Solartherm UK useless returns on 15K heat pump - court claim launched..

[FORMISTER]

Hi guys,

Ok, i'm going to give a brief overview so I can ask a question.

I am helping a friend with a claim against Solartherm UK for which he had purchased a 15K heat pump which was supposed to save him money and result in quarterly payments made back to him.  The long and short of it is that it never worked and the payments were no where near what was calculated.

 

Details aside he went on MCOL and made a claim for under 10K.

 

Solartherm acknowledged the claim and have defended in full.

 

However in one of their directors witness statements they question the amount claimed and calculated that it should of been just over £5k less deductions leaving it at £2.5K and that what should of been applied to this claim.

 

My question is,

being as though they defended the whole claim and not partially, is this now an admission that they believe my friend is entitled to compensation from them?  

They cannot defend in full and then calculate how much the claim should be for?

 

Where does that leave him?

Does this mean he is guaranteed to win and win at least what they have calculated?

 

Thanks in advance 

[BankFodder]

No I'm sure it's not admission.

This is very normal that you defend on the whole of the claim and then you introduce full-back positions so that if the court agrees that there is liability, then in that case the amount being claimed is too high in any event.
 

[FORMISTER]

Thanks for you reply bank fodder.

 

Fortunately, they have made a number of claims in their defence that they filed that is completely contradicted by emails they sent earlier over the course of the ongoing complaint.

So we are pretty confident of proving liability, so  I guess we should now focus more in regards to proving the amount of the claim.

[FORMISTER]

Afternoon,

Ok, Solartherm have applied to have the claim realocated to the fast track.

 

This is based upon

a, the claim being close to the threshold

and 

b,The claim is reasonable complex in nature and will require at least 2 witness statements by the defendants

c, Issues relating to the ownership of goods, misrepresentation and technical analysis into the performance of the heat pump.

 

Ok, so the question is why are they doing this, what have they got to gain?

Can and should he refuse to go to fast track ?

 

I would also argue that it isn't necessary, my friend has an admission in writing from the director of the company that they had removed 10 of these heat pumps already, including one in his own home due to inherent problems in many of them but all of them not providing the RHI payments that the manufacturers originally calculated and that since these calculations had been revised down.

 

So my argument would be that there is no need to discuss technical aspects, we have an admission that it would never provide the RHI payments it claimed and that the heat pump is plagued with issues, therefore all we should be discussing is the level go compensation.

 

Does that make sense?

 

 

[dx100uk]

because they want to frighten him with their costs, they want to bring in all kinds of expert witness costs etc.

 

refuse! you are the claimant...you call the shots.

 

 

[FORMISTER]

Thanks DX

[FORMISTER]

Just a quick update,

 

We sent their legal manager a letter stating that he intends to object to Fast-Track allocation based upon their directors full admission in an email that the heat pumps don't work, don't produce the returns they were supposed to and that they had taken out a number of them already, including his own, members of his staff and customers.

 

He also offered to settle out of court for £5500 rather than the 10k he was suing for.

Coincidently the day after sending it he received a statement from them detailing £1000 of legal costs my friend owes them so far, I guess they are trying scare tactics to get him

 

And just to add to my previous comments, he just sent me the documents, he received dated 01/09/21 which is the bundle of documents to support the companies application for fast track on the courts BT MEET ME online court hearing on the 8th (next Wednesday).

Isn't that a bit late in the day for disclosure? Doesn't give my friend much of an opportunity to submit anything in reply? 

 

Any advice DX?

[unclebulgaria67]

@dx100uk  No doubt dx will respond in due course and @Andyorchmay have some thoughts on this.

 

Not sure we have the full information on this thread to understand the claim.

 

How long ago was the heat pump system purchased ?

 

When was it installed ?

 

Who installed it ?

 

When did your friend first contact the company to register a complaint ?

 

What did the company do in response to the complaint ?

 

Did they carry out any tests on the system to check on the installation and how it was operating ?

 

Was any remedial work completed to deal with any issues found ?

 

Why was an offer of £5000 made to settle, when the heat pump cost £15000 ?

 

Think much more information is required, so the more details you can provide the better.

[FORMISTER]

Hi UncleBulgaria67,

 

Thanks for the reply.

 

 

How long ago was the heat pump system purchased ? May 2017

 

When was it installed ? May 31st  2017

 

Who installed it ? Solartherm part of the Silvercrest Group

 

When did your friend first contact the company to register a complaint ? First Complaint late 2017 through to February 2021

 

What did the company do in response to the complaint ? Sent and engineer, also had the engineer from Daikin the manufacturer come out

 

Did they carry out any tests on the system to check on the installation and how it was operating ? Several visits, blamed him for tampering with it, the manufacturer said it is installed correctly and working 

 

Was any remedial work completed to deal with any issues found ? No parts have been replaced

 

Why was an offer of £5000 made to settle, when the heat pump cost £15000 ? Ok, heat pump cost £10700 plus vat, they took out a Tesco loan to pay for it. He issued a court proceedings for £10K.  He has made an offer to settle out of court for £5500.  Basically he made the offer because he didnt want the hassle, the stress of it all along with covid and their jobs probably caused his wife's miscarriage, he was also diagnosed with ADHD earlier in the year.  This had been going on for over 3 years and he just doesn't want to face it anymore.  Which is why I have stepped in to help.

 

Think much more information is required, so the more details you can provide the better

 

Just a quick overview, the heat pump never really worked properly and it produced no where near the returns which had been projected by the manaufacterer. 

 

Below is an email from their Director, I believe this is an admission of guilt.

 

Dear Mr XXXX

 

I am sorry to hear of your ongoing problems, and amazed that Mr Tancred has so easily passed the issue back to ourselves. 

 

We are of course only the installer, not the manufacturer, and have installed many of these units some without faults but importantly all underperforming ! 

 

The calculations undertaken with the heat loss report pre installation are the figures produced from the calculation tool provided to us by Daikin in the training that they mention. 

As Daikin are fully aware the original calculations for the units were not correct. We believe Daikin at a later date reduced the performance figures on their calculation tool, which we are aware of and indeed have evidence that shows performance returns now almost 50% lower than the original calculator showed when we put in exactly the same information for older installs. 

 

It's very kind of Mr Tancred to point out that Solartherm Uk is contractually obliged to resolve the issues, however as you will no doubt agree the issues are not those of an installation nature but low RHI returns, and we would prove quite easily that the figures were not derived from our own estimates. 

 

We have other customers in a very similar situation, including myself and members of our own staff. To date we have ripped out nine units, and replaced them with other manufacturers heat pumps or sadly returned the heating systems back to gas. 

 

My own system has crashed several times since installation, including over this Christmas period. We have changed the control panels 4 times, and have had it independently inspected, had MCS inspect it and had an ex Daikin controls engineer inspect it. This unit is connected to new underfloor heating and we are all convinced that the units do not live up to the manufacturers claims. As a result we now only install LG ASHP, and through our sister firm which is a heating engineering company established in 2003, we install around 8-10 per week with relatively low issues and almost no RHI underperformance reporter to date. 

 

I would advise that you seek independent legal advice leading to a claim against Daikin for redress. We would be more than willing to supply the original calculations if you do not already have these, and show you how to re enter the same information into the current Daikin calculator which will no doubt show a vast reduction in expected RHI using the same information. 

 

Lastly, It is important to note Mr Tancred's comments below that on the 10th of August Daikin's engineer found no operational issues. That of course evidences that the unit is installed as per the manufacturers specifications and is working well, and that the issues lay completely with the units inability to produce the metered output the original calculation tool specified, thus leading to low RHI payments. 

 

We have a mountain of similar cases and have spent close to £50k in trying to resolve these matters to date. If time permits we will more than likely be submitting a claim ourselves at some stage this year. 

 

Kind regards

 

Mr XXXXX

Director

[FORMISTER]

So, going on from my answers above, and putting the actual details of the claim aside, because he has claimed for 10K they have now put an application in to Fast Track the claim, obviously to frighten him with the idea of costs and expert witnesses.

He has his hearing on Wednesday this week for the Fast Track request , so I am looking for some advise on how he can handle it.

 

He only received on Friday disclosure of documents which they have submitted to support their claim. 

[unclebulgaria67]

What were the particulars of the claim ?

 

How has a value been arrived at for the claim ?

 

I am confused about the basis for the claim.  Therefore I can see why Solartherm are defending, if the amount being claimed is not explained. 

 

[FORMISTER]

Hi,

 

Ok, the basis of my friends  claim is that it is misold, he has had performance issues from the start and the rates that where projected he is supposed to of received each quarter never materialised, they should of nearly covered the finance payments but the most ever was around £135 but some times they were under £10.

 

As per the email copy I shared two posts ago, I don't think it is arguable that it ever would of produced those returns and that their is inherant issues with that make of heat pump.

 

So his claim is based upon he paid over £11k for the heat pump with finance it came to over £15k.  He is claiming for £10k based on the fact he would of had to have spent around £5k on a new boiler anyway, so he is claiming £10k.\

 

Anyway, lets not get distracted by the details of his claim, because its £10k and on the limit of the threshold they have applied for it to go to the Fast Track instead, so he has a hearing on Wednesday.

Obviously we don't want it to go to fast track, so the advice I am seeking for him at the moment is how we deal with the application hearing and if their disclosure of documents for their argument for fast track which was received 5 days before the hearing is outside the scope of CPR?

[unclebulgaria67]

Hopefully @dx100uk and @Andyorch will add their responses at some point.

 

The basis and calcualtion of the claim does not appear quite right to me, which is why they want it to go to fast track, so they can properly argue their case, which will cost them.

[FORMISTER]

Thank you Unclebulgaria, I guess I probably didnt explain the case and the claim in full detail because that isn't what I am really asking for help with it.

 

@dx100uk mentioned earlier in the thread that my friend is able to object to the case being Fast Tracked, it was more advice on how we handle the fast  track application hearing on Wednesday and also advice on whether their disclsosure of information regarding their application which was received only 3 working days before application hearing is out of the timeframe for disclosure?

Surely only 3 working days does not provide enough time for my friend to be able to submit an evidence or an argument against it?

[unclebulgaria67]

PART 26 - CASE MANAGEMENT – PRELIMINARY STAGE - Civil Procedure Rules

WWW.JUSTICE.GOV.UK

 

Look at part 26.8 of this document. Although the sum is less than £10000, there is room to argue that it should be fast track, if the claim presented is not really simple. 

 

Put yourself in the companies position, where you were faced with dealing with the claim presented.

 

Which is why I asked about merits of the claim amount. 

 

A heat pump system was installed and is still working ? It is just not delivering the results that were promised and compensation for this reduced performance is required ?  

 

Suggest thinking of a more realistic amount and asking the company to make an offer.

 

 

 

 

[FORMISTER]

Thanks for your reply.

 

The companies defence to the origional POC is a little sketchy and doesn't rely on one main point, just a series of points, these are mostly trying to dismiss the claim regarding my friends claim that it doesn't produce the expected returns and that there is nothing wrong with the heat pumps functionality.

 

However, if you look at my post #9 and a copy of the email sent by the director of the company he fully admits that the heat pump could never possibly produce the returns advertised and that the manufacturer has since revised down the calculations significantly, also that he has removed this system from not only his own home but other customers and employees because it doesn't function properly.

In total the purchase of the heat pump was £11700 plus VAT, which makes it £14,040.  DO you not think asking for £10k back having complained and asked for it to be removed for the past three years is unreasonable or unrealistic?

 

As I stated in a previous post, my friend has written to them offering to settle out of court for £5500 

 

The heat pump does not provide any better results than if he had a new £4k gas boiler installed

[unclebulgaria67]

Solartherm supplied and installed the heat pump,  so they are responsible ?  Passing the buck, as they don't want to sue Daikin to recover costs, as they may still have an ongoing relationship to protect.  But do check the original terms and conditions that were agreed to, as Solartherm appear to suggest installation responsibility only.

 

I guess that the argument is that the claim is below £10000, the claimant has been willing to negotiate and offered to settle at £5500 even though this represents a loss, the claim is not as complex as the defendant contends for the reasons, Solarthern supplied and installed the Daikin heat pump system, which Solartherm in their letter dated admit has not performed as stated in the information supplied that the contract was partly based upon, the claimant has asked the defendant to remove the system because of the performance (state all of the performance issues raised) and the defendant has refused.

 

Go through all of the communications from the beggining and put togther an argument in a clear way, showing how the claimant has sought to resolve with the defendant.

 

 

[FORMISTER]

I get your point regarding installation responsibility only. There were ongoing issues with the pumps operational abilities and pressure issues that never existed under the old gas boiler.  

 

In terms of the payments he should of received back, it was calculations by Solartherm themselves which was the selling point, these failed to materialise and is evident that they never would by Solartherms own admission, so I would argue that this is mis-selling and some responsibility should lay with Solartherm who sold it on that basis.

 

I agree with your second paragraph and the direct you are going with it.

 

However, I am unsure how much he gets to argue in what is just a hearing for an application for Fast Track by the defendant and not a case hearing, I am struggling to find an example on the internet of anyone who has been through this process.

 

Also, what do you believe regarding their very late submission of disclosure  documents to be considered at this Fast Track application hearing, is it outside the disclosure timeframe or does it not apply in this situation?

Thanks

[unclebulgaria67]

So keep it simple. Claim below £10000, claimant has shown willingness to negotiate a settlement, the defendant has  so far not been willing to negotiate trying to deny any liability for performance isuses.  It is hoped that with some directions from the court, negotiations could continue, if both parties agree to this.

 

Check the terms and conditions agreed to very carefully.  Solartherm if they were installers only, installed in line with manufacturers specifications, only provided information that the manufacturers supplied to them etc.  If this is so, I can see their point, that any liability Solartherm would be limited.

 

 

[AndyOrch]

Time line of what stage the claim process is at would be helpful. He has submitted a claim for 10K plus initial costs I assume.

They have submitted a defence to the whole claim.

 

Did he inform the court he wished to proceed to allocation ?

Has he completed a directions questionnaire (N180 Small Claims Track ) ?

Did they make this application pre N180 or post ?

Scan and redact and upload their application N244 and evidence for making the application.

 

Andy

 

 

.

[FORMISTER]

Hi @Andyorch and thanks again UncleBulgaria,

 

Ok, timeline is installation took place in May 2017, he first raised issues late 2017, continued to complain and ask for it to be removed and money back through 2018, 2019 and 2020.  Finally issuing a small claims for £10k in January 2021.

 

Yes, they submitted a defence to the whole claim.

 

He didn't inform the court he wished to proceed to allocation, the defendant filled out a N244 application notice and served it on him on the 09/03/21

 

He tells me that he hasn't see a directions questionnaire, all he had had to do was email his details to the court for the Fast Track application hearing (don't know if this is truth or not, but it is in his head),

Will scan the N244 document and post in a bit

[AndyOrch]

What date did they submit their defence ?  Exact dates will be helpful date of issue date of AOS date of defence.

The court will have sent a copy to him and normally attached a blank DQ to proceed ?

 

 

 

.

[FORMISTER]

@Andyorch Ok so the original court order was 19 Feb 2021 and they filed a defence on the 24/03/21

 

They  made an application on 09/03/21 to have the case moved from the small claims to the Fast Track and then they have just submitted their defendants bundle of documents to support this application 0n the 2nd of September with the hearing due on the 8th

 

Apologies, I am trying to scan through a large bundle of documents and emails he has sent me over.

[FORMISTER]

@Andyorch cant get the file size down, so link here https://we.tl/t-BjksduQcLg

 

 

[AndyOrch]

Strange timeline of dates...claim issued 19th Feb .Defendant  makes application for reallocation 9th March. Defence submitted 24th March.

 

Hearing for application 8th Sept

 

They submitted an application before they even submitted a defence from the above dates ? Hence the claim didn't proceed to SCT or did it ?

If the claim has not been allocated to SCT why are they making an application to re allocate it to Fast Track ?

 

Allocation to track is dealt with between CPR 26.5 and CPR 26.9. It is a judicial procedure which is undertaken after both parties have filed their directions questionnaires. The directions questionnaire used in the small claims track specifically asks at Part C whether the party agrees that the small claims track is the appropriate track. Failing to specify allocation issues at that time may make any further application for reallocation more difficult for the applicant.

 

Allocation to track

4.2

(1) In most cases the court will expect to have enough information from the statements of case and directions questionnaires to be able to allocate the claim to a track and to give case management directions.

(2) If the court does not have enough information to allocate the claim it will generally make an order under rule 26.5(3) requiring one or more parties to provide further information within 14 days.

(3) Where there has been no allocation hearing the notice of allocation will be in Forms N154 (fast track), N155 (multi-track) or N157–160 (small claims).

 

I'm sure there are parts of the story missing here but anyway......

 

He needs to submit it own statement in response with objection (not less than 3 days pre hearing)...looking at their application there are no real grounds why it needs to be reallocated to FT. Its neither complex or difficult. The reasons stated can all be dealt with in SCT including multiple witness statements should they desire.

 

They even state in their application at point 4 " It is not unreasonably out of scope of the small claims track with regards to claim amount "

 

I doubt very much they will have success with their application...submitting an application before defence needs to raised...determining the relevant track should be done on the Directions Q and agreed by both parties.

 

Andy