Crane Garden Buildings – keeping my money

dunstonh

Is there a force majeure clause in their T&C?  (you would expect one)

As one large solicitor firm has said:

Given the almost unprecedented nature of the Covid-19 outbreak and/or the actions of governments around the world in response, it is likely that Covid-19 would constitute a force majeure event under many force majeure clauses.

For the firm to rely on force majeure, there must have been an event that was the cause of their inability to perform or delay the agreed work.   Or was due to circumstances beyond their control and there were no reasonable steps they could have taken to avoid or mitigate the event.

Even if there is no force majeure clause in the contract, the firm could still rely on the doctrine of frustration of contract.  Frustration requires that an unforeseen subsequent event outside the control of the parties has made the contract impossible to perform, or has transformed the performance of the obligations under the contract into something so radically different from that which the parties intended that it would be unfair to hold the parties to their obligations.

Thrugelmir

dksf said:

Their response is:

Unfortunately should you cancel your order your deposit is non-refundable.

Kind Regards

The thing is - had they refunded immediately I would have had no hesitation in re - ordering when circumstances are clear - maybe next year - but I am very unhappy that they are holding so much money. They also put huge pressure on me to pay the 10.5k balance even after lockdown had started and they knew they were not going to be able to deliver. This was one of the things that concerned me.

When did your first request cancellation? 

dksf

WhenIam64_again said:

For £3.5K, I'd put in a County Court claim.

These are still being heard and it is pointless banding words about. You are in dispute and there appears to be no dispute resolution mechanism within the construct of the contract. The inference of this absence is the court will be the arbiter.

You are right - and thank you. The temptation is to try and appeal to them I suppose, (I am always one to think that if I can just convince them it'll save everyone a lot of time)  - but if they were going to be reasonable they would have done so before now. Good advice. I appreciate it

dksf

Thrugelmir said:

When did your first request cancellation? 

As soon as the delivery date had passed. (Several weeks into lockdown).  By then I knew it would be months  - if at all - and was worried about my money. They had told me several times that they had not started manufacture - the deposit was just to secure the delivery date.

dksf

dunstonh said:

Is there a force majeure clause in their T&C?  (you would expect one)

As one large solicitor firm has said:

Given the almost unprecedented nature of the Covid-19 outbreak and/or the actions of governments around the world in response, it is likely that Covid-19 would constitute a force majeure event under many force majeure clauses.

Good point - I checked and there is not a specific clause although they do reserve the right to cancel/ suspend supply etc due to circumstances outside their control. They say in each case they will refund any money paid for goods not received.  That is fine - I am not asking for compensation for anything - just the money I paid to reserve the product. (And I don't think that can be excluded - but not sure)

 I will look into it further - it is interesting.

Galloglass

The problem with banding about force majeure is that who defines it; who decides when it applies; and who decides the application to the facts at hand? FM is no different from the "reasonable man" or any other legal device to fill a [legal] hole in a disagreement. 

FM is decided in a court, by a judge, based on the facts applicable at the time. And even then, any judgment can be appealed if you feel like it.

Anyone with a contract does not just look at the words, they look at the meaning within the context of the contract and whether it is clear  - in the context to the applicable facts. 

Noah no doubt had a FM clause in his order ....

dksf

 

Galloglass said:

The problem with banding about force majeure is that who defines it; who decides when it applies; and who decides the application to the facts at hand? FM is no different from the "reasonable man" or any other legal device to fill a [legal] hole in a disagreement.

FM is an interesting concept and yes, open to interpretation. It may be a possible factor in some of the bigger contracts affected by COVID. (Think of the millions lost due to the cancellation of the Olympics or the football season and all the interlinked contracts where there are penalties for non-performance or consequential costs.)

It is unlikely to be a factor in most simple consumer contracts where you pay for a product and ask for a refund if the product cannot be delivered.   Anyway – we shall see. I am going to go through the court but I could do without the hassle.

I am really grateful for the advice on this forum, (have been a lurker for a while), and for the thought-provoking discussion

dksf

OK so court claim underway. Crane are still not replying to any of my messages, they will not tell me if they support an ADR, will not acknowledge receipt of my Letter Before Action and will not give me any reason why they are keeping my deposit, (except cancellation - which was them not me.) No contact at all. A nice way to treat a customer.

Thrugelmir

Perhaps they feel that there's nothing further to discuss after having sought legal advice themselves. 

Galloglass

A Letter before Action is exactly that - before action. You follow up with a claim using the online system at MCOL (https://www.moneyclaim.gov.uk/web/mcol/welcome). The company then have to acknowledge within 14 days and send a defence within 28. If they fail to acknowledge or send in a defence, then it is a default win for you.

The court for where the claim will be heard is the one closest to you which is a bit moot at the moment as they are by phone/video. There is a bit of a backlog though they appear to be running to schedule now as courts have go to grip with the new way of working.