Faulty Carpet

Fast_Eddy

Hi,

I'm hoping some one can give me a little confidence to move forward. We had a carpet installed last December. In February it began to flatten badly. The retailer we bought it from came round in March and agreed that it was flattening badly and was faulty. He submitted a report to the manufacturer who sent an independent inspector. The inspection report concluded the carpet wasn't faulty and so the manufacturer will not play ball with the retailer. The manufacturer has since carried out a second inspection for which we are awaiting the results.

Through ongoing communication with the retailer they have repeatedly agreed with us they think the carpet is faulty but state their hands are tied as the manufacturer (inspector) has come to a different conclusion.

We have offered them 14 days to provide a refund or replace (Consumer Act 2015) which they have not responded to. We made a complaint via the Consumer Ombudsman but they didn't respond to them either. So my question -

As my contract is with the retailer, if they have accepted there is a fault would the manufacturers inspection report (or reports) sway a judge in a small claim or would they treat it as an isolated contract? "You agreed it was faulty, doesn't matter what someone else said, you need to pay up".

Any help would be appreciated!

unholyangel

As you purchased in December and reported it in March, it would have been for the retailer to prove its not faulty rather than you to prove it is (the burden of proof doesn't reverse until 6 months after purchase).

As for small claims - it goes on the balance of probability. There is a possibility a judge would give more credit to the manufacturer - given they make carpets so should have a better understanding than the guy who sells them but it may well depend on the content of the reports also.

Do you actually have a copy of both reports or would you be reliant on the retailer not changing their opinion once you start mentioning court action to them? How did you pay for the item?

Fast_Eddy

Thanks unholyangel,

I have a copy of the report the retailer sent to the manufacturer claiming the carpet had flattened badly and also the independent inspectors report suggesting such flattening was expected over time (it had been 3 months at most!).

In terms of the retailer changing their story I think I'm covered as I have copies of email exchanges between us where they repeatedly agree the carpet is faulty and suggest they would support us in making a claim against the manufacturer (at which point I had to remind them I had no contract link with the manufacturer).

I paid by credit card so I've now prepared a letter for them under Section 75 (thanks Martin). The two concerns I have with that are that:
1) the retailer escapes any consequence and so will continue to trade in the same way
2) the credit card company my use an independent inspector as well which could come to the same conclusion as the manufacturers.

It's just frustrating having to stare at it every day knowing the retailer agrees but won't do anything. How can you spend £1500 on a carpet and be satisfied with only getting a couple of months of it looking as like the product shown in store? The inspectors findings amaze me considering this is classed as "heavy domestic use"!

naedanger

Fast_Eddy wrote: »

As my contract is with the retailer, if they have accepted there is a fault would the manufacturers inspection report (or reports) sway a judge in a small claim or would they treat it as an isolated contract? "You agreed it was faulty, doesn't matter what someone else said, you need to pay up".

If it went to court and both parties (you and the retailer) agree the carpet is faulty then the court will accept this. Presumably the dispute would then only be over the proposed remedy.

If however the retailer changed their mind, and disputed that the fault exists, then it would be up to the judge to decide based on all the evidence. And if you can show the retailer previously agreed there was a fault then you could submit that as part of your evidence. Personally I think that would help your case a lot, but who would win would depend on the judge's view of all the evidence. So you could still lose e.g. if the manufacturer's report is persuasive.

unholyangel

Fast_Eddy wrote: »

Thanks unholyangel,

I have a copy of the report the retailer sent to the manufacturer claiming the carpet had flattened badly and also the independent inspectors report suggesting such flattening was expected over time (it had been 3 months at most!).

In terms of the retailer changing their story I think I'm covered as I have copies of email exchanges between us where they repeatedly agree the carpet is faulty and suggest they would support us in making a claim against the manufacturer (at which point I had to remind them I had no contract link with the manufacturer).

I paid by credit card so I've now prepared a letter for them under Section 75 (thanks Martin). The two concerns I have with that are that:
1) the retailer escapes any consequence and so will continue to trade in the same way
2) the credit card company my use an independent inspector as well which could come to the same conclusion as the manufacturers.

It's just frustrating having to stare at it every day knowing the retailer agrees but won't do anything. How can you spend £1500 on a carpet and be satisfied with only getting a couple of months of it looking as like the product shown in store? The inspectors findings amaze me considering this is classed as "heavy domestic use"!

Section 75 states:

75 Liability of creditor for breaches by supplier.

(1)If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

(2)Subject to any agreement between them, the creditor shall be entitled to be indemnified by the supplier for loss suffered by the creditor in satisfying his liability under subsection (1), including costs reasonably incurred by him in defending proceedings instituted by the debtor.

Which means that unless the creditor has specifically allowed the retailer off the hook, the supplier is liable for the creditors costs in settling/defending a section 75 claim. So they won't necessarily escape without consequence.

But more than that, section 75 costs you nothing - as does appealing to the financial ombudsman if your claim is rejected by the creditor and the risks are nothing - you're still free to start legal proceedings even if the ombudsman rules against you. Where with court, it is going to cost you upfront and getting a judgement is one thing, actually getting paid is another.

Is it flattening only in areas where there is foot traffic? If not it would strengthen your argument imo.

Fast_Eddy

Thanks naedanger,

I can't see the retailer changing their opinion now given the evidence I have.

At one point, when trying in a friendly manner to avoid third parties getting involved I said "look can I just ask if you've researched the strength of your position as Consumer Rights 2015 says this, contract law says that. Are you sure you want to go through this as from what I've read you will be found liable to compensate me" he simply replied "that may well be but I suppose we'll have to make this a test case"!?!

It would seem he wants to prove some kind of point about retailers getting left high and dry by manufacturers. Why with me?!

So you think if his position remains unchanged (that we both agree it's faulty) the judge would likely not even look at evidence but would simply say you've accepted it's faulty so you need to compensate?

Fast_Eddy

Unholyangel,

That's great, I'll get the letter sent to the credit card provider then.

"getting a judgement is one thing, actually getting paid is another". That was my other concern!

Thanks again

naedanger

Fast_Eddy wrote: »

So you think if his position remains unchanged (that we both agree it's faulty) the judge would likely not even look at evidence but would simply say you've accepted it's faulty so you need to compensate?

Yes. I think at most the judge would say to the retailer what was the purpose of showing him the report if he did not dispute that the carpet was faulty. (The judge might just say it is not relevant as neither party is disputing the carpet was inherently faulty.)

However I would be concerned the retailer will change their view before (or at) the court. And someone is entitled to change their view. The retailer could say, "yes, I admit I previously thought there was a fault but I now realise that was not the case because, as the manufacturer says, [excuse for it not being a fault/ excuse for why the damage was caused after delivery or whatever]". However changing their mind does put them a bit on the defensive. "Why did they previously think there was a fault." And you could argue they have only changed their mind to avoid a dispute with the manufacturer."

And the small claims court does not set any precedent, so the retailer is wasting their time if they think it would act as a test case of any sort.