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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25421
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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HI, I have paid a company £3,600 with a cheque and then another

Customer Question

HI, I have paid a company £3,600 with a cheque and then another £240 with a cheque as they don't accept credit or debit cards. It was back on 22.7.13 and 4.11.13 the money was to use their software to carry out checks i.e credit checks, DBS, BS7858, tenancy checks etc. I built my new website around their software and with no help from them, they kept saying it is a self managed system. I then found an Estate agent who wanted to use me to do all their tenancy checks (estate agency is the market I want to work with the other checks don't interest me) the company then told me they don't do tenancy checks even though I spoke to their sales guys numerous times about it, the sales man has left and they have said it is my word against his and wont refund my money. What can I do? many thanks Antonia
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 :

Would you be able to demonstrate on the balance of probability do you think about prior to your purchase of the software, you had been writing the software specifically for the purposes of principally tenancy checks?

Joshua :

do you have the name of the representative and the date you had the conversation regarding the software being appropriate for such checks?

Customer:

Yes I thought they provided software that covered everything I needed for tenancy vetting. It was a number of conversations with the same chap and my web page was up and I asked him to look at the site, he said it looked good and clearly had a box for tenancy vetting there.

Joshua :

thank you. The test applied by the courts is one of of balance of probability. Based upon what you say, you have a clear claim for reach of contract by the supplier based on the misrepresentation that the software could do something which it cannot.

Joshua :

your weaknesses that nothing was obtained in writing and accordingly it is your word against the suppliers. However, if you can demonstrate to the level of balance of probability that your software application was intended principally or exclusively for tenancy administration and this was known at the time you entered into the agreement for the third party software, you can consider a claim notwithstanding the lack of written evidence of the misrepresentation by the supplier

Joshua :

ideally you will be able to demonstrate that at the time you entered into the contract the software you are developing was intended for tenancy application. This could be by way of correspondence with prospective future customers or specifications you have developed and so on. If you can demonstrate this, this provides a strong basis on which to demonstrate that it would not be at all likely that you would enter into a contract for software that did not include facilities for checking the types of application you intend of the software for which in turn would support your own witness statement as to the representations given to you by the company which now turn out to be untrue

Joshua :

as a general point of principle, if relying on any representation given by a salesperson or representative, it is always worthwhile obtaining this in writing simply because it removes the above potential weaknesses of having to prove what you say is correct however, even when you do not have such written evidence, providing you can demonstrate using the above combination of evidence that on the balance of probability there was a misrepresentation, a claim can still succeed

Joshua :

you may therefore wish to consider writing to the supplier advising that you consider that to be a misrepresentation by them setting out the details of the conversation as you have done above and accordingly you are claiming a full refund as the software is not capable of the functions that the salesman confirmed it was capable of. If you can remember the date of the conversation and the name of the representative in question, consider including this. You can go on to say that if you do not receive a full refund, you will have little option but to issue proceedings in the County court for recovery of the monies paid

Joshua :

if you are forced to do so, the simplest way to issue proceedings is by using www.moneyclaim.gov.uk. The matter will be heard in the Small Claims Court in which it is not possible to recover legal costs and therefore you will not be exposed to the other parties legal costs whatever the outcome.

Joshua :

If successful, you can reclaim court fees together with interest at the rate of 8% per annum has provided for by section 69 County Courts act

Joshua :

is there anything above I can clarify for you?

Customer:

thats great thanks. the only problem is all my initail emails were on my new business email and they had to clear it all not long ago as there was a bug : ( all in all i am not having much luck

Customer:

doe it make a difference the fact i never got a copy of the signed contract back? i signed it sent it back to them and the director signed it and was supposed to send it back, yet i never got a copy and asked for it a number of times

Joshua :

that does sound rather unfortunate. However, you can consider using any evidence you may have available to demonstrate the intended use of the software at the time. You may have specifications or a business plan for example or other printed correspondence or documentation or failing all else, witness statements from independent parties you have knowledge of your proposals.

Joshua :

unfortunately the lack of signed contract is fairly material has a contract can exist whether or not the contract is signed. providing the supplier can demonstrate that you had sight of their terms and conditions, these terms and conditions will likely be enforceable subject of course to a claim of misrepresentation as discussed above

Customer:

ok i have a few of those so that's good.

Customer:

ok thank you for your help

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

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