A mishap at an art gallery - broken painting - Gallery owner refused to listen

Busbybank

Zazen999 wrote: »

So, you are no more out of pocket than you would have been if you had taken the picture to a framer and paid them to replace the glass directly.

Also, why do you even mention the medical state of your child; just say 'my child' not 'my downs syndrome child'; as the cup throwing is probably not related to the syndrome, but related to him being a child - it really is not relevant.

We are £120.00 out of pocket - £60.00 to the gallery owner as commission and £60.00 to the artist to cover the reglazing.

Actually son's lack of understanding of consequences due to disability does have an impact here. J's peers (the ones he goes to nursery with) would not act in the same way. They may still break things, but would understand the consequences.

poet123

Crazy_Jamie wrote: »

I didn't mean my comment that way and you know it. I would give the same advice whether one of the OP's sons was disabled or not.

You mentioned the OP's circumstancesand their disabled child as a reason they should not proceed. My point was that they are a better judge of that than you are.


Out of interest, what is your legal knowledge/experience? Because there is one way that the gallery owner could react to the serving of proceedings which I would like to state that could become very expensive for the OP, but it is a technical procedural point and, with the greatest of respect, I will have to explain it in more detail if you don't have knowledge of the civil procedure rules, and don't want to patronise you if you do.

The Gallery owner could launch a cross or counter claim, but I dont think that is likely, but would of course have to be given consideration , as would all other aspects. As the case is for less than £5000, no other track is suitable, and if on the allocation form the claimant evidences an interest in ADR (aka, mediation, using the free service now provided for the SCC) that may also be a route to get resolution.


Summary Judgement application from the defendant would be very unlikely to be accepted.


This is clearly not a case for the Commercial Courts (whcih would automatically make it multi track with the attendant cost implications).


Given all the above, (most pertinently the benchmark figure of £5000) I would be interested to hear what "technicality" you believe the defendant could employ, and reasonably expect to succeed with?




Out of interest what is your age? I could be much older and have had more experience,..... but wouldn't like to patronise you if that was not the case!!

I don't know where you're getting this from, but you are categorically wrong. For a start, and I say this for clarification purposes, there is no separate 'small claims court'. Small claims is simply a track that cases of the lowest value are allocated to, the other two tracks being the fast track and multi track. The burden of proof on all tracks, and indeed in civil claims in general, is the balance of probabilities. There is no separate standard for small claims cases.

How many SCC cases have you attended? I can tell you whilst it may not be enshrined in law that the burden of prook is lower, in practice it is, in the majority of cases the DJ errs on the side of the consumer, if they come across well in the informal court.

How exactly could that case be made? I mean seriously, outline your legal argument for me that shows duress in this case. The OP has clearly stated that the children were not distressed, indeed quite the opposite. The OP has further stated that the money was paid because they were unaware of their rights. Duress is essentially the act of removing the free will of a party. The OP was quite free to give their details to the manager and leave the store to give the matter consideration. There was nothing at all stopping them from doing that apart from the ordinary pressure of this situation, which is not anywhere close to duress.

Simply that any contract formed is void by reason of either mistake or duress. The very fact that the OP paid up but only after having all his requests for the artist to be contacted, or an insurance claim to be made and that the gallery owner "wouldnt listen" implies he felt pressure. He then went to see the police to check out what he should have done, whether he should have stood his ground, and they confirmed his suspicions that he was within his rights not to pay.


As you say, maybe this does not fit the usually accepted definition of duress,( threats etc) but does fit loosely into economic duress, or even actual undue influence, where the balance of power is not equal at the time of entering into a verbal contract.

The SCC (which is a track I agree, but is seen as a entity in its own right by many consumers) will take into account how the claimant felt, did he feel under duress, did he honestly believe he was under duress, and I think the OP could evidence this quite well for the purposes of a claim.

You may well be right that it is not worth the effort, nor is it cut and dried he would win, equally, it is not certain he would lose, for many people the experience would be enough to make them run with it.

Obviously, he would not be wise to pay for legal advice, but a free CAB/ Pro Bono appointment should be enough to arm himself with the tools to go forward and represent himself if that is what he chooses to do.

poet123

pendulum wrote: »

I think the gallery owner has a better chance of successfully claiming for all those things than the OP does, which is just one of the reasons why going to court over this £60 is a ridiculous proposition.

It is time to let it rest. It's only £60. The OP has got nowhere with the police or trading standards, and going to court over this £60 is a poor idea. It's quite irresponsible of you to encourage them to go to court under these circumstances. If you are so sure it's for the best, and so certain of the OPs case, I wonder if you will volunteer to pay all the OPs costs if they go to court and lose?

This reminds me of the Jaguar paintwork damage case a few years back. The one where the fella started off with a small claims case which MSEers told him he was sure to win. The dealership defended and got the case seen in a higher court. He not only lost, but he had to pay the defendants costs (tens of thousands of pounds). He went bankrupt partly due to MSEers advice. If memory serves, they even held a whip round because he was having to sell household essentials. He carried on with the case out of principle and look where it got him.

Remember OP - Its easy for people to say they'd take it to court when they are sitting in their chairs at home reading someone else's situation. If they were in the situation and it was their money at risk they probably wouldn't follow their own advice. Not over £60.

I am not encouraging him to do anything, I am merely stating that there are two sides to every story and that he could, if he chooses take it further.

You are scaremongering, for every case like the one above, (if indeed all the facts are correctly represented and several salient points have not been omitted!!) then there are thousands of "little people" who do win against sole traders and larger companies because they were tenacious and refused to accept the fact that they were powerless.

The fact that the amounts are small does not negate the principle, but as they are under £5000 it is extremely unlikely that nay escalation would be considered by the courts, so your fears are largely unfounded.

Additionally, he could also file a notice of discontinuance at any time, and let the case drop if he felt it necessary to do so.

lincroft1710

Zazen999 wrote: »

Also, why do you even mention the medical state of your child; just say 'my child' not 'my downs syndrome child'; as the cup throwing is probably not related to the syndrome, but related to him being a child - it really is not relevant.

But it is relevant. OP states that because he's DS their son's behaviour is unpredictable and goes on to say they "thought" they had tired him out, which suggests that they wouldn't normally have taken him into an art gallery.

Zazen999

lincroft1710 wrote: »

But it is relevant. OP states that because he's DS their son's behaviour is unpredictable and goes on to say they "thought" they had tired him out, which suggests that they wouldn't normally have taken him into an art gallery.

'I took my 3 year old into an art gallery, they managed to knock a painting down when they threw a cup'

'I took my 3 year old Down's Syndrome child into an art gallery, they managed to knock a painting down when they threw a cup'.

So, what's the actual difference here in terms of how the gallery should react to the broken painting?

OlliesDad

Zazen999 wrote: »

'I took my 3 year old into an art gallery, they managed to knock a painting down when they threw a cup'

'I took my 3 year old Down's Syndrome child into an art gallery, they managed to knock a painting down when they threw a cup'.

So, what's the actual difference here in terms of how the gallery should react to the broken painting?

The OP probably posted it to prevent all the usual negative trolls on here judging them because their 3 year old was disobediant. I know my 3 year old would not throw a bottle around, but i can fully understand that a downs child would.

So if you feel the information is irrelevant, ignore it, don't bolw it up out of proportion.

Anyway, back to the actual issue. The art gallery can only claim for actual damages. This would include the cost of the item, carriage to him, any fees for displaying etc, so while it is likely that you could claim some of the money back, it wouldn't be the full £60. More likely to be £20-30.

lincroft1710

It's not about whether the gallery owner should react differently when DS child involved, it's about the OP clearly knowing that something could happen.

Crazy_Jamie

poet123 wrote:

Simply that any contract formed is void by reason of either mistake or duress. The very fact that the OP paid up but only after having all his requests for the artist to be contacted, or an insurance claim to be made and that the gallery owner "wouldnt listen" implies he felt pressure. He then went to see the police to check out what he should have done, whether he should have stood his ground, and they confirmed his suspicions that he was within his rights not to pay.

As you say, maybe this does not fit the usually accepted definition of duress,( threats etc) but does fit loosely into economic duress, or even actual undue influence, where the balance of power is not equal at the time of entering into a verbal contract.

The SCC (which is a track I agree, but is seen as a entity in its own right by many consumers) will take into account how the claimant felt, did he feel under duress, did he honestly believe he was under duress, and I think the OP could evidence this quite well for the purposes of a claim.

You see, if this case was worth considerably more, say in the thousands of pounds, I may well be joining you in trying to formulate a duress argument if the OP were minded to take a chance on this, because ultimately the costs implications on the small claims track are considerably less than the others. However, in this case if the OP were to lose the costs they would have to pay to the gallery (if the gallery instructed solicitors) plus the issue fee (which would be lost) would amount to more than the £60 'profit' that the gallery owner has made here. For an effective 'double or nothing' case the OP should be establishing prospects of success over 50/50, and not a case where.....

You may well be right that it is not worth the effort, nor is it cut and dried he would win, equally, it is not certain he would lose, for many people the experience would be enough to make them run with it.

........'it is not certain he would lose'. To me, that is just not good enough. The time and heavy potential to be out of pocket in this scenario quite simply needs better prospects. I am genuinely surprised that given the ground you are moving on as regards prospects you are still disagreeing with me that this case is not worth the effort. I agree with you that principles are important, and I also agree that a case could be made in this scenario. However, taking everything into account, including the value of this case and the diminished prospects, it seems clear to me that principles need to take a back seat to practicalities here. That is not an admission of defeat or anything like it; it is simply the smart decision in the circumstances. But hey, if you continue to disagree with me that is entirely your call. I have established my position, and am not going to go through the trouble of repeating myself over and over.

poet123 wrote:

Out of interest what is your age? I could be much older and have had more experience,..... but wouldn't like to patronise you if that was not the case!!

I expected you would take that as a threat, but it was not intended to be one. It was simply a practical statement. I'm not trying to pick a fight or belittle you, nor do I intend to get into a contest of ego that are so common on the internet, but the simple fact of the matter is that if I'm going to engage you in a discussion about civil procedure, it would help to know whether or not you are familiar with it. But since you didn't really answer the question and opted to throw out a few random bits of knowledge I'll assume you do know about it, and thus.....

poet123 wrote:

I would be interested to hear what "technicality" you believe the defendant could employ, and reasonably expect to succeed with?

..... I will explain the technicality. Essentially you are construing the dispute as one of contract, and certainly a contract of sorts has been made. However, as the contract arose out of the negligence of the OP (for which liability was admitted), it could equally be argued that the 'contract' was in fact a settlement arising out of that negligence. That is an important distinction, because if it is held as a settlement between parties then it would be open to the gallery owner to respond to the service of proceedings by making an application to strike out the claim. This is not the same as a summary judgment application, which I agree the Defendant would be unlikely to succeed in. Summary judgment deals with facts, whilst strike out deals with law. If the contract is held to be a settlement, then the net result could be that the case is held to be an abuse of process, and it could then be struck out. The problem for the OP, and this is the important bit, is that as such an application would be made before allocation, the costs restrictions on the small claims track would not apply, and the OP could potentially have to pay hundreds of pounds worth of costs.

Is that a likely route for the Defendant to take? No, it isn't. Nor would I consider necessarily consider it 'likely' that the Defendant would succeed in such an application, but then again I never stated that he would. It is simply another avenue of risk that needs to be considered, if we're looking at all angles. And incidentally.......

poet123 wrote:

Additionally, he could also file a notice of discontinuance at any time, and let the case drop if he felt it necessary to do so.

...... the OP would still have to pay the Defendant's costs if he chose to discontinue, which would leave him out of pocket. Discontinuance is not a 'get out of jail free' card, it is a 'get out of jail paying less than you would have to pay at trial' card.

All in all I do feel that this discussion is wearing thin, and ultimately that inevitable moment of 'agreeing to disagree' will be soon upon us. Mainly because I think we've more or less reached the point where we are throwing out information that is beyond what the OP will find useful, which at the end of the day is the aim of the game. But if you want to respond to or clarify anything else, then by all means go ahead.

poet123

Crazy_Jamie wrote: »

You see, if this case was worth considerably more, say in the thousands of pounds, I may well be joining you in trying to formulate a duress argument if the OP were minded to take a chance on this, because ultimately the costs implications on the small claims track are considerably less than the others. However, in this case if the OP were to lose the costs they would have to pay to the gallery (if the gallery instructed solicitors) plus the issue fee (which would be lost) would amount to more than the £60 'profit' that the gallery owner has made here. For an effective 'double or nothing' case the OP should be establishing prospects of success over 50/50, and not a case where.....
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I am not saying that the OP should pursue the case, I was merely answering your query as to what possible defence could be formulated, not suggesting it should be formulated. You now seem to be agreeing that citing duress could be a reasonable way to go. However, as you will be aware legal costs are not generally recoverable ( by either side, win or lose) in the SCC for the simple reason it is designed to allow access to justice for the ordinary man in the street, so regardless of whether the gallery instructed solicitors or not those fees would not be borne by the OP. Court fees for up to £300 are £30, so not too onerous a cost.

Crazy_Jamie wrote: »

it is not certain he would lose'

OK, let's turn it around....he may not win, when does any person with any legal expertise give a cast iron guarantee of sucess?

Crazy_Jamie wrote: »

To me, that is just not good enough. The time and heavy potential to be out of pocket in this scenario quite simply needs better prospects. I am genuinely surprised that given the ground you are moving on as regards prospects you are still disagreeing with me that this case is not worth the effort. I agree with you that principles are important, and I also agree that a case could be made in this scenario. However, taking everything into account, including the value of this case and the diminished prospects, it seems clear to me that principles need to take a back seat to practicalities here. That is not an admission of defeat or anything like it; it is simply the smart decision in the circumstances. But hey, if you continue to disagree with me that is entirely your call. I have established my position, and am not going to go through the trouble of repeating myself over and over.

But it is not about us, it is about how strongly the OP feels about the incident and how hard done to he feels, and ultimately what risk he wishes to take. I simply disagree that he should be told categorically that he has no chance of winning, no case to moot, and nowhere to go.

He has all these, provided he embarks on this course of action in possession of all the facts, not our opinions, or our take on what time and money it is reasonable for him to expend.

Crazy_Jamie wrote: »

I expected you would take that as a threat, but it was not intended to be one. It was simply a practical statement. I'm not trying to pick a fight or belittle you, nor do I intend to get into a contest of ego that are so common on the internet, but the simple fact of the matter is that if I'm going to engage you in a discussion about civil procedure, it would help to know whether or not you are familiar with it. But since you didn't really answer the question and opted to throw out a few random bits of knowledge I'll assume you do know about it, and thus

I didn't take it as a threat:D just answered your question with another, as you have done yourself....civil procedure is not so complex, and yes, I do have a rudimentary grasp of it;)

..

Crazy_Jamie wrote: »

... I will explain the technicality. Essentially you are construing the dispute as one of contract, and certainly a contract of sorts has been made. However, as the contract arose out of the negligence of the OP (for which liability was admitted), it could equally be argued that the 'contract' was in fact a settlement arising out of that negligence. That is an important distinction, because if it is held as a settlement between parties then it would be open to the gallery owner to respond to the service of proceedings by making an application to strike out the claim. This is not the same as a summary judgment application, which I agree the Defendant would be unlikely to succeed in. Summary judgment deals with facts, whilst strike out deals with law. If the contract is held to be a settlement, then the net result could be that the case is held to be an abuse of process, and it could then be struck out. The problem for the OP, and this is the important bit, is that as such an application would be made before allocation, the costs restrictions on the small claims track would not apply, and the OP could

You see, I think that is also a debateable point, if the 3 screws were not present, as seems likely if the painting was simply on the floor still wrapped, then the contract made made on a false premise, or put another way a lie. However, as you rightly say the liklihood of that happening is slight. Much more likely that either the gallery will not defend, or defend and a compromise settlement be reached by the court.

Crazy_Jamie wrote: »

Is that a likely route for the Defendant to take? No, it isn't. Nor would I consider necessarily consider it 'likely' that the Defendant would succeed in such an application, but then again I never stated that he would. It is simply another avenue of risk that needs to be considered, if we're looking at all angles

Fair enough


.

Crazy_Jamie wrote: »

..... the OP would still have to pay the Defendant's costs if he chose to discontinue, which would leave him out of pocket. Discontinuance is not a 'get out of jail free' card, it is a 'get out of jail paying less than you would have to pay at trial' card.

Which as we have already established is not that onerous, so not something to deter the OP unecessarily.

Crazy_Jamie wrote: »

All in all I do feel that this discussion is wearing thin, and ultimately that inevitable moment of 'agreeing to disagree' will be soon upon us. Mainly because I think we've more or less reached the point where we are throwing out information that is beyond what the OP will find useful, which at the end of the day is the aim of the game. But if you want to respond to or clarify anything else, then by all means go ahead.

I thought that it was always inevitable that we would agree to disagree:D but actually we seem to be closer in mind than we previously were, we have a possible defense formulated, we are in agreement on where the defendant probably would not go, and we agree that it may not be worth it. Perhaps where we disagree is whether (leaving monetary concerns aside, whilst understanding the limit of cost liability) principle alone is worth fighting for.

I am on the fence here, the stubborn part of me says go for it, and I would understand if the OP pursued that avenue.....and correct me if I am wrong, but I dont think you would? equally, I could understand if he decided against it for whatever reason.

Ultimately, it is his call, at least he knows the facts and the pitfalls and pertinently the limit of his liability. I just hope he tells us which way he jumped when he makes his decision.:)

Crazy_Jamie

poet123 wrote: »

I am not saying that the OP should pursue the case, I was merely answering your query as to what possible defence could be formulated, not suggesting it should be formulated. You now seem to be agreeing that citing duress could be a reasonable way to go.

Absolutely; if the OP decides to run with this then it appears to me to be the only way to go. I don't think that the argument is likely to succeed in any event, but I cannot deny that it is an available argument.

poet123 wrote:

However, as you will be aware legal costs are not generally recoverable ( by either side, win or lose) in the SCC for the simple reason it is designed to allow access to justice for the ordinary man in the street, so regardless of whether the gallery instructed solicitors or not those fees would not be borne by the OP. Court fees for up to £300 are £30, so not too onerous a cost.

You are correct on both counts. However, when you take into account nominal fixed costs on the small claims track plus the £30 issue fee, you start reaching a total that is potentially close to or in excess of the money that the OP could recover if successful anyway. My point was simply that, whilst these are hardly the largest amounts in the world, it throws into light the issue of proportionality.

poet123 wrote:

OK, let's turn it around....he may not win, when does any person with any legal expertise give a cast iron guarantee of sucess?

No, but certain percentages are relevant. For example, a legal practitioner will not generally enter into a CFA if the chances of success are not more than 50/50, and securing After The Event insurance often requires a barrister to advise that a case has prospects of success of at least 65%. Neither are directly applicable here, but nevertheless in this case I think the OP's chances are success are less than 50/50, which is part of the reason why I am generally advising them not to proceed.

poet123 wrote:

But it is not about us, it is about how strongly the OP feels about the incident and how hard done to he feels, and ultimately what risk he wishes to take. I simply disagree that he should be told categorically that he has no chance of winning, no case to moot, and nowhere to go.

He has all these, provided he embarks on this course of action in possession of all the facts, not our opinions, or our take on what time and money it is reasonable for him to expend.

I don't think I have ever suggested that that is the case. What I have done is weighed up the case and the situation generally and advised strongly that proceeding with the case is simply not worth the risk or the time. I think opinion on such matters is relevant. The OP is unlikely to have brought a case like this before, and may well have no experience at all of bringing a small claim full stop, so opinion evidence on all aspects of that could well be helpful. Of course what he makes of that is entirely up to him.

poet123 wrote:

I thought that it was always inevitable that we would agree to disagree:D but actually we seem to be closer in mind than we previously were, we have a possible defense formulated, we are in agreement on where the defendant probably would not go, and we agree that it may not be worth it. Perhaps where we disagree is whether (leaving monetary concerns aside, whilst understanding the limit of cost liability) principle alone is worth fighting for.

I think you're right on this. As I indicated, if the risk/reward had a different balance, I may well give a different final opinion. On the other hand, perhaps if this were of fast track value and the OP was at a costs risk in running this argument, you might be reconsidering your position. That's speculation both ways, but I think you're correct in that the importance of principle is the issue that divides us.

poet123 wrote:

I am on the fence here, the stubborn part of me says go for it, and I would understand if the OP pursued that avenue.....and correct me if I am wrong, but I dont think you would? equally, I could understand if he decided against it for whatever reason.

I would understand entirely if the OP decided to take this further, and indeed I would be happy to help if that were the case. I just don't think it is advisable to pursue it further in all the circumstances.

poet123 wrote:

Ultimately, it is his call, at least he knows the facts and the pitfalls and pertinently the limit of his liability. I just hope he tells us which way he jumped when he makes his decision.:)

Yes indeed, lest our discussion by for nothing. Not that a technical discussion involving two camps of differing opinion isn't fun, of course