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Jo C.
Jo C., Barrister
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Experience:  Over 5 years in practice
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This query has been created in connection with a disagreement

Customer Question

This query has been created in connection with a disagreement with the Harley Medical Group.
On 14 August 2014 a preliminary consultation was attended whereby a further appointment was made for 20 Aug 2014 to see a consultant surgeon. This consultation was confirmed with a deposit with £500.
Due to unfavourable views it was decided to cancel this appointment on 19 August 2014, a day before the scheduled consultation. This was done in writing.
The group argued that we have not adhered to the terms and conditions by way of not giving a notice of 6 working days to them in order to process a 100% refund. A quick calculation concludes that from 14 Aug 2014 there was simply not enough time left to adhere to this provision. It would have meant that I would have had to given them notice by no later than 12 August 2014 some 2 day BEFORE the appointment in question was ever made. It is considered inappropriate for the Harley Medical Group to assume the possibility of time-travel.
The terms and conditions do not make any inference or reference to such a situation and only states full refunds are applicable from at least 6 working day notice period only. It fails to mention those parties that simply do not have 6 working days to change their mind or cancel. There is also no cooling off period after paying the deposit either.
It appears to be an ambiguous term and the the group refuses to return the refund. We were also given a false pretence by a member of staff who states that we do not have to worry about making a deposit as it is fully refundable. Failing to mention the necessary provisions or policy that may or may not apply.
The group also claims that I have read the terms and conditions by way of signing them however my copy of these documents is unsigned nor does it have a section for my intended signature anywhere.
The terms and conditions were furnished to me after the deposit was already paid to the Harley Medical Group.
The inconsistencies with the truth and the pattern of false statements are the basis of my investigation to establish the facts. We have been deceived into paying money directly by one of their representatives and indirectly by creating ambiguous unclear contractual provisions which strongly appear to be created with the intent to generate a profit only.
Continued refusal will probably lead to further steps either by way of the account being passed onto a debt collection agency or bailiffs along with opening further lines of enquiry to rule out fraud by misrepresentation.
Any advice is much appreciated.
Thank you.
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts : Hello my name is Alex and I will help you with this.
Alex Watts : How did you pay for the appointment please ?
Alex Watts : Why did you wait until the day before the appointment before you cancelled?
Customer :

The appointment was paid for by debit card.

Customer :

And as previously explained the appointment was cancelled due to the controversy surrounding the Harley Medical Group and the scandals they have been involved in and I had no faith in their services.

Customer :

Due diligence with my insurer showed that they are not a highly recommended clinic and therefore I ought to reconsider.

Alex Watts : Did they give you the second appointment date at the first appointment please ?
Customer :

The particulars are in my query. I am not sure if you have had time to read this but the answer to your question is there. I attended the clinic on the 14 August for my first appointment and on that date they made my second appointment, for the 20 August. As per the terms and conditions the latest I could have cancelled the appointment of 20 August would be the Tuesday 12 Aug, which would be two BEFORE I ever made the appointment...

Alex Watts : Of course. Potentially you could argue that the terms are unfair
Alex Watts : Unfair Terms in Consumer Contracts Regulations 1999 states
Alex Watts : 5. (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
Alex Watts : Therefore if you argue that it is unfair you should be able to get your money back
Alex Watts : You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.
Alex Watts : If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.
Alex Watts : The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.
Alex Watts : If the matter is defended it will be set down for a trial. If the claim is for £10,000 or less it will be a small claim and you will not need representation.
Alex Watts : Can I clarify anything for you about this today please?
Customer :

Thank you for the information.

Customer :

In addition, I have concerns with the way the service has been offered to us. The nurse in question stated a series of fallacies which appeared to have been with the intent for us to pay the deposit. We were given reassurances that the deposit is refundable and that we have time to reconsider. We were also given to understand that the remainder of the balance would be due some time before the requested surgery.

Customer :

We received the terms and conditions after we paid the deposit. And we were made to sign papers after we paid.

Customer :

Also, after we paid the deposit, the deposit suddenly become non-refundable and they claimed that we are overdue for paying the remainder of the balance and we have therefore breached their contract.

Customer :

We have been deceived into paying a deposit and I am concerned about this particular business practice.

Customer :

There are also a number of inconsistencies in their communications which forms the basis of their refusal to pay. In addition, they have mentioned that there may be a consultation fee applicable and deductable from the deposit. Again we were not informed about these fees and were told that the deposit is fully refundable without any mention of consultation fees. After we paid these fees have become applicable when we want our deposit back.

Customer :

They are misrepresenting the facts and create provisions at the detriment of the public only with an intent to generate a profit for themselves.

Alex Watts : Ok. Can you see my advice above re unfair terms and how to get a refund?
Alex Watts : These are the steps you need to take please.
Alex Watts : Does that help?
Customer :

Dear Alex,

Customer :

Your advice based on the issue of unfair terms and how to apply for a refund is most certainly helpful and will further my issue regarding this matter. However, it does not help with the business practice that has been used in this case by the debtor. They have deceived a member of the public to receive money.

Customer :

The deception and the misrepresentation of facts is not covered by the aforementioned act.

Customer :

Please advise on how to appropriately take steps in order to pursue the acts or omissions, namely misrepresentation of fact, deceiving and or bearing false witness to achieve a monetary gain. Any person with a reasonable judgement would consider lying to a another person with the intent to deprive them of their money or property an act of fraud. This is of great concern to me.

Customer :

Your advice is requested in addition to the natural course of action which include a report with the local police department and a recommendation for CPS to pursue the matter should there be enough public interest and sufficient quality of evidence.

Alex Watts :

Well even if you take it to Court then the Court won't award you more than your loss. So it really makes no difference whether you claim unfair terms, misrepresentaton or breach of contract. You wont be allowed to profit from this, it will only be a refund.

Alex Watts :

As for Police, they wont prosecute as this is a civil matter. In order to claim fraud you need to show they were dishonest and intended to make a gain for themselves. This is not fraud, but a civil matter.

Alex Watts :

Does that clarify?>

Alex Watts :

If this answers your question could I invite you rate my answer before you leave today.

If the system won’t let you please click reply.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

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