Section 75 claim refused, please help

daggles21

louisdog wrote: »

Wow thanks for all the replies.

The ombudsman letter says that the time limit for a chargeback has elapsed and "in this instance I'm afraid I do not belive the chargeback would have been successful. The reason being there is no evidence to show what the purchase was for and that the merchant did not supply you with the goods or services".

regarding a section 75 they say "as there is a lack of evidence showing what your purchase was for, I am unable to safely conclude that there has been a breach of contract or a misrepresentation".

So it looks like I am scuppered through lack of paperwork and indeed lack of proof that the work was carried out.

I am quite surprised by this but maybe I was naive.

I can appeal but only with new reasons and evidence, which I do not have.

Gutted to lose £400 but I am not sure I can face the hassle (and expense) of court for an uncertain outcome - wouldn't a judge tend to uphold ombudsman decision?

The judge would be looking for the same evidence I imagine

iAMaLONDONER

It's interesting to see that S75 isn't watertight - you always need to get paperwork/receipt to prove why you've paid a comapany..

chattychappy

jonesMUFCforever wrote: »

Has nobody noticed that by going to the ombudsman the credit card company have already paid a fee to them £500?

Possibly. It may have been dismissed without consideration of the merits in which case no fee would have been chargeable (The post suggests they did consider merits). I suppose the problem is that the CC would not have known that the case was to be referred and when it was it would have been too late to back out to avoid the fee so no need to give in. I'm guessing that most people do not go to the FOS when they get a final response letter, so it's worth the risk for CCs. I think the fee is now £550 but they get the first 25 gos each year "free".

jonesMUFCforever wrote: »

OP my advice is that unless you have deep pockets do not go to court.

£35 to issue the claim online, £55 hearing fee if it goes that far. The costs the CC can recover if they win are very limited indeed under small claims track, and then only if it goes to a hearing. No silly lawyer's fees etc. Last time I represented a company in small claims, we got no costs despite winning. Previous time, £22.

louisdog wrote: »

Gutted to lose £400 but I am not sure I can face the hassle (and expense) of court for an uncertain outcome - wouldn't a judge tend to uphold ombudsman decision?

The judge should ignore the ombudsman decision. You have paid your fee and are entitled to a fair hearing based on the evidence presented (or lack thereof). The FOS decision was made without a hearing. Judges can be a little "dismissive" of "kangeroo" courts, which in a way is what the FOS is, albeit well-intentioned. Small claims judges have always been very fair to litigants-in-person, in cases I have been involved in.

iAMaLONDONER wrote: »

It's interesting to see that S75 isn't watertight - you always need to get paperwork/receipt to prove why you've paid a comapany..

The law doesn't require paperwork. The FOS doesn't make the law. FOS decisions certainly don't bind the courts. No doubt it is helpful for evidential purposes, but in the real world people don't always have paperwork to cover transactions. Judges know this. Each case is (should be) decided on its merits.

If I was the OP, I would warn the CC that you are going to court, give them a last chance to settle. Then stick a claim in. Cost is £35. See what the CC does. They might make a goodwill/without prejudice offer. It could cost them £400 to fight it (and they won't get that back) even if they win. If they lose they will have to pay their costs + £400 + £35 + £55 and you might even get your travelling, costs for half-a-day off work. They have the choice to avoid the costs by paying you off. With the FOS, they had to pay the costs regardless, so no incentive to settle.

If they put in a defence and don't make an offer, then you can decide. You could drop it - no comeback on you for costs, you just lost an extra £35. Or you could make an offer. Or you could pay the hearing fee (and perhaps make an offer). Once you've paid the hearing fee, they might make an offer at this stage. If you settle at least a week before the hearing, then you can get the hearing fee refunded. Up to the time of the hearing, the court service usually offers telephone mediation. Another possibility.

iAMaLONDONER

chattychappy wrote: »

Possibly. It may have been dismissed without consideration of the merits in which case no fee would have been chargeable (The post suggests they did consider merits). I suppose the problem is that the CC would not have known that the case was to be referred and when it was it would have been too late to back out to avoid the fee so no need to give in. I'm guessing that most people do not go to the FOS when they get a final response letter, so it's worth the risk for CCs. I think the fee is now £550 but they get the first 25 gos each year "free".



£35 to issue the claim online, £55 hearing fee if it goes that far. The costs the CC can recover if they win are very limited indeed under small claims track, and then only if it goes to a hearing. No silly lawyer's fees etc. Last time I represented a company in small claims, we got no costs despite winning. Previous time, £22.



The judge should ignore the ombudsman decision. You have paid your fee and are entitled to a fair hearing based on the evidence presented (or lack thereof). The FOS decision was made without a hearing. Judges can be a little "dismissive" of "kangeroo" courts, which in a way is what the FOS is, albeit well-intentioned. Small claims judges have always been very fair to litigants-in-person, in cases I have been involved in.



The law doesn't require paperwork. The FOS doesn't make the law. FOS decisions certainly don't bind the courts. No doubt it is helpful for evidential purposes, but in the real world people don't always have paperwork to cover transactions. Judges know this. Each case is (should be) decided on its merits.

If I was the OP, I would warn the CC that you are going to court, give them a last chance to settle. Then stick a claim in. Cost is £35. See what the CC does. They might make a goodwill/without prejudice offer. It could cost them £400 to fight it (and they won't get that back) even if they win. If they lose they will have to pay their costs + £400 + £35 + £55 and you might even get your travelling, costs for half-a-day off work. They have the choice to avoid the costs by paying you off. With the FOS, they had to pay the costs regardless, so no incentive to settle.

If they put in a defence and don't make an offer, then you can decide. You could drop it - no comeback on you for costs, you just lost an extra £35. Or you could make an offer. Or you could pay the hearing fee (and perhaps make an offer). Once you've paid the hearing fee, they might make an offer at this stage. If you settle at least a week before the hearing, then you can get the hearing fee refunded. Up to the time of the hearing, the court service usually offers telephone mediation. Another possibility.

You make it sound like the OP has a real chance of getting their money back if they go to court!

chattychappy

iAMaLONDONER wrote: »

You make it sound like the OP has a real chance of getting their money back if they go to court!

Good, that was my intention. Or they might get some of it back. Or some/all of it before getting to court. And there is a real chance of not getting their money back at all and wasting time (and some cash) in the process.

On balance, I'd go ahead. That's based on my professional experience. If somebody approached me as a lawyer with a case of this sort I'd say because of the amounts involved it wouldn't be worth instructing me, but it would be worth doing it DIY. If one of my clients received a claim form for a claim such as this, I'd say settle settle settle, unless there were other factors involved. Just not worth fighting.