Have I got a valid claim to go to court?

Kimflower

Hello everyone,
I have a dispute with a sofa company who have failed to refund my deposit and cancel a 'potential' order, I thaw got a little complicated but I realise I need to keep this to the point so hope I manage that

I had seen a sofa that I liked in their showroom, the matching armchair was not on display and the costs and details were not available at that time and the salesperson could only estimate at a figure and verbally describe the item

I telephoned the store the following morning to find out some further information, including costs of the combined sofa and armchair / dimensions / payment terms available to me / costs of the fabric protection and explained that I required this exact info to be able to decide if I wanted to commit to buying the furniture - I was advised that I had to pay a deposit before the store closed to secure the price offered - I didn't proceed with any order at this time

The salesperson telephone me 10 minutes before the store closed to ask why I had not placed an order and I explained that I felt I needed more time to consider and would like to revisit the store to verify the information discussed earlier - I was told that if I paid a deposit over the telephone it would secure the purchase price and as an extra incentive they offered me an extra discount to act immediately, I was advised that all the other info and details that I was concerned about could be confirmed the following day by email - I gave my debit card details and agreed to paying the 20% deposit that had been agreed earlier in the day

ok, the tricky bit!
After she processed my payment on the machine, I was told the balance that would be due plus a delivery charge of £125 ( not advised earlier)
I was asked for a date in which a further 30% deposit could be taken (not mentioned or agreed at any time beforehand) I protested at this immediately and was told it was because I had been offered an extra discount of the full purchase price
I told the salesperson to to cancel the order as I was not happy that she had not informed me prior to taking my deposit and I now felt that I did not trust the other information she had given me and wanted to verify everything before continuing - I asked her several times to cancel and told her that I did not want to proceed, her only response was that the finance office would contact me

I received no other contact from the sofa company aside from a copy of the order (two evenings later) asking me to confirm the details of the order and to sign the terms and conditions - I didn't sign or return or confirm anything

I did contact CAB and sent a letter recorded delivery informing them that I was withdrawing any offer of contract under section 57 consumer credit act - the company responded in a brief email to say that I contacted them to pay the deposit, denying that the payment terms were changed and stating that I had acted strangely by requesting copies of their schematic codes? The sofas have been ordered and they have refused to refund

On the advice of CAB I have sent them a further request and detailed all the events and reasons why I did not wish to proceed and that I felt the salesperson should not have processed any order whilst she knew that I was disputing her actions and information - this letter was ignored

I have been advised that my only choice now is to pursue this through the small claims court and took the next step in sending a letter before action - I reiterated again all the events and my reasons and have stated to them that if furniture has been ordered on my behalf their staff member should take responsibility for her actions

I received an email in reposed and midnight last night informing me that they are not prepared to refund, they are accusing me of having a change of heart after they sent their order to me and that my order for the furniture is still being processed

I am very worried that they can force me to buy this furniture and although I have spoken with CAB it concerns me that my situation will be a pointless thing to pursue through the court as it seems my word against theirs?

Sorry for the long post but any help or advice would be much appreciated - thank you

daytona0

What I don't understand from your post is:

1. Why you handed your credit card details over if you weren't happy with the purchase. This is the source of the problem to be totally honest! You need to be clear on every single term and condition before YOU hand over your card details to a company

2. Why paying an extra 30% of the balance due is such a shock? You've paid 20% and you have an extra 80% to pay. It is not unreasonable for the company to want you to pay the remaining 80%, and asking for 30% first seems fairly reasonable as to avoid you from having to pay the whole balance in one go....

3. If you can link us to the company website then we can check whether it is clear about a delivery charge. If it is clear then I fear it is your error for not checking beforehand. They don't necessarily have to tell you over the phone if they have it clearly on display in store or on a website, but you do necessarily need to ask about any extra charges BEFORE putting some money down.



That all being said, you can't be forced to buy the goods here. Just be aware though that they may be entitled to keep some or all of the deposit depending on the losses they have incurred by your actions. It all depends on how clear the company have been in one durable form (not necessarily over the phone, but maybe on their website etc) and how much they have lost due to you expressing interest in the purchase. Sounds like you are on the right path for getting this all sorted though. A letter before action and then court action. Easy peasy. As a side note, I would possibly cancel your card or have a block on it so that they can't charge you without authorisation.

wealdroam

Do as you have been advised... send a Letter Before Action.

This CAB webpage will guide you through that.

I.e.
State clearly and succinctly what is wrong - they processed an order after you had explicitly told them not to.
State what you expect to happen - they cancel the order and refund all monies.
State when you expect this to happen - within 14 days.
State what will happen if they don't do that - you will be forced to use HM Courts Service to recover your money.
Do not waffle - that should all fit easily on one side of A4.
Send that as a real letter - not email.

unholyangel

daytona0 wrote: »

What I don't understand from your post is:

1. Why you handed your credit card details over if you weren't happy with the purchase. This is the source of the problem to be totally honest! You need to be clear on every single term and condition before YOU hand over your card details to a company

2. Why paying an extra 30% of the balance due is such a shock? You've paid 20% and you have an extra 80% to pay. It is not unreasonable for the company to want you to pay the remaining 80%, and asking for 30% first seems fairly reasonable as to avoid you from having to pay the whole balance in one go....

3. If you can link us to the company website then we can check whether it is clear about a delivery charge. If it is clear then I fear it is your error for not checking beforehand. They don't necessarily have to tell you over the phone if they have it clearly on display in store or on a website, but you do necessarily need to ask about any extra charges BEFORE putting some money down.



That all being said, you can't be forced to buy the goods here. Just be aware though that they may be entitled to keep some or all of the deposit depending on the losses they have incurred by your actions. It all depends on how clear the company have been in one durable form (not necessarily over the phone, but maybe on their website etc) and how much they have lost due to you expressing interest in the purchase. Sounds like you are on the right path for getting this all sorted though. A letter before action and then court action. Easy peasy. As a side note, I would possibly cancel your card or have a block on it so that they can't charge you without authorisation.

9.1 Terms which have the effect of making consumers agree to accept
obligations of which they can have no knowledge at the time of contracting
are open to serious objection. It is a fundamental requirement of contractual
fairness that consumers should always have an opportunity to read and
understand terms before becoming bound by them (see Part IV).

9.2 It is not 'hidden terms' themselves that are indicated to be unfair, but any
term which binds the consumer to accept or comply with them – or, in
legal jargon, 'incorporates' them 'by reference'. However, terms of whose
existence and content the consumer has no adequate notice at the time of
entering the contract may not be binding under the general law, in any
case, especially if they are onerous in character.

You cannot bind consumers over the phone with terms that are on a website for the above reason.

If it didnt form part of the contract at the time that the OP became legally bound to pay, they cannot add it later or change the terms of that contract without the consumers agreement.

JethroUK

Kimflower wrote: »

....I was told that if I paid a deposit over the telephone it would secure the purchase price and as an extra incentive they offered me an extra discount to act immediately, I was advised that all the other info and details that I was concerned about could be confirmed the following day by email -...

Your case at face value is very clear cut

You have clearly been harassed over the phone for the sales person to clinch a sale and that's why a judge will give you your deposit plus any damages back

The fact that you ordered on the phone might even qualify under "distance selling regulations"

I also would be inclined to contact their head office because this hard selling will get the company a bad reputation and maybe even prosecutions so it may lead to the sales staff getting a disciplinary notice

daytona0

unholyangel wrote: »

You cannot bind consumers over the phone with terms that are on a website for the above reason.

If it didnt form part of the contract at the time that the OP became legally bound to pay, they cannot add it later or change the terms of that contract without the consumers agreement.

With respect, I never once mentioned that the contract was formed over the phone (because this isn't the case). I do wonder though to what extent can you argue that OP was either:

1. Mislead into buying something which was going to cost more

2. In error for not checking what the contract entails before putting money down in a rushed manner


Sounds like they've been pressurised into making the purchase though so it should be clear cut in getting most/all of the deposit back. LBA and court action, easy peasy.

George_Michael

daytona0 wrote: »

With respect, I never once mentioned that the contract was formed over the phone (because this isn't the case).

But neither was the contract formed via the internet yet you think that if the price of delivery was mentioned on the company website then it is the OP's fault for not reading this.

daytona0 wrote: »

3. If you can link us to the company website then we can check whether it is clear about a delivery charge. If it is clear then I fear it is your error for not checking beforehand.

daytona0

George_Michael wrote: »

But neither was the contract formed via the internet yet you think that if the price of delivery was mentioned on the company website then it is the OP's fault for not reading this.

That is correct.

No contract has been formed yet because the OP has been emailed it.


Yes, I do believe it is OP's error (not fault, but error). You need to either read or ask the company regarding associated costs before you even consider a contract (put down a deposit). OP should be more careful in future.

This does not impact on my thoughts that OP may have been duped, and that OP may have a clear cut case in getting most/all of the monies back (and also that they are not contractually obligated to buy)

unholyangel

daytona0 wrote: »

That is correct.

No contract has been formed yet because the OP has been emailed it.


Yes, I do believe it is OP's error (not fault, but error). You need to either read or ask the company regarding associated costs before you even consider a contract (put down a deposit). OP should be more careful in future.

This does not impact on my thoughts that OP may have been duped, and that OP may have a clear cut case in getting most/all of the monies back (and also that they are not contractually obligated to buy)

As george michael says, your earlier post makes it sound like if its in their T&C's on the website, then its the OP's fault for not checking the website - despite the fact he contracted with them over the phone.

It is not for consumers to question retailers to ensure everything is transparent. Transparency is a requirement of contractual fairness.

The requirement of 'good' faith embodies a general 'principle of fair and
open dealing'.1
It means that terms should be expressed fully, clearly and
legibly and that terms that might disadvantage the consumer should be given
appropriate prominence – see below. However transparency is not enough
on its own, as good faith relates to the substance of terms as well as the
way they are expressed and used. It requires a supplier not to take
advantage of consumers' weaker bargaining position, or lack of experience,
in deciding what their rights and obligations shall be. Contracts should be
drawn up in a way that respects consumers' legitimate interests.

Kimflower

Thank you for your replies

The forum won't allow me to post the link as I am a new user but the company is designer sofas . com london and Thurrock branches

I did ask earlier in the day during a telephone call what the deposit terms were and what length of available interest free credit options were available

I had also asked if there were any other costs involved as I needed to know all the costs involved before deciding to buy - that included delivery and fabric protection costs to which I was advised that there were none

It was confirmed that a 20% deposit was required and that the company would arrange interest free credit for the remaining balance to be paid over a period of 48 months - no mention of any further deposits due at any time

It was based on this information that I was happy to pay the deposit and why I was bit expecting to be asked for a further payment of 30% or a delivery charge of £125

When I questioned that I had not been made aware of this I was told that the change was due to them offering me the extra discount, I told her that I should have been told of any changes to the terms of which I had based my decision when the discount was offered and before processing my payment

I did base my decision on trust of the info I had been given ( maybe stupidly ) but once this happened I was concerned that the other info I had been given may not be correct or subject to change and why I instructed her to cancel immediately - I wanted to stop this sooner rather than later but she has gone ahead and ordered the furniture in my behalf anyway despite my request not to -

She also did not process any application for credit yet knew this was how I intended to pay?

I have sent all of those letters that have been mentioned on advice of CAB, I have had no formal reply to any of them

I had one email to inform me that they would not offer a refund as I called them and asked to place an order after leaving their store the day before to 'measure up' and they felt it strange that once I placed my order I asked for their supplier schematic codes?

I have no idea what those are and certainly didn't ask for them

I sent a letter before action 10 days ago and received an email at midnight last night to again say no refund and they are sorry that I had a change of heart after receiving the schematic codes and model nos? And my order is still being processed

I hope that makes sense

unholyangel

How did you pay the deposit? Credit card? Debit card? Or cash in store?

If credit card, start a section 75 claim. If debit, enquire about a chargeback.

If cash then your best bet is probably to send a letter before action (cant remember if you said you had done this but it should be no more than a few paragraphs long, be titled "letter before action" and state that if you dont receive a satisfactory response within 14 days, you will have no choice but to file against them in small claims court at which time you will also be claiming any reasonable costs you have incurred.

Then if you still dont refund, you file a claim against them for the return of your deposit/completion of the contract as originally agreed.