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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I need some advice please under the consumer supply of goods

Customer Question

I need some advice please under the consumer supply of goods and services act.
In Jan 13, a firm of damp specialists fitted an extractor fan in my tenants' bathroom. A month later, they returned and did some internal plastering on a portion of wall with very high moisture levels. My tenants couldn't find any obvious problems with the work at the time, and were told the plaster would be dry in about 5 weeks. In March I duly settled the invoice (by bank transfer, not Visa).
Early May, my tenants advised that the plaster was still wet and that they were unsure that the fan (which is the type that switches on and off automatically according to humidity levels) was working properly. They also said they thought it went back to when the plaster was done - in other words, they thought plaster might be clogging the fan. I raised the matter with the company by email 7/5/13 including photos - no response.
22/5/13 - I spoke to the surveyor on phone (who I believe also owns the company - a limited company) - he didn't remember my earlier email, so we agreed I would re-send & he would look into - no response.
Chased 4 July 13 by email (which included earlier emails) - also asking that if they don't see a reason to visit to examine the work could they please advise - no response.
I rang the firm's office toward the end of July 13 (not saying who I was, but just asking for appointment) but was advised that surveyor away until 12 Aug - unfortunately, my tenant also very busy (travels a lot with work) and also, damp company could have a point about plaster requiring more time to dry - so we decided to leave for time being. By then, I was also beginning to realise I would probably only get them to act by taking some action against them.
I contacted the company again by email 17 Feb 14, was told surveyor remembered my phone conversation of 22 May 13, but not emails from around that time - I point out that I sent the details again on 17 Feb - no response. I ask for update by 28 Feb - no response.
3 Mar 14 - I send officially worded letter before action. I get a letter in return next day - they say they never got the emails, though they don't dispute that they were sent, but that the fan is now out of its one year warranty, it can't be repaired or replaced free of charge, and they will charge me £75+VAT if I want them to come and look at it. They also remark that without the fan working, the plaster will not dry - why didn't we raise this at time the work was done?
I sent a second letter making it clear that I raised the matter with them at least 4 times by email and phone (pointing out that according to my email account the emails were received by their email server).
They come back by email reiterating that according to their terms and conditions, they will only come out to have a look at the fan at my expense, not theirs.
My questions:
In my favour, I have proof that I did clearly raise the issues with them at least 4 times last year (and no more than 4 months after the work completed).
However, against me: I don’t have a copy of their terms and conditions and warranty – which I should have been aware of when I signed the contract. I failed to take action at the time when they failed to get back to me with any kind of commitment to sort out the problems – I only raised it again with them now, more than a year after the work.
If I take these people to the small claims court, would I have a case and how is this likely to be viewed?
I would also like to approach them, with the benefit of legal advice (without naming my source) before I do this, being able to cite the relevant sections of the act in my favour, which will hopefully make them reconsider.
Also, and perhaps most importantly, if they should win, not me, what sort of costs might I be liable for? Is there likely to be any other negative consequence that I should be aware of?
Many thanks for your help - please come back if you need more details.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

From what you say I note you first emailed the company five months after the work was completed. Could you tell me the total cost of the work in question please?

Customer:

£1080.00 +VAT.

Joshua :

Thanks. As you will be aware. the position here is that you have two differing sets of rights. The first set of rights you have under any warranty from the manufacturer of the fan which are somewhat limited insofar as that they are limited to the terms of the warranty which are probably not overly generous and particularly as the warranty has now expired. I will leave this here though because of what follows.

Joshua :

You have a another set of rights by virtue of your contract with the contractor which carried out the work. This set of rights are much more extensive as terms are implied into your contract by virtue of the Supply of Goods and Services Act that the work carried out must be satisfactory and fit for purpose and as agreed and any materials supplied in the course of their work must be of satisfactory quality. During the first six months, any faults are automatically assumed to be inherent as opposed to having been caused by damage or otherwise under the provisions of the Sale and Supply of Goods to Consumers Regulations 2002. After the first six months, the burden of proof switches to you to show that any faults are inherent as opposed to having been caused by damage.

Customer:

Thanks. So are you saying that as I made them aware of the issues within 6 months, I would have the protection of the act?

Customer:

However, they're being somewhat disingenuous. They say because the fan isn't working, therefore it is reasonable that the plaster won't dry.

Joshua :

Under these rights you can insist upon a repair or replacement of any faulty workmanship or materials the contractor has supplied at the dealer's discretion. This right last for up to six years under the Limitation Act against the contractor though will be limited to what is reasonable given the life expectancy of the work carried out. You are required to give the contractor reasonable opportunity to repair or replace. There is no specific prescribed number of times that you must must not allow them the opportunity to do so however if they have failed to repair the same more than two-three times or refuse to repair the same this would usually be held to be satisfactory opportunity to do so and you would be within your rights to instruct an alternative contractor to quote to remedy the matter and look to the original contractor for the cost.

Customer:

Thanks - so I would need to instruct another contractor before taking them to small claims court, as opposed to taking them there directly to make them refund or repair?

Joshua :

Because you have copies of the emails you refer to and you contacted them within the first 6 months you can rely on the above regulations for them to prove that the fan is not faulty rather than you haveing to show that it is. It is not relevant whether they claim not to have received the emails. This is not credible and the emails were sent to the correct email address and therefore deemed service will be presumed by the courts. Because they supplied the fan nor can they draw a distinction between the plaster and the fan being at fault. Whether it is the plaster and/or the fan, the buck stops with them because they supplied the materials

Customer:

Thanks. XXXXX take them to court, and I lose, what might my liability be?

Joshua :

In terms of how you may consider proceeding. You may wish to write to the contractor by email and/or letter or fax referring them to your previous correspondence which you are disappointed has not been responded to and reminding them of their obgliations under the above legislation. and that as you have given them more than reasonable opportunity both verbally and in writing to attend to remedy the matter you propose to instruct a third party contractor to identify the faults and quote for the repair and look to them for the costs.

Joshua :

At that point they may become more cooperative and you may or may not allow them to attend to remedy at that stage. If not or you prefer not to give them any further chances consider a third aprty contractor for a quote (if you can obtain two and use the cheaper) and demand the sum from the original contractor company.

Joshua :

If they do not respond you can issue proceedings against them for breach of contract using www.moneclaim.gov.uk.

Joshua :

Sorry correction www.moneyclaim.gov.uk

Joshua :

The matter would be heard in the small claims court and whilst you would appear to have a good basis for a claim if yuo were to lose you would only be liable for court fees and if they attend any reasonable claim for loss of income in attending capped at £90.

Customer:

You've answered my questions - thank you so much!!

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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