Help with Money claim .com defence

[DonkeyB]

Great stuff Rhodium and VJ - Bingo!

 

Trading Standards, here we come!

 

It will be interesting to see if the claimant is as good as some DCAs in making up documents after the event - that's even if he understands what a CPR request is...

[vjohn82]

I've roughshod this defence... probably needs a little work but it is a full defence under the Regulations as stated...

 

No need to go into anything else which might complicate matters... no cancellation rights were explained or offered in the prescribed form by the trader and therefore they have committed an offence. This is enough to completely defend this case BUT also go to Trading Standards with.

 

Except where mentioned or admitted all allegations as stated by the Claimant in these proceedings are denied inter alia;

 

It is admitted that the Defendant received a quote by the Claimant for works to be carried out on the Defendant’s property.

 

It is not admitted that the Claimant entered into a enforceable binding agreement with the Claimant to carry out works quoted.

 

The document supplied by the Claimant purports to be a contractual agreement to carry out works on the Defendant’s property.

 

The contract however is not enforceable in court under section 7 of the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008 which came into force on the 1st October 2008.

 

Section 7 of the Regulations states that a consumer has the right to cancel and section 7 (2) states the trader, in this case the Claimant, must give the consumer written notice of the right to cancel a contract.

 

The cancellation notice must meet the provisions of Part 1 schedule 4 of the Regulations.

 

Under section 17 (1) of the Regulations a trader who enters into a contract and fails to give the consumer a notice of cancellation commits an offence and is liable, upon summary conviction, of a fine under section 17 (2).

 

It is denied that the Defendant is indebted to the Claimant for the sum claimed in these proceedings.

[mrmxg05]

Well this is brilliant.........thanks to everyone, especially Vjohn82 and DonkeyB....the CPR is been sent via registered post today.

[vjohn82]

Good... wait until you receive a response to the CPR. Keep us updated.

 

If you receive a response we will deal with it... if you don't then there is a way to deal with that too.

 

Don't worry, you're in good hands

[rhodium78]

Now that you have got your CPR out of the way and you know you have a valid defence (caveat: do not know your exact circumstances), IMO, I think sending the "trader" a registered letter advising the following is a good idea and part of the CPR:

 

1.) That this is a letter of complaint.

2.) That you are speaking on behalf of your mother and there is a valid letter of authority giving you the right to do so or you are her guardian.

3.) List your complaints with relevant statutes at the end. Hence no cancellation clause, mis-representatation, unfair consumer trading, Companies Act, etc. Ensure that you have your complaint statement first and then advising that you believe it is in breach of bla bla regulation.

4.) Advise what they can do to resolve the complaint (retract court proceedings) and pay back any deposit taken (if paid to them).

5.) Advise time frame for them to give you their answer.

6.) Advise them that no response would entail advising the court the above and also lodging a complaint with Trading Standards including a copy of this letter.

7.) State that you would like to settle this amicably without going through the court system but that you are prepared to defend your case in court.

 

Why I hear you ask?

 

Well IMO, it is a guideline of the CPR to try and "negotiate" or settle out of court, in addition, this letter would be a good piece of evidence to give to court as evidence where you have succintly stated your complaint, with the relevant regs applied so its win-win. In addition, it doesn't look like you are throwing a whole law book at them as it doesn't serve any purpose for someone who doesn't care or is not aware of the regs. The main thing is to look approachable whilst sharpening your daggers in the background in case you need it.

Edited March 23, 2010 by rhodium78

[vjohn82]

Good points there... and an essential part of the CPR if you are a LIP. The Claimant, if they are a business, can sometimes get away with it.

 

If you need help drafting the letter, give us a shout.

[DonkeyB]

Moreover... if your mum did pay a deposit, she now has a valid counterclaim.

[mrmxg05]

Thanks rhodium78

 

VJ can you give me help with this second letter, sounds a very good idea.

 

Just brilliant the help I am getting here

[vjohn82]

I advise waiting until the company has responded to the CPR disclosure request so that any "complaints" can be addressed with the factual evidence they intend to rely upon.

 

The letter would then have more impact once we know what case they are going to be bringing.

[rhodium78]

In my opinion, I wouldn't necessarily wait. I would send this letter before they even disclosed anything via the CPR, etc.

 

If you believe you have a valid case with the list of complaints mentioned above, then your disclosure request is only a means to the end and that is for a court case. It is not the means to resolve a complaint and should not be used as a means to resolve a complaint or strengthen your complaint.

 

In addition, your complaint will either get answered in full, partial or not at all. If partial or not at all, they will most probably give you a reason why they don't think you are entitled to x,y,z hence more ammunition under your belt.

 

If they ignore your complaint totally, then at least you know how they will act during the court case and are prepared for it.

 

Some people prefer to play their cards close to their chest not mentioning any statutes or regs that their adversary may be in breach of but mutual disclosure is required from both parties so everyone knows why they are going to court. I think when "engaging" a small tradesman, it is better to try and nip it in the bud as they won't have the resources like a big bank to plough into this.

 

Just my 2 cents and is what I would personally do.

[vjohn82]

The problem rhodium78 is that if we highlight the issue of the cancellation not being in the prescribed form it would be very easy for this individual trader to make one up that is compliant. Where would this leave the issue?

 

There is no rush with these things... the defence has not even been filed yet. No AQ's, no directions etc.

 

The right thing to do is find out what the claimant is claiming for, what paperwork they are going to use to prove it and then attack the evidence that way.

[rhodium78]

You bring up a valid point vjohn82 and that is a risk that is taken everyday whenever two parties go to court. Forged documents, last minute disclosures, etc.

 

Ultimately, if that is the case, the issue will go to court... the onus is on the claimant to prove that he complied. The documentation which the wronged party has shows that they haven't and if there is any doubt as to the veracity of the paper work, experts can be called which will lead the claimant down a slippery road which will land them in trouble if they do state that.

 

IMO, the chance to attack the evidence is in court, not in the complaints process. Also, what is not stopping the claimant to amend their claim once they receive the complaint letter or at any stage in the court process once they have "wised up". None in my opinion hence if the claimant is of that mind set, it is only a matter of time for them to forge the document, whether that is now or later on.

 

Just another view point to consider.

[vjohn82]

I think the point I am trying to make is that we want the Claimant to produce ALL documentation they intend to rely upon.

 

If they then disclose information after the fact it looks pretty obvious what they done. The Judge will be wise to that fact too I imagine.

 

The actual complaint that the OP has with the company is nothing to do with the cancellation terms. That is a technicality of the law which prevents the enforcement of the contract.

 

Therefore it would make absolute sense to make the Claimant aware of a complaint regarding the OP's Mother's illness and everything else surrounding the methods of sale.

 

I think a complaint on that basis (and ignoring the current cancellation issue until they produce the paperwork under the CPR request) would be appropriate. Would you agree with that rhodium78?

[rhodium78]

We are trying to avoid to go to court or I think we are. If we do go to court, then obviously a request to provide all relevant documentation is a given.

 

It may look obvious to the judge but he would most of the time accept it with a caveat or two and an adjournment to allow the defence time to look at this new evidence.

 

Cancellation notice may be seen as a technicality but I see it as the crucial cog which drives other cogs in this defence.

 

Without this cancellation notice, what can the OP use as a defence... misrepresentation that they are a sole trader instead of Ltd company? Duress? Illegality of the contract and capacity to contract?

 

These are all big points in contract law and harder to explain in a complaint letter because if I was the claimant, I would be thinking, I would like to see you in court to try and prove all that and make it relevant to why you don't owe me money.

 

I don't necessarily agree with sending a complaint letter without mentioning the cancellation notice but to err on the side of caution, you can skip it.

 

I personally would mention it as the only way to settle it is to show the other party that you have a stronger hand and they would be silly to try and pursue this in court. If they want to continue and in the process forge documentation, then at their own risk and I am sure if that was to happen to you or I, we would not let the matter lie.

[vjohn82]

I can see where you are coming from... it's one of those cases where there is no right or wrong way to do this because no defence has been submitted yet.

 

But obviously the point is trying to get the Claimant to abandon their claim too. I suppose my stance is looking to get the Claimant into court to show him up.

 

I can therefore see merit in the way you propose as we want to avoid court for this poor woman... I only hope Trading Standards will do something afterwards to bring him to account.

[mrmxg05]

Received a reply to the CPR today, a rambling letter stating he does not believe my mum has dementia and he gave 7 days notice in line with trading standards legislation, sent a copy of their terms and conditions.

 

Also sent me my mums cancellation letter dated 14 of October 2009, in which she does offer to pay him cancellation charges.

 

He has not sent me any details of materials he says he ordered and requested I disclose all documents that I intend to rely on.

Edited March 30, 2010 by mrmxg05
Spelling

[vjohn82]

This is news to me... what cancellation letter did she send???

[vjohn82]

Hi all,

 

Here is a letter I have knocked up... comments sought and welcomed

 

 

 

Dear Mr Higgs,

 

I have already informed you that my Mother is diagnosed with Dementia and that I will be conducting matters on her behalf. I have also informed you that we have acknowledged service of the Claim Form online and am in the process of preparing a defence (hence the CPR 31.6 letter previously sent to you).

 

However, as you may be aware, the Civil Procedure Rules state that it is in the interest of parties to settle matters out of court to save the court’s resources from being unnecessarily used. I will list the issues I have with your claim, list the relevant points of law which I will ask the Judge to consider and then propose an amicable settlement to these matters.

 

ISSUE 1

 

Your firm quoted my Mother for the replacement of the fascias on the outside of her property. She stated she desired UPVC fascias and your firm decided to quote on this basis. However, your surveyor would have noticed that there are UPVC fascias on the property and fit fairly recently. They should have had the professional capacity to note that the UPVC fascias were in no need of replacement. Instead your firm continued the process of quoting and convincing my Mother that she was in need of this work despite the facts to the contrary.

 

My Mother is a vulnerable person covered under the Mental Health Act 2007 and misleading prospective customers is in breach of the Consumer Protection From Unfair Trading Regulations 2008.

 

ISSUE 2

 

You state that you have prepared materials for the job in your Particulars of Claim. However, on the quote sheet you state that the job requires “APPROX. 27 METRES”. With all due respect if the job is approximated on what basis would you have prepared materials for the job? Surely accurate measurements are required?

 

ISSUE 3

 

Under paragraph 8 of your CONDITIONS OF CONTRACT AND GUARANTEE it states:

 

“Customers cancellation period is in line with Trading Standards guidelines”

and

 

“The Customer has no rights to cancel this Contract once agreed and signed”

 

The confusion these contradictory statements cause to a person of sane and rational mind is clear to see. Either a customer has the right to cancel or they do not?

 

Notwithstanding the above the issue of cancellation is a pertinent one and one where I believe your case has no merit for reasons I shall explain. Your firm has not provided a cancellation notice in the prescribed format for the customer in these circumstances via legislation which was enacted in October 2008.

 

Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008

 

Right to cancel a contract to which these Regulations apply

 

7.—(1) A consumer has the right to cancel a contract to which these Regulations apply within the cancellation period.

(2) The trader must give the consumer a written notice of his right to cancel the contract and such notice must be given at the time the contract is made except in the case of a contract to which regulation 5© applies in which case the notice must be given at the time the offer is made by the consumer.

(3) The notice must—

(a) be dated;

(b) indicate the right of the consumer to cancel the contract within the cancellation period;

© be easily legible;

(d) contain—

(i) the information set out in Part I of Schedule 4; and

(ii) a cancellation form in the form set out in Part II of that Schedule provided as a detachable slip and completed by or on behalf of the trader in accordance with the notes; and

(e) indicate if applicable—

(i) that the consumer may be required to pay for the goods or services supplied if the performance of the contract has begun with his written agreement before the end of the cancellation period;

(ii) that a related credit agreement will be automatically cancelled if the contract for goods or services is cancelled.

(4) Where the contract is wholly or partly in writing the notice must be incorporated in the same document.

(5) If incorporated in the contract or another document the notice of the right to cancel must—

(a) be set out in a separate box with the heading “Notice of the Right to Cancel”; and

(b) have as much prominence as any other information in the contract or document apart from the heading and the names of the parties to the contract and any information inserted in handwriting.

(6) A contract to which these Regulations apply shall not be enforceable against the consumer unless the trader has given the consumer a notice of the right to cancel and the information required in accordance with this regulation.

 

As you can see the document you have provided in support of your claim (the A6 Windows Order Form) is not compliant with the legislation I have quoted and therefore unenforceable. You might also be interested to learn that the non supply of the cancellation notice in accordance with the Regulations is liable for conviction under section 17.

 

Offence relating to the failure to give notice of the right to cancel

17.—(1) A trader is guilty of an offence if he enters into a contract to which these Regulations apply but fails to give the consumer a notice of the right to cancel in accordance with regulation 7.

(2) A person who is guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

 

Therefore I am giving you notice that I am informing Trading Standards today of your failure to adhere to the Regulations and they will take whatever enforcement action is necessary to ensure that your firm receives the appropriate fine for the level of the offence.

 

ISSUE 4

 

On the order form it states that you are a “Swish approved installer of UPVC products”. This would offer a certain guarantee for the consumer in making sure that they are dealing with a company who are regulated by the industry in which they supply services. On the Swish website they are keen to impress upon the public that all of their installers are regulated, meet the correct standards and meet the Swish Code of Practice.

 

I note that your firm do not meet a number of the requirements set out in the code of practice. I suspect the reason for this is that you are not on their Approve Installers register. This in itself is an offence under the Consumer Protection from Unfair Trading Regulations 2008 and specifically section 5 (4) i and j for misleading actions and under section 7 for aggressive commercial practices.

 

If you claim that you are registered, or that there is a mistake with the registration system which means your firm does not exist on their records, you will have to explain why you do not meet the Code of Practice laid down by Swish.

 

Again I will be alerting Trading Standards to this fact and I have the utmost faith that they investigate this thoroughly.

 

ISSUE 5

 

On your website you claim that you are A6 Windows Ltd despite not being registered with Companies House. The Companies Act 1985 and the updated legislation contained in both the Companies Act 1989 / 2006 stipulates that individuals may be prosecuted for not meeting certain requirements including registration with Companies House. If convicted, those responsible will have a criminal record and be liable for a fine of up to £5,000 for each offence. In some cases, they could also be disqualified from being a company director or taking part in the management of a company for up to five years.

 

Again I will be informing Trading Standards of this fact as it is an offence to pass your company off as a limited company when it is, in fact, not.

 

DISCLOSURE

 

You have asked that I comply with your request for disclosure by the 1st April 2010. I can confirm that I am awaiting a Doctor’s report for which I will be charged in order to prove my Mother’s illness. You have disputed the fact that she has been diagnosed with dementia in your letter to me and in the interests of ensuring her interests are protected I have no option but to request such a document for the purpose of these proceedings.

 

COSTS

 

Please note that due to your firm’s abject failures I shall be seeking all of my costs as a Litigant in Person for defending this claim. I shall also be seeking to recover disbursements for handling the claim and for providing documentation to prove my Mother’s illness due to you disputing it.

 

SETTLEMENT

 

You can settle this matter by discontinuing your claim whereby I will accept a “no costs order” to be made. You will also agree not to pursue my Mother at any point in the future and that any claims to this contract are ultimately rescinded.

 

I look forward to your response within 7 days. If you fail to provide a response or if you are unwilling to meet the terms I shall continue to defend this claim in the manner I have described above and seek all relevant costs. Your claim has no reasonable prospect of success and is therefore subject to a strike out as per CPR 3.4.

 

All relevant disclosures from hereon will be in line with the Civil Procedure Rules.

 

I look forward to your response in due course.

 

Yours sincerely,

[rhodium78]

Apologies for the delayed response... missed the thread due to the volume of threads in this forum.

 

I see that you are in good hands with vjohn82 but you need to clarify what cancellation letter did your mum send to them? It has a date of 14/10/09 but when was the agreement signed? What are these T&Cs he sent you? Are they the same as the ones you posted previously?

 

Just because your mum sent him a cancellation letter does not mean he is automatically off the hook for not having the prescribed terms in the contract and hence the contract is still null and void but we need to clarify these points further as he sent you some documentation which may need further scrutiny.

[vjohn82]

Rhodium...

 

It doesn't matter what she sent him... the contract is not enforceable against her as per 7 (b) of the 2008 Regulations and therefore he has no cause of action in this matter.

 

The Mother can send the cancellation fee if she wants to but she is under no obligation to do so. In light of the firm's conduct, I would be minded to keep my hands in my pocket.

[rhodium78]

vjohn82... seeing that it seemed you were not aware of the regs before my post in this thread, or that is the impression I am getting, I hope you don't mind if I again nudge you in the right direction as regards the regs and this situation... we don't unfortunately have the luxury of picking and choosing what information is valid and what isn't just based on the fact that we think we have an open and shut case.

 

Regardless of whether the letter of cancellation was sent, what is important is that he has one and also a copy of the T&Cs which might differ to the one the OP has. If it is and it has the prescribed terms and the date of the cancellation was not after the cooling off period, then the Claimant has a case. No one with the limited information presented to us can make an objective judgement based on just the scanned document and a couple of lines of regs.

 

Let's keep an open mind. It won't hurt us if we do and who knows, we might get some useful information or not as the case may be, the point is, we don't know until we have all facts and the defence is reliant on that.

[vjohn82]

With all due respect, the OP will testify that I have spent a long time conversing via private email and have possession of certain documents that I agreed not to post on the forum, hence the letter that I have created above.

 

The Order Form also states that they are a SWISH approved installer when they are not, the order form does not meet the strict guidelines they lay down on their website (monitored by FENSA) and the guy is passing off his sole trader operation as a Limited Company.

 

Trading Standards will have a field day with this firm.

[rhodium78]

It is admirable that you are undertaking this work for the OP and I am impressed by your altruistic attitude. I can only go by the posts above and hence if there is something missing in there as it’s gone via PM, then it is not unreasonable for someone to still ask for info as they are not aware of this private correspondence.

 

As mentioned by you, the points above are a matter for trading standards but they don't have that much power as regards money/refunds/exchanges as this is a matter for the civil courts. So whilst he is getting prosecuted by trading standards, his claim will still continue unabated through the judicial system.

 

The prosecution/warning/investigation by trading standards won't be in the Claimant's favour when presented in court but the judge has to go via the regs so all I am doing is asking for further information as regards the cancellation notice and the latest T&Cs but seeing that you are already deeply involved with the OP, I will leave you to it and wish the OP the best of luck in this endeavour and am sure it will be successful as you are very tenacious in your legal pursuits.

[vjohn82]

I understand the Judge has to consider certain points of law but this is also a small claim in the county court. Many Judges do not entirely consider the law/precedent when dealing with consumer credit act disputes because they have to look at the intentions of the parties involved.

 

The defendant in this case did not need the UPVC fascias because the ones already present were recently fit. She has dementia and she did send a letter of cancellation when she had realised what she had done.

 

Did the claimant owe a reasonable duty of care to the defendant? Did the claimant ensure that all of their processes were in place in order not to confuse etc?

 

I have noticed in the "contract" it states the customer has to cancel within 7 days in writing... it also says in the next sentence that the contract cannot be cancelled at all. What hope does anyone have with a document like that?

 

Has the claimant acted in a vexatious manner by claiming £2000+ etc.

 

In my personal opinion I think the claimant does even have a cat in hells chance of getting anywhere with this claim.

 

I appreciate all criticisms etc because it helps me learn as a person. Perhaps it is tiredness or simply being worn down by taking so many cases on that I feel a little ratty tonight but I don't mean to come across as difficult or rejecting your opinion outright.

 

Edited January 14, 2012 by MARTIN3030

[rhodium78]

No criticism intended... it was only intended to put another point of view across. It's good that people question everything, all I ask for is an open mind to hear the answers. A forum is a great leveller.