Against whom do I issue my claim in small claims court?

FluffyPuppy

In this scenario, goods (a suite of furniture) were purchased from Sofology Limited at a cost of just under £3,000. The bulk of the purchase price was paid by Credit Card (Halifax Mastercard). This, therefore, falls under the Section 75 rules.
I am about to issue a "letter before action" both to Sofology Limited and to Halifax Mastercard.
In the event that neither respond in a constructive manner (as is their history in this matter) and I then proceed with an online small claim, then do I make the claim against Sofology Limited, Halifax Mastercard or both?

pinkshoes

Why do you want to make a claim?

When did you buy the furniture?

What action have you taken so far?

ssparks2003

Is this a scenario, or actual events?

What is the basis of the claim?

Sandtree

Personally I'd go for Sofology unless you have any worries about their financial strength (not been following the news about companies in financial difficulties recently)

1) Your rights against them are the same however if you issue against the bank you'd have to demonstrate S75 applies which is just another complexity

2) Banks can sometimes be less commercially minded... if it werent the case many more FOS complaints would be settled before going to the FOS as they must pay the fee for complaints irrespective if the complaint is upheld or not

3) A retailer may be slightly more bothered about your long term custom and think they can salvage the relationship whereas the bank may think you wont really blame them for the faulty sofa so will stick with them anyway

Obviously is Sofology have just appointed administrators or something then you go against the company with the deeper pockets

steampowered

You are fully entitled to issue a claim against both as joint defendants. The whole point of s75 is that the bank is "jointly and severally liable" with the retailer.

It is entirely your decision whether you wish to pursue just Sofology, just Halifax, or both as joint defendants.

If you did go just against Sofology now, you could always pursue Halifax later. A CCJ against Sofology would be pretty conclusive evidence for s75 purposes.

DoaM

pinkshoes said:

Why do you want to make a claim?

When did you buy the furniture?

What action have you taken so far?

These are the important questions ... unless a S75 claim has been raised and rejected then filing a claim against the card provider is somewhat spurious, and a court may find similarly.

FluffyPuppy

Sofology Limited was acquired by DFS in October 2017.

The deposit (1,000) was paid (I believe) in January 2017 by debit card and the balance (£1,750) was paid (by credit card) mid-2017.

The sofa (a four-seat, corner unit) has a 25-year written warranty on the frame and a 2-year warranty on the materials including the leather, the inner padding and the suspension and/or webbing.

Written warranties, as I understand it, serve to augment statutory rights.

Specifically, and in the written opinion of an independent upholsterer with over 25-years' experience, both the webbing and the padding are substandard. The sofa has sagged badly on the seat and back where I mainly sit and also where my wife mainly sits.

The nature of the construction is such (a leather-buttoned, Chesterfield style) that the entire innards of the sofa would need to be removed and replaced and the cost of this would be prohibitive.

Sofology sent an "expert" round to inspect the furniture. His inspection consisted of walking around the furniture with his clipboard, tipping one of the joined units to unzip the fabric panel on the base to look inside, make a couple of notes and he then left. The total time for inspection was not more than five minutes and at no time did he sit on the sofa.

Sofology Limited has always failed to respond substantively - even to adverse (but polite) posts on its Facebook page.

The Halifax Mastercard comes under Lloyds Banking Group and it was at their request that I obtained a written opinion from an independent upholsterer. They suggested that the Furniture Ombudsman would be able to offer me a list of such experts but, in the event, the Furniture Ombudsman offers no such service and has no such list.

COVID-19 has rather slowed things down and also brings into question the future viability of any company. Section 75 rules apply because over £150 was paid by credit card so Lloyds Banking Group is jointly and severally liable for the entire amount.

Faced with the report of our independent expert, Lloyds Banking then attempted to move the goalposts. Originally they requested an expert opinion as to condition. They have subsequently (expost facto) added that they now want a further opinion as to cost of repair.

The defects became apparent well within six-months of delivery and the matter was taken up (initially) with Sofology at that time. This was obviously well within the two-year warranty on the suspension, webbing, padding, and leather).

Both my wife and I have disabilities that cause chronic pain so you will appreciate that furniture that augments such pain is entirely inappropriate. Lockdown has obviously meant that this has been exacerbated. The fact that I am immunosuppressed by virtue of cancer medication means that I continue to be locked down.

Some months ago I wrote to the Furniture Ombudsman giving details, which it accepted. Its written response was that things would take longer to resolve due to COVID-19. I believed that they would take steps but that such steps may take a little while. It failed to inform me that, despite having supplied all of the relevant information, I needed to complete an online complaint, as I learned from them within the last week, when its representative stated that no claim had been made (incompetence?)

In law, both Sofology and the credit card company are fully liable under Section 75 so, per my original question, whom do I sue? Since COVID-19 is a significant factor, my instincts suggest that I take out proceedings against Lloyds Banking, following a "letter before action", as they are likely to survive the pandemic, whereas the subsequent takeover of Sofology by DFS rather adds a layer of complexity. The Section 75 claim has not been rejected. Rather, it has not been acted upon so a "letter before action" may cause action to take place.

Anyone with an informed, legal view on this?

Many thanks.

shaun_from_Africa

Before starting legal action, it might be a good idea to contact the Financial Ombudsman:
https://www.financial-ombudsman.org.uk/
as they can deal with disputes involving S75 claims. 

Have a quick look at this for some examples of when they get involved:
https://www.financial-ombudsman.org.uk/files/2921/86.pdf#:~:text=Under%20section%2075%2C%20in%20certain,or%20a%20breach%20of%20contract.

Ectophile

Faced with the report of our independent expert, Lloyds Banking then attempted to move the goalposts. Originally they requested an expert opinion as to condition. They have subsequently (expost facto) added that they now want a further opinion as to cost of repair.

That sounds reasonable.  How do they know how much to pay you if you don't know how much it's going to cost to repair?

Given that the sofa is more than 30 days old, you don't have a right to reject.  Instead the seller (and by implication the credit card company) have the right to repair, replace or refund, whichever is the most cost-effective.

shaun_from_Africa

Ectophile said:

Faced with the report of our independent expert, Lloyds Banking then attempted to move the goalposts. Originally they requested an expert opinion as to condition. They have subsequently (expost facto) added that they now want a further opinion as to cost of repair.

That sounds reasonable.  How do they know how much to pay you if you don't know how much it's going to cost to repair?

Given that the sofa is more than 30 days old, you don't have a right to reject.  Instead the seller (and by implication the credit card company) have the right to repair, replace or refund, whichever is the most cost-effective.

Very good point. I must admit that I totally missed that when reading the post.

FluffyPuppy

In respect of the independent report into the condition of the furniture, this was requested by Lloyds Banking and an independent expert (with over 25 years' experience) examined and reported upon the condition of the sofa at my expense. Once Lloyds Banking had that report, they then elected to require additional information not explicitly included in the report (but certainly implicitly). The expert report clearly implied that replacement would be less costly than repair because a complete strip down was required followed by rebuilding with suitable materials. The initial report was pre-COVID-19 and complied fully with the detail of the request made by Lloyds Banking. Any augmented report that Lloyds Banking may wish to commission is impractical because, for health reasons, I remain locked down and this will persist until a viable vaccine is available. There is no avoiding this because my immune system is seriously compromized.

Since the initial report complied in full with the request of Lloyds Banking it would be unreasonable of them to keep coming back for a different report. A line must be drawn on this point.

It is beyond all doubt that Sofology Limited (and therefore Lloyds Banking which is jointly liable) is in clear breach of its written warranty relating to the suspension and padding because neither the suspension nor the padding lasted for even half of the warranty period.

If Lloyds Banking wants to move the goalposts in respect of an expert report post submission then this must be at their expense, not mine.

I made a detailed complaint to the Financial Ombudsman Service on 1st June 2020 and today asked them to provide a full, written update on their progress thus far.

I have also, today, sent both Sofology Limited and Lloyds Banking a "Letter Before Action". This complies with legal guidance and will enable me, should I so choose, to initiate an action through the Small Claims Court at the end of the month. One can but hope that, between them, they now elect to remove this matter.