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  • FIRST POST
    • fionagil
    • By fionagil 6th Feb 18, 3:19 PM
    • 8Posts
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    fionagil
    Am I entitled to a refund in court?
    • #1
    • 6th Feb 18, 3:19 PM
    Am I entitled to a refund in court? 6th Feb 18 at 3:19 PM
    I (apparently!) opened a standing order 9 years ago, although the bank cannot produce my original mandate as it was taken out more than 6 years ago.

    The person receiving this SO worked for a diet company which went into administration 4 years ago, so, the service I was giving to was no longer able to supply that service to me anyway.

    I realised the mistake in allowing this to go on undetected for so long and now wish to take her to the small claims court to get a refund.

    Mediation did not work as she offered me compensation of ....9 years attending her NEW diet club for free!!!! No thank you...

    I cannot remember ever signing a SO mandate, nor can I remember ever attending her class.

    She says I did and that she has proof that I did, however I've never been shown any proof...

    Where do I stand legally...any advice? I know that morally she is totally out of order, but you can't take someone to court on a moral issue..!!

    Any advice? Would be most grateful...
Page 1
    • Fosterdog
    • By Fosterdog 6th Feb 18, 3:39 PM
    • 3,619 Posts
    • 6,260 Thanks
    Fosterdog
    • #2
    • 6th Feb 18, 3:39 PM
    • #2
    • 6th Feb 18, 3:39 PM
    A standing order would be set up from your end by you so there wouldn't be any mandate.

    Are you confusing it with a direct debit? That is what a business sets up on your behalf and you sign for.

    What type of business was she running? (Sole trader or Ltd) to go into administration would suggest a Ltd company, meaning you have no legal recourse against her at all, only against a company which no longer exists.
    • steampowered
    • By steampowered 6th Feb 18, 3:40 PM
    • 2,185 Posts
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    steampowered
    • #3
    • 6th Feb 18, 3:40 PM
    • #3
    • 6th Feb 18, 3:40 PM
    It sounds like this was money paid without a contract (i.e. without receiving consideration). In legal terms this would be known as a restitution claim against the defendant for unjust enrichment. It is perfectly possible to claim that money back through court.

    However, there are limits. Most important, there is a 6 year time limit under the Limitation Act 1980. It would be very difficult to claim anything back further than 6 years.

    Furthermore, if you signed up for diet club membership but never cancelled, then couldn't it be argued that you remained a member of the club and therefore liable for the membership fee? Much like someone who signs up for a gym membership but never used it?

    If so, you'd be liable for the membership fee until the date you cancelled or the date the diet club stopped trading (which is probably the date it went into administration, but could be later if the administrators kept trading).

    Furthermore, it is pointless claiming against a company which has been dissolved. So you could only sensibly claim for the period in which you were making payments to the individual personally rather than the company.

    So I think you could claim for a refund, but probably not for the full 9 years. It may be sensible to make a compromise proposal to the individual concerned.
    • unholyangel
    • By unholyangel 6th Feb 18, 3:53 PM
    • 11,915 Posts
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    unholyangel
    • #4
    • 6th Feb 18, 3:53 PM
    • #4
    • 6th Feb 18, 3:53 PM
    Duplicate thread:
    http://forums.moneysavingexpert.com/showthread.php?t=5789418

    OP, did you forget you had already posted here several hours ago?
    Money doesn't solve poverty.....it creates it.
    • fionagil
    • By fionagil 6th Feb 18, 5:16 PM
    • 8 Posts
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    fionagil
    • #5
    • 6th Feb 18, 5:16 PM
    • #5
    • 6th Feb 18, 5:16 PM
    Thank you for your reply..

    This lady who had the franchise was self employed.

    I figured that since the SO was still active I should have been able to view the original instruction to the bank as I dispute I signed it in the 1st place, however, in the absence of that evidence it will be assumed that I DID sign it.

    The company she had the franchise from went into administration..she then went to work for another diet & fitness club but did not alert me to the fact that I was still (obviously accidentally) still paying the SO for a service she was no longer providing. Totally morally wrong I say!!

    I do intend to continue through the courts to recoup some part of refund...any advice as to what the outcome might be?
    • fionagil
    • By fionagil 6th Feb 18, 5:20 PM
    • 8 Posts
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    fionagil
    • #6
    • 6th Feb 18, 5:20 PM
    • #6
    • 6th Feb 18, 5:20 PM
    Hi...Thank you for your reply..

    She did offer me 8 years of free membership to her new club!! I find this totally unacceptable as she has (as you mentioned in your post) unjustly enriched!

    Do they still use this in court these days as a reason to build a case against someone?
    • steampowered
    • By steampowered 7th Feb 18, 9:03 AM
    • 2,185 Posts
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    steampowered
    • #7
    • 7th Feb 18, 9:03 AM
    • #7
    • 7th Feb 18, 9:03 AM
    The court is not remotely interested in settlement discussions (you can't use settlement discussions, such as the offer of 8 years free membership, as evidence anyway). Nor is it the moral police.

    The court is only interested in whether the money is owed, or not.

    If the facts are as described in your post, i.e. you were continuously paying money for 4 years without any sort of service being provided, I'd think you are likely to be awarded (using the moneyclaimonline service) a refund of amounts paid during the last 4 years. The basis of your claim is restitution/unjust enrichment for total failure of consideration.

    I think it is unlikely you'd get anything from years 4-6. It sounds like your contract was originally with the company rather than the individual, and the company is now in administration. You could always have a go though if you have a reason to say that your contract was with the individual.

    I think you are very unlikely to get anything going back further than 6 years. I wouldn't bother claiming for that.
    • Alter ego
    • By Alter ego 7th Feb 18, 9:12 AM
    • 2,268 Posts
    • 2,199 Thanks
    Alter ego
    • #8
    • 7th Feb 18, 9:12 AM
    • #8
    • 7th Feb 18, 9:12 AM
    You didn't notice this on your bank statements for 9 years?
    Ignore me if you like, it's not the real me anyway.
    • ThumbRemote
    • By ThumbRemote 7th Feb 18, 9:57 AM
    • 3,855 Posts
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    ThumbRemote
    • #9
    • 7th Feb 18, 9:57 AM
    • #9
    • 7th Feb 18, 9:57 AM
    A standing order would be set up from your end by you so there wouldn't be any mandate.
    Originally posted by Fosterdog
    A standing order can be set up by the payer (which is the most common route nowadays, via online banking), but it can also be set up by filling out a mandate. The mandate can be handed into you payers bank, or handed into the recipients bank, who in turn pass it on to the originating bank.
    • eddddy
    • By eddddy 7th Feb 18, 1:02 PM
    • 5,838 Posts
    • 5,580 Thanks
    eddddy
    i.e. you were continuously paying money for 4 years without any sort of service being provided,
    Originally posted by steampowered
    I don't think it's that clear cut.


    The company she had the franchise from went into administration..she then went to work for another diet & fitness club but did not alert me to the fact that I was still (obviously accidentally) still paying the SO for a service she was no longer providing.
    Originally posted by fionagil
    Who was your contract with (who were you paying) - the lady or the franchise company?

    It sounds like you're saying you contracted with the lady to provide you with diet club services.

    The lady's supplier (Franchisor) went into administration, so she moved to another supplier (Franchisor), but the lady continued to offer diet club services to you. So your contract could well have continued and been unaffected.
    • fionagil
    • By fionagil 7th Feb 18, 2:58 PM
    • 8 Posts
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    fionagil
    I don't think it's that clear cut.




    Who was your contract with (who were you paying) - the lady or the franchise company?

    It sounds like you're saying you contracted with the lady to provide you with diet club services.

    The lady's supplier (Franchisor) went into administration, so she moved to another supplier (Franchisor), but the lady continued to offer diet club services to you. So your contract could well have continued and been unaffected.
    Originally posted by eddddy

    I have to say I have no recollection of signing a SO to join this diet club at all, so I have received no documentation relating to any contract or service, which is why it went undetected for so long.

    The SO was coming out of my a/c ref. R.C.D.F.C so it was not obvious to me what this payment was for. I imagined it to be perhaps an insurance/medical policy??
    Payments were going it to her bank a/c and she paid the diet club a nominal monthly fee until she no longer had to following their going into administration , but she continued to be in receipt of my SO fee.. She was self employed as a franchisee.

    Does this give you any clues as to her position.
    • Money maker
    • By Money maker 7th Feb 18, 3:03 PM
    • 4,925 Posts
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    Money maker
    She would be unable to stop the standing order. I dont think its unreasonable for the onus to be on you to cancel as she cannot.
    Please do not quote spam as this enables it to 'live on' once the spam post is removed.

    If you quote me, don't forget the capital 'M'

    Declutterers of the world - unite!
    • eddddy
    • By eddddy 7th Feb 18, 4:25 PM
    • 5,838 Posts
    • 5,580 Thanks
    eddddy
    She would be unable to stop the standing order. I dont think its unreasonable for the onus to be on you to cancel as she cannot.
    Originally posted by Money maker
    I don't think that's in question.

    Essentially, the OP is suggesting that the money was not owed to the payee - and it was paid in error.

    If money is paid into your bank account in error which is not owed to you (by SO or otherwise), you have a duty to return it.

    The question is whether the money was owed to the payee (so she can keep it) - or whether it was not owed to the payee (so it has to be returned).
    Last edited by eddddy; 07-02-2018 at 4:28 PM.
    • lincroft1710
    • By lincroft1710 7th Feb 18, 5:00 PM
    • 10,387 Posts
    • 8,527 Thanks
    lincroft1710
    I have to say I have no recollection of signing a SO to join this diet club at all, so I have received no documentation relating to any contract or service, which is why it went undetected for so long.

    The SO was coming out of my a/c ref. R.C.D.F.C so it was not obvious to me what this payment was for. I imagined it to be perhaps an insurance/medical policy??

    Payments were going it to her bank a/c and she paid the diet club a nominal monthly fee until she no longer had to following their going into administration , but she continued to be in receipt of my SO fee.. She was self employed as a franchisee.

    Does this give you any clues as to her position.
    Originally posted by fionagil
    It went undetected for so long because you failed to check your outgoings properly.

    What is important in any contract is the terms and conditions. Without knowing these it is difficult to ascertain what you were or were not entitled to and from whom. The franchisee continuing to take money from you after the franchisor ceasing to trade does not seem to be wellfounded, but it may well be permissible under the T+Cs of the original contract.
    • pmduk
    • By pmduk 8th Feb 18, 10:11 AM
    • 7,946 Posts
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    pmduk
    You mention in your other thread you have had legal advice. Why on earth then are you asking anonymous people on a forum for their advice?
    • fionagil
    • By fionagil 8th Feb 18, 11:51 AM
    • 8 Posts
    • 0 Thanks
    fionagil
    You mention in your other thread you have had legal advice. Why on earth then are you asking anonymous people on a forum for their advice?
    Originally posted by pmduk
    Hi..
    Thank you for your comments, however, I (the claimant) didn't take legal advice but the defendant did..

    I think you may have misread my thread? Sorry, if my wording confused you!

    Regardless of whether I have had a legal opinion or not, other peoples opinions are always valuable as they may have had/are having similar experiences to me, so talking it through with others can be very helpful for a wide range of reasons...hence the 'forum'.

    Besides, I never rely on one opinion...every day is a school day...
    • Blackbeard of Perranporth
    • By Blackbeard of Perranporth 8th Feb 18, 12:18 PM
    • 4,819 Posts
    • 29,271 Thanks
    Blackbeard of Perranporth
    BoP now interprets for the forgetful


    OP has paid a Standing Order, set up at their bank by the payer, for nine years and has only just noticed this on their statement. they wish redress as recipient closed their business some time ago.
    They have sought professional advice, and some barrack room smoke lounge advice around here.
    Besides, I never rely on one opinion...every day is a school day...
    Originally posted by fionagil
    Unfortunately, to date they have not heard the answer they have wanted!
    Every fairy story always ends the same way
    Hope, then tragedy at the end of the world!
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