Section 75 or small claims- hottub dispute

cday4

I bought a hot tub in September 2016. I was highest bidder for it on eBay, the product was new, not second hand or ex display and they had several for sale of the same type at the time. I then contacted the seller and they advised that they would cancel the eBay transaction and take a credit card directly outside of eBay and PayPal. I paid a £400 deposit over the phone, also advised that I would like to pay for the full delivery and installation option of £550, which meant that they deliver it to the base, fill it up and show me how to use the chemicals, which they supply as part of this package.
The delivery date was agreed about 6 weeks from then. I received a receipt through the post, showing the cost of the hot tub, with the delivery and installation cost hand written on, with my credit card receipt of £400 stapled to this.
Delivery day came with no issues, I paid the remainder of the transaction including delivery cost by debit card over the phone once I was happy and had no issues for the 18 months.
In May 2018 the hot tub developed blisters all over the surface. Whist I can use it, some investigation online indicates that this will only get worse and could cause a breach of the shell in time. I approached the company, who told me I was out of warranty and basically to pay for the repair myself. There is no easy way to repair this, the hot tub is basically a write off. Regarding warranty, whilst I don't want to name the company just yet, they are telling me the hot tub is actually a different make than displayed on the eBay advert, with a much inferior warranty, 1 year shell defect against the 5 year I believed I had! I have evidence to show what was on the advert.
So I approached my credit card company, after a long time they have advised they are not taking my section 75 claim any further as I don't have a contract with the hot tub supplier. The receipt I received is a print out from eBay, with the agreed amount stated and the hand written delivery and installation fee, the credit card company have advised that as this is a print out from an eBay transaction which was cancelled this is invalid. I did escalate to complaint, but they have investigated and advised the decision was right. So next steps? Do I go to the ombudsman or straight to small claims, and if I go to small claims should the case be against the hot tub supplier alone, or jointly with the credit card company?
The total cost was £2,900, I'm looking for a replacement or full refund, the hot tub retails at £3,899 plus delivery etc. I have searched the internet for similar issues with this brand and not found anything, so I think I may just be unlucky!

bris

Do you have a valid receipt from the company or is the Ebay receipt all you have? You need to demonstrate a direct link to the supplier, a cancelled sale doesn't show that.


If you decide to take the small claims route the judge may however establish the link for you so it's always best to take the CC to court along with the supplier.


You also have to establish a breach of contract, to do this you need an experts report on why the hot tub blistered and whether it's inherent or something you did.


You're also not entitled to a full refund, you will have a deduction for the 2+ years use you have had, what that reduction is the courts will probably decide at the same time.

cday4

Thanks for your help! The paperwork I have doesn't actually say it's cancelled on it, so along with emails where they have confirmed the date it was delivered I would hope it would stand up in court. I have a forensic engineer report, they decided it's poor quality acrylic. I think I will just skip the ombudsmen and go to court.

Aylesbury_Duck

Good luck with it. It doesn't seem to me that you've got a good case on the grounds of the advert. You bought outside of eBay so the advert/spec/manufacturer on the eBay listing is independent of your eventual purchase. They're essentially two different things, a cancelled transaction followed by a new one, the new one not being linked to the advert. Personally I'd have run a mile at that point, but there you go.

The technical report is helpful and may lead somewhere but as pointed out, the court won't enforce a full refund or replacement because you've had two years' use from it. What's the value of a used hot tub of that model?

unholyangel

(2)The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory, taking account of—
(a)any description of the goods,
(b)the price or other consideration for the goods (if relevant), and
(c)all the other relevant circumstances (see subsection (5)).

(5)The relevant circumstances mentioned in subsection (2)(c) include any public statement about the specific characteristics of the goods made by the trader, the producer or any representative of the trader or the producer.

Theres also the consumer contracts regulations which would require certain information to be given to the consumer before being bound and any changes to that information (made before or after entering the contract) is not effective unless expressly agreed by both parties.

The fact that the arrangements for payment were changed does not mean the contract itself was cancelled. Much less that any description given in an advert doesnt apply.