Section 75 claim question - husband paid on his card, receipt has my name on it.

Voyager2002

I suggest that both you and your husband sit down and write down independently what you remember about the discussion and what work was agreed. Sign these as witness statements.

Then use these witness statements, together the emails and the 'scrappy' receipt, to demonstrate what was agreed and the evidence (such as there is) for this.

You will then have a reasonably credible document to provide evidence of the contract that was breached.

Nebulous2

QrizB said:

If the shop is still there and trading, can you not send them a LBA then start a court claim against them? Why Sec 75?

There is nothing to stop the OP issuing a LBA and joint claim against both the shop and the credit card company. 

Dulce-ridentem

Thanks, @Voyager200, that seems a good, straightforward way to establish a view of what happened. What is silly from my POV is that the bike shop have never queried my version, never denied that they agreed to do the work to a certain quality - but the credit card company say I can't prove that was the agreement.  

The sort of thing the bike shop have written includes "we will fit Shimano 105 throughout as originally agreed" - which I would think supports my claim that this was agreed... 

I'm off to visit the shop this week, hoping to get my bike back...wish me luck. 

Can anyone explain "MISREPRESENTATION"? The credit card company are also saying I haven't shown misrepresentation. I've asked them whether I even have to (there is a tick box for 'breach of contract, misrepresentation or both" and I ticked 'both' because in lay terms I feel both happend. I have no idea if the misrepresentation aspect even matters. Is it misrepresentation that the bike shop claim on their website to be highly experienced and to work to  high quality standards? This was said during our discussions as well, of course, but it is also on their website. I paid a lot for skilled work and good quality, and I didn't get it. I feel I was promised it, and I feel that's misrepresentation. But maybe there's a different legal meaning of the term. 

DullGreyGuy

Dulce-ridentem said:

Can anyone explain "MISREPRESENTATION"? The credit card company are also saying I haven't shown misrepresentation. I've asked them whether I even have to (there is a tick box for 'breach of contract, misrepresentation or both" and I ticked 'both' because in lay terms I feel both happend. I have no idea if the misrepresentation aspect even matters. Is it misrepresentation that the bike shop claim on their website to be highly experienced and to work to  high quality standards? This was said during our discussions as well, of course, but it is also on their website. I paid a lot for skilled work and good quality, and I didn't get it. I feel I was promised it, and I feel that's misrepresentation. But maybe there's a different legal meaning of the term. 

Misrepresentation is false or fraudulent claims made to entice you into entering into a contract with them.

Do you have evidence that they arent highly experienced?
Do you have evidence that they dont generally work to a high standard?

What even is the benchmark for "high" in these statements?

You'd have much better chance on the misrepresentation side if they'd said by fitting the Shimano 105 you'll be able to cycle at 300% of your current top speed. 

eskbanker

Dulce-ridentem said:

Can anyone explain "MISREPRESENTATION"? The credit card company are also saying I haven't shown misrepresentation. I've asked them whether I even have to (there is a tick box for 'breach of contract, misrepresentation or both" and I ticked 'both' because in lay terms I feel both happend. I have no idea if the misrepresentation aspect even matters. Is it misrepresentation that the bike shop claim on their website to be highly experienced and to work to  high quality standards? This was said during our discussions as well, of course, but it is also on their website. I paid a lot for skilled work and good quality, and I didn't get it. I feel I was promised it, and I feel that's misrepresentation. But maybe there's a different legal meaning of the term. 

Yes, it's a narrow legal definition that applies here, rather than the more casual vernacular use of the word:

https://forums.moneysavingexpert.com/discussion/comment/81092607/#Comment_81092607

Dulce-ridentem

@eskbanker, thanks! I wouldn't have used the company if they didn't advertise  on their website their 85+ years experience building frames.  I wouldn't even have found out about them, I was specifically searching for experienced traditional frame builders.  But maybe this doesn't meet all the criteria, I would have to read some more. I thought it might be innocent misrepresentation in that (for sure) they told me they were capable of doing the work and I'm sure they thought they were and intended to do it. 

On the Section 75 form I can choose just to argue breach of contract rather than misrepresentation as well.  I was given a choice and I asked  the CC company what I should put (they haven't answered - I was dubious about asking for help but the Financial Ombudsman's website says your CC company will help you fill out the forms. That didn't work)

Credit card company are currently saying I haven't shown breach of contract. Despite the fact I still don't have my bike at all after 21 months (the receipt from Sept 2023 says "as close to now as possible" and the precise agreement was for Jan 2024, specifically in good time for the Europe touring season).  The supplier actually wrote : "I understand your point about not using Tiagra, and I will make sure we strictly adhere to our original agreement of using 105 level or higher components." which I believe confirms my claim that the original agreement was to use 105 of better components - and also that they hadn't done so initially. (This is just the clearest statement of many that admit he hadn't done a good job). 

Not very impressed with the credit card company  so far. Their only other comment is  that knowing I paid this sum to the supplier is not enough to show that I paid for this specific bike work. I have shown by email trail that there was an agreement to collect the bike on 20 June, they know I paid the supplier on 21st June (when I in fact collected the bike as it wasn't ready before then) and that on 23rd June after a ride, I wrote to the supplier with my litany of complaints. It isn't proof that I was paying for the bike rather than something else, but it feels to me like strong support for my version of events. How would you usually prove that what you paid was actual for the item you bought, if the receipt just says, literally, "custom amount"? Balance of probability is surely my version of events... 

I am going to try to get a detailed written receipt from the shop when I go to collect the bike that says something like "£550 balance of payment for work done on bike, for which deposit of 750 was paid on  9 Sept 2023"... which I think is truthful, confirms the connection  to the original specified job, and doesn't ask the shop to say anything that could get them into any worse position than they already are. 

I have (forgive me) one more q for you helpful people - Is this a reasonable plan? 

I can't see what else I can do. What is the likelihood CC company will then just say that a duplicate receipt doesn't prove anything? 

This all supposes I can find the shop open. It claims to be still trading and is posting on FB and Youtube...

what a total mess :-( 

eskbanker

Dulce-ridentem said:

On the Section 75 form I can choose just to argue breach of contract rather than misrepresentation as well.  I was given a choice and I asked  the CC company what I should put (they haven't answered - I was dubious about asking for help but the Financial Ombudsman's website says your CC company will help you fill out the forms. That didn't work)

Worth bearing in mind that when raising a s75 claim against your card company, you're holding them legally liable for the merchant's alleged breach of contract (or misrepresentation), so it's best not to expect them to be helpful in what is essentially an adversarial process, i.e. it's basically you against them, unlike chargeback, where they're acting in between cardholder and merchant.

Dulce-ridentem said:

Balance of probability is surely my version of events... 

The card company is entitled (and pretty much expected) to take a legalistic view, i.e. demanding hard proof of contract terms, etc - it's only if/when independent third parties such as FOS or courts get involved that balance of probabilities becomes relevant in deciding which party to believe.

All you can realistically do is to give it your best shot with the card company, in terms of providing as much compelling documentary evidence as you can muster, and then if they decline the claim you can pursue the matter via FOS, aiming to demonstrate that they were being unreasonable in doing so.

Dulce-ridentem

@eskbanker- thanks, that's about my take. I did find the Ombudsman's advice surprising :-)

I am optimistic that if it has to go further I have a strong case on balance of probabilities. 

Thanks for all your help. 

It isn't really much money to them, I think - 1300 if I get the bike back, worst case 4000 if I don't. It's not tiny but it also isn't huge.  You get through that amount quickly if using lawyers! I'm quite suprised given all I have demonstrated that they are being so pernickety, bearing in mind my next recourse is an independent body. Citizens' Advice thought the claim would go through easily... 

DullGreyGuy

eskbanker said:
The card company is entitled (and pretty much expected) to take a legalistic view, i.e. demanding hard proof of contract terms, etc - it's only if/when independent third parties such as FOS or courts get involved that balance of probabilities becomes relevant in deciding which party to believe.

All you can realistically do is to give it your best shot with the card company, in terms of providing as much compelling documentary evidence as you can muster, and then if they decline the claim you can pursue the matter via FOS, aiming to demonstrate that they were being unreasonable in doing so.

No, the card company is expected to take a reasonable approach, obviously what is "reasonable" is debatable and it is likely that their definition of reasonable is slightly less lenient than than others may take. 

There are differences between the FOS and the courts too, the FOS is legally bound to find "fair" outcomes whereas the courts apply the strict letter of the law, hence why you are normally recommended to go to the FOS rather than the court. 

The FOS arent a pushover either though, they will consider things like T&Cs, having looked at something earlier regarding insurance claims on collections there were several cases where the FOS pointed out the insurers terms allowed them to ask for appropriate evidence of ownership and the FOS agreed that the customer had failed to meet that requirement even though they state they are not accusing the customer of lying. 

eskbanker

DullGreyGuy said:

eskbanker said:
The card company is entitled (and pretty much expected) to take a legalistic view, i.e. demanding hard proof of contract terms, etc - it's only if/when independent third parties such as FOS or courts get involved that balance of probabilities becomes relevant in deciding which party to believe.

All you can realistically do is to give it your best shot with the card company, in terms of providing as much compelling documentary evidence as you can muster, and then if they decline the claim you can pursue the matter via FOS, aiming to demonstrate that they were being unreasonable in doing so.

No, the card company is expected to take a reasonable approach, obviously what is "reasonable" is debatable and it is likely that their definition of reasonable is slightly less lenient than than others may take. 

There are differences between the FOS and the courts too, the FOS is legally bound to find "fair" outcomes whereas the courts apply the strict letter of the law, hence why you are normally recommended to go to the FOS rather than the court. 

The FOS arent a pushover either though, they will consider things like T&Cs, having looked at something earlier regarding insurance claims on collections there were several cases where the FOS pointed out the insurers terms allowed them to ask for appropriate evidence of ownership and the FOS agreed that the customer had failed to meet that requirement even though they state they are not accusing the customer of lying. 

I don't disagree but was making a slightly different point in trying to clarify the apparent impression that 'balance of probabilities' is the threshold for OP to convince the card company of the existence and terms of a contract when seeking to demonstrate a breach, in that it's a phrase applying in a more general sense at a later stage if/when third parties review competing claims - I don't believe it's unreasonable for the card company to want something more than 'there probably was a contract' or 'its terms were probably [x]'.