Section 75 - time limit? and who pays?

vpdbac

Hello friends, I welcome your advice and guidance,

1. Is there a deadline for claiming under Section 75? What about a purchase in Jan 2019? 

2. What if the service purchased (wind tunnel hire) has been part used? eg 10hours from 22hours purchased? Does that affect it?

3. Who pays any refund? ie the Credit Card will pay up the amount but will the Credit Card company then go after the other party? I am a big fan of the wind tunnel company and I don't want to cause it further financial issues, potentially jeopardising their future further, but equally they have several thousand pounds of mine since Jan 2019 and I need it back to pay credit card bills off. 

thanks in advance for your help. 
blue skies
Brian

eskbanker

vpdbac said:

1. Is there a deadline for claiming under Section 75? What about a purchase in Jan 2019?

No s75-specific deadline, so you're effectively constrained only by contract law and limitations, i.e. six years.

vpdbac said:

2. What if the service purchased (wind tunnel hire) has been part used? eg 10hours from 22hours purchased? Does that affect it?

It shouldn't affect a claim, in that a contract that's been partially satisfied can still be breached thereafter.  Point 3 suggests that the company is still going, so what's the nature of their breach?

vpdbac said:

3. Who pays any refund? ie the Credit Card will pay up the amount but will the Credit Card company then go after the other party? I am a big fan of the wind tunnel company and I don't want to cause it further financial issues, potentially jeopardising their future further, but equally they have several thousand pounds of mine since Jan 2019 and I need it back to pay credit card bills off.

As I understand it, it's uncommon for card companies to pursue merchants following s75 refunds, but it's their right to do so if they choose.

[Deleted User]

It doesn't usually apply to indirect payments (e.g. PayPal) or business related transactions.

I think your position is bizzare, a card issuer that likely made very little from the transaction is to reimburse you whilst the company that you actually paid - isn't supplying the service/refund shouldn't?!

born_again

Rule of thumb S75 is 6 years time limit, but can be extended in some cases (very rare)

Who pays. Card company. Do they chase the company. Rule of thumb no. As court costs far outweigh the return.

Best bet is to talk to your card company about it. I take it this is a B2B purchase?
You would only be looking at a part refund for the time unused, and in reality have to prove the hourly rate.

Why can you no longer access the wind tunnel?

Sandtree

born_again said:

Rule of thumb S75 is 6 years time limit, but can be extended in some cases (very rare)

Or 5 years in Scotland

The limit starts from the breach of contract not the purchase though... faulty goods etc are assumed faulty at point of purchase so are one and the same however services could be a long time after the original purchase.

S75 isnt impacted by part use of a service but it is likely to impact your losses and therefore the amount you claim... its not the default that you get the full amount paid back.

vpdbac

born_again said:

Best bet is to talk to your card company about it. I take it this is a B2B purchase?
You would only be looking at a part refund for the time unused, and in reality have to prove the hourly rate.

Why can you no longer access the wind tunnel?

Thanks for your reply. I will talk to the card company but am expecting them to try to fob me off hence I wanted to be forewarned and armed with the right information before talking to them.

Kinda B2B but mostly not, I am a self employed sole trader sports coach and used my personal credit cards for the purchases... I bought the time to use for myself to better my own skills and to coach other people when they're using it. 

The reasons have been valid individually but ongoing:
Original purchase: Jan 2019 of approx £10k
Reason/Excuse 1: maintenance (2019, many months)
Reason/Excuse 2: Covid (March 2020, about 12months, this was the big one)
Reason/Excuse 3: maintenance (mid-2021, several months)
Reason/Excuse 4: electricity prices too volatile (1st Dec 2021 onwards... I hope they do not file for bankruptcy)

Through all of these events, when it has been operating they said there was a cashflow issue and they needed to get money coming in to pay bills before they could let us use the time we had already paid for. I've been continuing to use the tunnel but paying for it since March 2020.

Sandtree said:

born_again said:

Rule of thumb S75 is 6 years time limit, but can be extended in some cases (very rare)

S75 isnt impacted by part use of a service but it is likely to impact your losses and therefore the amount you claim... its not the default that you get the full amount paid back.

Thanks for the info. I am not after the full amount, the remainder is fine... it is still thousands of pounds I have in that business that I can't use and can't get back. 

Deleted User said:

It doesn't usually apply to indirect payments (e.g. PayPal) or business related transactions.

It was a direct payment from a personal credit card.



My ideal scenario is for the wind tunnel to start operating again and I can use the tunnel and eventually they allow us to use our credit. But the majority decision thinks the will close forever. :-(

eskbanker

vpdbac said:
I will talk to the card company but am expecting them to try to fob me off hence I wanted to be forewarned and armed with the right information before talking to them.

Kinda B2B but mostly not, I am a self employed sole trader sports coach and used my personal credit cards for the purchases... I bought the time to use for myself to better my own skills and to coach other people when they're using it. 

The reasons have been valid individually but ongoing:
Original purchase: Jan 2019 of approx £10k
Reason/Excuse 1: maintenance (2019, many months)
Reason/Excuse 2: Covid (March 2020, about 12months, this was the big one)
Reason/Excuse 3: maintenance (mid-2021, several months)
Reason/Excuse 4: electricity prices too volatile (1st Dec 2021 onwards... I hope they do not file for bankruptcy)

The key thing is to establish breach of contract, so it isn't as simple as highlighting periods of unavailability unless there was any contractual commitment to make the facility accessible x days per year.  If it was just an open-ended pre-purchase of a number of days, without expiry, then the company, and presumably your card provider, can argue that the contract is still in force.  Having said that, there should always be an element of reasonableness in any contract, so if the facility was unavailable for what might be considered an unreasonable amount of time then that would help your case.

At the risk of asking an obvious question, is there anything contractual that entitles you to request a refund for unused days?  If the company is in dire financial straits then you'd be unlikely to actually get such a refund from them, but refusal would trigger a contract breach....

vpdbac said:
Through all of these events, when it has been operating they said there was a cashflow issue and they needed to get money coming in to pay bills before they could let us use the time we had already paid for. I've been continuing to use the tunnel but paying for it since March 2020.

Do you literally mean that despite your prepaid days, you've been forking out again when using the facility?  Perhaps easier to say with hindsight, but if they were refusing to honour the contract in March 2020 then that would have been a better time to start a formal dispute - paying a second time shouldn't actually prejudice your rights but it is an odd course of conduct that could muddy the waters, especially if you're arguing that the facility was mostly unavailable.

vpdbac said:
My ideal scenario is for the wind tunnel to start operating again and I can use the tunnel and eventually they allow us to use our credit. But the majority decision thinks the will close forever. :-(

If the business closes, or the facility you've paid for does, then claiming contract breach will be easier....

vpdbac

Do you literally mean that despite your prepaid days, you've been forking out again when using the facility?  

Exactly this. They have my money but won't let me use that money to pay for the wind tunnel time.

They've now closed for business in December due to the volatile electricity prices. They say temporarily but it looks ominous. :-( 

SuperAllyB

vpdbac said:

Hello friends, I welcome your advice and guidance,

1. Is there a deadline for claiming under Section 75? What about a purchase in Jan 2019? 

2. What if the service purchased (wind tunnel hire) has been part used? eg 10hours from 22hours purchased? Does that affect it?

3. Who pays any refund? ie the Credit Card will pay up the amount but will the Credit Card company then go after the other party? I am a big fan of the wind tunnel company and I don't want to cause it further financial issues, potentially jeopardising their future further, but equally they have several thousand pounds of mine since Jan 2019 and I need it back to pay credit card bills off. 

thanks in advance for your help. 
blue skies
Brian

Reading the rest of your posts, I'm struggling to understand why you care if they are further hit financially.  If you need the money and they've breached the contract, claim S75 and don't worry about who pays surely.

pjread

I'm not sure how it'd go down, but "I've pre-paid for X, but when I turn up to receive it I'm only able to use it if I pay again" seems likely to be a breach of the original contract and might be a reasonable position to take - "I needed X, they refused to fulfil my original agreement but clearly were in a position to, since they did provide the identical service when I paid additional money as a separate transaction"

vpdbac

SuperAllyB said:

 I'm struggling to understand why you care if they are further hit financially.  If you need the money and they've breached the contract, claim S75 and don't worry about who pays surely.

Because they are my friends and I want them to turn the business around and be successful. I don't want to be the straw that breaks the camel's back.