S75 and court action?

DullGreyGuy

Grumpy_chap said:

born_again said:

Personally I think OP would get a lot of push back if they paid the £15K under protest, As CC would be saying that as you have worded it as such & it has been paid after the event. They would refuse & let it go to FOS to judge on. 

Would the co even take £15 on a CC given the charges on this amount? My guess is no.

That is actually good to know.
If S75 was available for a case where the CC was used and a dispute already exists, so the payment is "under protest", that would be akin to buying insurance after crashing the car.

Its highly unlikely that the company did all the work without any down payment at all and so whilst they have said they paid the £15k under protest I suspect the reality is they paid some up front and the balance under protest after. As we know you only need to spend 1p on a CC to get S75 protection for the whole amount and so the insurance analogy is probably not correct (in the insurance industry we use the term "betting on a race thats already been run" when retrospective cover is required - though in some cases this is actually possible to do, looking at you Professional Indemnity Insurance). 

The general concept however potentially still stands, you have a legal obligation to mitigate your losses and there may be a question there if paying the balance on a known dispute is actually doing so. That said if the OP has evidence that it was the CABs advice then the FOS would probably uphold that aspect of a complaint as its reasonable to trust the advice from such an organisation even if they give really bad advise at times. 

Grumpy_chap

DullGreyGuy said:

the insurance analogy is probably not correct (in the insurance industry we use the term "betting on a race thats already been run" when retrospective cover is required - though in some cases this is actually possible to do, looking at you Professional Indemnity Insurance). 

Yes, I renew my PI cover each year and it includes retroactive cover, so may cover a claim arising from an act in the past. 
However, I would not be able to take out a retroactive PI policy to cover a claim from an act in the past where a claim / dispute had already been raised.  That claim would need to be resolved from the current year policy, not the renewal year policy.  If there is no current year policy in place, then I (or my employer) will suffer the consequences personally.  
I do not believe it is possible to take out a PI policy including retroactive cover for a policy start date today (22nd March) if a Client had lodged a claim yesterday and have that claim covered by the new policy.

The OP was already in dispute with the roof company when the payment was made on CC (whether the full £15k or a partial amount).  That is, so far as I can work out, the equivalent of taking out my PI policy to start today and cover a Client's claims lodged yesterday.

DullGreyGuy

Grumpy_chap said:

DullGreyGuy said:

the insurance analogy is probably not correct (in the insurance industry we use the term "betting on a race thats already been run" when retrospective cover is required - though in some cases this is actually possible to do, looking at you Professional Indemnity Insurance). 

Yes, I renew my PI cover each year and it includes retroactive cover, so may cover a claim arising from an act in the past. 
However, I would not be able to take out a retroactive PI policy to cover a claim from an act in the past where a claim / dispute had already been raised.  That claim would need to be resolved from the current year policy, not the renewal year policy.  If there is no current year policy in place, then I (or my employer) will suffer the consequences personally.  
I do not believe it is possible to take out a PI policy including retroactive cover for a policy start date today (22nd March) if a Client had lodged a claim yesterday and have that claim covered by the new policy.

The OP was already in dispute with the roof company when the payment was made on CC (whether the full £15k or a partial amount).  That is, so far as I can work out, the equivalent of taking out my PI policy to start today and cover a Client's claims lodged yesterday.

If a claim has already been submitted then no, but the action that will lead to the claim can have already happened given the retroactive date. Obviously this assumes a well worded policy; I did once see an excess insurance policy which stated you must have the insurance in place prior to having logged the claim on the underlying policy so this lead to the ability to have an accident, buy the excess insurance and then the next day submit the claim on your Motor/Home policy... when I pointed out the flaw in the wording to the RM of the insurer in question they answered that they'd seen it themselves but was waiting to have to pay their £1,000 PMI excess on a claim before informing the insurer. 

Its similar with longevity swaps, a form of reinsurance, where the cover is from 1/1 but the deal isnt done until Q2 so in principle there is retro cover however a longevity swap is often a 50 year contract so a few months of retro cover is rather minimal in the grand scheme, proportionally you get more Lloyds treaties being executed a few weeks into cover being a 12 month contract. 

My point was however I suspect they made a CC payment before any work was done and so before the dispute arose... I've not come across any trades person willing to do £15k of work before receiving a penny of monies, most normally want a deposit of at least 10% up front. 

Grumpy_chap

DullGreyGuy said:

My point was however I suspect they made a CC payment before any work was done and so before the dispute arose... I've not come across any trades person willing to do £15k of work before receiving a penny of monies, most normally want a deposit of at least 10% up front. 

That is not what the OP said:

ElsieAtOps said:

Now, let's assume that I paid them £15k on a credit card ('under protest' according to CAB advice).
The cost of a replacement would now be £20k, say.

Can I (hopefully) recoup £15k via S75 and then take court action under consumer law for the remaining £5k to get someone else to put the job right (redo it)?

That reads as though the OP owed the tradesperson £15k and was advised by CAB to make the payment "under protest" so the OP decided that if they did that "under protest" payment on the CC, then they could immediately lodge the S75 claim holding the CC jointly and severally liable.
That really does seem like buying the insurance after the dispute / claim has already arisen.  If it is as the OP wrote, then that would be an absolute abuse of the S75 CC rules.

As for a tradesperson who wants nothing upfront, we have one excellent building firm - they mostly do landscaping, driveways, garden walls etc., plus roofing and guttering, then the occasional porch or such like.  They are an excellent company and wiped out pretty much all competition in the area.  We've had them for two reasonable sized jobs (£8k and £30k) and on both occasions, they refused my offer of a deposit payment and simply said "no need to pay until we are finished and you are happy - we know you'll pay because we know you'll be happy".
Perhaps the OP's roofer operates on a similar basis and it is truly unfortunate that this project went pear-shaped.

ElsieAtOps

Hi all. Thanks for the replies. Some interesting points.

Just to clarify, a substantial deposit was paid up front on the CC before work commenced.
Further significant installments were then paid on CC - should have been all, as soon as the work was done, but I made and released retentions because of some 'snagging' required, and then later a visible issue developing which I wanted rectifying and they were starting to become very reluctant to do.

I only then paid some more, now under protest, after advice by several solicitors plus CAB because the firm were threatening to take me to court over the outstanding retention amount. They were also generally being rather unpleasant and certainly refusing to do rectifications without full payment. Further rectifications were needed, and I wanted them doing, but I was told that - unfair as it sounds - they could probably successfully sue me for what I still owed them, as the work has been done, even if substandard, so the contract had been fulfilled. Personally, I don't see that, if the work standard breaches the Consumer Rights Act tests: but I'm not a solicitor. Google searches do confirm the line of thought of the legal advice.
CAB did at this point reassure me also on S.75.

Those rectifications were eventually done, I was content with the work, and I paid the final retention over via CC.

Then problems have arisen again; very quickly, sadly. It now looks as if the suspected fault which they rectified was not the actual fault, and that the entire job has been done so badly (or else something is badly wrong) that it needs taking off and doing again. (This is advice which I have in writing from the product's designer/manufacturer/supplier.)

Repairs are not possible as there is nothing to repair. Reperformance is needed (ie take off and refit), along with replacement of components if needed. But the installer is the only one for this particular named product that I can find (have asked the manufacturer, but they just said redo, without providing alternative workmen) so it needs to be them - and they are refusing to do anything further.

It was actually the most expensive choice of several quotes; ideally, the best quality product.
Yes, in 18 months, prices for similar but different materials products have gone up.
It is a kit-type product of specific types of materials and construction, with specified benefits over alternative products on offer; or so it is argued. In any case, other products require different structural approaches, use different materials, have different designs. It wouldn't be possible to mix and match. I would therefore most likely have to replace with a different product if the current installer is not prepared to remedy further. So far, I have phoned all local roofers and other installers, none are prepared to deal with someone else's product or workmanship, only to start from scratch with their own preferred product and approach.
It might invalidate guarantees (or building regs) anyway if a non-approved installer did the work or used different materials.

I have an insurance backed guarantee, but I thought that was only if the firm went into insolvency. Will check, but past experience says they're not going to be helpful, despite wonderful claims on the website.
I have a separate guarantee with the installer, but they've effectively stuck a finger up and are refusing to engage further.
They are now refusing to enter into a joint expert examination to see what is wrong, and they are refusing to enter into mediation or arbitration. They have just gone silent. So, annoyingly, I have to do something myself now.

I'll be phoning CAB and legal advisers again tomorrow so will update if I get any advice. I have already spoken to CC company but they're just 'fill in the form on the website'.

Grumpy_chap

ElsieAtOps said:

the entire job has been done so badly (or else something is badly wrong) that it needs taking off and doing again. (This is advice which I have in writing from the product's designer/manufacturer/supplier.)

I would have thought that written advice would be the necessary report that would be required for an S75 claim.

If you have "several Solicitors" engaged to provide you advice, then you need to follow the process that the Solicitors are agreeable to rather than any random comments from strangers on the internet.

DullGreyGuy

Grumpy_chap said:

DullGreyGuy said:

My point was however I suspect they made a CC payment before any work was done and so before the dispute arose... I've not come across any trades person willing to do £15k of work before receiving a penny of monies, most normally want a deposit of at least 10% up front. 

That is not what the OP said:

ElsieAtOps said:

Just to clarify, a substantial deposit was paid up front on the CC before work commenced.

This is MSE @Grumpy_chap if we went purely with what people actually say we'd be forever going down the wrong rabbit hole, you have to apply a bit of common sense of how things actually operate to avoid them. As noted above, they've now confirmed that it was a normal setup with monies paid up front, which whilst helpful to have it confirmed was an almost certainty and safe assumption.

ElsieAtOps

Just to follow up, I spoke to a legal helpline today. Their advice was that if I had to have a different type of roof put on, and if it costs more, then it's covered by 'consequential loss' and S.75 should cover it all. Which surprises me...
I'd double check before proceeding - which is not a certainty at the moment. But that's what they currently say.
Anyway, will leave it there for now, thanks.

the_lunatic_is_in_my_head

ElsieAtOps said:

Just to follow up, I spoke to a legal helpline today. Their advice was that if I had to have a different type of roof put on, and if it costs more, then it's covered by 'consequential loss' and S.75 should cover it all. Which surprises me...
I'd double check before proceeding - which is not a certainty at the moment. But that's what they currently say.
Anyway, will leave it there for now, thanks.

Consequential losses are those that do not flow naturally from the breach and can not usually be recovered unless the defaulting party were aware of the link. 

I would keep it simple for S75, merely that roof is defective and needs replacing, see what they say. 

Okell

ElsieAtOps said:

Just to follow up, I spoke to a legal helpline today. Their advice was that if I had to have a different type of roof put on, and if it costs more, then it's covered by 'consequential loss' and S.75 should cover it all. Which surprises me...
I'd double check before proceeding - which is not a certainty at the moment. But that's what they currently say.
Anyway, will leave it there for now, thanks.

If you have an evidence trail that shows:

1.  The roof was installed defectively and needs to be remedied; and

2.  That the original installer is refusing to do the required further remedial work; and

3.  That the original installer is the only installer you can find who does your chosen roof (or whatever it is); and 

4.  No other contractor is willing to take the work on (ie put the defective job right); and 

5   You have no other option but to engage another contractor to remove the substandard installation altogether and to replace it with something entirely different at a total cost of £££££££  (ie cost of removing the substandard work plus cost of new roof);

then I would have thought that you could claim the total cost from the original installer and/or your credit card provider, jointly and severally.  (ie if the roof originally cost you £15k but it's going to cost you £20k to put it right and to replace it, then you can claim £20k from either or both of them)

I'm not a lawyer, but I believe that in order for consequential losses/damages arising from a breach of contract to be recoverable, they have to have been reasonably foreseeable to the party in breach of contract. 

Knowing only what you have told us in this thread I would have thought it must have been reasonably foreseeable to the original installer that their breach of contract would have led you to incur consequential losses arising from having to get their defective installation put right.

Whether you should try to put this full argument to your credit card provider or, as the lunatic suggests, just start of by telling them that the installation was defective and needs replacing, I don't know.

AS I say, I'm not a lawyer so can't give you legal advice.  I'd urge you to make use of any cover you have on your home insurance to cover legal expenses etc, or even to consider consulting a solicitor.  If you can't reach a satisfactory solution - with either the original installer and/or your CC company - and you end up suing either or both of them it can get complicated and very expensive if the sum you are claiming exceeds £10k

Good luck