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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22403
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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I had a dispute with a building merchant regarding the failure

Customer Question

I had a dispute with a building merchant regarding the failure of timber used to construct a roof. The consequential loss was c. £ 2k to have to work re-done. Whilst there are ongoing arguments between materials supplier and roofer as to who is at fault I am stuck in the middle. There was £10k outstanding on my account with building merchant so I sent a cheque £8k marked as full and final payment of account on reverse of cheque and in an accompanying letter stated same. The cheque was cashed a couple of weeks ago and now builders merchants are chasing up the final £ 2k. Are they allowed to do this having accepted full and final payment of £ 8k ?
Submitted: 3 years ago.
Category: Law
Expert:  Stuart J replied 3 years ago.

Leaving the sale of goods act and the quality of the timber apart, on these facts, yes they can chase you for the outstanding balance because what you did is not sufficient consideration for them to forego the balance. There is a way of dealing with this. But you are too late to deal with it this way now and you will not make the same mistake again.

There is plenty of case law going back hundreds of years in support of them getting their money back. But, if you read on, you will see what defeats all that case law

I will tell you for future. . I suggest sending a cheque a syou have done Armed with a cheque in the hand for some of the amount they want, compared to an argument over the whole of the amount, (and arguments. They may win or lose) the cheque in the hand is a pretty powerful incentive to accept it.

So consider deciding how much you would like to pay the (you need to make it attractive enough) and send it with a covering letter headed “without prejudice save as to costs”. That means that they cannot produce the letter in court as any proof that you admit owing them any money at all.

Tell them in the letter that you are offering this money in full and final settlement of all claims against you, past, present and future, and that by cashing it they accept it as such. Tell them that if they do not accept it, they should return the cheque to you and if they issue legal proceedings, you will defend them on the basis of A, B, C, whatever.

Tell them that if they do not understand the significance of the letter. They should take independent legal advice.

I can tell you this approach works nine times out of 10, provided the offer is reasonable and not derisory.

For legal reasons which I will not bore you with but which go back several hundred years, the cheque must not come from you, but was come from a third party, friend, relative, solicitor, our accountant, neighbour, girlfriend, wife, husband, whoever, just not from you.

Of course, you may have a claim under the sale of goods act if the material is defective, but you did not raise that issue. If they pursue you for the £2000, you can raise is your initial correspondence as a defence, but don’t bank on it working if the judge knows that particular law. You can of course defend on breach of statutory duty (fit for purpose and satisfactory quality) under the sale of goods act and breach of contract.

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Customer: replied 3 years ago.

Thanks - this partly answers my question regarding my short payment as a means of trying to get remedy. However, I still have a dispute with the building merchant (Jewson). They supplied waterproof exterior grade plywood for the roofing deck. A separate roofing company then applied their rubber membrane to the plywood. After a month the plywood de-laminated under the membrane in places. Total roof area was 150m2 and the problem area affected 30m2. On approaching Jewson about the problem, they consulted their supplier and then claimed the plywood edges should have been sealed prior to membrane fitting and had not been. Sometime later they provided a leaflet from TRADA (timber association) which said same. We approached the roofing company who provided info from their trade association that said this was not essential or industry standard and none of their members carried out work this way.


 


The value of the timber is only £ 250 but the cost of replacement including roof membrane is £ 2000 ( £ 60 per sq.m ) - hence my holding Jewson responsible for consequential loss.


 


Presumably SGA only covers the cost of failed plywood anyway not consequential loss ?


 


Tks.


 


 


 


 

Expert:  Stuart J replied 3 years ago.


Why did it delaminate?

Why only in part?

Customer: replied 3 years ago.

Why did it de-laminate ?


 


I don't know ? Although it is possible to use basic plywood, we specced and paid for higher grade exterior wbp grade ( water and boil proof). We contest because of faulty manufacture ie the adhesive used to bond the layers of plywood was not strong enough in that section etc.


 


Why only in part ? Who knows ? Conjecture - It came from a different manufactured batch,


 


The de-lamination was also in the middle of 8x4 boards not just on edges.


 


 


 

Expert:  Stuart J replied 3 years ago.


Thank you. I know a bit about plywood.

It will only delaminate if the plies are not bonded together
properly in the press when it is made, if the glue is incorrect.



The fact that the ward delaminate it in the middle shoots
their argument about sealing the edge in the backside. To be frank, sealing the
edge, whilst it may be the recommended action, would not stop what happened
because the penetrating water through the plies would have exactly the same
effect as edge exposure.



I would get an "expert" to write out exactly what has
happened and his opinion. Why and tell them that if they insist on issuing
legal proceedings for this, you will defend them and counterclaim. Not just for
the £2000, but all losses resultant from the material failure, including an
amount for stress and inconvenience. Now I will tell you that everything over
and above the cost of the basic material may be disallowed as "pure economic
loss", ( Google the phrase for plenty of reading).



However, I can guarantee that if you don't claim it you won't
get it, but there is a chance that the judge would allow it. It is certainly
worth going for and I would not be rolling over that quickly.



What you could do is send them another £250 using my letter
as a base and see whether they cash the cheque.



If they do cash it and issue proceedings, I can tell you
exactly how to deal with it, but there is no point in going into all that at
this stage because they take advice, they will be told to drop it.



Please don't forget to push the positive rating button so
that I get paid. Thank you

Stuart J, Solicitor
Category: Law
Satisfied Customers: 22403
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street Practice
Stuart J and 4 other Law Specialists are ready to help you
Customer: replied 3 years ago.

Following on from our recent conversation, I would like to send you copies of the documentation that relates to this case as Jewson have now passed it to solicitors who are threatening court action. I want you to see the letter I sent accompanying the cheque in full / final settlement and another letter I sent holding them responsible for faulty plywood under SGA etc.


Is it possible to send pdf files in this messaging system or do i need a separate email address. Thanks, Chris Roberts


 

Expert:  Stuart J replied 3 years ago.




Thank you.

If they are only chasing you for £2000, and they take you to court, it is
small claims and you will not be asked to pay all their solicitors costs, even
if you lose. You will have to pay, if you lose, just the court costs and a fixed
solicitors cost of about £100.



If this cost more to remedy than they are claiming, you can counterclaim
for the extra remedial work.



You can send documents to me via [email protected]



they can take up to 24 hours to arrive



Customer: replied 3 years ago.

Law relating to Full and Final Payment.

I had a dispute with a supplier and made a full and final payment offer of £8k against an outstanding account bill of £10k. My accompanying letter stated full and final payment of my account, with acceptance giving no rise for any claims against me past, present or future and your encashment will serve as acceptance. I wrote full and final payment on reverse of cheque and said should you not agree to these terms return the cheque.

Cheque was sent on 1st March and banked on 4th March. I heard nothing then until 20th March when I received a letter from debt collectors on behalf of supplier. Last week I received a court summons.

Reading this article:

http://www.voltimum.co.uk/news/2312/cm/the-law----full-and-final-settlement-.html

is it reasonable to say the supplier should have contacted me immediately or within a short time after cashing the cheque on 4th March if they wanted to persue me for the balance. The delay in reply until 20th March is too long as per the example Ferguson v Davis in the above article and hence the banking of my cheque served as acceptance.

Is this a correct understanding and how should I word my defence ? As a separate question, can I use the letter sent with the cheque payment in court even though I marked it 'without prejudice' if necessary ?

Thanks.

Expert:  Stuart J replied 3 years ago.


I
don't think the delay helps you as it has not prejudiced your position.

What
does help you is that they are only chasing £2000 and it will be Small Claims
Court so they will not get their costs back, even if they win.



You
have to prove that there was sufficient consideration (some benefit to the
builders merchant going from you to them) for them to accept the money.



I
think about the only benefit there is in them accepting it is the fact that
they would not have to chase you for £10,000 however the courts have found but
that is not sufficient consideration.



I
would simply go to court and produce the letter and the fact that they cashed
the cheque is acceptance and having accepted the cheque, you can rely on that
acceptance.



I'm
going to be brutally frank with you and tell you that if I were them, I would
be taking you to court also. The cheque coming from a third party (which you
did not do because you were not aware of) is crucial.



From
your point of view, it is one that I would be quite happy to go to court on to
defend although I think you only have a slim chance of winning. The worst that
can happen is that you have to pay the £2000 plus a small amount of court
costs. They are not entitled to recover anything else in legal costs

Customer: replied 3 years ago.

What is your view on the article on which I sent the link ?


http://www.voltimum.co.uk/news/2312/cm/the-law----full-and-final-settlement-.html


 


This is written by Rudi Klein, a barrister specialising in construction disputes, the important reference is towards the end


 


Did the creditor cause the debtor to believe that the money was taken in full satisfaction? In this case the builders had made clear, shortly after the cheque had been cleared, that it was not accepted in 'full and final settlement'. The outcome would have been different if there had been significant delay in informing the debtor. Therefore A must inform B, either at the time the cheque is presented (or shortly thereafter) that he does not accept it in 'full and final settlement'. If he fails to do this he will be regarded as having accepted the amount stated on the cheque.



Summary:


The circumstances in which you (the supplier) will be bound by a cheque made out in 'full and final settlement' are as follows:



  • The cheque is offered in circumstances where there is a dispute about the amount owed.

  • The offer in 'full and final settlement' of the dispute is made at the time the cheque is presented.

  • You present the cheque in payment and it is duly honoured.

  • At the time of presenting the cheque or within a short time thereafter you fail to inform the payer that the cheque is not accepted in 'full and final settlement'Number 4 in the above list is critical.


Otherwise, as the Court of Appeal explained in another case, Ferguson v Davis; '...paying in and clearance of the cheque [is] a clear and unequivocal acceptance...'


 


What I am arguing is that my case falls into this category - ie I assumed the cheque had been accepted and then 16 days (too long) afterwards I hear otherwise. Do you agree I have a defence case quoting this case law ?


 


 


 


 


 


 

Expert:  Stuart J replied 3 years ago.

I would certainly go for it.

You need to let them have those details in advance as part of your defence as you cannot simply pull them out of the hat on the day

Customer: replied 3 years ago.

Ok, thanks for bearing with me on this one. In my defence I would mention the dispute about the plywood issue and say that is why I underpaid ?


 


Do I counter sue for the plywood issue under SGA in my defence regardless or should I wait for the judges decision and only if I lose make a separate claim ?


 


If I win then I am happy that I have covered my losses and would not need to go down SGA route. If I lose then I will definitely go after them. The issue was reported within one month and suppliers prevarication dragged it out over the 6 month deadline - do I have to prove plywood faulty or is it up to Jewson to prove it wasn't ?


 


Thanks.

Expert:  Stuart J replied 3 years ago.

Yes, absolutely yes.

If it cost you more to fix, you counterclaim under SGA!

It isn't separate claim. The whole lot, their claim and yrs gets dealt together

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