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    • I see simeon  has several quotes for remedial work and also a report on some of the damage.  They need to be given exhibit/attachment numbers and linked to (16) and (17).  That is simple clerical work, you don't need any legal knowledge to do so.   Obviously the piling receipt has to be linked to (10).   As MiE has pointed out, the total needs to go in (18) and personally I would include the four sub-totals in (18 a b c d).  After all, the court did ask for a properly itemised counterclaim.   If simeon can do the above tomorrow we can then add Andyorch's point about interest at the end.
    • Hi, I’m really scared and nervous to write here, as I’ve never done anything like this before.    I had a telephone DWP compliance interview the other week, when I had the letter I thought I’d been called up at random as I couldn’t think what I’d done wrong.  In 2016 I started an open uni course part time as I was working, however a few months later I suddenly became unwell and was off work a year before finally becoming dismissed. I had to claim ESA while I was still employed as I hadn’t paid enough tax. My mum helped me make the ESA claim over the phone and one of the questions was ‘are you in full time education’ which I replied no to, but we said I had as at the OU part time.  I had to attends job centre visits and told them again about my open uni course, and every year I phoned up for a letter to confirm my ESA for my student fee loan and a part time grant.  The compliance officer is investigating me because I hadn’t declared my studying even though he had it down that I said I was with them. So I’ve had to send in all my information on my student grant which is £1155 a year.  I’m terrified of what is going to happen because I’m sure they had everything down about it all. I’m still claiming ESA for my illness and I’m in the support group, and I’m upset because I’m sure everything was down.  I just wondered if anyone knows what’s going to happen to me.    Best wishes 
    • OK, I've sorted out using the correct terminology to refer to the parties.   The original document was absurdly long and filled with waffle. I reduced it. Then MiE did so further – twice. I've continued on the theme and have merged (13) & (14) as I don't think we need to go into detail of why a £2000 payment because £1500, it'd just confuse the judge.  Feel free to disagree!   I've sorted out the new numbering and references to paragraph numbers.   IMO (16) needs beefing up to explain why the builder disappeared, but simeon seems to not want to explain this properly, so so be it.   Apart from that it looks about ready to go.   Counterclaim   1.      The original Claimant agreed to undertake building work (Project 1) at the original Defendant/now Part 20 Counterclaimant’s property in relation to 3 specific areas of work for an agreed price of £4300.  The work was:   a. To underpin the bay window at the property, b. To replace and repair a previously-removed chimney breast and, c. To install a new beam to the patio door.   2.      It was agreed that Project 1 was to be carried out under the instructions of a structural engineer engaged by the Defendant/Part 20 Counterclaimant and that the Claimant’s work would be as a result of instructions received following the structural engineer's assessment of the property.   3.      Between June and July in 2020 the Defendant/Part 20 Counterclaimant provided the Claimant with a full copy of the structural engineer's report which detailed instructions to the Claimant for the works to be carried out.   4.      It was agreed between the parties that the works would commence on 13 August 2020.   5.      It was agreed between the parties that payments for Project 1 would be made in three instalments. The first payment would be made at the start of the Claimant's work. The second payment would be paid at the halfway point of the Claimant's work. The final payment would be made on completion of the total works.   6.      The Claimant commenced work on 13 August 2020 and the first instalment due was paid.     7.      On 24 August 2020 the Claimant asked the Defendant/Part 20 Counterclaimant to arrange an inspection of his work by the Building Control Inspector.  The Claimant also stated that Project 1 was approaching mid-way and the Defendant/Part 20 Counterclaimant paid the second instalment due.   8.      The Building Inspector arrived to inspect the Claimant’s work but the Claimant was absent.  The inspector was obviously very displeased by the standard of the Claimant's work.  The inspector spoke to the Claimant by telephone, asking him why he was absent and interrogating him about the work he had done.  The inspector then gave him some instructions over the telephone and also left a list of instructions with the Defendant/Part 20 Counterclaimant to be passed on to the builder.  The building inspector then said he would be getting in touch with the Defendant/Part 20 Counterclaimant’s structural engineer with his findings and the Defendant/Part 20 Counterclaimant should hear from the engineer soon.   9.      The Defendant/Part 20 Counterclaimant passed on the Building Inspector’s instructions to the Claimant who agreed to follow them.   10.  The structural engineer visited and recommended piling to complete the underpinning for Project 1.  The Claimant explained that he could not undertake this work. The structural engineer then suggested an alternative company to the Defendant/Part 20 Counterclaimant to do the necessary work and this company was engaged by the Defendant/Part 20 Counterclaimant to complete the necessary piling at an additional cost to the Defendant/Part 20 Counterclaimant of £3300. (See receipt at Attachment1).   11.  The Claimant asked if the Defendant/Part 20 Counterclaimant needed any more work to be done and, despite the problems encountered on Project 1, the Defendant/Part 20 Counterclaimant agreed on 7 September 2020 to have more work done (Project 2) at an agreed price of £2580 and on similar payment terms to Project 1.   12.  As work commenced on Project 2 and was continued on the remaining work for Project 1, the Defendant/Part 20 Counterclaimant had occasion to make several complaints to the Claimant regarding the standard of his work.   13.   Barely a week after starting on Project 2, the Claimant demanded payment for that work.  After a period of negotiation the Defendant/Part 20 Counterclaimant paid the Claimant  £1500 in cash.  Both parties agreed that this left a balance outstanding on Project 2 of £1080.   14.  It later came to the Defendant/Part 20 Counterclaimant’s attention that the Claimant had removed material (including a steel beam) from the Defendant/Part 20 Counterclaimant’s property that the Defendant/Part 20 Counterclaimant suspects either belonged to him or had been paid for by him in connection with Project 1.  When challenged the Claimant admitted he had done this.  The Defendant/Part 20 Counterclaimant has included the value of this material in his counterclaim detailed below.   15.    On 21 September 2020 the Defendant/Part 20 Counterclaimant highlighted and sent a snagging list to the Claimant (Attachment 2).  Over a month later the Claimant sent an employee to attend to this work.  It was not carried out satisfactorily and resulted in an updated snagging list being sent to the claimant (Attachment 3).  All of this snagging work remains undone by the Claimant.   16.  Apart from the outstanding snagging work referred to in para 16 above, the Claimant also left other work from Projects 1 and 2 uncompleted.  That work which was not completed is listed at Attachment 4.   17.  During the course of carrying out work on Projects 1 and 2 the Claimant also negligently caused substantial damage to the Defendant/Part 20 Counterclaimant’s property (as itemised in Attachment 5) by not executing the work with the skill expected of a reasonable tradesman.   18.  The Defendant/Part 20 Counterclaimant seeks an order from the court directing the Claimant to pay to the Defendant/Part 20 Counterclaimant the sum of £nnnnnnn {Simeon - put in the actual total amount here) in respect of:   (a)   the cost of the piling referred to in para 10 above which the Claimant could not undertake and another contractor had to be paid to complete; (b)   the cost of completing work the Claimant had left undone from Projects 1 and 2 referred to in para 16 above; (c)   the cost of remedial work to put right the damage negligently caused by the Claimant and referred to in para 17 above; and (d)    the cost of the steel beam referred to in para 14 above.   A receipt in respect of item (a) - see Attachment 1 - and two priced quotes in respect of items (b) and (c) - see Attachments 6 and 7 - are attached in support of this counterclaim.
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    • If you look at your credit file..what debts show that youve not recently paid or not paid in a longtime?   might give a clue?
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Fitness Superstore - Delivery Dispute


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Well you can get the money back from your credit card company.

What you certainly shouldn't do is get your money back first and then pay because that might indicate that you are abandoning the contract.

Get their bank details, make the bank transfer – inform them that you are doing this because they require this in order to hand the item over to your courier.
Tell them that they should not assume that you are accepting the position on delivery fees

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Ok thank you I had not considered the aspect of abandoning the contract.

Ordinarily there should be no issues obtaining a refund to my credit card but I must say I do not hold out much faith. I have had to sue Lloyds Bank in order to get them to return an £84 payment. They seem to prefer to work against their customers and argue against them in Court rather than carry out their obligations as a card services provider.

 

There is a risk that Lloyds Bank take the position that I choose to pay for the item twice. I have no doubt once a suitable claim is raised I will eventually be made whole but I don't expect Lloyds to facilitate a section 75 claim whatsoever should it become necessary.

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Don't worry about that. We will help you when the time comes.

 

I think you should take the pragmatic view and get the treadmill and then you will understand what your position is is and what to do

 

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I have paid for the courier AnyVan to collect the treadmill, total additional costs incurred are £261.23, the payment is fully refundable up to 48 hours prior to contract execution.

Fitness Superstore have simply been informed of the day and time the collection will take place and provided with a copy of the booking confirmation for collection.

 

If they put up a fuss I will proceed as you suggest and make a bank transfer, while making it clear I object to their request.

 

However for now the ball is in their court.

 

I'm hoping with some assistance here, that some or all of these costs can be re-imbursed. I do not think it is proper that a company can bait a purchase - deliberately or otherwise -  by indicating delivery is available and then refuse to provide or facilitate that contractual obligation after the contract is entered into.

Edited by Intrepid
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Yes, you must make it very clear that you object to their position and that you consider that they are in breach of contract and that any action you take to collect the item is under protest and should not be construed as an agreement

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It appears Fitness Superstore are rather entrenched in making a fuss.


Today I received the following e-mail:
 

Quote

Good afternoon
 

Apologies for the last email, for some reason it sent before I could finish it.
 

I just want to check that you received the email attached from our delivery team, advising the details on collecting this unit.

 

As it stands, we would not be able to release the unit to a third party collection, due to GDPR regulations.

 

The only way we can do this, is if you were to remake the payment via BACS.

 

Please advise if you are able to do this, and our delivery team can arrange this with you.

 

Without doing this, we would have to refuse the collection unless you were also coming with ID and the card used.
 

Kind Regards
 

Peter


I propose the following reply:
 

Quote

Dear Peter,

I am afraid you or the delivery team are not being very clear.

Could you please specify exactly which part of the Data Protection Act 2018 you are specifically referring to in order to deliberately frustrate the contract between myself and Fitness Superstore?

I am not aware of any part of the Data Protection Act 2018 which gives right to a company to refuse forms of payment.

Sincerely,


Intrepid

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Nice response

I think we are getting close to the time way you again have to issue legal proceedings.

Can you remind me – do they have your money or has it been refunded?

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As far as I am aware they do have my money i.e. the payment was taken from my credit card and has not been returned to me.

 

Whether they have a different agreement as to when they actually receive the money from their payment processor is a matter for them.

 

I agree, the affects of submitting the claim and informing them as such are possibly two fold. This either baulks them into returning my money and attempting to recind the contract, or they simply give up with their GDPR nonsense. I even went to the extent of taking out additional insurance for the goods during transportation.

 

My next step was to perhaps make a video of myself confirming my identity and holding a copy of the courier contract. That should put to rest any "GDPR" concerns they may have.

 

The principle point I'm making here is if they suspect fraud then they should explicitly state their concerns as well as their reasons why, not generate imaginary hoops for their "customers" to jump through.

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I think I would start rocking a few boats and begin by sending them a subject access request.

It would be interested to see what they have.

Secondly, it's clear that the machine belongs to you and they are obstructing your right to collect it. Not only is this a breach of contract but also it sounds to me as if it is a wrongful interference with goods.
Torts (Wrongful Interference with Goods) Act 1977

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Excellent idea, as they seem to be experts in the matter of "GDPR regulations" (sic) they should have no trouble at all in handling such a request.

 

Thank you for bringing to my attention the Act above I had not considered this as a string to my bow.

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It because you an opportunity to invite the court to make a discretionary award of damages above the value of the item you are claiming. I don't think it's an opportunity to go crazy. A hundred quid would be quite a significant victory which would make your point very nicely

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I think it is likely that Fitness Superstore will ignore my correspondence above and they now require a wake up call as to what will happen if they continue their proposed course of action.

 

I have prepared a letter before claim to be sent to their Managing Director Mr Paul Walker and will copy in the Manager of the Gloucester store (Peter) should they wish to respond.

 

Quote

LETTER BEFORE CLAIM

 

Order Reference: xxxxxxxx
 

Dear Mr Walker

On the 20th November 2021 I ordered a Bowflex Results Series BXT326 Folding Treadmill from your website https://www.fitness-superstore.co.uk.
 

At the time of payment when the contract was formed it was indicated that standard delivery was available.

 

On the 23rd November 2021 Fitness Superstore refused to deliver the item forcing me to make my own arrangements to collect my goods.
 

On the 25th November Fitness Superstore Gloucester manager Peter indicated he will unlawfully interfere and obstruct the collection of my goods on 14th December 2021 in contravention of The Tort Act 1977.

Fitness Superstore indicated this was due to "GDPR regulations" (sic), however when asked to explain in detail why this was the case Fitness Superstore refused.
 

If Fitness Superstore rescinds the contract between us, you will be held liable for the foreseeable costs I will incur as well my non-pecuniary losses.

I invite you to respond to this letter within 14 days after which if Fitness Superstore follows through on its proposed unlawful action I will bring a claim against you in the County Court on 21st December 2021.
 

Sincerely,

Intrepid

 

Edited by Intrepid
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I'm sorry to say that it's all a bit strutting. I think you should try and use less legalese.

Also, you say that it was standard delivery. Is that the free delivery? I thought it was delivery for free

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So why are you calling it standard delivery when it is free delivery?

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The page before checkout, shopping basket indicates standard delivery highlighted in green as shown in the PDF "Shopping basket" attached below.

The page at checkout indicates £0.00 price on application exactly as you reproduced in post #8 here and as shown in the PDF attached below "Checkout Page"

The reality as it is presented at checkout is ambiguous, if you think it is worth interpreting it as free delivery in order to take the most aggressive position I am happy to do so but I reasonably expected that delivery was available but that Fitness Superstore would provide a price for this - as indicated at checkout when forming the contract.

FS - Shopping Basket (Indicative).pdf FS - Checkout Page (Indicative).pdf

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I think I agree with you on the second option. I think trying to get free delivery is pushing it.

 

Quote

Dear XXX

Letter of Claim – Reference Number XXX

 


On XX date I purchased a make model et cetera from your online store for £XXX

I selected your standard delivery option which your website explains will be decided later.

I completed the purchase and paid for it and in fact my bank statement show that you have received the money.

Since then I have tried on several occasions to arrange standard delivery and I have been told that you will not deliver.

Because I need to get hold of the treadmill as quickly as possible – and certainly before the Christmas period – I then decided to organise my own collection and to deal with the problem of delivery charges later.

As you can imagine, it is a heavy object and for me to arrange collection and delivery to my address is an expensive matter and certainly not something I have come to pay myself.

Despite my best efforts, I have been informed by your company that you will not allow the treadmill to be collected by my courier on the spurious grounds that apparently there is a data protection issue.

I'm writing to it for you that you are in breach of contract. Your contractual obligation was in fact to agree standard delivery terms with me.

Furthermore, it is clear that I have paid for the treadmill and therefore the treadmill belongs to me and now you are obstructing my access to it for no understandable reason.

If you will not agree reasonable terms for the delivery of the treadmill within 14 days of this letter then I shall sue you for breach of contract and also I shall ask the court to make a discretionary award in respect of your wrongful interference with my ownership of the treadmill.

Yours sincerely


 

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Thank you for taking the time to re-phrase my LBA I have made some minor adjustments highlighted in red for accuracy.

 

Quote

Dear XXX

Letter of Claim – Reference Number XXX

 


On XX date I purchased a make model et cetera from your online store for £XXX

I selected your standard delivery option which your website explains will be decided later.

I completed the purchase and paid for it and in fact my credit card statement shows that you have received the money.

Since then I have tried on several occasions to arrange standard delivery and I have been told that you will not deliver.

Because I need to get hold of the treadmill as quickly as possible – and certainly before the Christmas period – I then decided to organise my own collection and to deal with the problem of delivery charges later.

As you can imagine, it is a heavy object and for me to arrange collection and delivery to my address is an expensive matter and certainly not something I have come to pay myself.

Despite my best efforts, I have been informed by your company that you will not allow the treadmill to be collected by my courier on the spurious grounds that apparently there is a data protection issue.

I'm writing to inform you that you are in breach of contract. Your contractual obligation was in fact to agree standard delivery terms with me.

Furthermore, it is clear that I have paid for the treadmill and therefore the treadmill belongs to me and now you are obstructing my access to it for no understandable reason.

If you will not agree reasonable terms for the delivery of the treadmill within 14 days of this letter then I shall sue you for breach of contract and also I shall ask the court to make a discretionary award in respect of your wrongful interference with my ownership of the treadmill.

Yours sincerely

 

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I have just now received the following e-mail from Fitness Superstore in reply to my request regarding their GDPR concerns.

"Good Morning,

Thank you for your email. 

Please bring with you:

• This email

• Payment card used to purchase the item.

• A form of ID: Passport / Driving Licence / Recognised Photo ID

Unfortunately, we are unable to facilitate any third-party collections due to GDPR regulations. If you do require for the item be collected by a 3rd party collection if you are able to pay by bank transfer. We will then be allow to offer the 3rd party collection.

At the collection, you’ll have the opportunity to check over the product yourself to ensure you’re comfortable with any cosmetic damage or imperfections it may have before you accept it. Although we are not able to provide a full mechanical test or demonstration of the product at your collection, you will be able to return a mechanically defective product within 14 days of collection, or claim under the warranty.

Some of our ex-display items are quite big, so please be sure to arrive in a suitable vehicle – you can check the product dimensions on our website.

Kind regards

Lisa

Customer Service Advisor

Bodypower Sports Ltd | Fitness Superstore
13 Gatelodge Close, Round Spinney
Northampton
NN3 8RJ
Tel: 01604 673000
"


 

 

I propose the following reply.

 

Quote

Dear Fitnes Superstore,

I requested that you explain which part of the Data Protection Act 2018 you are referring to, in order to delibertely frustrate the contract between us.

You have refused to provide an explanation or any basis at all for refusing a form of payment - which for the avoidance of doubt you have already received and has been accepted by you.

Please find attached a copy of the Letter of Claim which will be served to your company director, Mr Paul Walker.

Sincerely,

 

Edited by Intrepid
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I don't understand why you want to get into this useless exchange.

You've prepared a letter of claim. What else do you need?

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My reply is the Letter of Claim, which will also be posted today.

I was also highlighting for the benefit of any future readers, namely the Court, their refusal to provide any basis for their unlawful position.

 

I think it would be helpful to me if their customer agents are made aware of it before I take delivery of my goods.

Edited by Intrepid
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Okay – send it.

I don't think it is especially necessary

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This caught my eye as I've bought an ex display Schwinn from here before. I Googled the product you bought and it does say it must be collected... If I were you I'd just pay the difference to get a new one delivered, or just ask for a refund...

 

WWW.FITNESS-SUPERSTORE.CO.UK

Ex-Display Model. Customer to collect from our Gloucester Showroom (By Pre-Arranged Appointment Only).

 

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