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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Hi, I have been taken to the small claim court by a company

Resolved Question:

Hi, I have been taken to the small claim court by a company. I think they failed to comply with consumers act and stand no rights to a claim.

I was contacted via cold call and agreed to a provisional booking of a space onto a CD rom, based on particular offer made to me on the phone by a seller.

I wasn't provided a proper contract, just an "E-mail booking form" with some small print on it, which stated I had 7 days right to cancel.

As far as I know, they must be 14 days, besides, they didn't provide me with a proper contract copy nor a cancellation form, which if am correct it's something they must do by law.

On top of this, far prior to the publication of said CD rom (39 days precisely) I withdrew my participation in writing.

No one acknowledged it. Next I received a parcel with a proof copy of the CD rom and a request of payment. This was 2 weeks prior to publication of the CD rom. The company didn't provide proof of having produced the 70.000 copies, nor a contract

So to make things clear:

1 I made provisional booking to purchase a space on a CD rom but never received copy of a contract, nor I was provided a cancellation form

2 I withdrew my participation, in writing, 39 days before they went into publication and they ignored it.

3 14 days prior to publication I was provided a proof copy of the CD rom (so within my cancellation right I presume) and again refused participation, in writing.

4 They took me to Court claiming I breached the contract

What right I stand against them and what should I do?

Thanks for your advice

Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

For now please let me know whether you are a business or consumer?

Customer:

I had a company (Ltd and dormant) and they used that to make the booking.

Customer:

Should I send you copy and of the correspondence between us at the time when things happened?

Alex Watts : Why did you withdraw? Did you lose the small claim or is it still in progress? If I'm progress at what stage?
Customer:

No you misunderstood me: I withdraw/cancelled my booking with them because things were not going well

Customer:

to begin with on the booking form sent by them it was written Fashion issue

Customer:

then the "designers" didn't do the job, I had to do it myself in fact, telling them what font, colour and caption to use

Customer:

then they sent an invoice with the wrong amount on

Customer:

it was a series of things that didn't convince me any more and I wanted to speak with the man that cold called me

Customer:

they ignored me, completely, until a parcel with a proof copy of the CD rom came in the mail

Customer:

and inside the parcel was again an invoice, this time a paper one, asking me to pay

Customer:

I wrote immediately to the man that initially contacted me, complaining and asking explanations as the arrival of that proof copy made me believe that they published the CD

Customer:

instead, they published it 14 days after

Customer:

they had 39 days from my cancellation (23rd august) to the release date (1st October) and they only contacted me after having sent proof copy. Basically, they never showed me the copy until 14 days before publishing and never provided me proof of having produced and distributed the 70.000 copies they said my company would have appeared on

Customer:

when I refused to pay, given my cancellation and 1 month of silence about it from their side, then they threaten to take me to Court and they did

Customer:

now we had a preliminary hearing and the hearing yesterday and the Judge said I must produce a compliant witness statement as I had no idea of how to make one, I never been to Court

Customer:

The judge suggested me to seek legal advice

Customer:

I have plenty of time to produce the witness statement, I just don't know how and what right I stand against those criminals

Alex Watts : Ok. But you signed the order?
Alex Watts : and didn't cancel during the period?
Customer:

what order?

Customer:

it was a provisional booking as far as I knew

Customer:

it even says E-mail booking form

Customer:

does that count as order? how can anyone placing an order without seeing the final product? I wasn't to buy the artwork, but a space on their CD rom and the artwork was how they'd represent my company in that space

Alex Watts : Ok, what did you put in your defence
Customer:

exactly what happened, but the judge said he could not reach a decision because my statement and documents provided (email copies) didn't give him a clear understanding of what happened

Customer:

i stated that they cold called me and that i agreed to commit to purchase, but didn't purchase

Customer:

and in fact i cancelled the booking for they weren't delivering what promised in the call

Customer:

then that they ignore me and no one got back to me until the parcel with the proof copy CD rom came in my mailbox

Customer:

and that i contacted them straight away thinking they published it and asking explanations and telling them I wasn't going to pay for a product that wasn't as described to me

Customer:

they used the booking form to claim they did deliver, but on it wasn't written what I had agreed to commit buy

Customer:

and also they completely ignore me for over a month when i contacted them

Customer:

only to get back to me asking to pay

Customer:

i wasn't even presented a contract, or cancellation form - which I think they should have by law - and was never showed the product, or proof that they produced those 70.000 copies. That is what they claim they did, there's no proof though

Customer:

i think these people use the booking forms as a "masked" contract to get people to pay despite not delivering what they promise, in fact online there's an entire forum about them and their doings. They took to court many people before, with same modus operandi

Alex Watts : Ok, so you lost the case?
Customer:

No, I have next hearing on 29th December

Customer:

the Judge gave me more time to produce - as said - a compliant witness statement

Customer:

I want to know what rights i stand against those people

Customer:

if truly they can make a booking form pass for a contract

Customer:

and arrogate themselves a right to be paid, without having ever got a signature on a contract or proof of having delivered anything at all

Customer:

I accepted the booking form terms, never accepted to buy a product i didn't see, hence why I was expecting them to produce proof copy for me to approve, instead they are trying to say that the "artwork" was my purchase

Customer:

it's not

Customer:

I was to buy a space on the CD rom and the artwork was to see how they'd represent my company

Customer:

not the purchase itself

Alex Watts : A contract is offer and acceptance.
Alex Watts : If they made an offer and you accepted it that is a binding contract.
Customer:

but they didn't deliver

Alex Watts : You are a business and therefore consumer law does not apply to you.
Customer:

and i cancelled

Customer:

39 days before they produced the CD

Alex Watts : If you were a consumer you would have more rights.
Customer:

and published it

Alex Watts : If they breached the contract then you have a defence.
Customer:

yes they did

Customer:

they didn't present me with the product

Customer:

just the artwork about my company

Customer:

and that is not what I was to purchase

Customer:

this is my argument

Alex Watts : You can argue that they are in breach of section 13 of the sale and supply of goods and services act by failing to act with all reasonable skill and care.
Alex Watts : Therefore you can defend it on this basis.
Customer:

will it be enough?

Alex Watts : If they did not deliver, they are in breach.
Alex Watts : Yes
Customer:

they claim they did

Alex Watts : Can I clarify anything for you about this today please?
Customer:

but i never saw the final product i was to purchase

Alex Watts : Well the burden is on them to prove it.
Customer:

until it was too late - in their view - for me to cancell the purchase

Alex Watts : If they can't prove it, they will lose
Customer:

yes of course sorry

Alex Watts : Does that help?
Customer:

what they must prove

Customer:

sorry am ignorant here

Alex Watts : there was a contract and they delivered. The burden is on them
Customer:

right

Customer:

they use the booking form to claim they did

Customer:

in fact there's no proof they produced and distributed those CD Rom as supplements on the magazine they said it would go with

Customer:

not a piece of paper about it

Customer:

nothing

Alex Watts : Of course.
Alex Watts : but that is provisional and do in any event they didn't deliver what was promised.
Alex Watts : Therefore they breached it
Alex Watts : does that help?
Customer:

can you try to explain a little more pls?

Customer:

the booking was provisional, so unless they can proved they have produced those 70.000 copies they breached the contract, is that what you are saying?

Customer:

and what about the fact that they didn't deliver what promised, as the CD rom was to be about Italian wedding planners, but in the booking form was mentioned it would have contained "amongst other things" videos and directories of products and services to help brides planning their day.

Customer:

So basically they made it sound as the "other things" where to be directories and the place given to us on the CD rom was to be a "section"

Customer:

instead, it was all the opposite, hence the focus of said CD rom were the other things and the section where we'd end up was the directory!

Customer:

is therefore any other article of the Sales of goods act that can apply, or is it just that one you mentioned?

Customer:

On the CD rom the "section" about wedding planners where I ended up with my company is actually named "directories"

Alex Watts : Unless they show they delivered what they promised they are in breach.
Customer:

so based on such description, could I argue that they didn't deliver what promised, since it wasn't a directory space I committed to buy, but one on a main section?

Alex Watts : There is no other law ghat would apply.
Alex Watts : Does that help?
Customer:

a little yes

Alex Watts : ok
Customer:

am no lawyer so struggle to see all as you do

Alex Watts : Indeed. But you can Instruct a barrister to attend the trial for you. It's a out £250
Alex Watts : @ about @
Customer:

gosh

Customer:

a lot of money

Customer:

but possibly the best option?

Customer:

would you recommend me to do this?

Alex Watts : It's a matter for you, but if you don't understand the law it may be worth it
Customer:

should I contact the Ombudsman

Customer:

these people are thriving on doing same to as many as they can

Customer:

I meant CAB sorry

Customer:

Ombudsman for consumers, not traders (!)

Alex Watts : It would be Trading Standards and yes. The more people that complain the more likely to take action
Customer:

ok

Customer:

thank you so much!

Customer:

I think i really got a defence here

Alex Watts : yes.
Customer:

they called my section a "directory" which clearly wasn't what they envisioned to me in the email sent as confirmation to me

Customer:

after the acceptance of the provisional offer

Alex Watts : ok
Alex Watts : But I think you have a defence
Alex Watts : Can I clarify anything else?
Customer:

how strong, if I may ask?

Alex Watts : its hard to say I have not seen all the evidence but you only need to win by 51%
Customer:

should I take a picture of the booking form and attach it here for you to see?

Customer:

they do use it for their argument in court

Alex Watts : no. I Dont think there is any need, you have described it and the terms
Customer:

and i see I "approved" the artwork (like saying go ahead) on 21st august

Customer:

so cancelling on 23rd was in my right i guess

Alex Watts : yes
Customer:

fab

Customer:

i will have to find a barrister... have no idea of where though!

Alex Watts : go onto the bar council website and search for public access barrister
Customer:

if i don't have the money who could represent me, maybe someone pro-bono?

Alex Watts : maybe if you search bar pro bono
Customer:

thank you so much!

Alex Watts : Great. Does that clairfy everything?
Customer:

I think so yes

Customer:

I found a solicitor near by that works pro-bono too, will contact him monday

Customer:

I am going to rate you top score and pay my fee

Customer:

thank you very, very much!

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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