Are there lessons to be learned by looking at a claim from a Trader's point of view?
Hello there and welcome to my latest Podcast.
I want to tell you about a very interesting experience I have had.
Over the years of primarily dealing with Consumers, I have occasionally been approached by mostly small, but a couple of medium-sized businesses for help with a legal problem. Some have asked me on how to deal with problematic Consumers, some have come to me seeking advices on how to deal with problems with their Trade Bodies.
It may seem strange to you the listener, that me, being a Consumer Campaigner and Advocate, that I would have anything to do with any business.
You wouldn’t be wrong in that thinking, that is probably how most of us would react; we all like to live and work within our own respective bubbles.
But I have always taken a contrary viewpoint; I have always believed that I should be open to those who come to me whether they are Consumers or Businesses. Let’s face it, Consumers can be difficult and they don’t always get it right and in many respects, that is not disrespecting those I argue for, it simply expresses a human reality.
Anyway, I was recently approached by a business-person who was having some difficulty over the sale of some goods agreed in September 2019. At that time a partial deposit was taken and agreed that by January 2020, when further information was provided, the remaining deposit would be paid and the goods ordered.
So a contract was formed in September 2019 and finally agreed in January 2020. The final balance would be paid upon delivery. The Consumer signed the Order Form agreeing to the Order, both in September and in January. They also signed their agreement to the Trader’s “terms and conditions” which were openly stated next to their signature.
The goods were ordered with a delivery date by the end of April 2020. This was important for the Consumer because they needed the goods by 25 July 2020 as they were leaving the UK on 31 July.
Everything seemed AOK, then Coronavirus hit town! Everyone was placed into lockdown and businesses were ordered to shut, not just here in the UK but across Europe; supply chains had effectively stopped working!
However, by the middle of June 2020, the government allowed non-essential businesses to re-open and with that in mind, the Trader contacted his suppliers and managed to secure within days, the goods that his Consumers had ordered, including the goods ordered by the Consumer in this story.
2 days later the goods arrived and on the same day the Trader contacted the Consumer to advise that the goods were ready for collection and that the final payment needed to be paid.
The Consumer did not respond.
3 more attempts were made to contact the Consumer and still they did not respond.
Out of desperation, the Trader went to their local County Court and obtained a blank Claim Form, completed it and sent it with their letter advising that if the Consumer did not respond or pay for the goods, a legal action would be commenced.
The draft Claim Form set out the details of the Claim and the Trader completed all items including the area relating to Solicitors costs. The Trader inserted the sum of £800 as being the estimated figure that they would have to pay a solicitor to engage to help them with their claim.
That set the wheels of response in motion; the Consumer responded indicating that they had had difficulties with their mobile signal and were managing children whilst having to work from home. They also told how they had sought legal advices and as a result, they challenged the ‘legality’ of the solicitors costs as this was a small claims court claim. They also complained about the service they had received in January, which 7 months later came as a surprise to the Trader! A surprising claim then came from the Consumer when they complained about the late delivery of the goods (end of April vs middle of June) and not once did they refer to the effects of the Coronavirus!
There were several more ‘back-and-forth’ e mails between the Trader and the Consumer, with the Consumer claiming that because they had to suffer a ‘late’ delivery, they should be entitled to a substantial discount of the final payment. This was interesting because the Consumer stood ready to receive the goods well in advance of their key date - they were not suffering with any prejudice. They also indicated that it was not fair that they were being pursued like this when they were expecting to receive their legal advices in the coming week!
The Trader’s response was to calmly note all of the issues and reminded the Consumer that they were in a position to deliver the goods and that final payment must be made according to the agreed contract. The Trader however offered to spread the final payment over 2 months.
The Consumer responded by accusing the Trader of ignoring their points and again indicated that this was unfair as they had not yet received legal advices. The Consumer advised the Trader that they would provide a counter-offer to settle the dispute within 30 days, reflecting part of the ‘extra’ period that they had had to wait for the goods to be delivered!
No counter-offer was ever made by the Consumer!
The Trader felt that they had no option but to explore how to cost-effectively recover the monies owed to them and discovered Money Claims Online. As the Trader completed the claim, they realised that legal costs could not be recovered and was content with that position; they just wanted to quickly resolve the dispute.
However, the Consumer decided to deny the Claim and as a result, the Claim was scheduled to enter the Small Claims Court for a hearing.
In the meantime, the Trader received the Defence of the Consumer.
The Defence did not deny a contract had been made; it did not deny that the money was owed to the Trader; there were no allegations that the goods were not of satisfactory quality nor fit for purpose; the Defence did not try to make any allegations with regards to the late delivery and in fact for the first time, the Claimant acknowledged the difficulties of the Trader due to Coronavirus; the Consumer did not make the allegation that the goods arrived too late for their key dates!
It was a strange defence to read because it then made allegations that the Trader had sought to extract legal costs from them, but of course the draft ‘Claim Form’ from which this arose from had been overridden by the issue of the claim via Money Claims Online in which the Trader accepted the rules on legal costs. The Trader did note that he could ask the court to provide legal costs if he had expended them, because of unreasonable behaviour of the Consumer, but he had deliberately not made that allegation.
The Consumer through their Defence then made further allegations about the personal service they had received, now stated some 9 months after the January visit to the Trader’s premises!
The Consumer also made allegations that the Trader had not followed the Pre-Action Protocols to commence the Claim, but as the court had raised Directions in the case, it was clear that the Judge had accepted the clarity and spirit with which Trader had made the Claim and no sanctions were ordered.
The principle claim in the Defence was that the Trader had breached the provisions of a ‘Contract for Service’ under the Consumer Rights Act 2015.
I examined the Trader’s business model and it was clear that they were only in the business of supplying goods and not services. So for example, if you buy a washing machine (these are not the goods in this case), you may also choose to pay for a connection service for your washing machine; this would mean you would have a ‘contract for goods’ and a ‘contract for services’; it’s logical!
If the company then fails to fit the washing machine, you could have a potential breach of ‘contract for services’ but you would have a completed ‘contract for goods’.
In this case, there was no ‘contract for services’, just a ‘contract for goods’ because that is all the Trader provides, goods!
As I read the papers I concluded that the Consumer had got this all wrong and I seriously questioned their motives and in fact whether they had actually obtained any legal advices. It was clear in the mind of the Consumer the ‘personal’ service they received was not satisfactory (this is denied by the Trader), but ‘personal service’ is a very distinct complaint or allegation from a failure in a ‘contract for services’; they had clearly not understood the distinction.
I confess it was sad to read how this Consumer had conducted themselves, with no logic, no plan and no real understanding it seems that contracts are binding, particularly in these circumstances; they lacked the core legal advices which I am certain would have guided them as to the facts and that this is a legally enforceable contract. If the Consumer had received these robust advices then I suspect a claim would never have been issued in the first place.
As for the Trader, in 16 years of Trading, this is only the second time they have had to issue any kind of proceedings and they tell me that they have only had to write to a handful of people to chase payment. It tells me that not only is the product they sell good, but that they have a good business ethic toward Consumers, a fact represented by a number of awards they have received for the operation of the business, product and customer experience!
I decided to help the Trader. I have drafted a structured witness statement, dealing with the facts, Coronavirus, their dealings with the Consumer and the allegations made against them. I have also ordered the documents in sequence and drafted a short 2 page key issues document that sets out the key points of the case along with the evidence in support or indeed rebutting the allegations made.
I have also guided the Trader to make another offer to settle payment, including the repayment of their £60 Money Claims Online issue fee!
I think the moral of the story is this, if you are a Consumer, even a Consumer in financial difficulty, be open and honest; you might be surprised, even in this climate, how open a Trader will be to making a deal with you to pay off balances over time.
The worst thing you can do is to ignore contact and then fail to get the necessary legal advices and make somewhat ill-informed allegations; it doesn’t help your case.
I don’t suppose this will be the last Trader who will contact me by any means, but as I continue to receive contact from Consumers, make sure that you follow the remit, that you should always try to come to any form of litigation, whether you are the Claimant or whether you are defending yourself from a claim by a Trader, with ‘clean hands’ and a good dose of ‘common sense’. I will expect to see it and so will the court!
(This is the script for Frank's CreatingRipples™ Podcast: The Trader & The Consumer - A tale of the Small Claims Court. You can listen to Frank's Podcast here. Please note that the content is the copyright of Frank Brehany © 2020)