Insufficient glass washer not fit for purpose

[SRJA]

I bought a glass washer for my pub, went off recommendations for a good local company and the supplier came out to do a site visit to see which machine would be most suitable. Spent just short of £3k on the washer.

 

Since installation I’ve not had one clean glass, the supplier has been back a few times to adjust settings and then said we needed a water pump, so we bought a water pump through them to increase the water pressure to help the final rinse. 

 

Still no clean glasses (glasses have rinseaid residue on them so they look very streaky) 

Tried more settings, swapped the machine in case it was a faulty machine. 

Still no clean glasses.

 

I got in touch with the manufacturer, as by this point the supplier (distributor of the manufacturer) was ignoring my calls/ messages. They sent an independent engineer out to site to see what the issue was.

Independent engineer identified we don’t have enough water flow for this machine - that in actual fact we needed a different kind of machine that stores water for the final rinse rather than using it from the water pipes (bit like a toilet tank)

 

Original supplier said ok we’ll swap the machine out but we’ll only give you 80% back for the water pump as it’s now second hand (had it about 5 weeks because they told us we needed it) and the new washer will also cost more (I can accept the new washer is more as it’s a pricier model) 

 

All agreed. Invoice sent, although I wasn’t happy about the water pump.

 

Next day I get another invoice - the manufacturer sent the supplier/ distributor an invoice for the independent engineer, the supplier/ distributor has now sent it onto me (£350) and said if I don’t pay it he’ll no longer swap the machine.

 

So…where do I stand? He’s the ‘expert’ that did a site survey and sold me a machine that isn’t suitable for my site

 

I was never informed of a potential fee for the independent engineer. When the invoice landed for it I asked when he informed me of this, his response was ‘well I’m telling you now’ (after the event) claiming because there is nothing wrong with the actual machine and it’s an issue with my water supply I have to pay. If I don’t pay I’m left with a machine that isn’t suitable for use and down nearly £3k. I called the manufacturer and they said they won’t get involved, but they apparently did tell the supplier/ distributor they would charge him for the engineer if it wasn’t a fault with the machine. The invoice is from the manufacturer made out to the supplier/ distributor not to me. 

 

Where can I go with this?

Distributor agrees they should have been aware of the water flow when they did the site survey, but says they’re having nothing to do with it and it’s between me and the supplier to sort.

 

Supplier started making threats on the phone saying if I tell other pubs he’ll take legal action and that he’ll only swap it all out if I accept less for the water pump and pay the independent engineer fee and pay more for the new machine.

[BankFodder]

Please could you identify the manufacturer, make and model of the machine and the person or business which sold it to you. Who is the distributor?

How much did you pay for it please and when did it start happening?

I'm getting a little bit confused but I understand that when you refer to the "supplier" – that is they who actually sold you the machine. This correct?

 

Also it's a bit confusing – please could you list out your total losses here – itemised.

 

[BankFodder]

In fact looking at this again, are you using the term "supplier" and "distributor" interchangeably? Referring to the same person?

[SRJA]

Hi Bankfodder 

 

so yes the supplier to me is also the distributor to the manufacturer. So they are the same person

 

the supplier/ distributor is Lumb catering and the manufacturer is DC products it’s a DC S-series machine.

 

£2034 for the machine to Lumb catering

 

£330 for the water pump they later told me I needed to fix the problem to Lumb catering 

 

£350 Lumb catering are now charging me for the manufacturer (DC) sending an engineer out without me being aware or agreeing to any fee (the invoice is made out to Lumb catering from DC it doesn’t actually have my name on it)

 

and £240 extra to Lumb catering for the upgrade to a machine with a tank - but only if I also pay the £350 engineer fee, if I don’t they (Lumb) won’t remove the existing machine and upgrade it to one suitable with a water tank.

 

does that make sense? 

[BankFodder]

I hope you won't mind – I had a peek at your pub and it looks very nice. I understand that this is a relatively new business for you – very daring to take that on during Covid.

The supplier – Lumb Catering is responsible for the whole thing. You say that they did the site survey and they specified the machine and even the additional pump after they realise that they had got it wrong.

It's been very helpful that you have got written engineers report that confirms that the specified equipment was incorrect.

 

By the way, I notice that Lumb catering who are based in Brigg also trade under the name Lumbs Catering. I don't know why that should be and its probably not a problem – but you need to be aware of this in case you end up having to take legal action. Under the first name Lumb Catering they seem to be trading as a limited liability company. Under the second name – with an S – and they seem to be trading as a sole trader.
I'm still a bit confused as to how the money goes.

Also, are you currently without a washing machine? How much will it cost you to get the correct one installed?

I understand that so far you've paid out £2034 for an under specified machine
£330 for an extra waterpump
you are being charged £350 for an engineers visit


There's also the question of £240 for an upgrade. Does this mean that your existing machine has to be replaced or is it simply being upgraded?

 

[SRJA]

My apologies it’s Lumb’s with an S in Brigg North Lincs. As per my invoices anyway!

 

the upgrade free is for an entirely different machine so replacing the one we have with another machine that is deemed appropriate for our site as it holds water within the machine. 

[BankFodder]

First of all, liability is completely with the seller. Not only that, because the seller assessed the situation and specified a particular solution for £2034, that is all you should have to pay even though it now turns out that the equipment you need is more expensive.
In other words, there is no reason why should have to pay a single penny more than the original agreed or expected price.

A contract is an exchange of reasonable expectations. Lumb expected to receive £2034. You are expected to receive a solution to your glass washing problem. He did not contract for a specific machine. You contracted for a specification which you were informed by an experienced professional would satisfy the needs of your business.

You paid 100% – but you received in exchange less than 100%. Even though the required equipment might be more expensive than that which was specified, if that's what it takes to provide the solution that was promised to you by Lumb, then that's what you are entitled to get and you shouldn't be required to pay any more for it.
Please let me know if this is getting a bit too technical in legal terms.

I understand that the moment that you don't have an adequate glass washing machine. Clearly for the sake of your business, you need to get this issue resolved quickly.

If you hold out and have an argument about money which has to be paid or not paid et cetera then you may well find yourself several months down the line without the last washing machine that you need. You may well find that you will have to sue Lumb on the contract that you made.

Obviously you are better placed than me to understand what you need and what you can afford, but I would recommend that the best thing to do is to pay whatever Lumb demands at the moment in order to get your existing glass washing machine exchanged for the model which addresses your needs – and effectively provides you with the solution that you paid for in the first place.

Then afterwards, sue Lumb for the money back. We'll be happy to help you. I would rate your chances of success at better than 90% in the County Court. An added advantage of this is that once you have the new machine in place, you will be able to assess its effectiveness and its adequacy to your needs – on the off chance that also has been under specified.

Handling it this way will have the advantage that you will have a new machine installed probably in a week or so, you can get on with your business, and then you can embark on a reasonably cheap piece of litigation because the amount of money that you will be suing for won't be too great.

The alternative will be to stick with your existing machine, having to put up with the inconvenience et cetera and then eventually suing Lumb for a much larger figure – the value of the replacement machine.
An additional advantage would be that if you are suing for smaller sum, then it is much more likely that Lumb will put his hands up and pay you out because it simply won't be worth his while digging in on a dispute with only a few hundred pounds. Of course you can't guarantee this. Some people take this kind of thing personally and they try to resist even though it makes absolutely no business sense at all.

If you want to do this, then you possibly need to flag up to lump that you're prepared to go along with what he is insisting but also make it clear that you're not happy about it. You certainly shouldn't sign anything that says that you agree this in settlement of all disputes. Or anything like it.

If you end up being presented with something like that then let us know. But probably that will mean that you will have to sue for the new machine with all the business inconvenience that that entails.

 

Of course if you feel that you need to retain a good relationship with Lumb because of possible future dealings, then you may need to consider your entire approach to this problem.

Another part solution might be to threaten Lumb with an action for all of the excess costs of the new machine plus the engineers visit – and then back down and agree to pay the entire cost of the new machine as well as he will forgive the engineers visit. This is a compromise that Lumb might find attractive because he will be able to save some Face. Often it's all about Face.

Frankly if you think you don't need the guy in the future then I would be going for the lot – but you know your own business interests better than I do.

Does this make sense?



 

[SRJA]

Thank you that makes a lot of sense. I don’t need them in future unless I wanted repairs on this machine but I wouldn’t trust them now anyway. Am I able to contact you directly about this in the week when I’m quiet in the pub? 

[BankFodder]

Everything is on the open forum.

Decide which strategy you want – get your new machine in and then sue for anything in excess of the original agreed price.

Hang out and sue for everything in the future but put up with your existing system for the moment.

If you think that you are going to litigate then you should look on this forum that the steps involved in taking a small claim in the County Court. It's very easy but it is worth knowing the steps in advance so that you have confidence.

One slight drop in for you is that as you will be seeing as a business, the case will be transferred to the defendant's local court. It's most likely that the hearing will be using Skype or Zoom – but if there happens to be an in-person hearing, then you will have to travel to that court although you will be able to recover the reasonable costs of travel in addition to your core cost – assuming you win as you most likely will. However you should be aware of your risk factors which are that if you lose, then you will have to pay his court costs and reasonable costs of travel as well as loosing your claim fee.

Also, if you decide to dig your heels in and sue for the new machine, then if you lose then you will probably be stuck with what you've got and have to pay a lot extra.

This is another reason why you should get the logistical problem of your machine sorted out straightaway – and then go for ancillary losses afterwards.