Section75 Claim - Case Law Help Please?‏

seguna

Computersaysno wrote: »

My advice to the op is take the merchant to the small claims [assuming they have assets that you could get your hands on]; I would also name the cc and indeed issue papers against paypal as well [they do have a UK address].....one of them will probably pay up to avoid the costs of going to court.

Thanks for your comments.

This is an interesting approach, but on what grounds would I name PayPal?

Also, the grounds on which I would sue the Supplier differs from the grounds on which I would sue the CC. Why? Because...

1. The Supplier has committed misrep & breach of contract, IMO, but of course they deny this (don't they always).:(
2. The CC has neither denied or admitted whether the Supplier has breached. They've refused my S75 claim by simply claiming PayPal is the Supplier not the original merchant.
3. I'm yet to contact PayPal as I've no basis for their involvement in this other than the claim by my CC that they are the Supplier under CCA 1974.

seguna

I've decided to write to PayPal asking them to clarify their involvement in this. After all, the CC has named them as the Supplier so it's worth asking them to answer yea or nay to that.

wealdroam

Computersaysno wrote: »

Paypal is based outside the EU [Luxembourg iirc], yet is in effect allowed to operate as a payment processing company and bank within the EU.....that needs to be challenged, and resolved.

Yes, Paypal is based in Luxembourg.

And, not only is Luxembourg inside the EU, it is a founding member of The European Union. See here.

But never mind all that, Paypal are happy* to be sued in UK.

From their T&Cs...

14.3 Governing Law and Jurisdiction. This Agreement and the relationship between us shall be governed by English law. For complaints that cannot be resolved otherwise, you submit to the non-exclusive jurisdiction of the English courts arising out of or relating to this Agreement or the provision of our Services without prejudice to your right to also initiate a proceeding against PayPal in that context before the competent courts of and in Luxembourg. In simple terms, “nonexclusive jurisdiction of the English courts” means that if you were able to bring a claim arising from this Agreement against us in Court, an acceptable court would be a court located in England, but you may also elect to bring a claim in the court of another country instead. English law will apply in all cases.

*my choice of adjective may not be the same as Paypal's.

mo786uk

PayPal are not a supplier IMO. They are no different to any payment provide rbut it just seems to be a quirk that they show up as the retailer/suppleir on receipts. this is probably down to the way they were originally set up - where they did (and still do) offer the different service of sending money to paypal accounts.

Computersaysno

Ooops...sorry wealdroam you are indeed correct about Luxembourg.

I can't imagine then why PP might be based there.........oh hang on, I wonder if it's tax related....lol.

seguna

Peeps, two VERY interesting and helpful resources have turned up:

1. Some relevant Case Law

Office of Fair Trading v Lloyds TSB Bank Plc & Ors [2006] EWCA Civ 268 (22 March 2006)
http://www.bailii.org/ew/cases/EWCA/Civ/2006/268.html

2. A very helpful blog post that puts the above into useful context.

http://conradmeehan.wordpress.com/2013/05/22/emoney-and-s-75-am-i-covered/

Please let me know what you make of these.

Rgds
S

Computersaysno

seguna wrote: »

Please let me know what you make of these.

Very interesting indeed.

I have been successful with a S75 against paypal/credit card....and I think it's because [as the blogger says at then end] they want to avoid the consequences of a loss in the courts [albeit that the small claims track don't set precedent].

seguna

dalesrider wrote: »

If only....
No it comes out of the big pot.... They do not claim it back from the company.
If they could they would believe me....

I think you definitely got this wrong. Just re-reading CCA 1974 Section 75(2) and noticed

(2) Subject to any agreement between them, the creditor shall be entitled to be indemnified by the supplier for loss suffered by the creditor in satisfying his liability under subsection (1), including costs reasonably incurred by him in defending proceedings instituted by the debtor.

Don't tell me it doesn't hurt the Supplier when the Creditor pays out! Of course it does!!!

meer53

seguna wrote: »

I think you definitely got this wrong. Just re-reading CCA 1974 Section 75(2) and noticed

(2) Subject to any agreement between them, the creditor shall be entitled to be indemnified by the supplier for loss suffered by the creditor in satisfying his liability under subsection (1), including costs reasonably incurred by him in defending proceedings instituted by the debtor.

Don't tell me it doesn't hurt the Supplier when the Creditor pays out! Of course it does!!!

Unless the supplier has gone bust. Who do you think pays out in those cases ?

Computersaysno

The ccc usually passes it onto the supplier....unless the supplier has gone bust in which case the ccc has to suck up the loss [ie pass it onto the card holders in higher charges etc].