So why a problem but S.75 say "no breach of contract"?

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

Okell

In fact, thinking about it, I'm not even sure if these are consequential losses/damages as opposed to ordinary damages(?)

My understanding - which might be completely wrong - is that consequential losses are those that do not directly flow from the breach of contract.  In this case, if a significant amount of money needed to be spent doing remedial/repair/making good work before a new roof can be replaced, then they are simply ordinary damages flowing directly from the contrcat breach.

But I'm not a lawyer...

the_lunatic_is_in_my_head

Okell said:

In fact, thinking about it, I'm not even sure if these are consequential losses/damages as opposed to ordinary damages(?)

I do wonder if it's because the roof has to be replaced with a different roofing system?

If it was just a straight repair/replace of the same system I can't see why that wouldn't be ordinary damages. 

In terms of the company knowing, if they are the only installer you'd think they'd know that and if they can't fix the matter it must be obvious a different system is needed? But we are going a fair bit away from consumer rights here so I'm not sure.

Perhaps @A_Geordie has some insight  

A_Geordie

Sorry, what's the question? 

the_lunatic_is_in_my_head

A_Geordie said:

Sorry, what's the question? 

@A_Geordie

 Why is the cost of replacing the roof consequential damages rather than ordinary?  

born_again

the_lunatic_is_in_my_head said:

A_Geordie said:

Sorry, what's the question? 

@A_Geordie

 Why is the cost of replacing the roof consequential damages rather than ordinary?  

It won't be.
CC will (if they do anything) will be to put OP back in the situation they were before.

Consequential damages, would be if they had caused further damage while doing the work & that needed putting right.

In reality what we say here, is guesswork. OP needs to talk to their CC & see exactly what they want to take it forward & let it run it's course & if not happy with outcome take it to FOS after exhausting CC complaint process. Neither of which will be a quick process.

A_Geordie

A direct loss is something that naturally arises from the breach of contract.

A consequential loss is something that doesn't naturally arise from the breach but will only be recoverable if the party in breach was aware at the time of entering into the contract the party in breach was aware of any special circumstances that could result in harm or loss suffered if there happened to be a breach of contract. An example of a consequential loss might be if a person employed the services of a specialist car company to carry out work on a vintage car, and that person was going to sell the car to a prospective buyer for a significant amount of money, but the work was shoddy and the prospective buyer walked away from the deal resulting in that person losing out on a sale. If the specialist company was not aware of these circumstances then it will be considered too remote (i.e. not sufficiently connected to the breach) to be recoverable.

Whether a loss falls under a direct or consequential loss will depend on the facts of the dispute but the general rule is that in most instances, something which might be considered a consequential loss is also likely to be categorised as a direct loss, such as loss of profits or revenue. In the example above, it could be argued the loss of sale is both a direct and consequential loss (but more likely a consequential loss)

If there are significant defects cause by the materials/installation of the goods by the company which requires a full replacement, then I would think those costs would be considered a direct loss since they flow naturally from the breach itself. I can't see how they would be consequential because it ought to have been contemplated by the company that a breach of this magnitude would likely require a full replacement to be carried out. 

If proven, the CC under s75 will be jointly and severally liable for all of the above direct losses and consequential losses (if the company didn't exclude or limit those types of losses in their T&Cs) which could include the entire replacement, repairs and re-installation of goods.

The OP could then in fact reclaim £15k from the CC and pursue the remaining £5k through small claims if they so wished, that is entirely up to the OP how they want to pursue a claim. However, if the OP did go down that route then it would be wise for the OP to have a written settlement agreement with the CC setting out terms that the payment is in full and final settlement of the OP's claims against the CC only and that the settlement does not prevent the OP from pursuing the company for any remaining losses. Otherwise the company could argue the OP's settlement was full and final of the whole claim, so the wording of any settlement would need to be carefully considered.

Aylesbury_Duck

You should stick to your original thread, there is pertinent information there that people need to be able to advise. Otherwise you're going to get the same questions you've had before.

As I see it, you have two options. Complain to your CC company, or take the installer to court.

https://forums.moneysavingexpert.com/discussion/6596117/s75-and-court-action

Okell

@ElsieAtOps - You should have continued your previous thread or at least given a link to it.

I see that I made several contributions to that thread and also that you provided additional relevant information in that thread that you haven't provided here,

It's really annoying when people do that as contributors feel like they're wasting their time having to find stuff that you haven't bothered to link to.

soolin

I’ve merged 2 threads for clarity