to pay over to the finance company. Also, for the moment I suggest that you keep on paying the finance company their instalments. If you simply stop the instalments now then you will have an additional problem on your hands from the finance company and I think that things are sufficiently complicated for the moment. We can revise that opinion later on. If you end up overpaying the finance company then we will decide who to recover the money from – other the finance company or from the dealer police the problem will be very much smaller than £9500. Please let us know if you are going to go ahead
  14. Let us know if you're prepared to send the above letter and if it is correct and if you want to make any amendments. I think it sums up the entire situation and I think you need to move very quickly. On the basis of what you have told us, your chances of success are better than 95%. Of course if the dealer has some evidence that you deceived them, that might change the picture a little. If you do send the above letter then please understand that it's not a bluff. You must go ahead with your threat on day 15 and of course we will help you.
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