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They are probably also liable under an obscure contract law principle known as the parol evidence rule, which prevents a party to a contract from adding or varying the agreement, once it has been signed
As I understand it this is an American law/rule - could you expand on what you know please? Thanks :rolleyes:

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Dear Spiceskull,

 

I'm not familiar with contract law in the US but the parol evidence rule is part of English law. Essentially, it prevents a party to a contract varying a particular term to their advantage, for example. Also a term cannot be added/excluded after the contract has been concluded. So as Maca highlighted their claim of "no win no fee" should be exactly that. They cannot subsequently claim, after the contract has been concluded that they are entitled to take their fee, when they have not done their job properly. It contravenes the rule and they would also be liable for misrepresentation. Not to mention it is clearly a breach of contract in the sense that they offered to provide a service and failed to do so.

 

I hope this clarifies what I said in my previous post.

 

Kind regards,

 

Sam.:)

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Dear Spiceskull,

 

I'm not familiar with contract law in the US but the parol evidence rule is part of English law. Essentially, it prevents a party to a contract varying a particular term to their advantage, for example. Also a term cannot be added/excluded after the contract has been concluded. So as Maca highlighted their claim of "no win no fee" should be exactly that. They cannot subsequently claim, after the contract has been concluded that they are entitled to take their fee, when they have not done their job properly. It contravenes the rule and they would also be liable for misrepresentation. Not to mention it is clearly a breach of contract in the sense that they offered to provide a service and failed to do so.

 

I hope this clarifies what I said in my previous post.

 

Kind regards,

 

Sam.:)

Thanks for that - I now need to go and read up on it some more. Can you point me in the direction of any relevant case law regarding this - my bank keeps referring to my 'original' contract, and subsequent amendments, so I want to see if there is any mileage in this as a counter-argument.

 

Much appreciated. :cool:

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Dear Spiceskull,

 

If you let me know what the particular problem is you are having, I might be able to suggest other areas of contract law/legislation they are contravening, which may be of greater relevance. Personally I am inclined towards UCTA 1977 and the Regulations 1999 to seek redress. As I said before the P.E.R. is obscure, but I have included some cases that are interesting.

 

Parol evidence cases

 

Jacobs v Batavia &General Plantations Trust Ltd(1924)

Allen v Pink(1838)

Gillespie Bros &Co v Cheney,Eggar & Co(1896)

Hutton v Warren(1836)

 

Regards,

 

Sam.:)

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Hi Sam,

 

Thanks for those. They are obscure, no exaggeration there...I will have a look through them and look at the context PER is used in.

 

Once again, thanks loads. ;)

Alecto, Magaera et Tisiphone: Nemesis on Earth is come.

 

All advice and opinions given by Spiceskull are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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I've decided to go ahead and will be filing my moneyclaim next Wednesday after the 14days notice is up.

 

My hubby thinks I am mad and that I'm throwing good money after bad, as he says they have won me compensation. I'm sure this is what brunel's defence will be.

 

What should I state in the moneyclaim particulars, that I am claiming money paid in protest over threat of additional charges being added or should I include the breach of contract and misrepresentation.

 

Thanks

 

Maca

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I understand where I am going with breach of contract and misrepresentaion, but just want to check how I claim the unfair contract terms act 1977, is it in relation to the whole contract or do I refer to individual terms?

 

So could I claim that the following terms are unfair:-

7.3When an offer for compensation is obtained from the third party on behalf of the client which in the opinion of the company is fair and reasonable one and that offer is rejected by the client then the company reserves the right to charge a fee not exceeding the amount of the service charge which would have been payable in the event that the client accepted the offer in line with the company’s advice.

 

9.2The liability of the company to the client in contract, tort (including negligence for breach of statutory duty) or otherwise howsoever under or in connection with the contract shall be limited:

 

 

9.2.2For any consequential loss or damage suffered by the client under or in connection with the contract occasioned by any act or omission on the part of the company, whether directly or indirectly, is hereby excluded to the fullest extent permitted by law.

 

The contract contains all the terms which the company and the client have agreed in relation to its subject matter and supersedes all previous oral or written communications between the company and the client and the company does not authorise the giving of representations on its behalf by any person unless confirmed in writing and signed by the director of the company.

 

The last one must be a case of misrepresentation as well as the no win no fee statement will surely be an "implied term" of the contract.

 

Could I cite the following as reasons under the unfair terms act

 

Binding you to the contract when the company / business is at fault.

And being unreasonable on the grounds that that they did not provide an adequate service to me.

Thanks again

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RESULT!!!!! Rec'd letter today by recorded delivery with full refund + court costs, saying that they didn't have the time or inclination to defend this in court.

 

Thanks to everyone for your help and support.

 

1 down 2 to go.

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Hi Maca,:)

 

Well, what a great result, you must be thrilled! It just shows that armed with some legal knowledge, and the willingness to pursue a case, to court if necessary, you can get what is rightfully yours! You put the work in, weren't discouraged and its paid off!

 

Your problem involved some quite complex areas of contract law and they obviously caved in at the thought of having to defend themselves on the areas of law we discussed. I loved their retort, they haven't got the time or inclination, blah, blah, blah.....!:D

 

So I guess drinks are on you then....?;-)

 

Well done!

Sam.:)

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Cheers Sam, I don't think I could have done it without your advice, would definately have bottled it at the last min.

 

But yes, I've been doing cartwheels round the house all day, makes me all the more set for the next challenge.

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these companies use the same letter template you can get on the fsa.gov.uk websites. write yourself, do not get them involved when you can achieve the same thing for nil cost. also some companies will not deal with these ambulance chasers.

Halifax WON X 2, Northern Rock WON, Capital One WON, Marbles WON, HSBC WON

On the 25th october I will be filing a claim for £175.00 Citicards. Just watch it!

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Dear TBeckett,

 

I am not sure if I have read your message correctly, it is a little ambiguous. However, if I have misunderstood the point you are trying to make, please accept my apologies in advance.

 

I have been helping Maca with difficulties she has been experiencing with an Endowment company. The problem was complex and involved various areas of contract law, way beyond the scope of a form that might be downloaded from the FSA. Purely out of a desire to assist with this matter I gave my time and help freely. I sincerely hope the ambulance chasing comment is not being directed at me. Without knowing the details about conversations that have taken place between myself and Maca, you cannot speculate. That said, I can confirm and I am sure Maca will verify this also in due course; the only costs Maca has incurred in resolving this situation is the cost of her stationary.

 

Regards,

Sam.:)

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TBeckett - Yes, although I appear jubilent, I haven't actually won a penny all I have done is recieved what I was forced to pay them back. It wasn't even worth requesting the 8% interest as this only amounted to about 60p.

 

I suppose it was the principle of the matter that made me pursue it and although I knew I was right if it hadn't of been for this site then I definately wouldn't have come out with the result that I did.

 

Sam has been of the upmost help advising me on specialist areas of the law and I certainly couldn't have done it without him, as there were many moments when I wondered if I should continue or just give up but the more knowledge I gained from Sam the more confident I became in fighting for my rights.

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Before you all go off getting insulted about TBeckett's comments, I read them as saying do not use a missold endowment recovery company as all they are doing is charging to send a stock FSA letter. To be honest I'm struggling to see how you guys could possibly read it as being directed at you!!

Lloyds TSB, Total Charges £900, Claim Filed for £1379 - Settled

 

Sainsbury's Bank Credit Card, Total Charges £90 - Settled.

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Interesting thread!! Congrats on getting your money back.

 

I have to agree with StudentInDebt that TBeckett was commenting on the endowment recovery companies being ambulance chasers.

 

No one would call your motives into question Sam you were a star!!

 

 

cheers

 

woolfie

Advice & opinions given by Woolfie are my own, and are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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  • 12 years later...

This topic was closed on 03/07/19.

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