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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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An undertaker has issued a claim against me payment of the

Customer Question

An undertaker has issued a claim against me for non payment of the balance of fees for a headstone. We were unhappy with the final look of the headstone. It was challenged but not followed up. I received the claim today and not sure what to do.
Submitted: 4 months ago.
Category: Law
Expert:  F E Smith replied 4 months ago.

What is it about the headstone final look that you are not happy with?

Does it not comply with your instructions?

Did you personally order the stone or did someone else executor or suchlike order it?

What is the nature of the challenge?

How much is the claim?

You need to fill in the acknowledgement of service document within 14 days so get that done as soon as possible and send it off.

You then need to fill the defence in and send that.

I can give you a better idea of what your defence would be what you tell me what you instructed the stonemason to do and what’s gone wrong. Best wishes

Customer: replied 4 months ago.
Thank you for your response. I'm still a little upset over all this so bear with me if I am not entirely coherent.Our father died in September 2014 and these particular Undertakers conducted the funeral service. In August the following year we contacted them by email to enquire about a headstone. They told us that they could assist and subsequently sent a brochure.
Long and short the process took over 6 months before the headstone was erected but we are not satisfied with the spacing. I was sent a draft of the wording in the post which I initially queried. They advised that their layout allowed room for a second occupant. I signed the proof and paid half the fee of £1139.94. When they finally installed the haedstone they told us( the family) to go and view it for " our approval". We felt that the space remaining was inadequate for us to properly add details for our mum in the future. I communicated this to the Undertaker by email and he responsed that whilst it did not leave an equal amount of room it would leave space for 6 or 7 lines to be added ( Sorry if I'm rambling). I emailed him that we must talk but then I didn't follow it up. He has sent 3 demands the last one on 3rd June warning me that he would take action. I planned to respond but failed to do so. Not sure what to do now. The balance sought is £1156.18 plus costs.
Customer: replied 4 months ago.
Have you received my response?
Expert:  F E Smith replied 4 months ago.

Thank you.

The undertakers are potentially in breach of the provisions of either the Consumer Rights Act 2015 which has superseded the Sale of Goods Act the Sale of Goods Act depending on whether the contract was before 1 October 2015 or after. However the provision is the same that goods supplied under a contract must be of satisfactory quality and fit for purpose.

It is a headstone and therefore it’s fit for purpose. It may not be satisfactory quality but it is fit for purpose. The example I use to explain fit for purpose is that if I want something to plough a field, and I get sold a bicycle, but it’s not fit for purpose.

They may also be in breach of the provision that any goods must be as described and therefore, it must be as they told you it would be.

If the undertaker decides to take you to court, then you have no option but to defend his action.

It seems that you told them you wanted enough room for 2 occupants and yet the amount of space for the second occupant is quite cramped and hence I get the impression that you feel that the second occupant would appear to be an “afterthought”.

Whether you would succeed if this went to court, in defending the action would depend on whether the judge agreed that there was not equal space for 2 people and whether you had actually given those instructions at outset. I assume there is going to be no dispute over the instructions that were given.

This should be Small Claims Court because the amount claimed and the maximum amount of solicitors costs that could be claimed is limited to about £100 if he is successful.

Before rushing off to court, I suggest that you have a photograph of the headstone and ask a few people if they agree with what you are saying. If they do, then defend the action.

It’s unusual for stonemasons not to give an exact layout for approval, before this “gets written in stone”. Even though it may be another company’s fault (the stonemason) it is the funeral director who is responsible to you if this is not as it was supposed to be and as they described to you.

What I would suggest is that rather than simply ignore their protestations and tell them that you’re not paying, you tell them to come and remove the stone and amend the writing (it is their problem how they do that) and give them specific instructions as to what it looks like now and what it should look like. What may have happened is that they simply forgot to tell the stonemason that was to be of the space for someone else at later stage in time.

Can I clarify anything for you? Please do not forget to rate the service positive. It’s an important part of the process by which experts get paid. We can still exchange emails.

Best wishes.


F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 4 months ago.
Hello again.
I have submitted the AOS online indicating that I wish to defend the whole claim.
I also showed a photo to a colleague yesterday after your suggestion and they think the stone does allow some room for a second oocupant although not as much as my father's incription. We still feel strongly that the space left is inadequate. I have compared the photocopied " proof" with the final version. The original sketch appears to show an equal amount of space for two incriptions which in my view is not reflected in the actual headstone. Also as we were asked to view and provide confirmation that it was to our satisfaction this gave me the impression that if we weren't happy then this could be resolved.
Given that they have issued proceedings is it not too late to ask them to remove it and rectify it to our liking as you have ptoposed? I fear that thus request will be rejected. Whilst I know that I still have to file my Defence , is it worth me writing to them to suggest a form of alternative dispute resolution?
I should also mention that I contacted their regulatory body - SAIF - in which they are a member to lodge the matter as a complaint. Question: In addition to or instead of writing to the Undertakers should I pursue this organisation with a view to settling? If I do either or both of the above can I make reference to seeking a resolution in my Defence? We really would like the matter sorted out in a satisfactory manner.
Expert:  F E Smith replied 4 months ago.

Thank you. Provided you told the undertaker that there were to be 2 interments then it’s not unreasonable that the undertaker should have left enough space for 2 of them without one of them being smaller and without it being all scrunched up near the bottom of the stone.

If you have the sketch, that is valuable evidence because what they have produced does not match the description. You do say however that “the original sketch appears to show”. I don’t know whether that’s just your wording or whether it does show an equal amount to space.

It is never too late to try to negotiate and rectify it. I don’t know whether they can machine the face-off and start again. If this gets to court you are then seen to be reasonable because you are not simply refusing to pay but you are just asking them to make it look how it was supposed to look.

By all means suggest ADR/Mediation , but that will not work unless one of the parties or both of the parties is prepared to change their stance a little. I can’t see the you could possibly change yours.

Whilst you are trying to negotiate with them, just deal with the court paperwork as though you are not negotiating.

By all means write to the regulatory body but I don’t know to what extent they can make the undertakers do something which the undertakers don’t want to do.

In your defence you would not normally say what offers you had already made and had been rejected but you would raise that if the judge finds in your favour and he is making an order.

Customer: replied 4 months ago.
It was the undertakers that suggested that the headstone could accommodate 2 inscriptions, so we were guided by them. They conceded in their last email to me that the remaining space will not afford equality but have suggested that it is sufficient. This was not pointed out prior to us signing and paying the deposit. Therefore, we were denied the opportunity to fully negotiate a more acceptable design.We would also wish to include a photograph as we did with our dad. That being the case the outstanding space is even more limited.Do you have any more observations to make based on this information?
Expert:  F E Smith replied 4 months ago.

They offered, you agreed. Let’s face it, they only have to reduce the size of the writing slightly and they can fit more on.

Doesn’t match the sale description which is a breach of the Consumer Right Act 2015.

I think the fact that it doesn’t afford equality is enough for you to take issue over this. Would not be if they had not been told at outset that you required it for two interments.

Customer: replied 4 months ago.
Thank you. I now have to file the Defence. Can I refer to the Consumer Right Act when composing this?
Expert:  F E Smith replied 4 months ago.

Yes. You should refer to the sections which are here.. Just quote the numbers and description, not the whole section

s 11 as described

s9 satisfactory quality

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