Section 75 claim

chattychappy

InsideInsurance wrote: »

If a claim is poorly articulated and evidence provided doesnt show a significant problem then it can often be easier to tell someone to get a "professional" piece of evidence than go backwards and forwards asking them to speak clearer.

ha ha ha yes, I'm sure it is easier. Probably also easier in the sense that at the CC end it puts off the moment they have to depart from standard letters and engage with specifics. Give the cardholder some legwork to do first.

I'm helping a friend's company at the moment who has a dispute with a "crazy woman". Crazy woman threatened my friend with using a "top lawyer" who is a family friend. Well, I drafted a letter for my friend dealing with her claim, but crazy woman continues to be crazy. So I wrote a letter saying I had been formally instructed by my friend and would welcome dealing with her lawyer friend. (It really would be so much easier.) Well, of course, no such luck. Presumably the lawyer friend wants nothing to do with it.

Yep, I'm sympathetic with the "articulation" point you make.

dalesrider

I think we will have to agree to disagree on some parts of this.

But how about this.

Would you agree a blackout blind is designed to stop light showing though itself ?
Now are they designed to stop light getting round the edges?

To do that requires the blind fixing to the window frame or casement. Has the OP got this in writing. That NO light will be entering the room?

These blackout blinds

100% blackout fabric used, no sunlight, 100% privacy

Discount blackout blinds presented online in terracotta, blue, white, natural, stone, burgundy, lilac and navy fabrics. The black out fabric completely blocks the sun light. We recommend such a roller blind for bathrooms. Want a lot of privacy? Want to keep the sun out of your home? Want to give your home a designer look? Then the blackout roller blinds are the answer to your problem. The special fabrics they are made from have a high density ensuring intimacy. The blackout roller blinds come in various colors and patterns, so that you have the chance to find the best suit for your home. These window coverings are best suited for spaces where you need a lot of privacy like bathroom windows, or bedroom windows, but, by putting your creative side at work you can find the best fit for them anywhere in the house. They can be measure made and they come with decorative rods depending on your needs.

Blackout fitting ins
Now clearly these blinds while will not let light through the blind. But will by the very nature of the fixing allow light to filter round the edges.

So from a CC point of view. I could say that, its all very subjective.

chattychappy

To me, "blackout" blinds mean all light is prevented from passing. Rather like a throwback to WW2. It should be possible to fit them so that no light travels around the edges. If I paid someone to fit "blackout" blinds, then that is the outcome I would expect. But then if I was a fitter, I'd have (reasonable) disclaimers in my T+Cs (or product guides) about what customers could expect.

So I think it just comes down to what the OP was promised, either verbally (difficult to evidence) or what's in writing/T+Cs. Could also be a misrep issue rather than breach of contract. Misrep would be covered under s75 if it was from merchant, but not if, say, the OP obtained a manufacturer's brochure himself which was misleading and then employed the merchant to fit the blind as a result.

The CC has asked for expert evidence, but it's not clear to me whether they have identified what is actually in dispute. It might be that both sides agree that "light gets through" but the dispute is what was promised. Or it could be that both sides agree that blackout should be total, but there is disagreement over whether this has been achieved.

derps

I don't think it's that unreasonable to ask the OP for a report.

It seems to me like the OP needs to prove one of two things. Either:

A. Their contract was expressly for blinds which would eliminate a certain amount of light, and this contract term has been breached

Or

B. The nature or fitting of the blinds is such that they are objectively not of satisfactory quality or fit for the purpose of being blackout blinds / the fitting service was not carried out with care and skill. This would be a breach of the contract terms implied by the Sales of Goods Act and the Supply of Goods and Services Act.

For A, unless the retailer put something like "guaranteed to block 99% of light through the window" or whatever on the invoice, there wouldn't be a claim for breach of the express contract terms. If there was a promise like this, assuming the problem isn't wildly obvious from photographs, only an independent expert could confirm whether or not the promised efficacy was achieved.

For B, I'd think that "blackout curtains" are a product with expected features, i.e. blocking out a certain amount of light. How effective they can be will be known the industry and another fitter could give an expert opinion on whether or not their blinds are "unfit" as blackout curtains etc.

This isn't something that a bank can easily decide from photographs because as far as they know, the OP's blind are actually more effective that the industry standard for blackout blinds in the same price range as the OP's.

Naturally, the OP will want to include any cost for the expert review in their claim against the bank. If their claim is valid, they'll get this too and won't be losing out so getting the report doesn't seem like an unreasonable approach.

OP, I don't have the benefit of experience with this sort of thing in a court like chattychappy but if you prove your claim with evidence it won't need to go that far; the bank should surely pay out or get the retailer to pay out as long as there aren't any other problems with your section 75 claim.

chattychappy

Nice analysis, it must have taken some time.

Just as a footnote

derps wrote: »

Naturally, the OP will want to include any cost for the expert review in their claim against the bank. If their claim is valid, they'll get this too

I believe the FOS has said so. However if you do go the court route, and it's small claim (<£5K), then despite winning you wouldn't necessarily this kind of expense back, although the judge always has discretion. On the other hand, if you lose then the bank is limited what it can recover from you by way of costs.

magpiecottage

FOS does not normally award costs but this is for claims chasers or solicitors etc. where the average consumer could DIY.

As the lender is saying it will not accept DIY evidence, if the claim is accepted, I think the cost of professional evidence would be awarded if requested - provided the claimant won and made clear why they wanted the cost added to the award.