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

[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

[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?

[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.  

[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.

[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?

[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

[Manxman in exile]

Thanks.  Never heard of them.  Wonder if they know what a s75 claim is?

 

(Which is borne out by their earlier statement that they would prosecute the trader!    )

 

Just wondering whether there may be an issue regarding who the creditor is for the purposes of s75?  Is it JAJA or is it the card provider (Visa or Mastercard)?

 

Perhaps JAJA have to prove to Visa or Mastercard that the claim is good...?

Edited May 19, 2023 by Manxman in exile

[Manxman in exile]

My point was that s75 specifically makes "the creditor" liable in what is referred to as the "debtor - creditor - supplier" chain.

 

You are the debtor.  Your contractor is the supplier.  I'm not sure whether the creditor is JAJA or Visa or Mastercard.  If it isn't JAJA they might have to comply with whatever instructions they have from Visa/Mastercard in respect of paying out on s75 claims.

 

Usually you just make a claim against your bank and - if successful - they pay up.  Because I've never heard of JAJA and I don't know under what authority they issue credit cards I'm just saying I don't know who the creditor is.  It might be a complication - or it might not...

 

Just as I haven't heard of JAJA they appear not to have heard of s75.

 

I think you may need to spell it out to them in words of one syllable that your claim is for breach of contract in that your contractor deliberately didn't follow the agreed contract specification and installed something that - in effect - you did not contract to buy.  Nothing to do with industry standards or building regs.  They simply departed from the agreed specification without your agreement.

 

Have you asked for the claim to be escalated to somebody who might know what they are doing?

 

As I posted earlier, see what else @BankFodder suggests.  They're better than me at untangling these sort of disputes.

[Manxman in exile]

1 hour ago, rizel23 said:

Currently we have paid nothing for the works so currently nothing to reclaim back, if that changes we will review options thanks 

 

I thought you'd paid 50% (£2150?) on your credit card as a deposit?  Isn't that what you're claiming back from JAJA?

 

It doesn't answer why you aren't first taking action against the contractor...

Edited May 22, 2023 by Manxman in exile

[Manxman in exile]

Well that might put a slightly different complexion on it... (?)

So your contractor hasn't received any payment yet.  Has he contacted you regarding payment?

I don't know, but I'm not sure you can make a s75 claim if your card company hasn't paid the contractor yet.  My understanding - which may be wrong - is that s75 depends on the card company being the creditor in the debtor - creditor - supplier chain.  If the card company haven't paid the contractor yet I'm not sure if you have a s75 claim because I'm not sure JAJA are a creditor in these circumstances(?).

I'm wondering if you may have jumped the gun by asking JAJA to hold the payment...   Did you ask them to hold it or what?

I think what would normally happen is that you would have made a credit card payment to the contractor, you would then have tried to recover it from him, and if that failed you would pursue a s75 claim against your card provider.  Or you might have sued them jointly from the get go.  But that hasn't happened here.

Also, what about BankFodder's question about the cost of making good?  Normally you'd be suing the contractor and then making a s75 claim if he didn't pay up.  What I'm really not certain about here is what level of involvement JAJA have if they haven't paid the contractor at all and might not be a creditor(?).

See what @BankFodder suggests as I'm a bit puzzled in this situation

 

Edited May 25, 2023 by Manxman in exile