Section 75

McKneff

So on the TV this morning they were talking about section 75


They said twice that you don't have to have a dispute with the retailer if you have a problem, you can go straight to the card company ????


Whats that all about then, I thought you had to go to the retailer first and then if you got nowhere with them, then you go to the credit card.

chanz4

either or as both are a party , although if you want to make life easy goto the retailer first

chattychappy

Yes, this is the legal position. For any breach of contract (eg you buy something that doesn't work) or misrepresentation (you're told something that isn't true which makes you buy it), you can go direct to the CC and they are liable. You don't have to contact the retailer.

As such, S75 is onerous on lenders and they try fair means and foul to avoid paying out. At the very least, they will demand independent reports etc even if you have what you think is reasonable proof. These procedures are of their own making and are not prescribed by S75.

In practical terms you may find it easier to deal with the retailer in the first place, though this may not be the case if the retailer has disappeared or they are overseas.

Whatever the huffing and puffing of lenders, you are always free to sue them and try you chances at court. In this case it will be for the court to determine what evidence/reports are needed (if any). At small claims level, courts can be surprisingly flexible. In one case I know of, (not a s75 case), the claimant simply brought the item to court and the judge agreed it looked faulty!

SuperHan

chattychappy wrote: »

As such, S75 is onerous on lenders and they try fair means and foul to avoid paying out. At the very least, they will demand independent reports etc even if you have what you think is reasonable proof. These procedures are of their own making and are not prescribed by S75.

Well, yes, but the independent report is as prescribed in the SoGA. s75 essentially means the CC company is liable under SoGA as well as the retailer, so it's reasonable for you to follow the same path that you would with the retailer (e.g. independent report).

chattychappy

SuperHan wrote: »

but the independent report is as prescribed in the SoGA.

Really? Do you have a reference for this? (didn't used to be the case...)

PeacefulWaters

If you want to have a chance of anything being done at reasonable speed, go straight to the retailer.

While the legal position allows you to go straight to the card company I'm damned if I want to rely on my bank to fix a faulty TV or kitchen appliance.

SuperHan wrote: »

Well, yes, but the independent report is as prescribed in the SoGA. s75 essentially means the CC company is liable under SoGA as well as the retailer, so it's reasonable for you to follow the same path that you would with the retailer (e.g. independent report).

If you have a link to confirm this I'd be interested.

My understanding of SOGA and other consumer legislation is that most of it is vague and woolly in the mechanics of reaching a resolution.

SuperHan

PeacefulWaters wrote: »

If you have a link to confirm this I'd be interested.

My understanding of SOGA and other consumer legislation is that most of it is vague and woolly in the mechanics of reaching a resolution.

Which part?

From: http://www.moneysavingexpert.com/shopping/section75-protect-your-purchases

...your credit provider must take the same responsibility a retailer does if things go wrong with a purchase...

Retailer is bound by responsibilities under SoGA, ergo, so is the CC provider.

From: http://www.tradingstandards.gov.uk/cgi-bin/shropshire/con1item.cgi?file=*adv0043-1011.txt

If you are claiming repair or replacement more than six months after purchase, the burden of proof is back to YOU, the consumer. If you are in dispute with the trader, you may need to obtain an expert opinion to establish what the problem is...

So, if you've had the product for > 6 months, and the retailer and/or CC provider does not immediately accept that the fault is inherent, per SoGA after this time the onus is on the consumer to prove the fault. You may need to get an independent report to prove this. (I couldn't be bothered to trawl through the actual legislation to prove this, but Trading Standards seems a reputable interpretation).

Prescribed was probably the wrong word to use in my initial post (I did pause at the time but struggled for a better word!). It's a widely accepted interpretation of the law that the engineers report is an accepted proof for an inherent fault after 6 months.

chattychappy

SuperHan wrote: »

You may need to get an independent report to prove this. (I couldn't be bothered to trawl through the actual legislation to prove this, but Trading Standards seems a reputable interpretation).

Prescribed was probably the wrong word to use in my initial post (I did pause at the time but struggled for a better word!). It's a widely accepted interpretation of the law that the engineers report is an accepted proof for an inherent fault after 6 months.

Yes, it's not in the law, but useful material if you wish to argue it with the CC. I would never get a report done it if the problem is "obvious" - eg a defect that would be apparent from a photo etc, or if the cost is disproportionate to the amount in dispute.

But note - if you intend to go to court, my advice would be NOT to get a report done beforehand. Make the claim (you can do it via the moneyclaim website) and see if they defend. If they defend, then it will be for the court to direct how (and if) an independant report is done. The CC can request it if they feel it's necessary. Any report you have had done beforehand might not be admissible. The costs of a report you have done as part of the court process would be recoverable (even for a small claim, up to £750). If you HAVE done a report before the claim, then you can try including it as evidence, but you need the court's permission in advance and you may not be able to recover the cost - unless the CC undertook to cover the cost at the time*.

Actually the OP didn't say what sort of dispute s/he had in mind. If it's misrep, supply of services, non-delivery etc then engineer's reports unlikely to be relevant.

(* I believe that where the CC has asked you to produce a report and you are ultimately successful, then the FOS will order the CC to cover the reasonable costs of the report regardless of whether the CC said they would pay for this.)

SuperHan

chattychappy wrote: »

Yes, it's not in the law, but useful material if you wish to argue it with the CC. I would never get a report done it if the problem is "obvious" - eg a defect that would be apparent from a photo etc, or if the cost is disproportionate to the amount in dispute.

Hmm.. If it was obvious, you are likely to have noticed it within 6 months.

I suppose it's a tricky one, as if you were dealing with the retailer, they don't really have to act without you presenting proof of an inherent fault after 6 months. I would probably get a report in this instance, and you can claim these costs back as part of the remedy (or so I believe and is generally accepted over on the Consumer Rights board, again, I can't be bothered to trawl through the legislation).

The situation is slightly different in dealing with a credit provider instead, but the premise is still the same - they don't have to do anything unless you can prove the fault is inherent. They may have less expertise in the area though, and so are more happy to use a bit of judgement where it looks broken.

But I certainly wouldn't go to court without presenting the evidence that the fault was inherent. Otherwise you don't have a claim, as SoGA only deals with inherent faults, and 6 months on it is to be proved that the fault is inherent.

As you say though, misrepresentation etc etc is a different scenario.

chattychappy

SuperHan wrote: »

But I certainly wouldn't go to court without presenting the evidence that the fault was inherent.

It is unfortunate that usually when somebody starts with a dispute, they don't know how far they'll have to go to get a remedy. They might start with a friendly chat on the phone. Then something promised doesn't happen. Then they write a letter but don't get a reply. Then they get a standard reply doesn't quite match the first letter, blah blah blah. Months later they finally end up going to court or the FOS.... or simply give up.

I am, perhaps, biased because I'm in court alot. With small claims, I'm impressed at how "down to earth" and practical judges can be and civil procedure rules give them "carte blanche" to be pragmatic. Defendants (be that CCs, retailers, or outside of S75) often just assume people will never sue. They think they will be forever fobbed off with letters and hoops they must jump through. "To consider your claim we need you to provide us with blah blah blah".

I believe people should deal with both the CC and the retailer in parallel. Cooperate with demands insofar as they are reasonable and, in the case of reports, if the party demanding them undertakes to cover the associated cost should the reports support the claim.

But if things become protracted, then I would never hesitate to go to court. This means no more dancing to the CC's tune - the court oversees the process and imposes a timetable. A claim is a claim, with or without proof. Once you've made the claim, the CC will have to defend. Evidence (inc reports) comes later. You don't need to produce your evidence to make a claim - only if the claim becomes defended. Once defended, there is an ideal chance for the parties to agree a deal or use mediation and the courts encourage this. If agreement cannot be reached, then the court can direct that a report is produced and used as evidence (or whatever). Witness statements can also be used as evidence which can be as simple as the consumer telling the story of how something didn't work when they got it home. Photos/video clips of defects can also be used.

In my experience of these cases, the litigant-in-person makes all the running and the institution sits back. If it goes to court, the LIP has a good chance - apart from reports, institutions find it hard to rebut witness evidence when usually they are unable to put anybody up with direct knowledge. For this reason, and the expense of putting up representation, most companies will settle.