holiday deposit with-held for no reason, small claims query please

RefluentBeans

12SwanViewTattershall said:

I've prepared a 'letter before claim' using a template online. Can it be sent by email ?

It can - but to confirm delivery you can send it via recorded postage (Royal Mail Tracked48 etc). I would say though - be sure that they aren’t willing to come back to negotiating table. A letter before action is the last step and is the ‘I’ve had enough now - pay up or I’m going to court’. It can shut down any future talks and negotiations. 

Was the deposit told about when you booked the trip or was it added in after - if it was part of the initial booking it may still be the business you sue, regardless of who you pay. If it was added after - what did they say to you to get you to pay? If it’s added after - and you’re sueing them personally (not the business) then you’re arguing you have 2 contracts - the ‘main’ let with their company and then the secondary ‘damage deposit’ with them personally. In my opinion - it doesn’t seem likely there are two contracts and rather one contract with payment via Booking.com and another payment paid to a bank account (personal or not doesn’t matter). Bank transfers are like cash - and if you paid cash to them you wouldn’t think that you could claim against them personally. 

Just be sure to check all the paperwork, especially with regards to the deposit. If it’s all on the same contract and the contract says it’s between you (the holidaymakers) and them (the owners) then it’s fair to say it’s all in one. If they contacted you separately and asked for a deposit that wasn’t in the original terms, what did that email say? Were there any terms attached? Was the email from the same email as their company contact email or a personal email? I personally don’t think you have a contract between them personally and you. 

sheramber

12SwanViewTattershall said:

i have a screenshot of the transfer from my banking app. it has just the name of one of the couple, doesn't have their business name on it.

Did the bank do Confirmation of Payee when set up the bank account on your payee list?

If they did then you have to choose personal or business for the type of account.  

If you paid to a personal account then 'the business' could  claim you did not pay the money to the business.  

I think you have to sue whoever you paid the money to. 

RefluentBeans

sheramber said:

12SwanViewTattershall said:

i have a screenshot of the transfer from my banking app. it has just the name of one of the couple, doesn't have their business name on it.

Did the bank do Confirmation of Payee when set up the bank account on your payee list?

If they did then you have to choose personal or business for the type of account.  

If you paid to a personal account then 'the business' could  claim you did not pay the money to the business.  

I think you have to sue whoever you paid the money to. 

I don’t think that’s the case. It’s who the contract is with. The contract and payee are almost always the same person, but not always. 

If the OP made a contract with the holiday company and paid into a personal bank account, it doesn’t matter. The contract remains in tact. It’s only if after the initial contract is formed and the owners of company email and ask for an additional payment could you consider that the deal is between the owners of the business and the OP. And I don’t think that’s guaranteed. 

Like I said, if the owners asked for cash, you wouldn’t say that the deal is with the owners personally. It all comes down to what the invoices were, who the contracts were involving, and what the receipts say. The personal vs business account seems like a flawed argument to me. 

born_again

From another recent thread.
It is not who you pay the money to, but who the contract is with that you take to court.

ItWasMeantToBe

user1977 said:

By "company" do you mean a limited company, or just a trading name?

Sorry not sure,  I will try to find out. Will that make a difference? 

ItWasMeantToBe

replying to RefluentBeans post from above (sorry, tried to quote but it's not working right!)

It can - but to confirm delivery you can send it via recorded postage (Royal Mail Tracked48 etc). I would say though - be sure that they aren’t willing to come back to negotiating table. A letter before action is the last step and is the ‘I’ve had enough now - pay up or I’m going to court’. It can shut down any future talks and negotiations. 

^there is no negotiation, they won't respond to me at all unfortunately! Advert is still up on hotels.com but their facebook page is locked.

Was the deposit told about when you booked the trip or was it added in after - if it was part of the initial booking it may still be the business you sue, regardless of who you pay. If it was added after - what did they say to you to get you to pay? If it’s added after - and you’re sueing them personally (not the business) then you’re arguing you have 2 contracts - the ‘main’ let with their company and then the secondary ‘damage deposit’ with them personally. In my opinion - it doesn’t seem likely there are two contracts and rather one contract with payment via Booking.com and another payment paid to a bank account (personal or not doesn’t matter). Bank transfers are like cash - and if you paid cash to them you wouldn’t think that you could claim against them personally. 

^the deposit was mentioned only at the payment page on hotels.com, so by this time we felt like we had to agree or lose the holiday. however it was said originally that it must be in cash, when arriving at the caravan. Then later, over personal email not hotels.com,  it changed to 'bank transfer'. Then, a couple of days before the holiday, it randomly changed to £375. when we queried this they then said 'oops, mistake, wrong template used, it's just £200" so i paid it by bank transfer because it was my parents holiday and they were getting anxious about it, understandably. Deposit is not listed on the hotels.com receipt, but is now listed on the hotels.com original advert page.

Just be sure to check all the paperwork, especially with regards to the deposit. If it’s all on the same contract and the contract says it’s between you (the holidaymakers) and them (the owners) then it’s fair to say it’s all in one. If they contacted you separately and asked for a deposit that wasn’t in the original terms, what did that email say? Were there any terms attached? Was the email from the same email as their company contact email or a personal email? I personally don’t think you have a contract between them personally and you. 

^ We've got lots of emails, saved everything. Paperwork is all electronic. I guess it means that i would be suing their company not the person. But then when you look on companies house and similar, it shows they've many similar named companies all now defunct, none are exactly the company name i was given so does it even exist?! in which case, i might be better off suing the individual?

Thank you if you're still reading this far! I'm not usually gullible so this stings.

ItWasMeantToBe

user1977 said:

By "company" do you mean a limited company, or just a trading name?

I'm not sure about the legal stuff, but just looked it up online:  I have not seen 'Co Ltd' or 'Ltd' on any of their documents. So I guess it's a trading name?

RefluentBeans

12SwanViewTattershall said:

replying to RefluentBeans post from above (sorry, tried to quote but it's not working right!)

It can - but to confirm delivery you can send it via recorded postage (Royal Mail Tracked48 etc). I would say though - be sure that they aren’t willing to come back to negotiating table. A letter before action is the last step and is the ‘I’ve had enough now - pay up or I’m going to court’. It can shut down any future talks and negotiations. 

^there is no negotiation, they won't respond to me at all unfortunately! Advert is still up on hotels.com but their facebook page is locked.

Was the deposit told about when you booked the trip or was it added in after - if it was part of the initial booking it may still be the business you sue, regardless of who you pay. If it was added after - what did they say to you to get you to pay? If it’s added after - and you’re sueing them personally (not the business) then you’re arguing you have 2 contracts - the ‘main’ let with their company and then the secondary ‘damage deposit’ with them personally. In my opinion - it doesn’t seem likely there are two contracts and rather one contract with payment via Booking.com and another payment paid to a bank account (personal or not doesn’t matter). Bank transfers are like cash - and if you paid cash to them you wouldn’t think that you could claim against them personally. 

^the deposit was mentioned only at the payment page on hotels.com, so by this time we felt like we had to agree or lose the holiday. however it was said originally that it must be in cash, when arriving at the caravan. Then later, over personal email not hotels.com,  it changed to 'bank transfer'. Then, a couple of days before the holiday, it randomly changed to £375. when we queried this they then said 'oops, mistake, wrong template used, it's just £200" so i paid it by bank transfer because it was my parents holiday and they were getting anxious about it, understandably. Deposit is not listed on the hotels.com receipt, but is now listed on the hotels.com original advert page.

Just be sure to check all the paperwork, especially with regards to the deposit. If it’s all on the same contract and the contract says it’s between you (the holidaymakers) and them (the owners) then it’s fair to say it’s all in one. If they contacted you separately and asked for a deposit that wasn’t in the original terms, what did that email say? Were there any terms attached? Was the email from the same email as their company contact email or a personal email? I personally don’t think you have a contract between them personally and you. 

^ We've got lots of emails, saved everything. Paperwork is all electronic. I guess it means that i would be suing their company not the person. But then when you look on companies house and similar, it shows they've many similar named companies all now defunct, none are exactly the company name i was given so does it even exist?! in which case, i might be better off suing the individual?

Thank you if you're still reading this far! I'm not usually gullible so this stings.

No worries about the quotes - their a pain to use! Thank you for putting my comments - makes it easier than scrolling back and forth!

If they’ve stopped responding then I think that a LBA would prompt some sort of response. You could send them an email from a separate account with a fake name asking for general information and see if they get back to you or not. Can be a good test to see if the email is still monitored. 

If you’re concerned about them ‘pulling the rug’ per se (winding down the company and spinning back up under another name and claiming the wrong entity is being sued) then you can pay a small fee for a solicitors office to send it for you - if they feel that a solicitor is involved they may not be as comfortable to pull the rug when they think a solicitors watching. 

If the deposit was made at the time of booking (even if on the payment page) I think that forms part of the original contract and I think you’d struggle to argue that it’s a different contract. I’m not a lawyer, so I may be completely wrong there. Contract law is complex, and that’s why companies spend millions on contract lawyers! 

Finally, I don’t think you can sue someone personally just because they’ll likely shut down a company. Company assets would have to move from one to another and I think you could definitely argue that the business is shutting down and reopening to avoid litigation if they keep everything but the name the same. It’s pretty black and white. You can’t sue an individual just because they own the company - for example / I can’t sue Elon Musk just because my Tesla doesn’t perform as expected. I’d have to sue the company. 

One last point: if you are genuinely concerned that they’ll wind the business down over a £200 transaction then I would definitely get in touch with Citizens Advice. They are better positioned to give you more technical ‘not legal advice’ compared to us who aren’t lawyers, but many of us have faced similar experiences. Another option could be that you complain to Booking.com. They won’t refund you, but they can down the listings. If you threaten the holidaymakers with talking to Booking.com they may come back to the table to talk. But this is also relying on Booking.com taking down the property - something you don’t really have control over. Just another thought to consider. 

ItWasMeantToBe

thanks for all the advice,  i am going to try and follow as much as possible because lets face it who wants to get into any kind of legal action, but i cant just roll over and allow it. 

born_again

Can we take it that the user name is the location of the stay?