Section 75 claim

Terry_Towelling

Under the terms of the CCA S75 you can take the supplier to court, the creditor to court or both parties together - but you still have to prove breach of contract or misrepresentation to win (unless the other party agrees to settle)

whitepaper

Terry_Towelling wrote: »

Under the terms of the CCA S75 you can take the supplier to court, the creditor to court or both parties together - but you still have to prove breach of contract or misrepresentation to win (unless the other party agrees to settle)

Correct, but remember S75.5 if you elect only to take the creditor to court

(5)In an action brought against the creditor under subsection (1) he shall be entitled, in accordance with rules of court, to have the supplier made a party to the proceedings.

Your claim could be delayed if the creditor applies to add the supplier to the proceedings, because you haven't without good cause.

whitepaper

Katykat wrote: »

Chattychappy, if we pursuer it through the small claims court, it wouldn’t be the CC company we would be claiming against, it would be the supplier. We only tried the CC because we were hesitant about bringing a court case, but I suspect this is what we will end up doing.

You may as well add both the supplier & the creditor to the proceedings from the outset.

The advantage being that should you win the claim, you can then pursue either (or both) to enforce the judgement if necessary.
The reality being that even if the supplier doesn't settle, the creditor probably will. However if neither do, you will probably find it a lot easier successfully enforcing a judgement againt the creditor than the supplier.

eco_warrior

I really don’t see the need to raise a court action. The card issuer has explained what they need, so just get it.

Terry_Towelling

The fact that a creditor can ask for the supplier to be made party to the proceedings in any court action (against the creditor only) doesn't really matter because this sort of issue won't go to court if the claim is deemed to be valid by the card company.

Just give the card issuer what they've asked for and let them assess your claim. They will not be bloody-minded about it; they will be objective and fair.

chattychappy

whitepaper wrote: »

Your claim could be delayed if the creditor applies to add the supplier to the proceedings, because you haven't without good cause.

"good cause" doesn't really enter in to it. When there is joint liability, you have always been free to sue just one party without any adverse inference. They can add the merchant if they wish - and agreed there could be a delay whilst the forms are shuffled.

Terry_Towelling wrote: »

The fact that a creditor can ask for the supplier to be made party to the proceedings in any court action (against the creditor only) doesn't really matter because this sort of issue won't go to court if the claim is deemed to be valid by the card company.

Just give the card issuer what they've asked for and let them assess your claim. They will not be bloody-minded about it; they will be objective and fair.

In theory yes. I would always play ball with a CC in the first place and continue doing so if their demands are reasonable and they act promptly. ELSE I wouldn't hesitate in issuing a claim form. And issuing a claim form doesn't mean it goes to court - it might prompt an early settlement. The point is that from then on, it is civil procedure rules and the courts that dictate what has to be done and the timetable, not the CC.

In my day job, I have issued/defended dozens of claims in recent weeks (not S75). Common themes are: 1) the parties probably sued too late - disputes just dragged on because the claimant kept putting off "going legal" whilst the defendants stalled and 2) once the claim form is issued, most were either paid without a defence going in or settled long before a hearing.

My advice would always be to avoid litigation if possible, but don't put it off if you're not getting anyway or you are being given the runaround.

whitepaper

chattychappy wrote: »

"good cause" doesn't really enter in to it. When there is joint liability, you have always been free to sue just one party without any adverse inference. They can add the merchant if they wish - and agreed there could be a delay whilst the forms are shuffled.
...

I'm sure you would agree attempting to add a company as a joint defendant that has ceased trading/been dissolved would be of little value.

eco_warrior

strange that this non credit card related thread is still going

Funny that

chattychappy

whitepaper wrote: »

I'm sure you would agree attempting to add a company as a joint defendant that has ceased trading/been dissolved would be of little value.

The comment was about the defendant adding the supplier as joint defendant.

As a claimant, I would always sue both in the first place anyway - even if the supplier is in liquidation. But you don't have to.

MEM62

Katykat wrote: »

We bought garden furniture worth £520 on a credit card. It was rattan chairs which the company said would last 20+ years but the guarantee was 1 year.After 1 summer, the coated frame started to rust. The company wouldn’t accept responsibility despite us claiming that the furniture should be fit for purpose. So we turned to the credit card company claiming under section 75. After 6 weeks, they have written to us asking us to provide a report from a VAT. registered company with all that is wrong and how much it would cost to repair. Firstly, should we be liable for the cost of this report? And next, it would be impossible to repair it as it is the whole frame of 2 sofas, 2 chairs and a stool. Where do we stand?

I don't think you will get far with this one. You have stated that the guarantee period was one year. If that has passed it has passed. The fact that the manufacturer may indicate how long the product typically lasts is unlikely to be a statement that you can litigate against as is will be dependent on how the items have been used, stored etc. (Coastal location or inland? Stored in the shed during winter? Left outside? Covered or uncovered?)

The manufacturer may also argue that the fact that the frames have rust does mean that it is not useable or unfit for purpose. Most metal left outside will see some corrosion.