Complaint Against Green Commute Initiative Escalated to Trading Standards & Court Claim Filed

CycleClaimant

Herzlos said:

I still think he's only really entitled to be put back into the position he started in either before the agreement (no bike, full refund via payroll and adjustments for tax/NI)...

Why would a court, after finding the defendant guilty of a breach of contract, then allow them to keep the ~£600 tax benefit that I, the claimant, was legally entitled to?

... or the position he was in before it was stolen (with a 3 year old bike). 

The position I was in "before it was stolen" was in possession of a non-road-legal bike that was never fit for purpose. The theft is not what I am claiming for; the theft is simply the event that revealed the supplier's original breach of contract.

Herzlos

CycleClaimant said:

The kettle argument doesn't hold up; giving you the £50 back puts you back into the position you were immediately before you bought the kettle, regardless of what the kettle costs. 

You've misunderstood the analogy. The point is that my loss wouldn't just be the £50 cash; it would also be the loss of the single-use 50% off voucher that was consumed in the transaction. To make me whole, I would need to be put in a position to acquire the £100 item I was promised. The tax saving was my "voucher" in this scenario.

I disagree; they'd be obligated to replace it if faulty, or make you good. They wouldn't be obligated to give you any more back than you paid. 

Herzlos

CycleClaimant said:

Herzlos said:

I still think he's only really entitled to be put back into the position he started in either before the agreement (no bike, full refund via payroll and adjustments for tax/NI)...

Why would a court, after finding the defendant guilty of a breach of contract, then allow them to keep the ~£600 tax benefit that I, the claimant, was legally entitled to?

... or the position he was in before it was stolen (with a 3 year old bike). 

The position I was in "before it was stolen" was in possession of a non-road-legal bike that was never fit for purpose. The theft is not what I am claiming for; the theft is simply the event that revealed the supplier's original breach of contract.

But:
(a) you've had 3 years use of the non-road-legal bike, as per the rental agreement,
(b) you can't unwind the deal by returning the bike, because it's stolen,

(c) you can't be sure the insurance company would have paid out if it was legal anyway. 

It's messy, but the fairest thing for everyone would be for them to provide you with a 3 year old legal equivalent bike. Giving you cash in surplus of the value of the 3 year old bike would be enrichment. 

It'll be a horrible one for everyone if it goes to court, so they may offer you a reasonable settlement. Are they offering you anything at the moment?

CycleClaimant

Herzlos said:

I disagree; they'd be obligated to replace it if faulty, or make you good. They wouldn't be obligated to give you any more back than you paid. 

"Making me good" would include giving me that voucher back which had real monetary value, but either way, I think we've got a bit lost in the weeds of that analogy. So getting back to the simple facts of the contract:

- The agreed value of the goods was over £3k. My employer paid the supplier (GCI) that full amount on my behalf. I then repaid my employer that same full amount of £3k+, just through salary sacrifice.

- GCI received the benefit of a £3k+ sale. The "discount" I received was from HMRC, not from GCI. My claim is for the full value of the faulty goods as stated in the contract. A defendant who has breached a contract is not entitled to benefit from a claimant's separate, tax-efficient payment method.

CycleClaimant

Herzlos said:

But:
(a) you've had 3 years use of the non-road-legal bike, as per the rental agreement,
(b) you can't unwind the deal by returning the bike, because it's stolen,

(c) you can't be sure the insurance company would have paid out if it was legal anyway. 

It's messy, but the fairest thing for everyone would be for them to provide you with a 3 year old legal equivalent bike. Giving you cash in surplus of the value of the 3 year old bike would be enrichment. 

It'll be a horrible one for everyone if it goes to court, so they may offer you a reasonable settlement. Are they offering you anything at the moment?

• Regarding point (a), my claim is that the bike was never fit for purpose from the moment I received it, as it was not road-legal. The breach of contract existed on day one, so depreciation doesn't apply in the same way it would for a product that developed a fault over time. (It doesn't really matter, but I only had the bike for 18 months, not 3 years).

• Regarding point (b), you're right that I can't return the bike. That is why my claim is for the damages I suffered as a direct and foreseeable consequence of their original breach of contract.

• Regarding point (c), I am absolutely certain the insurer would have paid out. My fiancée's fully road-legal bike was stolen in the exact same incident from the same location, and our insurer approved and paid out her claim without any issue. This confirms the non-compliant status of my bike was the sole reason for the rejection.

This isn't a messy situation from my perspective. The legal remedy is to compensate me for the loss of the compliant bike package I was promised, and a cash award for its value is the standard way to do that.

To answer your final question, unfortunately no, GCI have offered nothing and have denied all responsibility. I have therefore already filed a Small Claims Court claim, and they have officially responded to the court stating their intention to defend it.

QrizB

CycleClaimant said:

To answer your final question, unfortunately no, GCI have offered nothing and have denied all responsibility. I have therefore already filed a Small Claims Court claim, and they have officially responded to the court stating their intention to defend it.

Please let us know how this goes.

Herzlos

CycleClaimant said:

Herzlos said:

But:
(a) you've had 3 years use of the non-road-legal bike, as per the rental agreement,
(b) you can't unwind the deal by returning the bike, because it's stolen,

(c) you can't be sure the insurance company would have paid out if it was legal anyway. 

It's messy, but the fairest thing for everyone would be for them to provide you with a 3 year old legal equivalent bike. Giving you cash in surplus of the value of the 3 year old bike would be enrichment. 

It'll be a horrible one for everyone if it goes to court, so they may offer you a reasonable settlement. Are they offering you anything at the moment?

• Regarding point (a), my claim is that the bike was never fit for purpose from the moment I received it, as it was not road-legal. The breach of contract existed on day one, so depreciation doesn't apply in the same way it would for a product that developed a fault over time. (It doesn't really matter, but I only had the bike for 18 months, not 3 years).

Had you brought that up with them on day 1 I'd 100% agree with you, but realistically you used the bike for 18 months (not 3 years, sorry) unaware of that. It came to light when you had an 18 month old bike after the rental period was done. 

"• Regarding point (b), you're right that I can't return the bike. That is why my claim is for the damages I suffered as a direct and foreseeable consequence of their original breach of contract."

I'd argue the damages you've suffered at the cost of replacement. i.e. what it'd cost to get you another 18 month old e-bike of a similar spec.

"The legal remedy is to compensate me for the loss of the compliant bike package I was promised"

That's what I was saying, but 18 months on the bike package you were promised would be an 18 month old bike. 

"This isn't a messy situation from my perspective."

It's messy from everyone elses perspective. The payroll deductions, voucher, insurance and legality all add complexity to it. Taking any one of them out makes a lot simpler. 

 I'd recommend consulting with a qualified contract lawyer before going too far down the small claims route, because you'll need to convince a judge with no vested interest either way that your request for money is valid, fair, and that you're doing what you can to mitigage costs. 

Herzlos

The way I see it from here, your alleging that:

Their negligence in not vetting your puchase properly means they provided you with an illegal bike, and as such when it was stolen the insurer won't pay out the cost of a new replacement. Thus you are owed £3000. 

They will likely claim that:

The onus was on you to ensure the bike was legal and that you breached their contract by selecting an illegal bike. 

That you didn't inform them of this until 18 months later at which point the rental part of the contract was due and the agreed nominal value was £1. So at most that's all they owe. 
That giving you £3000 would amount to betterment and that at worst they should be providing you with (or the cost of) an 18 month old equivalent bike. 

That the contract was with your employer and not you, so you've no standing to even bring it up. 

I think even if a judge did side with you, they couldn't attribute 100% blame to them since you picked an illegal bike, so you'd be awarded some proportion of the figure, at a percetage decided by the judge. 50:50 maybe?

CycleClaimant

Herzlos said:

Had you brought that up with them on day 1 I'd 100% agree with you, but realistically you used the bike for 18 months (not 3 years, sorry) unaware of that. It came to light when you had an 18 month old bike after the rental period was done. 

I'd argue the damages you've suffered at the cost of replacement. i.e. what it'd cost to get you another 18 month old e-bike of a similar spec.

That's what I was saying, but 18 months on the bike package you were promised would be an 18 month old bike. 

Your argument that the remedy should be an "18-month-old bike" is legally incorrect for this specific situation.

That logic only applies if the goods were correct at the point of sale and developed a fault later. My claim is that the goods were never correct from the moment of sale.

I paid for a compliant, road-legal bicycle package. I was supplied with a non-compliant vehicle. There was a total failure to supply the item contracted for.

Because the supplier failed to provide the correct item from day one, the remedy is not the depreciated value of the wrong item I was given. The remedy is to be put in the position I would have been in if the supplier had not breached the contract, which means being compensated for the full value of the correct item I paid for.

CycleClaimant

Herzlos said:

The way I see it from here, your alleging that:

Their negligence in not vetting your puchase properly means they provided you with an illegal bike, and as such when it was stolen the insurer won't pay out the cost of a new replacement. Thus you are owed £3000. 

They will likely claim that:

The onus was on you to ensure the bike was legal and that you breached their contract by selecting an illegal bike. 

That you didn't inform them of this until 18 months later at which point the rental part of the contract was due and the agreed nominal value was £1. So at most that's all they owe. 
That giving you £3000 would amount to betterment and that at worst they should be providing you with (or the cost of) an 18 month old equivalent bike. 

That the contract was with your employer and not you, so you've no standing to even bring it up. 

I think even if a judge did side with you, they couldn't attribute 100% blame to them since you picked an illegal bike, so you'd be awarded some proportion of the figure, at a percetage decided by the judge. 50:50 maybe?

Yeah you are right about the main points GCI will likely raise in their defence. But their defence is massively weakened by their own statements, actions and processes:

• "The onus was on you": This is completely contradicted by GCI's own words and deeds. Their website publicly states that "the final decision as to whether it's suitable for the scheme is down to Green Commute Initiative," and their Managing Director admitted to me in a private email that their internal checking process should have rejected the non-compliant model, but failed. Furthermore, the very fact that GCI has these approval processes and is the party that authors the legal contracts proves that the responsibility is not "solely" the customer's.

• "The rental part of the contract was done": This is irrelevant. The breach of contract occurred at the point of sale by supplying a product that was never "fit for purpose." The subsequent timeline does not erase the original breach.

• "Giving you £3000 would amount to betterment": This is incorrect. "Betterment" doesn't apply when there has been a total failure to supply the correct item from day one. I am not asking for the value of the faulty item I received; I am claiming for the full value of the correct, compliant item I was promised and paid for.

• "The contract was with your employer": This is factually incorrect. My legal Hire Agreement is directly with GCI, making them the legal supplier.

This brings us to your final point about shared blame. I disagree that a judge would split the blame, because this is not a simple case of my mistake versus theirs. This is a case of a consumer's reasonable and foreseeable misunderstanding versus the professional negligence of an expert, regulated scheme provider.

As I mentioned above, their own Managing Director has admitted to me in writing that their expert checking process, which they are paid to perform, failed. When an expert takes on the duty of care to be the final check and then admits they failed in that duty, they assume 100% of the liability for the consequences.