Query regarding Section 75 claim

Mr_Lawnmower

aaj123 wrote: »

I see what you are saying and it does make sense but when I read the actual law in full, I cannot see which part of my case makes it fall outside the ambit of Section 75. Your logic is fine but all I am pointing out is that the law in itself doesn't seem to exclude my situation. Here it is for reference

The issue is with s. 75(1). You don't have a claim against the garage in connection with the contract to repair the car, which is the transaction you funded by credit card.

Any claim you have against the garage is to do with the earlier diagnostic work - breach of contract if there was a contract with the garage in relation to that work, negligence if there is no contract. You cannot stand the card provider in place of the garage in relation to this earlier situation by paying for the repairs on your credit card.

aaj123

Mr_Lawnmower wrote: »

The issue is with s. 75(1). You don't have a claim against the garage in connection with the contract to repair the car, which is the transaction you funded by credit card.

Any claim you have against the garage is to do with the earlier diagnostic work - breach of contract if there was a contract with the garage in relation to that work, negligence if there is no contract. You cannot stand the card provider in place of the garage in relation to this earlier situation by paying for the repairs on your credit card.

Part of me can see the sense in what you say but part of me doesn't. I can see now why lawyers have a job!

The way I see it, there was a contract between me and the garage to diagnose the car and repair it and I ultimately paid for this with the card. I am unhappy with the service that I received because I don't think the diagnosis / repair was carried out to my satisfaction. Your post seems to imply there were two contracts - one earlier and one later and that is what I am unable to understand. To me there was one contract funded by the card and it is that contract that I deem was not caried out to satisfaction.

lisyloo

Have you asked your card company yet?
If your no convinced by the opinions on here then surely asking them (by putting in a dispute) is the way to go.

Personally I don't think you have any proof that they "broke" the car rather than it jsut happened to break whilst in their possesion.
Just because you don't like the outcome doesn't mean they are at fault here.
I'm not saying they aren't but I ma saying there is no proof.

BTW - the card company will expect you to pursue the garage. I haven't read the other thread sorry.

Mr_Lawnmower

aaj123 wrote: »

The way I see it, there was a contract between me and the garage to diagnose the car and repair it and I ultimately paid for this with the card. I am unhappy with the service that I received because I don't think the diagnosis / repair was carried out to my satisfaction. Your post seems to imply there were two contracts - one earlier and one later and that is what I am unable to understand. To me there was one contract funded by the card and it is that contract that I deem was not caried out to satisfaction.

Without details of the contract(s), it is impossible to be clear on the merits of any s. 75 claim.

However, it is important to remember that the subject matter of a contract is what an objective outsider would determine the parties had agreed to. Once agreement is formed, the terms of the contract are set. At the time you reached any agreement over the diagnostic stage (which is when the alleged damage happened), I strongly doubt the repairs you want to claim for under s. 75 were in your contemplation, so they were not part of any contract covering the time when the damage took place.


Having been given the various options for dealing with the broken car, you chose the £600 repair. It seems almost certain that the repairs were either a variation to the original contract (which must contain all the elements of a contract to be binding as a contract), or are the subject matter of a subsequent standalone contract. We don't need to worry which it is.

You freely entered into this contract (or variation of contract) for the repair knowing the car was damaged, and, from what you write, it was this transaction you funded with your card.


The problem occurred during the earlier diagnostic phase, so you need to be clear what arrangements governed the diagnostic work. Was there a contract in relation to the test drive where the supposed engine damage occurred, or not? This will determine whether you have a potential claim for breach of contract, or the only possible claim is for negligence.


You need to back right up and sort out the timeline of events - who said what when, and how. Exactly what did you ask the garage to do, and what payment was agreed on for the diagnostic work? Did you agree on paying the garage's hourly labour rate, for example? If any agreement was verbal, you have the added problem of not being able to prove what was agreed on.

Even if you did have a viable s. 75 claim, which seems doubtful at the moment, you can't just pay for the repairs by card and expect to get a refund by throwing the whole mess at the card company to sort out. You have to demonstrate to the card company that there is misrepresentation and/or breach of contract that entitles you to make the card company severally liable.

I think you might struggle to establish there is a contract in relation to the diagnostic work. If so, your only option is to pursue the garage for negligence. Section 75 only covers contracts, nor torts such as negligence.

If you successfully demonstrate negligence, you might be able to recover the £600 as damages. However, you've got an uphill battle, as you would have to show it was more likely than not the engine damage was negligence on the part of a garage employee rather than a random event (as lisyloo puts it, it just happened to break). This is probably going to need an expert report, which is a cost you will have to pay and can only recover reasonable costs for if you win. I suspect the cost of an expert report is disproportionate to the risk of losing and the magnitude of the losses you seek to recover.

Understandably, you appear unable to frame the claim yourself, which means you would need to do a lot of research or engage legal representation. The costs of representation are not normally recoverable in the Small Claims track of the County Court.


My suggestion is to get together what information you have and see if you can discuss this with a solicitor in a fixed fee interview. For a relatively small outlay, you'll have specific advice on the merits of your claim, the risks of proceeding and the potential costs involved.

An alternative is to follow lisyloo's suggestion to make a s. 75 claim anyway.

aaj123

Mr_Lawnmower wrote: »

Exactly what did you ask the garage to do, and what payment was agreed on for the diagnostic work? Did you agree on paying the garage's hourly labour rate, for example? If any agreement was verbal, you have the added problem of not being able to prove what was agreed on.

I have actually started the process of following this up with the garage themselves. Section 75 is an alternate approach I am contemplating because even I seem unconvinced this route will work out.

Regarding the quote above, this is actually my query on another thread. Given there is no documentation of what was discussed, who bears burden of proof? Is it upto the garage to prove that certain things were agreed or is it up to me to prove that certain things were not agreed?

Mr_Lawnmower

If you use section 75, you have to be claiming for breach of contract or misrepresentation. All section 75 does is allow you to make this claim severally against the credit provider, or jointly against the supplier and credit provider (though you cannot recover twice).

aaj123 wrote: »

Given there is no documentation of what was discussed, who bears burden of proof? Is it upto the garage to prove that certain things were agreed or is it up to me to prove that certain things were not agreed?

Broadly speaking, the burden of proof lies on the party seeking to rely on a statement. If you allege something was part of an agreement, it is up to you to show it more likely than not (civil standard of proof) is part of the agreement. If the garage counters that something was not part of the agreement, it is up to them to show that it more likely than not is not part of the agreement, possibly by countering your arguments.

There are certain circumstances where there is a reverse burden of proof - you can rely on something unless the other side can show it does not apply. Notably, this can apply to the reasonableness test under the Unfair Contract Terms Act 1977, which is to do with exemption clauses. If you claim a exemption clause the other party seeks to rely on is ineffective under UCTA 1977 unless reasonable, the other party has to show the clause is more likely than not reasonable otherwise they can't use that exemption.


In the absence of anything in writing, the garage may well claim you contracted on their standard terms - but those terms may well not have been before you when agreement was reached. Exactly what the terms of a contract might be is not always that clear.


There's so many possible twists and turns in this matter that I'm not confident my knowledge of contract law is good enough to sort it out. It may well require some research on how the appeal courts have decided similar disputes to get a clear understanding of the balance between the various factors.

Despite appearances, I am not a lawyer and do not possess the polished practical understanding of these topics I would expect of a practising lawyer. I merely have the advantage of a university legal education.


If you've got legal expenses insurance anywhere, I would talk to them. If not, I would seriously consider going down the fixed fee interview route if you can find a solicitor willing to advise you on that basis.