Section 75 Claim Turned Down

schneckster

Hi all,

I got a letter today from my credit card company telling me that "after careful consideration", they do not accept liability as it's the merchant's word against mine. The fact I have emails from said merchant backing up what I told the CC seems to have escaped their notice! Obviously, the careful consideration was less than careful!

In their letter, however, they say that if I'm not happy with the decision, I should write to the Section 75 Team Manager. I was in the process of writing a letter to them to tell them what I thought and point out what I obviously missed, but I stopped thinking it may be a waste of time.

So, I'm after advice from the knowledgeable people I know are on this forum.

1. Is my CC's response typical? Do they deny everything in the first instance?
2. Is it worth writing back to them or just go straight to the Ombusdman?

Thanks in advance for your help,

Schneckster

chanz4

further details....

meer53

No they don't deny anything without looking into your claim first. Before you go to the FOS you need to exhaust your CC issuers complaints procedure first, FOS will expect you to have done this.

More information needed really about your claim.

schneckster

Thanks for the replies.

I wasn't actually asking for advice on my claim itself, it was more a general question about how credit cards generally react and whether or not to play along with it or go straight to the FOS. I get the impression that if CC's can get away with not paying anything, they will. As they actually put it to me, a section 75 claim is effectively suing the CC. Extending that thought suggests they wouldn't want to pay out in that case.

My claim is actually to do with booking a venue for a wedding. Before we booked, we were told our guest list could go in this single room without going through a partition wall into an adjacent room. We got that in writing.

After we booked, they denied we had ever discussed it and they told us that our guest list could not fit without going into the adjacent room. Despite showing them the original email, they resorted to "we'll try to lay it out to see, but we're not committing to anything until we do and we know it will fit." We got this in writing, too.

After several months of no action and constant statements of negativity about their ability to meet this requirement, including from duty managers of the venue, we cancelled and demanded our deposit back. They responded by denying they had ever said they couldn't do it or that there may even be a problem doing it. This is despite their own written statements to the contrary. Needless to say, they are not returning our deposit, hence the section 75 claim. Funny how cancelling suddenly makes them able to fit us in when before it was impossible (a verbal opinion by their own staff and managers!).

The CC regard it as our word against the merchant and say it wouldn't be fair for them to take sides - again, despite the merchant's own words in writing, which they have supposedly considered.

Taking your advice that the FOS will expect me to exhaust all avenues with the CC, I will write back expressing my dismay at their response and point out the written evidence they seem to have overlooked.

Thanks again,

Schneckster

chattychappy

schneckster wrote: »

The CC regard it as our word against the merchant and say it wouldn't be fair for them to take sides

A little odd. In the case of s75, they are on the same side as the CC. Not an issue of fairness at all or being "in the middle". Just a question of whether they accept what you say. If they do, then they are liable. (They might be able to recover under the chargeback system, but that is a matter for them.)

schneckster wrote: »

Taking your advice that the FOS will expect me to exhaust all avenues with the CC, I will write back expressing my dismay at their response and point out the written evidence they seem to have overlooked.

Yes. Tell them that you will escalate to the FOS if necessary or issue a county court claim.

This sounds like a case of misrepresentation (which S75 also covers) rather than breach of contract (though you can argue both) and misrep is the way I would argue it in the first place. You depended on what they told you about the "product" when deciding to go ahead. They would have known this and this is evidenced by emails. What they told you was false. With breach of contract, unless you can show it was something major (and therefore a condition rather than a term), then you are not automatically entitled to get out of a contract. Just because it was important to you doesn't necessarily mean a court would take that view.

dalesrider

schneckster wrote: »

we cancelled and demanded our deposit back. They responded by denying they had ever said they couldn't do it or that there may even be a problem doing it. This is despite their own written statements to the contrary. Needless to say, they are not returning our deposit, hence the section 75 claim.

Schneckster

While I understand all the other comments emails etc.

You cancelled, therefor you broke the contract. As to the refund. what does it say in the T/C on timescale for refunds or if a depost is refundable.

opinions4u

Just keep pursuing it for 8 weeks.

Provide a copy of the documentation.

Then go to the FOS.

You'll win there based on what you've posted here. Although it will take months.

chattychappy

dalesrider wrote: »

You cancelled, therefor you broke the contract.

Not cancellation in the legal sense based on what the OP has said. Misrepresentation is a vitiating factor - the affected party can choose to rescind the contract. This is not a cancellation - because where there is misrep, there is no contract binding on the affected party unless he elects to continue with it in the knowledge of the misrep.

dalesrider wrote: »

As to the refund. what does it say in the T/C on timescale for refunds or if a depost is refundable.

Whatever the T+Cs say on deposits are irrelevant. Because if the "contract" was induced by a misrep, then the T+Cs are not binding*.

Alternatively, if we are to argue that this single room thing was a condition of the contract agreed by the supplier (+CC via S75), then the supplier breached the contract and the OP is released from the contract and entitled to damages. The law allows for "anticipatory" breach - ie you do not have to wait for a party to fail to perform if they have indicated they are not going to. Again what the T+Cs say on deposits is not relevant here if there is a fundamental breach - because the "deal's off".

IF, however, there is no misrep and any breach is held to be minor, then the OP might still be entitled to damages but the contract would still run. The attempt to cancel/deposit would be governed by the T+Cs (as modified by consumer protection rules).

(* T+Cs sometimes contain a "whole agreement" clause whereby the parties agree that they are not relying on prior representations by the other side. This is an attempt to avoid claims of misrep. However in consumer contracts they tend to be ineffective against a background of express written reassurances immediately prior to signing up as we appear to have here.)

redpete

schneckster wrote: »

In their letter, however, they say that if I'm not happy with the decision, I should write to the Section 75 Team Manager. I was in the process of writing a letter to them to tell them what I thought and point out what I obviously missed, but I stopped thinking it may be a waste of time.
...
2. Is it worth writing back to them or just go straight to the Ombusdman?

If their complaints procedure asks you to write to the manager I would do that. Given the number of emails and conversations you've had with the venue is one more letter really too much to write?

meer53

If the CC issuer has advised the OP that they feel Section 75 doesn't apply, then there is obviously something in the documentation which doesn't match up with what the OP is saying here. CC issuers can't just reject a claim because they think they might lose, if they think Section 75 is applicable they will take it on. These cases are looked at in depth, where i work, if we're not entirely sure, the case is referred to our legal team before we contact the customer to let them know whether it can be done or not.

The OP has said that the venue can now fit them in to the single room, wonder why they aren't accepting this now ? This could be why they aren't refunding the deposit.

"Funny how cancelling suddenly makes them able to fit us in when before it was impossible"

schneckster

Thanks for the replies, folks.

meer53 wrote: »

The OP has said that the venue can now fit them in to the single room, wonder why they aren't accepting this now ? This could be why they aren't refunding the deposit.

They've been telling us for months they couldn't do it. Now, when I've cancelled and demanded my money back, they suddenly can? Sorry, but would you believe that? I doubt many people would. Besides, a solicitor told us that this is irrelevant after cancelling as we have already accepted they're in breach of contract.

Reading again, it seems like they've concentrated on breach of contract angle and ignored the misrepresentation of the venue's capacity. I made my claim based on both. I've written back pointing that out to them.

Thanks again,

Schneckster