Curry's insiting engineer visit chargeable to confirm fault on new cooker

unholyangel

naedanger wrote: »

Because, according to you, it means they are agreeing to an obligation that they could not otherwise be bound by. ("it is not covered by the existing contract between them and you can't bind consumers to hidden terms.")


In the unlikely event this point is made in court, the OP can say that although they were very strongly of the view the item was inherently faulty, they were not 100% certain that Curry's tester would reach this conclusion. Therefore they were unwilling to agree to Curry's demand.

There is nothing unreasonable about refusing to take on a potential liability that, according to you, they would not otherwise be bound by.


Well that may be a trade off the OP could consider. They have used the courts before so will know the process and timescales.

Courts are interested in facts, not hearsay or paranoia. If you want to convince a judge that it was reasonable to refuse their request, you best have some evidence of fraudulent activity on the retailers part. Otherwise, its nothing more than the consumer being a drama queen.

Its also not the case that a judge is going to listen to everything one party has to say and nothing that the other party says. So what happens if the retailer potentially turns up with paperwork showing they have sold x number of units nationwide and none have been returned for the same fault? Or something saying that damage of that type (enamel flaking) is usually down to misuse/physical damage?

Are you quite happy to cover OP's out of pocket expenses & costs if you're wrong?

naedanger

unholyangel wrote: »

Courts are interested in facts, not hearsay or paranoia.

Agreed, no-one said otherwise.

If you want to convince a judge that it was reasonable to refuse their request, you best have some evidence of fraudulent activity on the retailers part. Otherwise, its nothing more than the consumer being a drama queen.

I don't agree at all. I have already given my reason why such a refusal is perfectly reasonable.

It is not at all unusual for parties to court disputes to get their own experts' opinions. As far as I am aware it is highly unusual for one side to say- "We didn't get an expert's opinion because the other side did not agree they would pay for it if the opinion supported our case rather than theirs. Please deduce from this that they were unreasonable and/or have something to hide." I think there is a good reason why such arguments are rarely, if ever, made.

Its also not the case that a judge is going to listen to everything one party has to say and nothing that the other party says.

Agreed, no-one said otherwise.

So what happens if the retailer potentially turns up with paperwork showing they have sold x number of units nationwide and none have been returned for the same fault? Or something saying that damage of that type (enamel flaking) is usually down to misuse/physical damage?

There are all sort of hypothetical scenarios where the OP will lose. These may be some of them. (But at least the OP will not have paid a test fee.) The OP has a number of options. One is to accept Curry's offer. Another is to refuse Curry's offer and to go to court. It is wrong to say this second option is not available. I also cannot see any good reason for believing refusing Curry's offer weakens the OP's case if they go to court.

Are you quite happy to cover OP's out of pocket expenses & costs if you're wrong?

No. That would involve me taking on an unrewarded risk, which would seem rather silly. I have never said they are certain to win. What I have said is the basis on which the case will be judged i.e. Curry's have to show on the balance of probability the fault was not inherent at outset assuming the customer can show the item is not currently of satisfactory quality.

unholyangel

naedanger wrote: »

Agreed, no-one said otherwise.


I don't agree at all. I have already given my reason why such a refusal is perfectly reasonable.

It is not at all unusual for parties to court disputes to get their own experts' opinions. As far as I am aware it is highly unusual for one side to say- "We didn't get an expert's opinion because the other side did not agree they would pay for it if the opinion supported our case rather than theirs. Please deduce from this that they were unreasonable and/or have something to hide." I think there is a good reason why such arguments are rarely, if ever, made.

Agreed, no-one said otherwise.


There are all sort of hypothetical scenarios where the OP will lose. These may be some of them. (But at least the OP will not have paid a test fee.) The OP has a number of options. One is to accept Curry's offer. Another is to refuse Curry's offer and to go to court. It is wrong to say this second option is not available. I also cannot see any good reason for believing refusing Curry's offer weakens the OP's case if they go to court.

No they won't have paid a test fee. But they will have paid a filing fee, a hearing fee & their own expenses of bringing court action along with potentially being liable for some costs of the defendants.

So you wouldn't take the risk of potentially being liable for the test fee if its found to be user damage but you would take the risk of potentially being liable for an even bigger sum by taking court action? I'm baffled by your logic.

My advice? Get the engineer out. Currys have previously asked people (who were outside of the 6 months) to pay the fee upfront and then refunded it when the fault turned out to be inherent. If they say it isn't inherent, THEN you argue the toss. Until that happens though, there technically is no dispute unless you want there to be. You're arguing against a "what if" and courts really don't care about possibility, just probability.

I have heard a DJ admonishing a claimant who made similar claims (that they didn't trust the retailer to be honest but had nothing to evidence why they should feel this way), so forgive me if I disagree that the courts will give credence to any claim that refusing their offer is reasonable.

I also know there has been a lot of reforms to civil litigation in recent years, particularly with small claims. Its also not unusual for a judge to award costs against you - even if you win - if your conduct has been unreasonable, you failed to follow the civil procedure rules or if you bring proceedings unnecessarily.

Court is not something you jump into on a whim. You make sure you cross every t and dot every i - at least if you want to win. Go unprepared and undoubtedly you will lose.

naedanger

unholyangel wrote: »

No they won't have paid a test fee. But they will have paid a filing fee, a hearing fee & their own expenses of bringing court action along with potentially being liable for some costs of the defendants.

So you wouldn't take the risk of potentially being liable for the test fee if its found to be user damage but you would take the risk of potentially being liable for an even bigger sum by taking court action? I'm baffled by your logic.

You have not allowed for probability. I think Curry's chance of winning is very low if they have not bothered to get a test, given the onus is on them showing the item was not faulty at outset. (Though it is obviously still possible they may win in this scenario.)

The fees are hardly that expensive.

My advice? Get the engineer out. Currys have previously asked people (who were outside of the 6 months) to pay the fee upfront and then refunded it when the fault turned out to be inherent. If they say it isn't inherent, THEN you argue the toss.

That is not unreasonable advice. (Though I am surprised that Curry's would refund fees when faults turned out to be inherent.) And for someone daunted by the prospect of taking a case to court I may well agree with it (especially if the tester was from some independent body).

But one of its downsides arises if the fault is in a grey area where there will be differences of view over whether it was caused by an inherent fault or not. If the Curry/Indesit's tester decides it was not caused by an inherent fault the OP cannot then dispute they are liable to pay the fee.

Until that happens though, there technically is no dispute unless you want there to be. You're arguing against a "what if" and courts really don't care about possibility, just probability.

Don't agree. There is currently a dispute.

I have heard a DJ admonishing a claimant who made similar claims (that they didn't trust the retailer to be honest but had nothing to evidence why they should feel this way), so forgive me if I disagree that the courts will give credence to any claim that refusing their offer is reasonable.

As far as I am aware, the OP was not planning on arguing the retailer or their tester, was not honest. (That would be asking for trouble.)

To point out that you were not 100% certain the tester would rule in your favour is not questioning their honesty. Similarly pointing out that they are not independent is not questioning their honesty. (Many people of the highest standing, including judges, rule themselves out of certain roles because they are not independent. By doing this they are not admitting they are dishonest.)

I also know there has been a lot of reforms to civil litigation in recent years, particularly with small claims. Its also not unusual for a judge to award costs against you - even if you win - if your conduct has been unreasonable, you failed to follow the civil procedure rules or if you bring proceedings unnecessarily.

But the OP would not be being unreasonable, nor failing to follow the correct procedure nor bringing the case unnecessarily.

Court is not something you jump into on a whim. You make sure you cross every t and dot every i - at least if you want to win. Go unprepared and undoubtedly you will lose.

I agree with the general sentiment. However what we seem to be arguing about is whether the OP should agree to pay for Curry's expert opinion if that opinion support's Curry's case.

Is it common (to the point of being seen as near obligatory) for one party to agree in advance to pay for the other side's expert opinion if that opinion turns out to support the other side's case?

unholyangel

Court fees, £50-60. Lost wages/annual leave? Travelling/parking expenses? Those are fees that will need to be paid out of OP's pocket with no guarantee of recovering them.

Note I have never said not to take it to court - just to make sure you have a case that can actually stand on merit rather than one propped up by a technicality. Its far too risky.

vtc6

Sorry guys just to be clear, Curry's want *me* to book an Indesit engineer or that they will book it on my behalf. My issue is that by booking in the Indesit call out I am unnecessarily entering into a new agreement with Indesit for the call out, and opening myself to Indesit's charge if the flaking paint is not covered by Indesit warranty.

Put logically: Currys insist I book a warranty call out with Indesit saying "nothing will happen [with fixing my cooker] without the visit". Currys say that cosmetic damage possibly/probably not covered by warranty and that if not covered I will be charged by Indesit for the visit. Flaking paint is cosmetic. So in all probability I get charged! Curry's have stated that they might not reimburse me for the charge. Therefore I don't wish to book with Indesit! Let Curry's book the Indesit engineer and pay the charge! They can then bill me for the charge if they are legally allowed to.

There was some comment about what I've been cleaning it with. It's been cleaned with E-cover and soft side of a sponge. The paintwork that hasn't flaked is immaculate.

In fairness Curry's are just doing what anyone would do, trying to get this sorted under warranty direct with Indesit, so they don't have to deal with it.

In terms of court fees and loss of earnings etc, it is unlikely to come to that. In my experience once Curry's receive court paperwork the issue gets escalated to a more intelligent member of Curry's staff who will immediately resolve the matter. Or Curry's legal team will advise Curry's that they do in fact need to arrange their own engineer and they can't force me to book a potentially chargeable Indesit callout.

vtc6

Also I just don't see how Curry's could be so silly as to even let this go to court. I will have it in writing that I happily accepted that any engineer enter my house and inspect the product. If you guys advise it, I will even explicitly write in my final letter that I accept to pay reasonable costs if my claim is false. I have chronological photos to show an immaculate and virtually new cooker with a serious progressive fault. What will Curry's have? They will have a letter saying I declined to telephone some third party (Indesit) to book an engineer who's probably going to bill me for the call out.

I'm assuming Curry's have a legal team who will look at the court paperwork before they allow it to go further.

hollydays

Is this just on the top of the cooker

vtc6

hollydays wrote: »

Is this just on the top of the cooker

It started off on the side edge near the top. At first I did think someone must have hit it even though there was no sign of impact. Then more came off a few weeks later. Then, while the oven was on, I started hearing cracking noises. I looked and the enamel was flaking off in a new place above the oven door as well. At that point decided to report it to Curry's.

I used to do amateur car painting so I know the basics of paint jobs. The right prep work makes the difference between a paint job that lasts decades and one that fails after weeks. I've seen paint jobs go wrong before. My best guess is that something went wrong at factory, maybe it wasn't degreased before painting or something like that.

I'm also familar with the effect of solvents and cleaners on materials. I specifically taught my girlfriend how to clean the oven in a way that it doesn't scratch or damage, because she wanted to go at it with abrasives.

vtc6

In fairness Curry's were trying to be helpful. I think they just wanted to check if Indesit will cover the fault first, and if not we still end up with a report from Indesit that Curry's wanted to use to check that I haven't done something silly. It did sound like they are willing to replace the oven even if Indesit warranty didn't.

The issue is that they were not willing to state in writing that they would reimburse the cost of the Indesit visit even though they themselves admitted I may well get charged because Indesit may not cover cosmetic issues and the staff wouldn't budge on this, and nor would I. So there was some stubborness.

Hopefully Curry's will just book the visit themselves and all will be good.