Trulawn/Technigrass LTD: S 75 Claim - contract dispute artificial lawn installation.

[rizel23]

We have had to raise a claim via our credit card company for a contractual dispute from an artificial lawn we had installed.

The contractor changed the written specification of the sub base without our consent and then continued to demand full payment when this was discovered and challenged.

All attempts to resolve failed.

We have provided the credit card provider with;

 

1. Copy of quotation stating the specification we wished to be installed, with payment made for making the basis of the contract on the specification terms.

2. Written email confirmation from the contractor confirming they changed the specification of the sub base to ‘ease the installation process’

3. A basic report from a grounds installation contractor confirming what he found upon inspection (I.e missing the contractual elements of the specification of the sub base)

We raised a claim under 75 for breach for contract due to the above.

The credit card company are now demanding a written report confirming industry standards have not been met, despite me already confirming to them the works do not fall under regulatory acts of planning or building control and that we are raising a claim under a breach of contract.

We have found an ‘expert witness’ who can undertake a report at a cost of £750. The credit card company are advising that this ‘possibly’ could be reimbursed if the claim is valid and successful.

We are concerned here as if they don’t proceed this will cost us £750, and we cannot see any logic why this would be required for a breach of contract given the evidence already provided to them.

Any advise would be most welcomed.

[dx100uk]

if your 'claim' is outside of 6mts since the product was 'with you' then it's your pigeon to get and pay for the report.

said report fees will be paid for if you win. as under consumer contract laws and the consumer rights act.

 

 

[rizel23]

Thanks

 

the concern was raised to the Credit Card provider within 6 months, firstly as a chargeback and later as a Section 75 claim, does that change anything?

 

Its the validity of the request of such report that I am questioning, a breach of contract does not need a report where the contractor has already confirmed via writing they have changed the contractual specification surely? 

[dx100uk]

if all of that was within 6mts , then you are are correct.

 

 

[rizel23]

Thanks could you advise how I would address this with the card provider and under which secion of consumer law I would need to review and quote? 

 

Details:

 

Works/goods/servies completed: 04/10/22

 

Dispute raised with credit card company: 20/10/22

 

Written confirmation of claim under Section 75 provided to card provide: 17/01/23

 

Many thanks for your asstiance so far. 

Edited May 12, 2023 by rizel23

[dx100uk]

i suspect they've probably forgotten they were 1st advised in writing of a sec 75 dispute within 6mts of ownership as you are now in may 2023.

 

cra....clickme

 

its all there dont know the section

 

dx

[rizel23]

Thans dx

 

Can I assume the CRA is interlinked to the Section 75 of the Cosumer Credit Act?

 

As the goods (which formed part of the service/contract) were advised to the card provider within 6 moths of the payment were not as decribed within the quotation that formed the contract then the liability now lies with the creditor to prove this not I as a consumer? As such if they feel a report is rquired its is their burden to provide this or to cover the full cost of raise requested report regardless of if this is sucessfull or not? 

 

Many thanks 

[dx100uk]

AFAIU....under CRA/consumer laws..you are not legally obliged to do a report within 6mts thats the retailers job, because you paid the retailer by a credit card, the card provider are thus, under section 75, equally liable. 

[Manxman in exile]

@rizel23  -  can you confirm whether this contract is for the supply of goods or for the supply of a service (or a combination of the two)?

 

If the contract is for the supply of goods then any "faults"* that materialise within 6 months of being delivered to you are presumed to have been present at that time, unless the seller can establish otherwise (on the balance of probability).  See s19(14) of the Consumer Rights Act 2015 (legislation.gov.uk).  In which case it's not your responsibility to prove that the goods were "faulty"* when you bought them, it's up to the seller (or your credit card provider) to prove they weren't

 

But if it's in relation to the supply of a service, then a corresponding "within 6 months" provision doesn't seem to be built into the legislation - see Chapter 4 of the Act linked to above - so I don't think it would apply, but I'm not 100% sure.  If it doesn't apply the bank might be right that you have to provide evidence that the service wasn't performed according to contrcat.

 

s75 of the Consumer Credit Act basically says that if you have a claim against a supplier in respect of misrepresenation or breach of contract and you paid with a credit card, then the credit card provider is jointly and severally liable with the supplier.  This means if you have a claim against the supplier then you have an identical claim against your credit card provider.  If a supplier breaches any of their obligations under the Consumer Rights Act 2015, they are in breach of contract.  s75 doesn't apply to debit cards.

 

* Note:  When I use the terms "fault" or "faulty" in relation to goods I'm using them as shorthand for "do not conform to contract".  This could mean for example that the goods you received were not as specified in the contract or were missing entirely.

 

 

Edited May 12, 2023 by Manxman in exile

[rizel23]

Thanks Manxman for your detailed response.

 

I can confirm the purchase was for the supply (goods) and service (install) of; 

 

'Supply and Install 48m2 artificial grass (rear garden).'

 

We wished for a specific type and depth of of sub base and ensured this was detailed on the quotation (and all quotations we received) and we proceeded with the purchase on the basis that the following would be supplied and installed;

 

'Install 48m2 type 1 MOT aggregate. Allow for 40mm coverage to provide an average of 30mm 
consolidated surface across the 48m2.'

 

The contractor, without informing us as client or seeking any form of approval, decided to proceed and did not install this product (goods) which was clearly detailed in the specification of the quotation which formed the basis of the contract and is further referred to in the contractors 'Standard Method of works' within the quotation provided. 

 

This was challenged with the contractor upon it being discovered, but only met with demands for full payment, and then escalated to the credit card company who facilitated the payment for the goods/service. 

 

 

My point of view is that we wanted a specific type of specification for our subbase (and detailed it as such), and this was not provided. We have supplied the credit card company with a grounds investigation report from a grounds contractor stating that; 

 

'The make up from formation level was found to be a layer of Geotextile fabric and a
45-50mm thickness of 6mm down granite dust. No type of road stone was present'

 

and a further email confirmation from the contractor confirming that they changed the specification of the subbase to 'ease the process of the installation'  when challenged after the works had been completed.

 

This is why we feel we have been more than reasonable providing the credit card provider enough evidence to proceed already under Section 75 as a breach of contract and don't feel the liability to pay for a expert witness lies with us if they require one for their prosecution of the merchant under Section 75. 

 

Could you kindly share your thoughts on if this would fall under the CRA? I need to respond back to them Monday ideally stating our final position. Many thanks 

 

[dx100uk]

2 hours ago, rizel23 said:

for their prosecution of the merchant under Section 75. 

 

there is no prosecution!

 

simply a refund to you.

 

 

[rizel23]

Sorry that was what the card company said they would do, not I. 

[Manxman in exile]

40 minutes ago, rizel23 said:

Sorry that was what the card company said they would do, not I. 

 

Did they?

 

Are they definitely doing a s75 claim and not a chargeback?

[Manxman in exile]

And what remedy are you looking for?  A refund? The job doing properly?

[rizel23]

Yes it’s been registered as a section 75 Claim, they declined the charge back, to be honest we have little faith in them. 

 

We are seeking a refund (50% was paid through the credit card and we have already asked the contractor to address this which they have ignored), it is likely that the contractor will pursue through further through small claims courts regardless where we will defend and issue a counter claim for remedial work cost etc 

It is the cost of the expert witness report we are really trying to get the bottom of, if this cost lays with us or the card company given it was reports to the credit card provider within 6 months and the claim is for failure to delivered contractual goods and service.

 

many thanks 

 

Edited May 13, 2023 by rizel23

[dx100uk]

be careful of counterclaiming in small claims

 

better to simply defend. 

 

then launch your own claim when you successfully defend theirs.

 

dx

 

[Manxman in exile]

4 hours ago, rizel23 said:

... We are seeking a refund (50% was paid through the credit card and we have already asked the contractor to address this which they have ignored), it is likely that the contractor will pursue through further through small claims courts regardless where we will defend and issue a counter claim for remedial work cost etc...

 

Sorry but I'm confused. 

 

Are you saying that you have paid 50% of the total contract value on your credit card, but you are refusing to pay the remaining 50% because of the  issues that you've raised with the contractor but that they've ignored?  And you're anticipating that the contractor might claim against you for the outstanding 50%, but they haven't done so yet?

 

And your s75 claim is in respect of the 50% you've already paid?  And that 50% is all you've paid the contractor so far?  

 

Is that an accurate summary to date?

 

So is what has happened something like this:

 

1.  You agree with a contractor that they will install an artificial lawn for you at an agreed value of - let's say - £4000.

2.  You pay £2000 on your credit card and the lawn is installed

3.  You discover that the lawn has not been installed as per the agreed contract specification and decide not to pay the outstanding balance

4.  The lawn that has been installed is unacceptable to you for the £2000 you have already paid.

5.  You raise a s75 claim with your card provider to get a refund of the £2000 you've already paid.

 

Is that where you are now?

 

What are you wanting from your card provider?  Are you simply looking for a refund of what you've already paid or are you wanting the lawn ripped up and re-installed properly?

 

4 hours ago, rizel23 said:

... It is the cost of the expert witness report we are really trying to get the bottom of, if this cost lays with us or the card company given it was reports to the credit card provider within 6 months and the claim is for failure to delivered contractual goods and service...

 

In a contract for the sale of goods, if the goods are found not to conform to contract within the first 6 months, then they must be taken not to have conformed on the day of purchase, unless the supplier (or your card provider) can establish otherwise'.  See s19(14) & (15) Consumer Rights Act 2015 (legislation.gov.uk)

 

In respect of contracts for the provision of a service, I don't think there is a "6 months rule" corresponding to that for contracts for the sale of goods.   So there is no legal presumption that the service has not been carried out in accordance with the contract, and you will need to demonstrate to your card provider that the contractor is in breach. 

 

Because I think this contract might be considered more of a contract for the provision of a service (the installation of a lawn) than for the sale of the materials, your card provider might be well within their rights to request evidence from you showing that the contractor is in breach of contract.  But why your card provider won't accept as evidence the report you already have, I don't know.  You need to ask them why a further report is required.

 

If they persuade you that a further report is required, I'd suggest that who pays for it depends on what the report shows.  If it shows the contractor has breached the contract then your card provider should pay.  If it doesn't show a breach of contract I suppose you should pay for it...

 

The above is just my view as a non-lawyer and isn't legal advice.  I'd be a bit more confident if you could make it clearer exactly what your s75 claim is based on and what remedy you want.  I'd also be more confident about what I was saying if this was just a contract for the sale of goods rather than for a service.  

[theberengersniper]

Apologies for butting in, but I have a question that may be relevant if this goes to court.

 

Is it well understood what the functional and cost differences between the sub-base they installed and the one you specified are?

 

I ask, because if this does go to court and they're able to show that the sub-base they installed performs at least as well, or possibly better, than the one you wanted, you could be stuffed. Of course I bracket that by saying I've no knowledge of this area, I just thought devil's advocate might be helpful.

[rizel23]

Thanks Manxman.

 

Your assumptions are correct, the report provided already confirms the contractual sub base was not present upon inspection. 
 

I will return to them and advise given the time frames that this contract was based on a supply of goods and a service (one cannot be done done without the other) we believe they are liable for the cost of any additional reports they deem they require to proceed under consume rights act as we be the evidence already supplied confirms a breach of contact against the specification that should have bern supplied and undertaken. 
 

we will extend the offer to arrange the report but the cost must be met by the card company regardless of outcome. 

 

 

theberengersniper

 

The contractor has already confirmed in writing they changed the sub base to ease the installation for them (saved them moving 4 tones of type 1 road stone and excavating down further to allow for it), so I cannot see how a judge would allow a written specification of a contract to be breached without the clients permission because it was easier for the contractor, would open a can of worms for contractors to agree to supply and undertake works and then change to suit them as they wish. 
 

thank you everyone for assistance and view points.

[Manxman in exile]

What you have to remember is that your card provider is not your friend in a s75 claim  - they aren't necessarily on "your side" in oppostion to the supplier and it isn't necessarily in their best interests to help you.

 

Unlike a chargeback - where the refund to the consumer comes out of the supplier's own bank account - any claim paid out under s75 comes from your card provider's own funds.  The legislation doesn't prevent them pursuing the supplier for reimbursement, but they often don't bother to do so.

 

For that reason card providers (a) really don't like dealing with s75 claims and prefer to use chargeback where there is a choice between the two, and (b) they might ask for a lot more evidence before paying out a s75 than they would a chargeback claim.  (Although why they won't accept what evidence you already have in this case I have no idea).

 

Making a s75 claim against your card provider is very like suing them rather than your supplier.  It's not a simple case of making a claim and sitting back waiting for the money.

 

BTW - if your card provider won't back down and you do end up commissioning a special report, I don't think I'd be expecting them to pay for it if it doesn't show a breach of contract.  Why should they?  If the report shows no breach of contract I'd have thought there was no claim against them for anything.  (Or at best there would be two independent reports saying two different things plus an apparent admission from the supplier.  You'd have to argue the point with your card provider).

 

If you have to get a report done I'd have thought you pay for it initially and claim the cost back from the card provider if it shows a breach of contrcat.  If it doesn't show a breach it's your loss...

 

To decide whether to risk £750 on a report depends on (i) how much money is at stake overall and (ii) how strong you think your case is.

 

If you don't get satisfaction from your card provider on the s75 claim but you still think you have a case your only options then would be to sue the supplier and your card provider jointly.

[rizel23]

Thanks Manxman,

 

But if they are required to prove the products and service were installed as per the contract satisfy the  consumer rights act, how would the do this without an independent report? Surely they’d need this to prove there was no claim, and as such would have to pay and commision one to prove as such? 

[Manxman in exile]

 

In relation to contracts for the sale of goods the Consumer Rights Act provides that if those goods fail to conform to contract within the first 6 months there is a presumption that they did not conform on the date of sale, unless the seller can establish otherwise.  Thus in the case of goods that don't conform to contract in the first 6 months the onus is on the supplier of those goods to establish that they did conform when sold.

 

But so far as I am aware there is no corresponding provision in relation to a contract for the provision of a service.  So insofar as your claim relates to the provision of a service (ie installing the lawn) your card provider is presumably saying that the onus is on you to establish that your contractor did not provide that service in accordance with the contract. *

 

(NB - generally the law requires the party making a claim to prove it.  The way contracts for the sale of goods are dealt with in the Consumer Rights Act is a specific exception to that general rule)

 

So you might be able to argue that because the materials actually supplied by your contractor were not as specified in the contract, then the supplier is in breach of contract with respect to the materials used (or not used).  But whether that is also evidence that they did not provide the service as specified, I don't know.  I suspect it is, but I can't tell you with any certainty that it is.

 

As I said previously, I'd be more confident of my response if this was solely a contract for goods - but it isn't.  It might be that others such as @BankFodder or @dx100uk can give you a more helpful answer.

 

Can I ask, are you dealing with a "proper" bank here?  eg HSBC, Barclays, Lloyds or Santander?

 

 

*As I posted previously I don't know why your card provider will not accept the report you already have as evidence.  Have you asked them why it isn't good enough for them and what would satisfy them?  Are you clear what they are asking for and why?

 

Also I'm not sure you've answered my questions in #17 and I'm still confused.

 

For clarity can you:

 

1.  confirm the total contract value;

 

2.  confirm what you've paid to date and the balance (if any) outstanding; and

 

3.  confirm what you are seeking from your card provider?

[BankFodder]

I'm jumping in here having only skimmed through the content of this thread.

The first thing that occurs to me is that you haven't mentioned the name of the contractor or his address. Is there a reason for this?

You haven't mentioned the identity of the credit card issuer/bank. Is there a reason for this?
I notice that you have actually been asked for this information but you don't seem to have responded.

The second thing is that I understand that you contracted for certain work to be carried out. You have written evidence of the specification which was agreed and the contractor implemented a different specification without any consultation or agreement from you.

You are now apparently seeking a refund based on section 75 CCA. This claim has been rejected. I understand that you are seeking a refund of the money spent but you don't seem to be addressing the cost of undoing the work and reinstalling the work to your original specification.

Have you received any quotations for this? (I'm assuming that this is what you would like to do) I notice that you have been asked what remedy you are seeking and I'm not sure that you have dealt with that question.

Why are you not suing the contractor directly?

You may well tell me that this is all been dealt with in the thread – and if it has then I'd missed it.

Maybe you would like to sum it all up here

[rizel23]

Sorry, to clarify.

 

1. Value of contract for the supply of materials and service was £4300

 

2. Deposit of £2150 (in dispute) was paid via credit card prior to works (JAJA) remaining outstanding balance registered as in dispute with contractor since matter came to light.

 

3. Contractor was Trulawn: Artificial Grass however, we later understood this was a franchise with works undertaken by Techi Grass LTD who provided us the invoice. 

 

4. No quotation yet received to make good, but we estimate this would be around £2K as it would involve stripping everything back,  re excavating and installing the correct subbase we required, but given the time frame here we would settle for a settlement of a reduced final invoice as its getting stressful for my family to the value of this making good.

 

BankFodder, JAJA have advised that for them (JAJA) to have a valid claim we must provide a written expert report at our cost (£750) to prove that the works that were undertaken either do or do not meet industry standards.

 

I have advised JAJA on several occasions now that this claim under Section 75 is a contractual dispute, not an industry  standards dispute, as these works do not fall under regulatory act such as Building Control or Planning. 

 

Whilst here have been goods and services provided (not disputed) they are not the goods or the service we paid for, it really is that simply and I cannot understand the approach JAJA is taking seeing as we have already provided a Grounds Investigation report stating the make up of the sub base.

 

This is the summary of the letter I sent JAJA back in March with all evidence attached

 

 The claim made under Section 75 of the Consumer Credit Act 1974 has already previously provided you with sufficient evidence that there has been a material breach of contract in regard to the goods and service provided by Technigrass Ltd on 20th September 2022 where this places JAJA jointly and severally responsible for any breach of contract or misrepresentation by a retailer or trader.

 

 

In summary, I remind you of the context of the material breach of the contract;

 

•           Technigrass Ltd  Failure to install the agreed specification dated 9th September 2022 upon which the quotation and deposit was paid, forming the basis of the contract.

 

•           Technigrass Ltd  Failure to evacuate to the depth of install (60-80MM) as specified within the quotation and advised in the bespoke methods of works

 

•           Technigrass Ltd  Failure to install 48m2 type 1 MOT aggregate for the subbase as specified with the quotation and advised in the bespoke methods of works

 

•           Technigrass Ltd Failure to inform me as client that Technigrass Ltd had changed this agreed specification on which the contract was based and make continued demands for full payment in full knowledge that the agreed contractual specification has not been installed since 11.10.22

 

I provide attached clear evidence that the agreed specification, upon which the contract is based confirms the following contractual/material breaches in regard to goods/service provided by Technigrass Ltd;

 

Appendix 1 – Standard method of works (Extract of main proposal of works dated 12/09/22 (full contractual proposal also attached)

 

Step 4: Installation of a type 1 limestone to a depth of 40-

60mm.

 

Has failed to be undertake and goods/materials provided as per contractual specification.

 

Appendix 2 – Bespoke method of works (Extract of main proposal of works dated 12/09/22 (also attached)

 

48m2 area to be excavated to a maximum depth of 60-80mm where applicable.

 

Has failed to be undertake as per the contractual speciation (See Appendix 4 Investigation Report) 

 

Install 48m2 type 1 MOT aggregate. Allow for 40mm coverage to provide an average of 30mm consolidated surface across the 48m2.

 

Has failed to be undertake and goods/materials provided as per contractual specification (See Appendix 4 Investigation Report)

 

Appendix 3 – Confirmation of Breach of contract by Technigrass Ltd (email dated 11/10/22 and highlighted extract)

 

“I can confirm that the on-site decision to use Grano only rather than combined with MOT type 1 was made purely to ease the installation process”

 

Technigrass Ltd provided written confirmation on 11th October 2022 that a change of specification to the contract had been under, I and can confirm this was without my prior knowledge or written/verbal agreement in advance, should this had been provided it would have been refused.

 

Appendix 4 – Investigation Report D** Contractors (Previously provided on 06/12/22, highlighted extract)

 

“The make up from formation level was found to be a layer of Geotextile fabric and a

45-50mm thickness of 6mm down granite dust. No type one roadstone was present.”

 

Provides clear evidence from the report of material breach of the contractual specification listed in Appendix 3 and further detailed within this correspondence, and correspondences previously provided.

 

I feel I have been reasonable in providing you with more than sufficient and detailed evidence to enable you to escalate this matter and remind you that JAJA remain jointly responsible under Section 75 of the Consumer Credit Act 1974.

 

However, should you still feel that JAJA require a more detailed engineers report I am happy to facilitate access for this with advance notice of 5 working days but this would need to be arranged and costed by JAJA,

 

but given the evidence provided I can not see of any benefit giving the evidence above and attached and that you now have clear evidence that the Technigrass Ltd has admitted a contractual change to the agreed and contractual specification for the goods and service that should have been provided.  

[Manxman in exile]

I've never heard of JAJA.  I presume they're a bank - although perhaps not what I would term a "proper" bank.

 

Just to check - what you paid with was definitely a credit card and not a debit card or a charge card?

 

I suspect the problem might be that they don't know their "JAJA" from their elbow.

 

As far as I'm aware, what they said about "JAJA have advised [us] that for them (JAJA) to have a valid claim we must provide a written expert report at our cost" is meaningless.  If you are making a s75 claim you are claiming against JAJA - whether they (JAJA) have a claim against the contrcator is irrelevant.  So long as you have a claim against the trader you have a claim against JAJA.  It's up to JAJA whether they accept the evidence you've already provided.  They don't have to prove to anybody that JAJA have a claim

 

Are you certain that they understand you are making a s75 claim and not a chargeback?

 

I suspect you may end up having to sue them and your contractor jointly - if you are confident that the evidence you have already provided to them supports your claim and if you think it's worth it.  (Sounds like it probably is worth it - but up to you).

 

See what @BankFodder advises.  They're good at this sort of problem.

Edited May 19, 2023 by Manxman in exile