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    • Calm Down please.... there is only one way to deal with this and that is - PROPERLY. Being surrounded by 'lawyers' who deal with 'disputes', just like going to the likes of CAB, in this instance has, most probably, to date,  sadly not helping you here. Such people always project an Aura of confidence, when the truth is they don't actually have the vast successful experience of the members here in dealing with the likes BMW. there are over 350 threads here . as far i gather this is the situation, In April, a car was purchased by your son from BMW. Finance taken out to purchase it has since been paid in full, as well as full payment for an annual Insurance policy. within 6 weeks, it was discovered and confirmed in writing, via a report from a local garage, that the car indeed had numerous performance modifications undertaken. Namely being remapped and with modifications to the exhaust system. having contacted his ins co, they require a further £5k to uprate his policy, without it renders the existing insurance policy invalid, thus the car is not being driven.  again within this 6 weeks, you wrote to BMW rejecting the car (we need to see this letter please. scan it up to PDF, please read our UPLOAD guide). at first BMW were onboard, even sending their own inspector, confirming the mods etc. but in the last 9 days since said inspection, comms have now gone dead. .................. you have 2 options - 1 - allow BMW to sort the car FOC and without hassle to him, but probably within their own snails pace timeframe. 2- EVENTUALLY bring legal action - this would most probably be under contract law, not a claim under the consumer rights act . (as financially you would lose out big time) to do 2. which is not easy and rather complex to calculate the financial sum involved...... we need all the info @BankFodder has requested. of many, but one good reason for this is say for this new mot, show the old one was suspect, good bargaining chip against 2500mls usage deductions... your call but you need to do this properly or not at all...............    
    • Hi, I've been reading through many of the stories in the sub-forum and I understand the process to be to send a Letter of Claim to the EVRi - in the post and to their customer support email and to sign up for MCOL.  I have looked at the various Letters of Claim and the MCOL claim forms - particulars of claim and I have gone through all of the screens on MCOL website to put in the final details so it is ready to go after the 14 days from when I send the Letter of Claim (of course assuming that EVRi dismisses my Letter of Claim to pay me in full!).  I also see the advise is to decline any mediation particularly because I have specified the parcel contents and value to EVRi when shipping it. I have put both the Letter of Claim and the forms from the MCOL particulars of claim into a single PDF for review.  The stories in the sub-forum often indicate people shipping with EVRi but some purchase through or have involved such companies as Parcel2Go and so I wasn't sure about the statement I made in the Letter of Claim if it was totally accurate to say "I am applying my third party rights under the Contracts (Rights of Third Parties) Act 1999"? I just wanted to confirm the correct wording.  In my case the parcel shipment was paid for on the EVRi website and sent at the Tesco EVRi Parcelshop.  On the MCOL claim form I have referenced Section 57 of the Consumer Rights Act 2015 in response to EVRi customer service hiding behind their lack of ability to insure delivery of laptops and their bogus non-compensated and prohibited items as a means to avoid any responsibility for them losing such items. Thank you for taking a look to see if there are any inaccuracies or amendments to the Letter of Claim - when it is looking good I will send via email and post it to EVRi.  Having drafted the particulars of the claim on MCOL, I shall be ready to submit the claim on the MCOL site when the 14 day period has elapsed and proceed from there.   Thanks for everyone's help! Letter of claim and MCOL Particulars of Claim.pdf
    • Wow quite surprised by your response in all honesty as I can’t see where you have requested details of the car. The car is insured and that was budgeted for and paid in full, the increase of £5k is because of the modifications, which no we didn’t budget for as we didn’t plan to buy a modified car, so no that doesn’t form any part of wanting to return the car, perhaps you don’t understand the impact modifications have on insurance premiums? Thanks for your help so far but feel going the legal route probably suits us better.
    • new thread created for the court claims. please complete this twice and i'll make another thread from the 2nd PDL Claimform we need to keep them sep.  
    • Most banks do not have any customer service staff available to support those opening a new current or savings account, according to research for Investec Bank.View the full article
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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Section 75 proving breach or misrepresentation


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Hello,

 

I recently purchased a gas boiler that was brand new but old stock and heavily discounted from 7k - 1.5k

 

On the face of it a great deal complete with warranty from a quality manufacturer,

on offer from a supplier I use at least once a year, this time for my personal property.

 

In a nutshell the boiler arrived minus gas shut off valve, minus controller, connection pipes and manuals, guarantees etc.

The boiler was being installed and was required urgently due to a new arrival,

this was made clear at the time of purchase and that time was of the essence..

 

It took numerous emails and calls and texts to get in dribs and drabs all the various components to enable the installation to be completed,

 

This was a 300kg boiler (domestic complete with cylinder in a single package -in case you're wondering).

 

Due to the missing parts the boiler took some time to install which increased costs

not to mention the inconvenience of all the chasing of the parts

and being without hot water and heating etc for the new arrival meant staying elsewhere.

 

I claimed for costs from the supplier/manufacturer (two different entities)

 

The manufacturer finally offered without prejudice another unit

but to remove the first one and then to have to dispose of it

and then install the second unit would have just increased costs further

so this was rejected (what am I going to do with 2 boilers 300kg each 2m tall 70cm square?.

 

My claim for costs is far less than the cost of the purchase about half.

 

A claim has been made against the CC under sec75 for the cost of the boiler and costs,

however they are stating that they are reliant on goodwill of the 3rd parties bank

and the retailer to respond as they need me to provide proof of breach of contract

or misrepresentation but have temporarily refunded the 1.5k only and wont entertain the consequential loss.

 

They go on to say they are totally reliant on the goodwill because the goods are in my possession

and there is no documentary evidence to prove the goods are faulty, therefore they can't guarantee the outcome.

 

The unit was supplied faulty by virtue the parts required for it to operate were missing surely it was faulty,

the correspondence covers this from both sides my raising the complaint and their accepting that parts were missing..

 

It seems clear to me there was a breach,

the goods were not as described ie a new complete boiler,

they were missing various components critical to the installation

and commissioning of the appliance, without them the boiler could not be fully installed or operated.

 

This is clear and accepted by the 3rd parties, that the missing parts and delays were unacceptable and the goods were not as described.

 

The CC has had copies of TCs and all email correspondence

some 30 pages of documents were sent and yet the CC is finding it difficult to establish documentary evidence of a breach has taken place.

 

The boiler is currently installed 6 weeks after its arrival

yet it is still missing the original manuals and warranty documents..

what are my options?

 

I am aware that deductions can be made for any use of the appliance subsequently..

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seems a fair offer if they have refunded the your original 1.5K!

 

They have only temporarily refunded the 1.5k subject to the goodwill of the suppliers bank approving. They should be refunding this under sec75 on the basis the product was in breach, not in feigning goodwill on the part of the suppliers bank who has not made such an offer, nor was one expected.

 

The question was what further proof does the CC require to show breach of contract? The item was not of merchantable quality or fit for purpose therefore under the sales and goods act as amended that is breach in itself. But the CC is implying that the goods have to be "faulty" to be in breach, in my opinion missing a controller and gas valve along with many other items the unit was faulty by virtue it was incomplete and couldn't be installed let alone be operated.

 

The initial good deal was not sold on the basis it was missing parts and therefore some how reduced, it was a new unit complete at a reduced price, which is not what I received.

 

I am not simply trying to get it for nothing. I want to recover the costs incurred in sorting this out, the extra costs involved in the numerous attempts at installing it, and the knock on effects that had to the build costs around the installation.

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Have you actually issued a court claim?

No I didn't issue a court claim I simply went down the route of a sec 75 claim against the credit card as jointly liable with the supplier, I felt this would be a simpler and faster solution to achieve recompense for the costs incurred.

Small claims court is an option but having purchased via a CC I believe the sec 75 route is more straightforward than the small claims court avenue.

 

What aspect have I failed to demonstrate a breach of contract by the supplier that the CC can fell justified not to uphold a breach of contract and rely upon the good will of the suppliers bank agreeing to refund the money to the CC, rather than stating to the suppliers bank that a breach of 75 has occurred and they are reclaiming the monies?

 

the CC said:

.. After reviewing the documentation provided, I appreciate the nature of your problem and empathise with your situation.

 

May I advise, in order to make a valid claim against CC, under sectio 75 of the Consumer Credit Act 1974, it would be necessary for you to prove a breach of contract or misrepresentation by the supplier, in a debtor-creditor-supplier agreement. For our purposes we need you to provide us with documentary evidence as proof that such a breach of contract or misrepresentation occurred.

 

We have made written representations on your behalf to the merchant's processing bank, in an attempt to bring this matter to a satisfactory conclusion. However, we are totally reliant on the goodwill of this retailer to respond because goods are in your possession and also there is no documentary evidence to prove that they are faulty. Therefore, we would not be able to establish a breach of contract or misrepresentation against the merchant, and it is with regret I inform that we are unable to guarantee the outcome.

I would like to inform you that CC do not deal with consequential loss.

 

If we do not receive any response from the retailer or their comments differ from your own, we are not in a position to arbitrate in such disputes.

 

In the meantime we have temporarily credited your account with £1.5k. Should our representations prove unsuccessful, we reserve the right to recharge this amount at a future date.

..."

 

I sent all the email correspondence but some of the correspondence took place by SMS also, as well as verbally. However from the correspondence the merchant accepted parts were missing that the manufacturer had sent components and not a complete package, that it had taken over a month to send the missing parts and still haven't sent all the original documentation for the appliance. There is a written without prejudice offer from the manufacturer not the supplier and acceptance of the issue 35 days after the order was originally received.

 

As I have previously stated the goods were not fit for purpose as originally sent they were incomplete and without documentation / instructions,Under the Sale of Goods Act 1979, all products must be ‘fit for purpose’, be of satisfactory quality and fit its description. This means that products must fulfil the purpose the customer has been led to expect and the reasons that led them to buy it, they weren't why isn't the CC acting on this?

The Manufacturer promised to send the missing parts by the weekend on that basis and as time was pressing for the reasons previously stated the installation was started. Thereafter the wrong parts were sent and still no documentation, without documentation it was difficult to establish which parts were missing over a month later with numerous promises and denials in between the parts were finally all sent to enable completion of the installation. Once started it we were committed to the installation as the part of the room was constructed around this unit which is very large and very heavy it is not an easy thing to remove and replace and certainly not without cost.

Six weeks without hot water with a new born child they couldn't stay in the property and had to stay elsewhere. I claimed a small portion for distress though I am not strictly entitled to such the claim I made was for costs in dealing with the issue and with failed attempts to install the appliance.

 

The only information I can find on defective product is the guide to consumer protection act 1987 for product liability"

  1. A defective product is defined as one where the safety of the product
    is not such as persons generally are entitled to expect. This definition provides an objective test of defectiveness and refers neither to the particular injured person nor to the particular producer. A product will not be considered defective solely because it is of poor quality. A product will not be considered defective simply because a safer version is subsequently put on the market.

 

 

 

 

Without a gas isolation valve the appliance is unsafe for connection to the gas supply and therefore defective. With out the control panel the appliance is defective.

 

With regards to proving a fault SOGA states

Proving a problem

Included in the law is a section on burden of proof. This outlines whether you are entitled to ask a customer to prove that an item was faulty when they bought it from you.

 

The details of the law are explained opposite. If you are considering asking a customer to prove that an item was faulty when they bought it from you, it is important to consider what proof an impartial person in a court might feel was required. For example, someone in a court might accept that a simple customer statement saying that their item did not work correctly would be sufficient proof.

Equally the goods were accepted on the basis the correct parts would be issued, this then dragged on and on and it became unreasonable and more costly to replace the goods and un-install and reinstall a replacement appliance. Further the manufacturer did not want the original appliance which left me with a cost to dispose of this appliance.

 

SOGA again:

Faulty goods that have been accepted

If the item does not conform to contract (is faulty ) for any of the reasons outlined and the customer has accepted the goods, the law says the customer is entitled to claim a repair or replacement of the goods in the first instance.

 

If either a repair or replacement is not possible, or the cost is greater than the value of the item ( disproportionately costly ), or the customer claims either option is taking an unreasonable amount of time or is causing unreasonable inconvenience, the customer is then entitled to

 

  • keep the goods and claim a price reduction from the retailer to compensate them for the fault in the goods - this would be the difference between the value of the product in perfect condition and the value of the product in the faulty condition, or
  • return the goods and rescind the contract . This would mean that the customer returns the goods and you provide a partial refund, calculated to reflect the benefit the customer has received from the product.

Where a customer is entitled to repair or replacement because they have accepted the goods, they can claim price reduction or partial refund if the repair or replacement is

 

  • taking an unreasonable time, or
  • causing an unreasonable inconvenience, or

Given the above, what grounds do the CC have to not be upholding my claim? Edited by juliusceasor
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Thanks.

 

The CC seems to be saying that you have not provided any proof of your claim. What proof have you provided?

 

I sent what they asked for a copy of the correspondence between myself and the supplier and manufacturer and the suppliers T&C's (why they couldn't download them themselves is beyond me).

 

The supplier acknowledges parts are missing following my email to them 28/8/13 and correspondence shows them requesting the matter be resolved by the manufacturer and a querying if this had been done 6/9/13. It then shows from the tech side of the manufacturer a possible reason 16/9/13 why these parts were missing, further correspondence around the 27/9/13 chasing parts.

 

As per the SOGA website I think this is ample proof of a fault and I refer again to

If you are considering asking a customer to prove that an item was faulty when they bought it from you, it is important to consider what proof an impartial person in a court might feel was required. For example, someone in a court might accept that a simple customer statement saying that their item did not work correctly would be sufficient proof.

 

I think what is required is a strongly worded letter to the CC pointing out the relevant points of consumer law that are valid, because in my view they are not applying consumer law correctly, but that's my biased opinion naturally, which is why I am asking on here for opinion on this. I do feel pursuing the CC is the most productive faster route, thought that doesn't preclude the small claims court route or FOS either.

Edited by juliusceasor
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Section 75 is not a separate route to small claims court. The point of section 75 is that it makes the CC company equally liable with the seller for the purposes of court proceedings. What you are really asking the CC company to do is to pay on a legal claim you have against them without the need for you to bring court proceedings. If you needed to enforce section 75 you would do it through a court claim with the seller and the CC company as joint defendants (or through the FOS).

 

The CC company's response is technically correct. In order to claim against the CC you would first need to demonstrate that you have a legal claim against the manufacturer. In this case the claim would be for breach of contract. If you haven't done so already I think you need to explain to the CC company exactly why the supplier is in breach of contract for failing to provide the parts, and also why the lack of parts means the boiler is unusuable.

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Section 75 is not a separate route to small claims court. The point of section 75 is that it makes the CC company equally liable with the seller for the purposes of court proceedings. What you are really asking the CC company to do is to pay on a legal claim you have against them without the need for you to bring court proceedings. If you needed to enforce section 75 you would do it through a court claim with the seller and the CC company as joint defendants (or through the FOS).[/Quote] Yes I understand that, the Supplier wasn't offering anything only the manufacturer had, and only after 5 weeks of not having a operable boiler. The offer of a replacement boiler would incur additional cost and expense in removing the original unit and then reinstalling the new unit and as I have mentioned removal is no easy task the unit is 300kg the cost of this and the costs incurred due to the missing parts, would still be a cost to myself.

 

The CC company's response is technically correct..If you haven't done so already I think you need to explain to the CC company exactly why the supplier is in breach of contract for failing to provide the parts, and also why the lack of parts means the boiler is unusuable.

 

I set this out in my original letter to them the boiler was unusable until a month after it was received when the final missing parts arrived.

 

What I am trying to recover are my costs due to the delays caused tot he installation. Because the supplier /manufacture hasn't entertained them then I felt it right to claim under section 75. I am perfectly willing to claim the cost of the boiler back deduct my costs and forward the remaining money to the supplier.

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Was it not your choice to await the missing parts and therefore the delays?

You could of just rejected it when you realised there were parts missing and then they would have been responsible for collection.

I had a choice of no heat and hot water with a baby imminently arriving and the promise that the missing parts would be sent immediately, plus the installation was already scheduled, building work was tied up around the installation starting.

Therefore it was accepted the parts would be sent and the install could continue when they arrived, it was not expected to take 5 weeks of further aggravation, delays and communication to enable the installation to be completed.

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Personally I am behind you on this. If the boiler supplied does not actually work due to missing parts, then surely that is a breach of contract and I would think that foreseeable consequential losses should be recoverable (subject to what is stated about consequential loss in the T&Cs). Although the bank seem to be saying you have not convinced them there was a breach of contract at all without getting into the consequential loss point.

 

If you don't get any joy with the bank then FOS or small claims court it would have to be to get anywhere with this.

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That's the risk you take!

With the offer of a refund I don't think you will get anywhere with the consequential knock on affects.

good luck anyway.

 

Thank you.

 

I think you have missed that the offer was only made after 5 weeks, and the cost of implementing the offer was greater than the benefit, infact there was/ is no benefit as nothing can achieved by the replacement except additional cost as I have explained.

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Personally I am behind you on this. If the boiler supplied does not actually work due to missing parts, then surely that is a breach of contract and I would think that foreseeable consequential losses should be recoverable (subject to what is stated about consequential loss in the T&Cs).

Thank you, that was my thought.

Although the bank seem to be saying you have not convinced them there was a breach of contract at all without getting into the consequential loss point.
Indeed and I think that is not uncommon with the banks not taking due care and consideration, it is simpler to pass the buck either to the ombudsman or hope the client accepts what they say.

 

I will draft another letter to set out what and why I think the breaches have occurred and wait for their response. Although I find it odd that rather than waiting to discuss their opinion with myself /request further evidence they at the same time of notifying me, go to the merchants bank seeking goodwill ..

 

Thank you all for the input.

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