To Pay or not to pay? When is a contract breached? And how to proceed in this case?

Tunstallstoven

Hi

We've got a dispute with a plumber who refitted our bathroom and did some other work. There are numerous instances of poor workmanship, which we can back up with opinions from other traders and in some cases info from manufacturers.

The plumber has been very dismissive of our complaints. He wanted his right of repair, but only proposed to put some of the work right, and even those proposals were bodge repairs. We felt this would leave us in a worse position, and so refused.

On another note, he told us he would have the work completed within a certain time frame, but he missed the deadline by around a month.

With have not paid anything yet. Initially he did not want payment until all matters were resolved. But recently he's been demanding payment and even adding late fees. Essentially, we're really stuck as to how to proceed. Do we:

1. Not pay / partially pay (for the elements we were happy with), and let him take us to court for the rest?
2. Pay the full amount under protest, and then pursue money back through the courts?

The problem with #2 is that our home insurance legal team have done financial checks and cannot take the case on because he doesn't show any obvious assets, isn't registered, etc. He has shown that he's happy to lie, and so we suspect if the decision were to go in our favour he would just lie and say he couldn't afford to pay. We've no idea how the enforcement side of things works.

On the other hand, would option #1 leave us in breach of contract for non-payment? Or would that not apply because he has already breached the contract through the poor workmanship and time delays? When does poor workmanship become breach of contract? What do we need to do to evidence this? And can we use the delayed completion to demonstrate breach of contract?

Any advice would be a massive help.

Many thanks to anyone taking the time to read this.

Sandtree

What does the contract say?

Assuming there isn't a full written contract then you are working under implied terms like reasonable care will be take etc but given you mention late payment fees then potentially you do have one?

Personally would rather have the money in my bank and the counterparty being the one having to have the hassle of litigating than pay up and immediately having to litigate after. 

Tunstallstoven

Hi @Sandtree

He seemed to use the terms estimate and quote interchangeably.  It consisted of a PDF with the figures, and an email with the list of work (and subsequent emails clarifying the work to be done).  The PDF estimate/quote says:  "Payment due on completion of work."  There's no mention of late fees until the actual invoice, where it states that 5% will be added each month.  

Sandtree said:

Personally would rather have the money in my bank and the counterparty being the one having to have the hassle of litigating than pay up and immediately having to litigate after. 

That's how I feel too, especially in light of the fact that if we pay and litigate, he may claim he does not have the money to pay (should we win).  I feel that with the evidence we've gathered so far, and the additional evidence we get, we'll end up with a strong case that the job wasn't up to par and wasn't completed.  I've just got no idea how strong that is compared to us breaching contract by not paying.  

Thanks for the quick reply - much appreciated.

Sandtree

Two wrongs dont make a right but having evidence you've tried to work with them to resolve it helps.

Be slightly cautious of other trade's opinions... its clearly not in their interest to say it all looks good to them

Tunstallstoven

Sandtree said:

Two wrongs dont make a right but having evidence you've tried to work with them to resolve it helps.

There have been many emails between us.  Most of it consists of us pointing out the errors, demonstrating why we think they are errors, etc. and him refuting them, occasionally agreeing to them (after much persuasion), but also lying to suit.  In the earlier stages we asked several times if he had a complaints procedure or was a member of a trades association but he wouldn't answer.  

Sandtree said:

Be slightly cautious of other trade's opinions... its clearly not in their interest to say it all looks good to them

I see what you mean.  To be fair though, a lot of the feedback came from a professional tilers forum where I posted photos and details.  The responses were unanimous that the tiling was poor quality.  Furthermore, some of what he did was not in line with the manufacturer's instructions, etc.  

Many thanks

the_lunatic_is_in_my_head

OP in the first instance the you have the right to a repeat performance.

If the trader fails to perform the repeat performance in accordance with the contract within a reasonable time and without significant inconvenience then you have the right to a price reduction.

You should let the guy do what he wants to fix the issues, if the issues are still not fixed then get quotes for bringing the work up to scratch and deduct that from the amount owed.

As a side note as far as I'm aware the trader can not impose late payment fees, if he was to take you to small claims and actually win (unlikely if the job isn't up to scratch) then I think the court can award interest at a set amount.   

I wouldn't pay anything until it's sorted to a satisfactory standard, services must be carried out with due care and skill and this is a implied term of any service contract so if that doesn't occur then the contract has not been fulfilled but you need to appear reasonable so should allow one attempt at sorting the issues out. 

If you want more opinions on the job it's always interesting to see photos here  

Tunstallstoven

@the_lunatic_is_in_my_head - many thanks for your reply.  We did try for a "repeat performance" but unfortunately it didn't end well and didn't happen.  We were never happy with his proposals for fixing the main issues.  However, after various email exchanges he came up with a list of new proposed fixes.  We still didn't feel they were nearly enough  But thinking we had to allow him the right to repair, we agreed and set a date; making it clear that after he had finished we would still want the work independently assessed, and if not of a satisfactory standard (which we were confident it wouldn't be) our position would remain unchanged.  We also asked him not to bring the original tiler to carry our the tiling repairs, as we had since learnt he was a friend/handyman, not a pro tiler, and based on the first performance we didn't believe he had the necessary skills to carry out the work.  

When he came to finish the work and carry out the repairs:

- He brought the original tiler with him.  As above, we had requested he didn't.  He had not told us that he was bringing him.
- On the doorstep, he proposed a different fix to the one he had outlined in emails.  It was a much less satisfactory fix.  In fact, it seemed the cheapest quickest bodge he could come up with. 

Based on this, we refused entry. 

the_lunatic_is_in_my_head said:

As a side note as far as I'm aware the trader can not impose late payment fees, if he was to take you to small claims and actually win (unlikely if the job isn't up to scratch) then I think the court can award interest at a set amount.   

That's good to hear.  Tbh, I didn't think he could add late fees that were not agreed at contract stage, but it's still a tad scary when you see them on the invoice; especially at the rate he's adding them!!  

Thanks again
  

   

Tunstallstoven

Cross threads...  

I think in my attempt to try and be helpful and concise I have indeed done the opposite!  I posted a separate thread thinking it made more sense to separate the issues, but can see now that it would make more sense to put everything together, as has been suggested.  

I'll request the other thread be locked, but hopefully still viewable to cross reference.  Here's the link:

https://forums.moneysavingexpert.com/discussion/6342858/financial-checks-and-ability-to-pay-is-it-worth-taking-this-sole-trader-to-court#latest

Apologies  

the_lunatic_is_in_my_head

Tunstallstoven said:

When he came to finish the work and carry out the repairs:

- He brought the original tiler with him.  As above, we had requested he didn't.  He had not told us that he was bringing him.
- On the doorstep, he proposed a different fix to the one he had outlined in emails.  It was a much less satisfactory fix.  In fact, it seemed the cheapest quickest bodge he could come up with. 

Based on this, we refused entry. 

  

   

I think this may be an issue as you won't have any proof of the changes to the proposed remedy and you refused the repeat performance.

Out of interest, how much was the job? I'm assuming the quality of the tiling is an issue, is there anything else?

If the job was itemised how much was the cost of the tiles + materials and the tiling itself? 

Tunstallstoven

the_lunatic_is_in_my_head said:

I think this may be an issue as you won't have any proof of the changes to the proposed remedy and you refused the repeat performance.

I think we can demonstrate that he had changed the proposal.  Obviously bringing the tiler was one change.  As for the change of the actual intended work...  He emailed an account of the visit later that day which was mostly accurate - i.e. he only offered the quick bodge fix and we refused entry.  We responded with more detail and clarifications about the visit, similarly stating that he had only offered the quick bodge fix and we refused entry.   So both of our emails said the same, and we didn't think anything of it because that was what happened!  It was only 5 days later that he sent an email changing the story and claiming he had offered both the quick bodge fix AND the original proposed fix that we had agreed to.  To our mind it clearly shows he has changed his story to suit.  It was an after thought, days later, to try and corner us.  However, having never been involved in legal proceedings before we're not sure how such evidence is weighted by a judge.

Furthermore, we don't think he would have practically been able to carry out the proposed fix we agreed to initially, as he did not have the required materials.   

Also, throughout the process we have asked him for time to get a report done by an independent person/organisation so we can fully assess the work and any possible problems with it.  However, he has insisted on his right of repair asap and has not wanted to wait.  Since the failed visit, we've had another tiler assess the work and they've raised even more issues we weren't aware of.  We've checked these with the manufacturer and they've confirmed that the work has been done incorrectly.  This is a further reason why all the tiles will need to come off and the job be re-done.  Were do we now stand on this and the right of repair?

the_lunatic_is_in_my_head said:

Out of interest, how much was the job? I'm assuming the quality of the tiling is an issue, is there anything else?

The total job was around £3,100.  Yes, the quality of tiling in various aspects.  But there were also some issues with the plumbing - things done incorrectly, and uncompleted work.  Do you need details?

the_lunatic_is_in_my_head said:

If the job was itemised how much was the cost of the tiles + materials and the tiling itself? 

The estimates/quotes were broken down to labour and materials though.  Combining the two they were:  £2550 labour, £550 materials.  That did not include the tiles, as we bought them ourselves.  

Thank you so much for your help and time

the_lunatic_is_in_my_head

Thank you for the details  

So first off I wouldn't pay the bill in full and seek to recover loses later, it will take a long time, cause lots of headache and even if you manage to recover the money you may feel the whole thing wasn't worth the effort, but most noticeably the Consumer Rights Act specifically permits you a price reduction. 

So lets assume for a minute the plumber has had their chance of a repeat performance (fixing the issue) and failed this would leave you with the price reduction.

You'd take the cost of labour (including undoing anything) plus the cost of the tiles if they needed to be purchased again and deduct this from the full bill.

Same principle for the other bits with the plumbing. 

You don't have to find the cheapest person going but should be reasonable so 3 quotes if possible is ideal. 

There are couple of things to note, other traders aren't necessarily independent, if you felt the plumber would take you to court for the remainder of the bill then having some kind of independent assessment, as you mentioned, might be wise to show the work really doesn't meet acceptable standards. 

It's also worth noting the manufacturer may specify certain things but they may not be a necessity.

I fully understand your position but if the plumber went to court the case will be viewed from a non-bias position meaning you'd need to justify your position suitably.  

If you calculate the cost of resolving the issues is less than £3100 I'd pay the plumber the difference asap. 

If we go back to the start, and I know you don't want to but, personally I would tell the plumber to come and fix both the tiles and plumbing issues with promise of full payment. Once he has been in and tried, if it's sorted (which is looking unlikely) all is well, if it isn't then you are on solid ground to say you are entitled to a price reduction.

If he carries out bodge repairs that are only superficial any expert would see through this any way so I don't think you have much to lose but letting him try, after all if he makes it worse you are deducting costs of correction from the bill. 

Below is some bits from CRA to show your rights, these are implied terms and requirements so can't be excluded by the contract (or the trader saying so). I wouldn't hit the plumber with rights at this point, it's really a case of letting him fail at the repair so you 100% have the right to a price reduction.

Hope this helps and you have some luck with getting everything sorted  

https://www.legislation.gov.uk/ukpga/2015/15/section/49/enacted

(1)Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill.

https://www.legislation.gov.uk/ukpga/2015/15/part/1/chapter/4/crossheading/what-remedies-are-there-if-statutory-rights-under-a-services-contract-are-not-met/enacted

The right to require repeat performance is a right to require the trader to perform the service again, to the extent necessary to complete its performance in conformity with the contract.

(1)The right to a price reduction is the right to require the trader to reduce the price to the consumer by an appropriate amount (including the right to receive a refund for anything already paid above the reduced amount).

(2)The amount of the reduction may, where appropriate, be the full amount of the price.

(3)A consumer who has that right and the right to require repeat performance is only entitled to a price reduction in one of these situations—

(a)because of section 55(3) the consumer cannot require repeat performance [because doing so would be impossible]; or

(b)the consumer has required repeat performance, but the trader is in breach of the requirement of section 55(2)(a) to do it within a reasonable time and without significant inconvenience to the consumer.