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  • FIRST POST
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 2:03 AM
    • 26Posts
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    Rachfarn1
    County court claim for goods not received
    • #1
    • 3rd Apr 19, 2:03 AM
    County court claim for goods not received 3rd Apr 19 at 2:03 AM
    I have had a letter from the county court stating I am being sued over an order I placed last June. Order was cancelled within 24 hours of being placed. If I lose the case does the claimant have to give me the goods ordered as he is stating that he wants full payment as they are bespoke and cannot be sold to anyone else ?
    EDIT ** I'm not looking for opinions on the court case, I have already sourced help in that department. Purely looking for people's experiences of whether goods will be received if we are made to pay.
    Last edited by Rachfarn1; 03-04-2019 at 7:43 AM.
Page 2
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 9:28 AM
    • 26 Posts
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    Rachfarn1
    Sorry I thought I was replying to the individuals not on the whole thread, to Angus no it's not b2b if that refers to business, I'm not sure if he is a registered business though I would assume he is bit I'm not linked with a business.
    To was no I can't post the t&c as his name is all over them and I can't post that on a public forum.
    To everyone that has answered my question Thank you.
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 9:29 AM
    • 26 Posts
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    Rachfarn1
    I paid for the photo shoot in full and then after I cancelled the big order I had a revised order for one print which was paid in full and delivered.
    • waamo
    • By waamo 3rd Apr 19, 9:43 AM
    • 8,108 Posts
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    waamo
    A solicitor may well be not worth it. They will give you initial advice but for them to do any work will cost more than the claim itself.

    Get their opinion and take it from there.

    Is there any way to suitably redact the t&c's? There may well be things to your advantage.

    Have you acknowledged the claim online yet? That gives you extra time to enter a defence
    This space for hire.
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 9:54 AM
    • 26 Posts
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    Rachfarn1
    i can cut and paste the t and cs from his website and take his name out maybe?
    • waamo
    • By waamo 3rd Apr 19, 9:57 AM
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    waamo
    i can cut and paste the t and cs from his website and take his name out maybe?
    Originally posted by Rachfarn1
    That would be fine. If you haven't yet acknowledged the claim here is a handy guide. https://www.dropbox.com/s/xvqu3bask5m0zir/money-claim-online-How-to-Acknowledge.pdf?dl=0
    This space for hire.
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 9:58 AM
    • 26 Posts
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    Rachfarn1
    (Name) Photography, for the purpose of these terms will hereinafter be referred to as “The Photographer.”
    These terms & conditions shall apply to the Contract to the exclusion of any terms and conditions put forward by the Client or Agency.
    Any queries relating to the pictures or the invoice must be raised within 7 days of receipt. Pictures cannot be rejected for reasons of style or composition. Final colour balancing is at the discretion of the Photographer and skin tones will be deemed to take precedent over fabric colours. Only basic retouching is allowed for in all orders.
    Full payment is required before orders are processed and all decision makers are required to attend the viewing in order to benefit from the first appointment price. Any goods not paid for remain the property of the Photographer until paid for in full. Payment can be made via BACS transfer, cash, debit or cheque.
    In the event of a Client not purchasing images at the first viewing appointment, regardless of whether or not a session fee was paid, such images will only be retained by the Photographer for a period of up to 7 days thereafter. Second appointment viewings are subject to a non refundable fee of 50 to cover costs. The Photographer accepts no responsibility or recourse from a Client for non-retention of Client files under any circumstances.
    All items supplied by the Photographer are guaranteed for 12 months from the date of acceptance by the Client, and all sales are covered by the Consumer Rights Act. All defects must be notified in writing within 3 days of receipt and both the Photographer and the Client or Agency agrees to seek an amicable resolution at the earliest opportunity.
    Portrait sessions are only secured when a non-refundable booking fee of 100 is paid in full at the time of booking, and any cancellations, including viewings, require 72 hours notice. Where the session has been won as a prize or as part of a promotion, the session must take place before the expiry date, and the viewing must take place not more than 14 calendar days following the session.
    Clients are asked not to take their own images during their session. Images captured by the client during the session and using items such as camera phones or any other methods of image capture that competes, or could potentially compete with the Photographer's work will result in an immediate end to the client session at the Photographer’s absolute discretion and forfeiture of the full session fee. If not already paid in advance, the session fee of 100 will become payable to the Photographer in full within 7 days.
    Any postponed viewings, for whatever reason, are subject to a minimum discretionary 25 cancellation fee refundable against any purchases made. Subsequent viewings will only proceed on the payment of the cancellation fee.
    In the event of an unresolved complaint the Photographer and/or Client or Agency may refer the complaint to the Master Photographers Association for mediation: mediation is final but not binding and the Client or Agency retains the right to pursue a claim through the Courts of England and Wales at their discretion.
    All items supplied by the Photographer will be of merchantable quality, fit for purpose and as described. Whilst the Photographer cannot be held responsible for errors in printing and or delivery of products by third parties, should errors occur, all parties shall act in good faith and all efforts to resolve any issues shall be made.
    The Photographer retains full Copyright of all images, at all times throughout the world in perpetuity.
    The Client or Agency may not sell, or distribute or otherwise syndicate any images without written permission from the Photographer.
    Please note that we do not upload online galleries for client viewings.
    In the event of a Client delaying viewings, regardless of whether or not a session fee was paid, such images will only be retained by the Photographer for a period of up to one month from the session date. The Photographer accepts no responsibility or recourse from a Client for non-retention of Client files under any circumstances. Please note that all portrait viewings are conducted in person and we do not provide online galleries of images without a prior in-person viewing.
    The right of (name) to be identified as the author of all images produced by (name) Photography is hereby asserted by him in accordance with the Copyright, Designs and Patents Act 1988.
    The Photographer is to be credited as the Author of the images. The right to a credit is asserted in accordance with sections 77 and 78 Copyright, Designs and Patents Act 1988. Failure to do so may result in an additional 50% of the original fee to be paid.
    All digital files and transparencies remain the property of the Photographer. The possession of any negative, digital file, tape, transparency or print, CD ROM or digital file or any other media does not infer any agreement for use, renaming or any manipulation by the Client or Agency or any third party.
    All rights are reserved. Save for the purpose of production for the licensed use(s) where applicable, no images or part of images produced by (name) Photography may be reproduced, stored in a retrieval system, copied, shared, distributed or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the copyright owner.
    Please note that we do not supply loose prints or digital files for portrait or wedding clients.
    The failure to exercise or enforce any of these rights will not be deemed to be a waiver of such rights nor bar their exercise or enforcement in future.
    While the Photographer take all reasonable care in the performance of this Agreement generally, they shall not be liable for any loss or damage suffered by the Client or Agency or by any third party arising from use or reproduction of any photograph.
    It is the Client or Agency who must satisfy himself / her self that all necessary rights, model releases or consents which may be required for reproduction of people, places or items depicted within any picture are obtained. It is acknowledged the Photographer gives no warranty or undertaking that any such rights, releases or consents are or will be obtained in relation to the use of names, people, trade marks, registered or copyright designs or works of art depicted in any picture. In the event that the photographs are used or reproduced by or with the authority of the Photographer then the Client or Agency shall indemnify the Photographer against any loss, damage, proceedings or costs where such rights, releases or consents have not been obtained.
    The Photographer may require images for Public Relations and Advertising purposes and the Photographer may use images owned by the Photographer without payment to the Client or Agency either now or in the future.
    No cash alternative is available for sessions undertaken as a result of promotions or competitions and promotion items are non-transferable for any other purpose other than the intended promotion. To benefit from promotional prices, or offers, clients must attend viewings to choose pictures and promotional items are only available at the first viewing appointment. Hand-made items are only available when a client who has taken part in a promotion or competition upgrades to a purchase.
    Portrait sessions undertaken as a result of a prize being won must take place within the expiry date noted on the prize notification. Sessions may not, at the Photographer’s absolute discretion be carried out after the expiry date. The value of such prize cannot be redeemed against any other product or service from the Photographer.
    These Terms and Conditions shall be governed by the laws of England and Wales and the parties agree to submit the jurisdiction of the English courts, such jurisdiction to be exclusive, save for infringement of copyright.
    These terms and conditions are available from the Photographer web site and are therefore deemed to be notified and readily accessible to Client or Agencies and to potential Client and Agencies.
    The Photographer is not liable for tolerances in the manufacturing process of albums, framed portraits, canvasses or any other product supplied by the Photographer.
    All album orders include design fees and one (1) hour of agreed design changes. Any subsequent changes are, at the discretion of the Photographer, chargeable at the rate of 50 per hour with a minimum 50 charge. Written confirmation of album design and proof acceptance is required before albums go to press.
    All published prices exclude carriage, mileage, delivery, postage and packing charges. The Photographer, in their absolute discretion reserves the right to apply such charges as may reasonably apply to a client order.
    These terms and conditions may be amended from time to time without prior notice and updated terms will supersede previously published terms.
    Master Photographer’s Association Customer Care Statement

    The Photographer is a qualified member of the Master Photographers Association Limited and is bound by, and adheres to, the Code of Professional Conduct of the Association.
    Clients will be treated with courtesy and fairness at all times.
    All goods supplied are covered by a statutory guarantee for 12 months. In the event of a claim for faulty goods it is at the Photographer’s discretion to repair or replace the faulty goods to the client’s satisfaction.
    All goods supplied will be of a ‘satisfactory and saleable condition’ as specified in the Consumer Rights Act.
    Last edited by Rachfarn1; 03-04-2019 at 10:00 AM. Reason: name was present
    • waamo
    • By waamo 3rd Apr 19, 10:23 AM
    • 8,108 Posts
    • 11,055 Thanks
    waamo
    In the event of a Client not purchasing images at the first viewing appointment, regardless of whether or not a session fee was paid, such images will only be retained by the Photographer for a period of up to 7 days thereafter
    Did you attend this first viewing and did you agree to buy after viewing them?
    This space for hire.
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 10:31 AM
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    Rachfarn1
    yes the first viewing i placed the order, was for 5 pictures. then i phoned him the next day to cancel the order. that was when i changed the order to just one picture. paid in full for the one picture the following day. delivered to me 3 weeks later.
    • waamo
    • By waamo 3rd Apr 19, 10:37 AM
    • 8,108 Posts
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    waamo
    In that case get your solicitors opinion. I fear you are on a sticky wicket here. In the meantime acknowledge the claim as the Dropbox link above shows you. That's assuming you haven't already done so.
    This space for hire.
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 10:53 AM
    • 26 Posts
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    Rachfarn1
    another question i have is the fact that the claim has both mine and my husbands name on but my husband didnt sign the order form. surely he has no contract with him in that case?
    • waamo
    • By waamo 3rd Apr 19, 11:18 AM
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    waamo
    another question i have is the fact that the claim has both mine and my husbands name on but my husband didnt sign the order form. surely he has no contract with him in that case?
    Originally posted by Rachfarn1
    I would agree with that. Your husband doesn't seem to be party to this contract in that case. The photographer can amend the claim but it will cost him and he can't pass that cost on to you.

    It isn't necessarily fatal to his claim but it may well slow it down and hamper it. It could well buy you some time if you need it.
    This space for hire.
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 11:26 AM
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    Rachfarn1
    so do you think i have a case for disclosure? he has passed on debter information to someone who is not party to the debt. like the rules that a bailiff cant discuss your account with someone else who opens the door? all letters were sent to both myself and my husband separately so he has lots of knowledge of what in effect is my debt?
    • waamo
    • By waamo 3rd Apr 19, 11:37 AM
    • 8,108 Posts
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    waamo
    so do you think i have a case for disclosure? he has passed on debter information to someone who is not party to the debt. like the rules that a bailiff cant discuss your account with someone else who opens the door? all letters were sent to both myself and my husband separately so he has lots of knowledge of what in effect is my debt?
    Originally posted by Rachfarn1
    I presume your husband was at this photoshoot? If so it would be difficult to claim he didn't know anything about it. I don't think that would fly at all.
    This space for hire.
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 11:45 AM
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    Rachfarn1
    but you cant chase someone else for somebodys debt unless they co signed the debt?
    • waamo
    • By waamo 3rd Apr 19, 11:54 AM
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    waamo
    but you cant chase someone else for somebodys debt unless they co signed the debt?
    Originally posted by Rachfarn1
    You can ask your solicitor but I can't see that flying at all. He attended and was aware what was happening. Unless prices etc were discussed in secret then it would be difficult to go anywhere with it.

    Again this wouldn't affect the court claim one bit anyway. A small claim judge would tell you to refer it to the Information commissioner and move on.
    This space for hire.
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 12:11 PM
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    Rachfarn1
    im thinking more in terms of my husbands defence response. the forums state you have to refer to every point on the particulars of claim. his whole defence is that its not his debt. would he still have to cover every point? there are 9 points on the letter but they all refer to when he tried to contact us.
    • DoaM
    • By DoaM 3rd Apr 19, 12:21 PM
    • 8,053 Posts
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    DoaM
    You should contact the court to advise them that the claimant is pursuing co-defendants, but one defendant was not party to the contract therefore the claimant is pursuing the wrong party. See what the court say. (As already implied in post #31).

    Your husband would provide a Statement of Truth to declare that he is not a party to the contract. A spouse does not automatically become jointly and severally liable in consumer contracts.

    Edit: does your husband's name appear on any documentation other than the claim raised by the claimant? No reference to him in any contract docs or discussion emails or texts?
    Last edited by DoaM; 03-04-2019 at 12:24 PM.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • waamo
    • By waamo 3rd Apr 19, 12:22 PM
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    • 11,055 Thanks
    waamo
    Keep it simple. If the claim names your husband then assert he is not a party to this contract. He has not signed the contract and denies liability for it.

    The claimant has named the wrong person and as such the claim should be either amended or rebsubmitted with the correct person named.
    This space for hire.
    • sheramber
    • By sheramber 3rd Apr 19, 12:39 PM
    • 7,112 Posts
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    sheramber
    Did you sign anything with joint names on it ?
    • Rachfarn1
    • By Rachfarn1 3rd Apr 19, 12:41 PM
    • 26 Posts
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    Rachfarn1
    His name is on the top of the order form but only i signed it. can it be argued that i signed on his behalf?
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