About to go to small claim court, am I in the right?

Mr_M_Cox

Hi All,

I have been trying to negotiate with a company that are unwilling to cover the costs of a bank charge that I only incurred as they did not meet the published time scales in which they should have added funds to my account. A the fund were not there, I hit the overdraft and was charged.

According to the consumer advice line the fact they were late by around 2 weeks meams they have breached the "Sales of Goods and Services Act".

They are claiming they are not responsible for consequential loss but I see nothing in their T&C's to support that.

This is the first time a dispute has got to this level and the idea of court makes me nervous. Guess I just wanted to see if the wider MSE community feel I am doing the right thing.

Thanks

pinkshoes

What were the reasons the money was being added to your account?

Pay for something? A refund?

What did your exact T&Cs say? More info is needed before we can help you.

Mr_M_Cox

Sorry, for being vague, nervous about publicly discussing given it could well be about to go to court.

We sold a phone to one of the various companies that give you an offer on an old handset. Money was mean to be Bank transfer, they got it wrong, a cheque was produced, not sent, delayed and eventually they cancelled it and processed a bank transfer. The whole delay, which they have admitted was their fault, meant the funds were delayed.

I can see nothing about the specific situation in their T&C's other than that they are not liable for consequential costs caused by delay if WE get it wrong, nothing about if THEY get it wrong.

CoolHotCold

Sorry but you may be onto a losing argument.

You have to take reasonable steps in reducing/mitigating your losses. I'm not sure the argument "I was overdrawn and they didn't pay until x days after they should have" Your case is especially weak if they don't stipulate "Guaranteed payment in X Days"


I suppose the entire argument falls on does the business guarantee payment dates?

Mr_M_Cox

i would need to confirm whether "guarantee" could be said. I was advised by the consumer advice line that as they publish timescales and emailed us saying "we have done X it will be completed by Y" which then wasnt that they have breached the sales of goods and services act. Is this not the case? Seems very unfair to me if they can do this.

irishjohn

The problem I think you have is that this was your bank account and your overdraft. I think it would be seen as a mistake on your part to rely on their payment arriving in time to avoid the overdraft situation. Although they offered a sum for the phone and tried to administer it - you would probably be expected to disregard that money until you could physically see it. If you disposed of the phone specifically to obtain funds to avoid an overdraft this may also be seen as an error on your part. I think you won't achieve anything by taking a small claim action

unholyangel

This will likely depend on particulars of the case I think.

As above, what does the T&C's say about when a contract is formed and what do the terms state in regards to payment being made?

Out of interest, how much is the bank charge?

Mr_M_Cox

Thanks for all the quick and friendly advice, although not entirely positive :-(.

I think I will have to seek further professional advice, I cant afford to claim and lose, I guess their solicitors are ££££ per day!

If anyone else can add any more to this, please do so, any information is useful.

Mr_M_Cox

unholyangel wrote: »

Out of interest, how much is the bank charge?

£95!!!!

They only gave is 100 for the phone!

lincroft1710

I didn't realise SOGA covered sales by an individual to a company, I always thought it was the other way round.

Mr_M_Cox

This is the only bit of their T&C's that seem even close to relevant -

"We will not be liable if you fail to receive a payment or suffer any loss, including but not limited to, if a payment is sent to an incorrect account or recipient, as a result of any failure by you to correctly, completely and accurately provide and/or submit all Payment Details required when using our website(s) or mobile applications as instructed by us from time to time. You understand, agree, accept and that some of the Payment Methods made available to you depend on third parties (third parties that/who we cannot and do not control) to process these payment including, but not limited to, payments by bank transfer (BACS). We will not be liable for delay in receipt of payment as a result of the actions or inactions taken by such third parties. Payments may be subject to validation and security checks that we may or third parties may require at our/their discretion from time to time."

They have already admitted the issues were caused by their internal processes failing, not a third party.