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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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I've purchased some mechanical and electronic parts car,

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I've purchased some mechanical and electronic parts for a car, and were having them installed and fitted by the supplier. verbally and by email we discussed having these parts fitted, but then I decided to have a new engine built in the USA, and the company declared they would not fit them to an engine built by somebody else! I had no choice to agree verbally and by email that they could build the engine. The engine took 6 months to arrive in component form, My faith in their abilities was not good as a friend took his car to them and they have damaged it, fitting parts incorrectly. So once I recieved my £5000 engine I decided to have it build elsewhere, I informed them and also requested that I send back 1/4 of the parts I'd purchased as I knew they would not want their products used when another company was now building the engine. The value of all the parts is £1200, I requested a part refund at £750, but they ignored all my contact via phone, email and letter, I had no choice but to apply for a small claims court application, now they claim they want to counter claim me for £7500!! ? I need some advice please.
Submitted: 1 year ago.
Category: Law
Expert:  JGM replied 1 year ago.
Thank you for your question.
Is their claim related to a defence that there was a contract that they would build the engine and you then changed you mind about that?
Customer: replied 1 year ago.

I've applied through the small claims court to get a refund for the parts, when i did this , only then did they threaten to make a counter claim. There has never been any contract agreed or signed in writing, The parts I bought off then are available to anyone to buy through their website, as plug and play.

Expert:  JGM replied 1 year ago.
Yes, but what is the basis of their defence and counterclaim? What are they saying? Why do they say you owe them £7500?
Customer: replied 1 year ago.

Ok, here's one of their replies:

When looking at the situation as a whole, we are disappointed that the relationship has broken down this way, particularly following the two year ongoing partnership that we have had and the varying promises that have been made by yourself, including the great deal of work that was discussed and the advertising prospects relating to magazines and other varying publications. As I am sure you can imagine, based on these facts we provided you with considerable discounts on both our products, services and advice over the years. Note that the actual value of the parts concerned on invoice 19 is £938.00 which we discounted to £625 based on the above reason. If we consider the true value of the project, the figures to our loss are as follows;




  • £868 for the ECU and cam kit (if we refund you)




  • £1500 for the engine rebuilt (normally £2500 – so we have already discounted you £1000)




  • £700 in engine building components




  • £1000 in labour for the engine refit




  • £500 for a new engine loom




  • £450 Dyno time for the engine tuning




  • £225 for the torque tube rebuild




A total of £5243.00 plus VAT.

In addition to the above, in our last discussion, which was just a week prior to your cancellation email you had promised to visit us with the engine components so that we could begin the engine rebuild. As a result of this we made considerable room in our calendar to accommodate the work you had promised which also caused us to delay starting other customer projects, something which I can sure you can understand, has also cost us money and time. You will also recall that following your cancellation email we had a discussion at great length regarding your reasons for cancellation which we neither comprehend, nor accept is any fault of ours. In our opinion, based on verbal conversation and email discussions, we did have a form of contractual agreement in place which was supported by both our commitment to your project, provision of services and your purchasing of our products. You have now decided that you no longer wish to stand by your end of the bargain which as you can see from the above, has considerable financial implications for us.

We are also in a difficult position that the parts we sold you are now over two years old. It is almost impossible from a business perspective to justify refunding the products two years later without ourselves making a considerable loss, particularly where this is through no fault of our own or the products. I am sure you would agree, that in any normal transaction, returning parts two years later would not be accepted, in many cases the warranties and guarantees provided with the product would have also expired by this point.

However, in order to help us both recover from this situation as amicably as possible we are happy to present two options;




  1. We retain the parts you have returned, and we will absorb the losses we have made as a result of your cancellation




  2. We re-invoice you for the full value of the parts and we will return them to yourself




In reality the threat of court action is not an attractive position for either you or us, particularly as there have already been costly losses on both sides already. Further, your points from your email of the 31st July 2015 regarding the below have also been noted and recorded for future reference;

Expert:  JGM replied 1 year ago.
As I thought. They are holding you in breach of contract and they have some justification. I would try to get this settled.
Customer: replied 1 year ago.

Breach of Contract, Please explain ?

I've never agreed or seen a contract or any paperwork / quote with them, see below another email from the single director:


Roger,

I will not release my cam spec's to Lindsey Racing (or anyone else for that matter), they are a competitor (although they are far bigger than us) and one I have read rips off other peoples products. No disrespect meant to LR, In have had good dealings with them in the past but still I can't see it makes good sense to give away your businesses IP to a competitor. You might think this is over protective but we developed it, tested it and proved it so we would like to keep that information to ourselves.

I think the scope of this project has changed significantly since I originally sold you the cam and ECU and now that you are having an engine built by someone else and designing your own manifold I think it would be best if you sourced a cam elsewhere. This is because I don't want to end up in some arguments about why the engine blew up or why it didn't perform etc especially when they are asking questions about the cam so say to address issues with our product that could cause their engine to fail. In fact I explicitly don't wan't anything to do with the build of the engine, you have gone the LR route so I think you should go with them the whole hog otherwise its messy and I can see myself getting dragged into a load of hassle for no gain. There needs to be a clear line in terms of responsibility for the different aspects of the project for there to be any involvement from me.

Regarding the ECU, I did not spec you an ECU for an ITB system. I have not tested it on an ITB system and I would not have sold you the kit I sold you if you had told me you would go this route. As such I will not guarantee it in any way shape or form. I presume the reason you are doing the manifold and having LR build you a super head is so you can change the VE of the engine which will throw out my base maps, not only this but going to ITB will change the pressure readings vs a shared plenum. There may be significant effort required to make this work properly with an ITB setup. I'm sure its possible but it will take some thinking about and planning which I am not prepared to do for nothing. If you want any involvement from me on the tuning side then I must have 100% say on all aspects of fuelling, ignition, ECU and associated setup to the full exclusion of LR. TBH I am umming and arring about having any involvement at all.

When you think about it what happens if the engine doesn't run in right or smokes or blows up/whatever and they turn round and say its Augment's fault for tuning it wrong or because the cam wasn't right etc etc.... That leaves me a with a big problem and realistically what profit am I going to make from getting involved vs the risk?? Normally my ECU's are fitted to proven reliable engines with a factory design (or close too).

I have been bitten recently sorting out cars for people who have spent a tonne of cash elsewhere got a load of issues and push back on my charges for sorting them because the budget is blown. This causes me a lot of worry, stress and does no good for the business.

I'm sorry if this seems rather negative but I won't allow myself, my business or my associates to get dragged into a messy situation. We have plenty of clear cut work to do that I know we can get a good outcome from.


--------------------------------------------------------------------------------------------------



The email above is quite clearly saying he doesn;t want anything to do with it..

I've bought products from them which are available online, I discussed having them fitted by them when the car was ready which could be 6 - 12 months +


Then I decided to buy a new engine and they declared they are not fitting them to an engine someone else has built, because they wantd to do it.


On their website it says we supply tuning products, it does not say or offer Engine building?


They currently have all my products and all my money, they will not return my money or my products, and to claim

they are at a loss is Rubbish!


The Email above says it all in my opinion , as he is saying he wants nothing to do with it!


I've never had a quote from them , or seen any of the breakdown or the hypethetical list of costs, only had a phone call from the owners father after the snotty email above, convincing me to let him build it for £1500 all in, and thats it.


For all I know he doesn;t work for his son;s company,


Regards,

R




Expert:  JGM replied 1 year ago.
You don't need a written contract. You said that you agreed that they would build the engine and you then changed your mind. Is that not the catalyst that has resulted in the counterclaim?
Customer: replied 1 year ago.

So your saying I've paid for goods, not got them, they can refuse a full refund or a part refund, and refuse sending my goods back.

Because I've said on the phone and an email I'll get them to build my engine?

To of then received an email from them thy they DO NOT want to build my engine means nothing?

Building an engine is one thing, right ?>

Buying items then not wanting them is another,?

And if a retailer says no to a refund, or part refund how can then then declare they are keeping my goods anyway ?

Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
Did you agree they could do the work?
Customer: replied 1 year ago.

We discusses it verbally on the phone, and I also sent them an email confirming our conversation for £1500.

But there counter claim list is exaggerated and £7500!

I would not of agree the fabricated costs they have made up in this claim.

There has never been any quotes, paperwork, dates, or contract or terms discussed phone or email and surely the email from them saying they do not want to do it now.............says and means something?

Expert:  Ash replied 1 year ago.
Then you simple defend on the basis that it was never agreed, it was only £1500 at the most and £7500 is exaggerated.
That is how you defend it. Just because there is no quote or paperwork does not mean there isnt a contract. if you go to Tesco and purchase goods, its not written down, there is an oral contract.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.

Ok, that sounds a bit more promising then, I've already requested they send back all the goods, but they replied :


Unfortunately that option is not fair nor appropriate for ourselves. In light of this we will be proceeding with the court case and submitting a defence and part 20 counter claim for damages to the Northampton county court.

You will hear from the court with our submission in due course.

What will the SCC do now?

Expert:  Ash replied 1 year ago.
List the matter for trial and go from there.
Does that help?
Alex
Customer: replied 1 year ago.

So they will list a hearing, where will this be?

local to me or them or in Northampton ?

Do you think this company will go to these lengths........?

It's a one man band company a son who's father is involved and all my discussions were with this father who I'm not sure is actually an employee of the company? My application has gone to the only owner / director who is the son, he has and is not discussing this matter with me, but instead his mum and dad are!

Expert:  Ash replied 1 year ago.
Yes there will be a hearing. If the Defendant is a company it will be transferred to YOUR home Court. If they are an individual it will be transferred to THEIR home Court.
Does that help?
Alex
Customer: replied 1 year ago.

The defendant is an Individual and also the only director of the company from where I bought the goods from.

I think there's a point here, where I've bought goods from the above person called Tom, and then discussed with his father fitting the parts, then discussed with his father not fitting the parts and I'm really not sure his father is an employee of the company?

Isn;t this quite important ?

Also his mother is currently the only one emailing me, because she announced herself a week ago and delcared I should direct all my correspondance to her, she also to my knowledge does not work as a n employee for the company, where I purchased parts...

The father owns another company which sells car parts, so not only does the original (Son) company NOT declare they are engine builders but also the father and fathers company does not declare on his website that he builds engines.

And all the discussions in regard to engine building have been with the father.

Shouldn't I be dealing with only the director of the company where I bought the goods from, and not his mum and dad?

Surely my so called verbal agreement to this son's father has nothing to do and no official dom with the sons company ?

Expert:  Ash replied 1 year ago.
The mum and dad can be acting on behalf of the company, as agent.
So sue the company the director. Sue everyone and you will get a response from claim from one of the bodies.
Does that help?
Alex
Customer: replied 1 year ago.

The Mum and Dad can be acting ?

Do I need to clarify this with them?

I'm not sueing anyone, just looking for a refund for some goods from a company.

The application has already been made to / in the name of the son / director only

They are not willing to refund me, or give me the products back, and then counter claiming losses..........

Surely i should only be corresponding with said person and not his mum and dad?

And the really important bit is all the discussions with parts been fitted to my engine (With father) he probably isn;t an employee of the company, so he has nothing to do with the company and surely anything I've discussed and verbally agreed with him must be null and void in regard to the company the son owns. ?

Customer: replied 1 year ago.

This was the first email from the mother:



Hi Roger,

Many thanks for your emails to David and Tom - it is clear that the situation had deteriorated somewhat over the previous months and in order to get the situation rectified both quickly and effectively, and in a manner which is suitable for both parties, I will be taking this forward on their behalf. Please be assured that I will respond promptly and quickly to your points, and if you do have anything to raise in addition to your previous emails I will look to handle these accordingly.

What I am currently looking to do is summarise the relationship over the past few years so that we can both understand each others situation and this will hopefully help bring us onto the same page. In any account, this will be necessary for court proceedings, as I understand that you have already filed court papers which I will await to receive. However I am somewhat reluctant to file a Part 20 counterclaim, purely because I think this could easily be settled outside of court, such action being a very last resort for anyone in this situation.

Therefore, going forward, as I said I will look to come back to you shortly on an outline of the situation which will hopefully help prevent any further allegations and we can proceed from there.

Many thanks,

Kate

Expert:  Ash replied 1 year ago.
It makes no difference if it is with mum and dad if they are acting for son.
You dont sue the owners of Tesco or the person that served you, but the store itself for example.
Does that help?
Alex
Customer: replied 1 year ago.


Do I need to clarify with the


the Mum and Dad that they are acting for the director of the application that I've applied for?

If these 2 people are just relatives, they have nothing to do with the company.



I'm not sueing anyone, just looking for a refund from a retailer.



The application has already been made to / in the name of the son / director only



They are not willing to refund me, or give me the products back, can they do this? and then counter claiming losses..........?


Expert:  Ash replied 1 year ago.
You said you were applying as a small claim and they are counter claiming. So you must be suing someone.
" I had no choice but to apply for a small claims court application"
They must refund you.
Alex
Customer: replied 1 year ago.

What do you mean, They must refund me ?

Expert:  Ash replied 1 year ago.
You said:
They are not willing to refund me, or give me the products back, can they do this?
The answer is no.
Does that clarify?
Alex
Customer: replied 1 year ago.

ok, so the small claims application will reveal and recify this situation then, I'm assuming a trial will see a judge request a refund is given ?

On a counter claim, surely counter can only be on the same item / issue ?

In other words, if they want to sue me for losses as I've declared I do not want them to build my engine, this should be a separate application from them to me?

When I wrote to them and cancelled, I had no reply for weeks, I had no response that declared it was a massive loss for them, and that I was in breach etc.... In fact I never heard anything at all, so it couldn;t of been a big issue for them could it ?

So why was it only when I had to apply to the SCC for products bought that they then decided to firstly threaten me with some counter claim for losses ?

In other words part 2, they never would of done this if I had not of requested a refund of the items.

Won't a Judge dismiss a counter claim on some alledged work that is nothing to do directly with some products / parts purchased ?

Expert:  Ash replied 1 year ago.
ok, so the small claims application will reveal and recify this situation then, I'm assuming a trial will see a judge request a refund is given ?
The Judge will either find for you or find for them
On a counter claim, surely counter can only be on the same item / issue ?
Yes related to the same claim
In other words, if they want to sue me for losses as I've declared I do not want them to build my engine, this should be a separate application from them to me?
No, its a counter claim as it is related.
When I wrote to them and cancelled, I had no reply for weeks, I had no response that declared it was a massive loss for them, and that I was in breach etc.... In fact I never heard anything at all, so it couldn;t of been a big issue for them could it ?
Thats a matter of evidence and whether the Judge will infer that.
So why was it only when I had to apply to the SCC for products bought that they then decided to firstly threaten me with some counter claim for losses ?
Again a matter of evidence and a Judge can infer that
In other words part 2, they never would of done this if I had not of requested a refund of the items.
Won't a Judge dismiss a counter claim on some alledged work that is nothing to do directly with some products / parts purchased ?
Not necessarily, depends on the evidence. Litigation is never 100% certain.
Does that clarify?
Alex
Customer: replied 1 year ago.

It's getting clearer, do I have a reasonable case then ?

My fear is that the Judge sees that the goods need returning but that I was bound to have them do some work and I cancelled, and males me pay up thousands of pounds !

But I've never seen signed or agreed any contract, placed a deposit or seen any breakdown on costs or estimate / quote etc...

As above, they have no evidence to show the alledged losses were an issue, they did not ever say or send me anything to illustrate this, and hence the counter claim is just sour grapes..

Expert:  Ash replied 1 year ago.
You have reasonable case. it makes no difference whether there was a quote, breakdown or deposit, contracts CAN be oral as we have discussed.
can I clarify anything else for you?
Alex
Customer: replied 1 year ago.

That doesn't make sense, an oral contract?

He said, she said.....how can anything ever be proven if no conversation was recorded ?

I asked previously : On a counter claim, surely counter can only be on the same item / issue ?

And you said "Yes related to the same claim"

Ok, well the parts I bought were originally for me to fit, they are a camshaft and an electrical ECU box, which is nothing like building an engine with a crank and pistons etc.... that was discussed a year later after buying the products....

What if I've got written evidence from them that they do not want to build the engine and they do not want to fit any parts or have anything to do with it.............Because that's what they did, that's what I have as the text I quoted on here ?

Expert:  Ash replied 1 year ago.
You go and buy a newspaper, its an oral contract. You purchase the paper - there is no recording yet it is an oral contract.
I think you have a valid claim if that is what you are asking. I think they do not have a valid claim if that is what you are asking.
Does that STOP them making a claim - no it does not.
Alex
Expert:  Ash replied 1 year ago.
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.
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