Does this fall under section 75?

Rebecca0406

Some more photos 

Rebecca0406

Finally I have attached original work description and diagram with company information removed and the list that has been provided of the problems and work needed to rectify it, again company name removed. 

DullGreyGuy

eddddy said:

DullGreyGuy said:

No you dont, Section 75 makes the creditor jointly and severally liable with the merchant, there is no requirement for you to give the merchant any opportunity to fix it. 

I don't think you've considered the bigger picture.

Just to add some important detail to the statement you made: Section 75 makes the creditor jointly and severally liable with the merchant for breach of contract, or misrepresentation.

Presumably, the OP will be making a claim for breach of contract.



A claim for Breach of Contract is unlikely to succeed if you haven't given the trader reasonable opportunity to  remedy the breach (whether it's a section 75 claim, or a court claim.)


Here's a random example of what a litigation solicitor says about claims for breach of contract:



Link: https://lincolnandrowe.com/2024/01/16/breach-of-contract-questions-you-should-ask/#2_Should_you_provide_the_other_party_with_an_opportunity_to_remedy_the_breach



So as I said, in order to succeed with your claim, realistically...  "You'd need to demonstrate that you gave the landscaper reasonable opportunity to put the problems right"

There are a lot of may, ifs and mights.

Obviously none of us have seen the contract so we can only judge based on our personal experiences of such things and what we believe are common practices. My experience of the likes of landscape gardeners is that they rarely have a set of terms let alone some drafted by a competent lawyer who's given proper consideration of capping liability and including rights for reperformance etc. 

To take the matter to court is a whole different matter, court is intended to be the final step and both parties are expected to have made efforts to resolve before court. It's not comparable to S75. 

Having looked at many S75 complaints resolved by the ombudsman I have not seen a single one where it was rejected on the grounds that they didnt approach the retailer first. There are some where the person was offered a resolution by the retailer, the customer didnt like it and so went to their bank and the bank just said they felt the offer was fair. In these cases the ombudsman agreed the offer was fair and said the bank should make such a settlement. 

born_again

A_Geordie said:

@eddddy the law does not require the OP to give the landscaper an opportunity to fix the issues, unless the contract explicitly states as much or if the OP is relying on certain consumer rights and before they can claim damages or terminate the relationship they have to allow the landscaper a chance to remedy.

However, according to the OP's post, it would appear the job has been completed so termination is no longer possible, only damages for breach of contract due to a failure to take reasonable care and skill, damage to goods etc.

The OP has also mentioned that the landscaper is no longer communicating with the OP but still, as the CC company is jointly and severally liable along with the landscaper, it is up to the OP to choose who they want to pursue, which can be the landscaper or the CC company or both. Nothing in s75 requires the OP to try and resolve the situation with the landscaper first before going to the CC company. The CC company could arrange for a new landscaper to fix the issues or pay a lump sum settlement.

Highly unlikely the CC would arrange for another company to do the work. They are more likely to ask the OP to get quotes & then pay the co direct.

While there is nothing to say that a customer has to resolve with the retailer, it does strengthen the breech of contract.  👍

From the pics OP has supplied. It really a bodge & a half.

All OP needs to do is pass the details onto CC co & let them look at it. That is their job, no good trying to convince us👍

Rebecca0406

@born_again On the form the bank asks me to fill out it asks how much I am claiming. That’s the part I’m struggling with. 

Ideally it will be £5.5k and the garden will end up how we planned for the price we planned. 

But worst case scenario, they take the tiles up and need to do more work. Also we are still trying to establish where the tiles are from to buy some to replace the missing and damaged areas. If we are unable to locate them and the original trader continues ignoring us we potentially have to re- purchase a whole new set for them to be matching. Which is why the quote to fix is labour only as materials can’t be determined at this point. If that’s the case I could end up out of pocket even if the bank refunds the entire 7.8k I have paid but if I only claim for 5.5k than I’m even more out of pocket. 

I imagine I can’t claim for 5.5k now and ask for more later if the job ends up costing more. Can I ask for more now and repay it if it ends up costing less? I’ve never had to do this before as it’s all new to me but am very pleased right now that I used my credit card, which wasn’t planned initially and I only did so as we were being pressured for the labour costs or the work couldn’t finish and I hadn’t yet been paid crom
work. Turned out to be a blessing in disguise! 

Alderbank

Rebecca0406 said:

Also we are still trying to establish where the tiles are from to buy some to replace the missing and damaged areas. If we are unable to locate them and the original trader continues ignoring us we potentially have to re- purchase a whole new set for them to be matching. 

You might be overthinking this a little.

Icarus grey porcelain outdoor slabs are nothing special and are quite widely available, for example
https://www.tilemountain.co.uk/icarus-grey-porcelain-outdoor-slab

They are not meant to be all identical, the manufacturer says they are 'inspired by natural stone' and supply a random assortment of 12 face variations for 'natural overall look' which your new paving company will blend with your existing ones.

A_Geordie

born_again said:

Highly unlikely the CC would arrange for another company to do the work. They are more likely to ask the OP to get quotes & then pay the co direct.

While there is nothing to say that a customer has to resolve with the retailer, it does strengthen the breech of contract.  👍

Of course it will vary from provider to provider but I have direct experience in that my CC company (Yorkshire bank before it become Virgin Money) arranged for works to be carried out directly as opposed to paying direct, but that was because they didn't like the quote being given to them, which near enough ended up the same amount I provided quotes for anyway. 

Trying to resolve with the retailer before pursuing the CC company doesn't strengthen the OP's claim because the whole purpose of joint and several means the OP has sole discretion the choice as to who to pursue, providing there is no double recovery. 

But I agree, the OP needs to submit a claim to the CC company and go from there.

born_again

Rebecca0406 said:

@born_again On the form the bank asks me to fill out it asks how much I am claiming. That’s the part I’m struggling with. 

Ideally it will be £5.5k and the garden will end up how we planned for the price we planned. 

But worst case scenario, they take the tiles up and need to do more work. Also we are still trying to establish where the tiles are from to buy some to replace the missing and damaged areas. If we are unable to locate them and the original trader continues ignoring us we potentially have to re- purchase a whole new set for them to be matching. Which is why the quote to fix is labour only as materials can’t be determined at this point. If that’s the case I could end up out of pocket even if the bank refunds the entire 7.8k I have paid but if I only claim for 5.5k than I’m even more out of pocket. 

I imagine I can’t claim for 5.5k now and ask for more later if the job ends up costing more. Can I ask for more now and repay it if it ends up costing less? I’ve never had to do this before as it’s all new to me but am very pleased right now that I used my credit card, which wasn’t planned initially and I only did so as we were being pressured for the labour costs or the work couldn’t finish and I hadn’t yet been paid crom
work. Turned out to be a blessing in disguise! 

Ring them & explain. They will have a customer facing disputes team who are best placed to advise on their process 👍

DullGreyGuy

A_Geordie said:

born_again said:

Highly unlikely the CC would arrange for another company to do the work. They are more likely to ask the OP to get quotes & then pay the co direct.

While there is nothing to say that a customer has to resolve with the retailer, it does strengthen the breech of contract.  👍

Of course it will vary from provider to provider but I have direct experience in that my CC company (Yorkshire bank before it become Virgin Money) arranged for works to be carried out directly as opposed to paying direct, but that was because they didn't like the quote being given to them, which near enough ended up the same amount I provided quotes for anyway. 

Undoubtably it will, there will always be a balance between being able to get volume discounting through maintaining a network of providers -v- the potential additional liability created if works overrun or the work done is defective. 

Insurers typically have networks, at least in major urban areas, as it balances off but banks probably have less regular need for trades in places so can see it being less common. 

Commercial arrangements, for a variety of reasons, can be complex with the network. Certainly in the insurance trade its not uncommon for the invoice to show effectively "RRP" for the works but there is then an annual rebate subject to the total spent with the firm normally with some staircase on the rebate. There are strong arguments for this in the insurance space, I can see less arguments for it in Banking but certainly some customers would be happy to see their bank spending £5,000 for something to be fixed and be unaware of the £2,000 rebate received 9 months later than seeing their bank cheaped on the repairs having them done for £3,000

the_lunatic_is_in_my_head

DullGreyGuy said: certainly some customers would be happy to see their bank spending £5,000 for something to be fixed and be unaware of the £2,000 rebate received 9 months later than seeing their bank cheaped on the repairs having them done for £3,000

If the customer is seeking a repeat performance from the bank under their consumer rights I don't think it is the business of the consumer to even be aware of the costs. The consumer is simply entitled to the service to conform to the contract, whether the bank hires the biggest landscaping firm in the country for £20k or some bloke call Dave for £3k shouldn't matter to the consumer as long as in the end (whilst noting time/inconvenience) the service conforms.