Everlasting Boilers Claimform - ***Claim Struck Out ***Now a 3rd and 4th Claim

[BazzaS 3,358]

OP still hasn’t said what their desired outcome is ....

In terms of keeping boiler / how much they expect to pay, or having the boiler removed.

[leerob695 1]

I'd be happy to have the boiler removed if need be

The boiler hasn't been serviced since day one and I'm.unsure as to if any damage will of been caused by this

Also the fact that it's not fitted to standard gas safe or building regulations which will also cost me if the boiler stays

I only entered Into the agreement because I was promised a hassle free boiler for monthly payments

If the boiler was to stay surley this would need sorting

But then is the fact I would be dealing with this company still after the way I have been treated since fitting

I just want an end to this because it is making me feel ill

[BazzaS 3,358]

Would you let the original company remove the boiler, or get another company to do it?.

 

If another company, get them to quote you for removing the boiler as a separate quote to them putting a new one in. Bear in mind you’ll need to make the old boiler available to the original company.

You can countersue for the cost of the removal, to put you back in the position you would have been (but if you do so: the original company can charge you for the removal of the initial boiler!).

[leerob695 1]

I'd prefer another company to remove the boiler as I no longer want to deal with these

The old boiler would be carefully removed and stored until they collected it

Just a shame they cannot put my old boiler back in as although old was reliable and kicked plenty of heat and hot water out

I'm just at the end of my tether with it and if having the boiler removed gets this ended then So be it

Should I get quoted for how much it would be to get this put to standard?

[BazzaS 3,358]

Should I get quoted for how much it would be to get this put to standard?

 

To put what to standard?

The current boiler?

 

You could, but then you’d have to expect to pay the company for keeping the current boiler. You could get what the court agreed it costs to get it to standard taken off what the court decides you need to pay for the current boiler.

[Andyorch 10,545]

The only way out of this is to either......

 

Accept the claim and make payments...on the proviso that they make good all the points you have previously raised.

They can either make good or you can select an external company and counter claim the costs

 

Defend the claim on the reasons previously stated, ask that it is removed and you wish to terminate the agreement....given that in your opinion they have already breached the agreement by not fully completing the works.

[leerob695 1]

I think to be fair I'm.more inclined to defend the claim and get it removed then go to a company who will carry out the works to ALL required standards

 

Just out of interest does this new POC look like it would fall under Res judicata?

[BazzaS 3,358]

I think to be fair I'm.more inclined to defend the claim and get it removed then go to a company who will carry out the works to ALL required standards

 

Hang on, though:

The current boiler is installed poorly?

 

So poorly that you’ve not used it? For 4 1/2 years since it was installed??

 

Expect them to say it can’t be so bad, if you’ve allowed this to go on 4 1/2 years while using the boiler .... why haven’t you had it removed or brought up to standard already?

 

How much have you paid towards it in total?

[leerob695 1]

The boiler is not fitted to standard

The boiler loses pressure at least once a week

The boiler keeps tripping off it's been a case with putting up with a bad job as my hands have been tied and I'm not doing anything myself as I would leave myself wide open for breach of contract

I entered an agreement for a fully fitted boiler which I havnt had

Reason why I havnt had it put right is because of all the court action and the fact that if I Havnt had it put to standard is because if I did I would of been in breach of contract

Nothing has been paid as I have previously said because the boiler wasn't finished

[BazzaS 3,358]

Expect them to claim you have (not withstanding the faults you state) managed to put up with it & get 4 1/2 years heating, and that “if it were that bad it should have been removed earlier”....

 

Leave yourself open to breach of contract? Like, say, using it for 4 1/2 years without paying anything at all .....

[leerob695 1]

It's been in the courts system for 3 tries and even at mediation I told them to fix the faults and it would be sorted ....they refused

 

I've said from day one sort it and I will pay

Had it of been easy to remove like a tv or a car or something like that then it would of been taken back to them

Would you be happy to pay?

[BazzaS 3,358]

Would I be happy to pay?

No, but I also wouldn’t have allowed it to get to the point where they can say “it can’t be that bad, he’s used it for 4 1/2 years”!

 

You could (should?) have got it removed and replaced, or bought up to spec, in the intervening 4 1/2 years.

As it stands, you’ve paid nothing, had 4 1/2 years use of it, and have you so far made any offer of a way forward that acknowledges the are entitled to something, or sets out:

What they could be entitled to, but how that then gets eaten up in the costs required to put you back in a position you should be in.

 

14th and 15th July (2016!) I noted about quantum meruit, and that you shouldn’t have not paid ANYTHING.

 

26th October 2016 you posted about the claimant raised about you getting quotes to have it brought to standard.

 

Where they might have shot themselves in the foot is in not getting a judgment on previous claims. You are no doubt going to try the res judicata / abuse of process / agreement already terminated route.

They'll try the “we’ve waived arrears for the service contract, this is a fresh claim for a different sum” route. Those are matters of law for the judge to consider.

If there isn’t a definitive argument on point of law, expect the judge to consider “what is equitable”.

If you’ve had use of the boiler 4 1/2 years, and not had it removed nor paid for it to be brought up to scratch : how are you going to persuade a judge it is equitable you don’t owe them anything?

[Andyorch 10,545]

Id be quite happy for a third party to do that if im honest get rid of it

We tried mediation they just want costs for boiler and not to put it right

 

Below is the amended POC which has come today

 

Previous strike out was on 3-11-2017 and the first letter i got from them was on 8-11-2017 asking to restart my Direct Debit

 

ALso the default notice (If it is valid Is dated 8-1-2018 NOT 26th January as stated in new poc

 

PARTICULARS OF CLAIM

 

1. xxxxx and xxxxx (defendant’s) entered into a Boiler Replacement Agreement (BRA) with A Shade Greener (Boilers) LLP (Claimant) on the 29th November 2013. See Exhibit 1 (BRA).

 

2. Under the Conditional Sale Agreement of the BRA, specially Clause 10, it details the monthly prices for the agreement:

“The customer shall make 169 monthly repayments to the Company being 3 monthly payments in the sum of £22.95 commencing immediately after installation of the Equipment, follows by 21 monthly payments in the sum of £45.89 per month, followed by 144 monthly payments in the sum of £47.27 escalating at 3% per annum after the third anniversary of the date of installation”. See Exhibit 1 (BRA).

 

3. Along with this information under the Conditional Sale agreement it also details the total amount payable under Clause 6 and 8, being £8,832.37 (£4,109.89 for the Equipment and £4,722.48 for the Maintenance and Service). See Exhibit 1 (BRA).

 

4. The goods supplied under the BRA by the claimant are detailed under Section 1 of “Definitions”, Clause 5 of the Conditional Sale agreement and under Section 6 of the “Pre-Contract Credit Information”.

The goods detailed as being:

“A Grade ‘A’ condensing central heating boiler with parts and components necessary for the functioning of the boiler”. See Exhibit 1 (BRA).

 

5. The services provided by the Claimant are detailed between Clause 7 and 13 within Schedule 1 of the BRA – “The Company’s Responsibilities and Obligations”. See Exhibit 1 (BRA).

 

6. Upon the Defendant’s breaching the Conditional Sale Agreement of the BRA, specifically Clause 12 (Missing two or more monthly payments), the Claimant issued a formal default notice to the Defendant’s dated 26th January 2018, the Defendant’s received this as confirmed by the Royal Mail Tracking information. See Exhibit 2 (Default Notice).

 

7. The Default notice issued clearly state’s the defaulted payments commenced in November 2017. This is due to the previous claim (...) being struck out resulting in all previous arrears/charges being waivered. See Exhibit 3 (Court Order).

 

8. Following the previous claim (.....) being struck out the Claimant wrote to the Defendant’s in order to recommence the monthly payments and arrange an annual service of the equipment, this letter was sent on the 8th November 2017 and was received by the Defendant’s on the 10th November 2017 as per the Royal Mail Tracking information. See Exhibit 4 (Letter re previous claim).

 

9. The claim amount consists of the “Option to purchase” price of the BRA which currently stands at £3,762 inclusive of VAT which can be found under Schedule 3 of the BRA. There is then a £60.00 administration charge, the £185.00 court costs and £37.00 of VAT for the court costs which the Claimant is charged added to this making the total claim £4,044.00. See Exhibit 1 (BRA).

 

i now have

 

28 days from 8th May to :-

 

By 4pm 28 days the Defendant must file with the court and serve on the claiment the amended defence (And counterclaim) Which meets the following requirments

 

A) is in writing preferably typed and consists of numbered paragraphs;

 

B) it sets out concicisely all the facts the defendant relies upon ;

 

C) It responds in turn to each of the facts contained in the claimants amended POC stating whether each fact is admitted , Denied or neither admitted or denied by the defendant D)Is verified by a statement of truth

 

Thanks in advance

 

B y

 

10.

 

Can you also upload their exhibits referred to above ...redacted.

 

 

Andy

[sgtbush 73]

Is this post still running?????????

 

You have had betterment

Why cant the poster see this.

 

Have the boiler taken out and returned to them. Have the work carried out by a gas safe registered plumber.

Send them the bill.

 

If they fail to pay then sue them.

[leerob695 1]

Hope this works

 

Exhibit 1 is the T&C PDF

 

Exhibit 2 (Default letter dated 26th jan) is pages 1,2,3,4 of the pdf (However this differs from the one i received (Dated 8th Jan )

 

Pages 5,6,7 is the default letter i received on 8th jan

 

Exhibit 3 Page 9 Past Judegment order

 

Exhibit 4 Pages 9,10 "Letter re past claim"

 

Many thanks

[Andyorch 10,545]

Uploads unapproved...names showing on page 3 New Docs

[leerob695 1]

I will redo and repost

 

Yes Sgtbush this post is still running and some people are giving positive advice

My hands are tied I cannot remove this boiler or I leave myself wide open as only they are the only people allowed to touch it if I remove it I have played into their hands

It's them who fitted it not to standard and them who have been dragging this on

It would of been removed and returned to them by now of it had been the end of it when it was struck out!

It's needs sorting out by a judge

[leerob695 1]

redone docs removing name sorry about that

[BazzaS 3,358]

I will redo and repost

 

Yes Sgtbush this post is still running and some people are giving positive advice

My hands are tied I cannot remove this boiler or I leave myself wide open as only they are the only people allowed to touch it if I remove it I have played into their hands

It's them who fitted it not to standard and them who have been dragging this on

It would of been removed and returned to them by now of it had been the end of it when it was struck out!

It's needs sorting out by a judge

 

Yet, from afar it looks instead like you have allowed this to grumble on, (4 1/2 years!) having the benefit of the use of a boiler, but not paying for it.......

 

What is to stop a Court being told by them “the faults with it, if any, must be pretty minor if he’s put up with them for 4 1/2 years.....”

[leerob695 1]

Ive tried to get this sorted with them

tried mediation too with no avail

Pretty Minor.....Perhaps they are but should of been put right at time of fitting instead of leaving me with a non conforming boiler (Both building regs which they have issued a certificate saying it confirms too and a gas safe certificate to say it has been fitted properly also not forgeting the loos wires all over the joists in the roof where they have left a major hazzard and also piggybacking onto my lighting circuit!!

All they had to do was put it right

they were told i would pay once put right but instead they just go down the court route 3 TIMES NOW

i was looking to get a new conforming boiler fitted when it had been struck out but yet again im stuck with it while this Rumbles on!

[BankFodder 2,096]

Any chance you could give us an update on this please.

 

You may be interested in this - 

 

[BankFodder 2,096]

I have just learned that in fact there was a very satisfactory conclusion to this story

Suffice it to say, you should not give up hope against this company. But you will definitely need our help and a big thanks to site team member @Andyorch who stuck with this case for over two years. Had it not been for his support, I'm sure that ASG boilers – everlasting boilers – A Shade Greener – would have succeeded – if only by wearing out their customer.

You may like to know that this matter was only eventually settled in July 2019 – this year!

[BankFodder 2,096]

The situation was that a shade greener bought three actions against the OP and each one of them for one reason or another were dismissed by the court.

 

In 2018 the OP for that this was the end of the matter and so was surprised that a Shade Greener went ahead on exactly the same facts to bring a new action.

In May 2019 they issued another claim which reached the OP.

 

The facts in the claim form were pretty well the same as has already been discussed here and so I don't intend to post them again. You will have to read through the thread to see what the story was.

Certain documents were tendered to the court as part of the litigation.: –

 

Quote

Witness Statement of xxxxxxxxxxxxxxx and xxxxxxxxxxxxxxxxxx(The Defendants)
 
1 This claim has already been issued Twice dated 26/09/14 and 28/04/16 (1st was Discontinued 31/10/2014 & 2nd  was struck out 3/11/2017) (Exhibit 1&2 (Strike out and discontinuation notice)  
  
2  We Arranged to have a Combination Boiler fitted by A shade Greener which was partially fitted on 5th November 2013
This was a 14 year Conditional Sale Agreement made up as follows (Exhibit 3 pages from boiler Replacement Agreement Pre contract Information form)
£4109.89 for the Equipment and £4722.48 for the Maintenance and service for the term of the Agreement this Equated to a total amount of £8832.37 or 168 payments of £22.95 per month for first 3 calendar months followed by 21 Monthly payments of £45.89 per month followed by 144 monthly payments of £47.27 escalating at 3% per annum after 3 years
 
3 At the time of the initial Boiler replacement Survey taken out the surveyor stated that the boiler would need to go in the Airing cupboard due to having NO Lighting NO Boarding and NO Handrail in the loft area  

Due to not having ANY of the above the Boiler wouldn’t meet current British Standards so it was agreed that it was to be fitted in my Airing cupboard in my Rear bedroom where the Hot water cylinder was going to be removed from (Exhibit 4 Boiler Replacement Survey form)
 
  4 The fitters Left everything with a thick covering of brick dust to which they never cleaned up (I complained and they sent a lone worker on his way home from work on 16/12/2013 with only the bottom half of a  Henry vacuum cleaner and a hand brush. The worked was really embarrassed and apologised that he couldn’t do anything and as he wasn’t in his own van and didn’t have the correct tools because it was winter it was dark outside and he said he couldn’t go up the ladders in the dark to sort the flue out they were supposed to call back to sort it out but I cleaned this myself because we needed it clean for when we put the Xmas decorations back up in the loft  
 
5 The boiler fitting isn’t finished 100% and isn’t fitted to gas safe standard OR Building regulations despite the claimant issuing a building regulation certificate (exhibit 5 compliance certificates issued by claimant)
 
 
5 on the 4th Of January 2014 the boiler broke down and I rang the sales team to report this as it was the only number that I had it took 82 hours before anybody from a shade greener got in touch (In the mean time I had rang a local plumber and given him the error code and he told me that the system had lost pressure and told me how to re-pressure it)  

I told A shade greener how unhappy I was with the system and the general service I had received and that I wouldn’t be paying anything until it was sorted out to my satisfaction and properly fitted to relevant standards I was told I would be sent a bill for full price of the Boiler by them they were told this whenever they rang The boiler constantly loses pressure and needs re pressurising sometimes twice weekly
 
 6  7th September 2014 A Mr Morley  telephoned who said he was a high court enforcement officer and told me that I had to pay or they would come and remove the boiler I told him I wasn’t paying anything until it had been finished properly it he said that they would gain entry and remove the boiler.
 
7 26th  September 2014 I received 2 County claim forms one in my name and one in my wife’s name from a shade greener to which I submitted my defence on 27/10/2014  
 
8 on 31 October 2014 I received a letter from a shade greener stating that they have withdrawn from court and sent me a copy of the(Notice of discontinuance Exhibit 1)
 
9 Received Invoice on 15/1/2015 for boiler for total of £4959.08 (Exhibit 6)
 
10 Around March 2015 a chap came to my house saying he was a High court enforcement officer and said I needed to pay in full or they would remove the boiler.  

again he was told that the case had been discontinued and had no right to be on my property in the role as high court enforcement again he was told I stood by my previous comments about it not being fitted properly I found his manner quite intimidating again I believe this to be the same man  (Mr Morley ) who was on the telephone on 7th September 2014 I was told that they would gain entry and remove without my permission
 
11 Received Letter on 14th May 2015 Stating that an engineer would be around in the Next 48 hours to remove the boiler with (Mr Morley The high court enforcement officers details on the bottom again) (Exhibit 7)
 
12 29/4/16 I receive another County court claim A Defence was submitted 23/5/16 mentioning the fact that they have previously discontinued this claim  
 
13 15/8/16 Mediation appointment carried out explained that I wasn’t happy for them to come and look at the outstanding works as I no longer trusted them after the threats of removing the boiler and I would rather an independent came from the Gas safe I asked if the works were to be carried out if the original agreement would still be in place and I was told NO
 
 
14 I arranged for an independent inspector from the gas safe Register to come and inspect and report for the boiler This Inspection Happened on 6th Sept 2016 (Exhibit 8 Gas Safe Report) and it showed that the boiler hadn’t been fitted to standards for the following reasons “The flue has not been cut to an appropriate length for the wall which it passes”.”The roof space instillation did not comply with British standard BS 6798:2014 (there was no provision of a suitable flooring area no fixed lighting and no safety guard around the roof space opening this was classed as not compliant with the Building Regulations” (Despite a shade greener fitter lee Evans leaving me with a Buildings regulations compliance certificate And Gas Boiler Commissioning Checklist BOTH stating it was compliant ) (Exhibit 5)

Other observations where that the electrical wiring to the appliance where not adequately secured/supported The Independent Gas safe inspector could NOT remove any covers to the boiler because of the anti tamper stickers and paint that have been put on the boiler buy a shade greener by removing this it could avoid any warranty and I would be breaching the Maintenance part of the agreement
the boiler loses pressure continually so every week I have to re-pressure it or else it stops working.
 
I entered into an agreement for a fully fitted fully working boiler system to which was fully covered for maintenance for the life of the agreement this I have not had  
 
15 When they rang regarding carrying out any work I explained that they were doing nothing until it had been to court as impending court action as I no longer trusted them after the way they have behaved
 
 16 I was threatened with having the system removed by a high court enforcement officer when it had been discontinued so he had no right to say so They withdrew original Claim  
 
 17 The no warranty letter referred to in previous cases showing as not delivered and returned to sender - letter Showing as Unrecognised  

Letters that A shade greener have previously submitted with past cases Appear to have been Printed off on 13/7/2017 but the dates has been changed These letters have never been received  

 18 A charge was put on my property dated 20th March 2014 this was some 5 months AFTER the fitting date (Exhibit 9 pages from land registry)

19 Case was struck out on 3rd November 2017 (exhibit 2)
 
 20 I received a letter from a shade greener dated 5/7/18 saying that they wished a swift resolution to this matter The only resolution on my part is for the boiler to be removed it as it has not been fitted to various standards and has never been serviced due to previous court action and it is constantly losing pressure and won’t work   (Exhibit 10)
 
  22 After the previous court case being struck out it was my intention to have another company to fit me a working boiler to all applicable standards but 5 days after the case being struck out the claimant  sent me a letter saying that the judge had ordered the case dismissed and arrears being waivered there was no mention of this when the case was struck out by the judge the letter also said I needed to set up a new direct debit for the payments  at NO POINT in this letter does it mention putting the faults right and making the boiler to the standards that they have already said and I believe that the claimant is circumventing res judicata by doing so

  23 I have had 2 very different “default” notices one dated 8th Jan 18 and another 26th Jan 2018 which do not comply with the required terms which one does the claimant wish to use ? (Exhibits 11 & 12)

24 I received a letter from a shade greener dated 5/7/18 saying that they wished a swift resolution to this (exhibit 13) Given the history and whole parody of the claimants service and the fact that a Restriction has already been placed on my property dated 20th March 2014 in connection to the Conditional Sale Agreement by way of security and now seeks a judgment to secure payment for supply of a condensing central heating boiler and installation that are below par and unsatisfactory and possibly below standards required and set by Gas Safe It cannot conceivably be just to be forced to accept this or continue with the agreement and be tied to its relevant service plan for the remainder of its term.  
 
It is therefore contended that the claimants claim be dismissed for a second time and that I stand by the contents of my defence and request the court orders the claimant to terminate the agreement and repossess the goods with a court order given that less than a third of the total owed has not been paid.
 
 
I believe that the facts stated in this witness statement are true.
 
 

 

 

Quote

the claimant has previously issued this same claim thrice 1st dated 26/09/14 which was Discontinued 31/10/2014 and 2nd dated 28/04/16 which was struck out 3/11/2017) and 3rd dated 23/05/1028 was Dismissed 13/12/2018

All the court documentation confirming the above will be disclosed after allocation

 

1. For the fourth time the defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. The Claimant has not complied with paragraph 3 of the PAPDC (  Pre Action Protocol) Failed to serve a  letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

 

3. The claim having previously been Discontinued 31st Oct 2014, Struck Out on 3rd Nov 2017 and latterly Dismissed on the 13th December 2018 by deputy district judge Nix Therefore the claimant is precluded from reissuing the same claim pursuant to res judicata and therefore is barred from re-suing the same parties on the same cause of action.

 

4. For the court to allow a fourth claim which having been adjudged and struck out and furthermore dismissed would tantamount to an abuse of process on the basis of issue estopped and/or cause of action estoppel.

 

The claimant is fully aware of its actions and yet continues to issue the same proceedings which have already been adjudged.

It is averred that the claimant is vexatious which undermines the overriding objective of the CPR and the defendant respectfully request’s that the court under its own initiative orders the claimant to desist pursuant to CPR 3.3 and 3.4 and strike out the claimant statement of case or possibly impose a Civil Restraining Order against further claims and harassment.

 

5.Should the court allow this claim to proceed it is respectfully requested that I be allowed to rely on my previous defences and statements and evidence already presented in previous claims.

 

6 By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief. It is respectfully requested that the court dismiss this fourth
claim and award an adverse costs order in the defendants favour.

 

These documents are all part of the litigation and are posted on the basis that they were used in open court and are therefore public documents.

prev judgements.pdf

[BankFodder 2,096]

The result is that A Shade Greener having wasted the time of the OP and also the court in three separate actions over a period of 2 to 3 years brought a fourth action which eventually prompted the court to realise that A Shade Greener were merely time wasting, causing unnecessary expense so that the court eventually ordered that their case be dismissed and that they be prevented from being any further actions on this issue without the express permission of the court.

We are satisfied that that brings an end to the matter.

We would recommend that people exercise extreme caution when considering dealing with this company. It seems to us that their integral to their business model is the signing up of people up to fairly long-term financial commitments. 

[TMG111 0]

Wow! thanks for the update. This does give me some hope. I've been out of commission over Christmas with flu unfortunately but hoping to get the ball rolling with an engineer's report on my system etc. I hope we can get more info on how the other claim was successful.