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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9032
Experience:  I have been practising for 30 years.
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My issue is a very very small claims matter. A motorcycle

Resolved Question:

Hi,
My issue is a very very small claims matter. A motorcycle garage owner has issued an invoice for 120.0GBP (incl. VAT) for the storage of my bike which was brought from overseas for 1 month. However, and this is the big however, I issued a very simple draft contract (I made it myself from eg's on the internet) for storing the vehicle with him. He refused to sign or enter into any written contract/agreement and thus, prior to the verbal agreement I had with him (over the phone) he immediately revoked the agreement and told me not to bring the bike back (less than 24 hours notice given). I took it away for 24 hours to go to the Harley Davidson garage in Preston by van courier, to have some modifications done to it. The day the bike was taken away I left these 2 x copies of the written agreement with his brother. The same day, he called me in a real fury stating the bike was NOT to be brought back to his premises and that he would never sign such drivel in his born days. The whole purpose of the draft written contract was to make the verbal agreement fully binding and obviously protect both parties. He then stated (by phone) he was issuing a 100GBP invoice for the time the bike was at his garage. (07.06.16-07.07.16). I contacted CAB and they advised to use or quote the Consumer Contract Regulations Act, 2013 to him by writing a return letter and stating I was not liable for this invoice as he neither gave written notice to cancel the verbal agreement, neither was I liable because no formal payment terms had been agreed prior to me issuing the draft contract. I had asked him many times to advise of a figure to store the bike on a monthly or yearly basis and time and time again he said, I will sort it when I see you! So, I returned the invoice and politely told him what he could do with his invoice. Today I have now received a letter from a Solicitor in Carlisle stating court proceedings will be invoked from the 2nd August if I do not pay by then and also drawing my attention to the "Civil Procedures Rules Practise Direction: Pre-Action Conduct, in particular para 4. I have read this on line and and bemused as to why the Solicitor would make reference to this paragraph?? A small claims case requires an attempt at mediation before court proceedings are invoked and moreover, they do NOT normally incur the use of a professional lawyer for a 120.0GBP claim. In addition and to finalise this matter, I incurred considerable cost in putting his brother on my insurance policy as part of the initial agreement, as I cannot ride it at present due to a recent back operation, so I needed someone who could take the bike out for an occasional ride to keep the engine in good order. I am therefore prepared to issue him an invoice for the insurance costs allocated to putting his brother on my policy (as he insisted the bike be insured and a named rider put on the policy). Likewise, I am now not working whilst I recover from this surgery I had in January of this year and hence only get ESA (Employment Support Allowance) whilst I am unable to work of 73.10GBP per week. Basically it is my contention I am in no way liable for this invoice as the verbal agreement, although made over the phone cannot be proved by either party! What is your take on this please?
Thanks, ***** *****
Submitted: 10 months ago.
Category: Law
Expert:  Jo C. replied 10 months ago.

So, in short, they have asked you to pay £120 for storage?

Customer: replied 10 months ago.
Correct
Customer: replied 10 months ago.
With no prior payment costs agreed and based on the Notice requirements to cancel an agreement (As per the Consumer Contract Regulations Act, 2013)...blah blah advised by CAB, I believe I owe him nothing!
Expert:  Jo C. replied 10 months ago.

For 24 hours storage plus costs I suppose?

Expert:  Jo C. replied 10 months ago.

Never taken any notice of the CAB. They have no idea.

Customer: replied 10 months ago.
No Jo, for 29 days storage.....07th June '16 to 07th July '16 (01 month basically)
Customer: replied 10 months ago.
Well 100 pounds + the VAT, therefore 120GBP Total
Expert:  Jo C. replied 10 months ago.

What have you paid for the 29 days?

Customer: replied 10 months ago.
Nothing
Customer: replied 10 months ago.
That is what he wants Jo! 120.0GBP (incl.VAT) for the 29 days storage
Expert:  Jo C. replied 10 months ago.

Is there any reason you think you shouldn't have to pay ?

Sorry if I am missing the point but he has stored your bike for nearly a month.

Customer: replied 10 months ago.
but with NO prior costs agreed and I have incurred 332GBP + costs for putting his brother on my insurance policy at his insistence!!!
Expert:  Jo C. replied 10 months ago.

Well, that is a different issue.

He is entitled to be paid the value of the storage and £100 plus VAT seems pretty low actually.

The insurance is a separate issue entirely.

Expert:  Jo C. replied 10 months ago.

In fairness, with any commercial contract there is a presumption that money will be paid. The specific sum might not be agreed in advance but it isn't safe to presume from that that it will be free.

Expert:  Jo C. replied 10 months ago.

He may not sue. It isn't particularly cost effective although neither is instructing a solicitor to write to you. it depends how strongly he feels about this.

if he does sue then he will win something for storage costs.

Customer: replied 10 months ago.
No the insurance is NOT. Counterclaim or Contra charge in light of his insistence to insure the bike on a VIN number and put his bloody brother on the policy. If he can get away with 100GBP per month, then this would be 1200GBP!!! per annum!!! Jesus, I could buy a garage for that in the North of England.
Expert:  Jo C. replied 10 months ago.

Ok. Good luck with this.

Customer: replied 10 months ago.
How? He didn't have an agreed figure for storage with me prior to leaving the bike with him?! He has issued this because he does NOT do paper contracts!!!!
Customer: replied 10 months ago.
what is your advise? Am I legally LIABLE to pay this or NOT? If I am LEGALLY LIABLE so be it; if NOT, I'll contest it in the small claims court! He has taken umbrage at me issuing a written contract and hence pulling the pin on the original verbal agreement!! I don't leave 16,000GBP valued motorcycles with anyone, without a contract of agreement Jo!!!!!
Customer: replied 10 months ago.
I agree, I had every intention of paying, based on a fair long term sum of cost agreed, before the bike stayed there any longer...but to spring this on me at less than 24 hours notice and have to find alternative storage at the drop of a hat...then ******* comes to mind to him as well.
Customer: replied 10 months ago.
what is your advise? Am I legally LIABLE to pay this or NOT? If I am LEGALLY LIABLE so be it
Customer: replied 10 months ago.
To the new Lawyer,
Am I legally liable to pay this 120GBP to this ***hole garage owner, based on the information I supplied at the beginning of my query? Simple yes or no will suffice! Interests of fairness is irrelevant; liable or not?
Customer: replied 10 months ago.
Ok Jo, you stated this individual is "Entitled" to be paid for the storage of said motorcycle. I am entitled to be given "fair notice" to cancel the now, heresay verbal agreement under basic consumer rights Acts yes? Being entitled doesn't necessarily mean you get it does it? It's the principle as well. I've incurred substantial costs at his behest etc. If you believe I have to pay it legally, so be it.
Expert:  F E Smith replied 10 months ago.

I see that the previous expert has opted out.

I will try to help you. I have read everything said by my colleague and I agree with it.

If there was a verbal agreement that he was to be paid, then a verbal agreement is perfectly enforceable provided the facts are not in dispute.

If however it was agreed that he would store the bike for you for a month and he would charge you, then that is also enforceable and you are not liable to pay.

In the absence of a charge agreed between you, then under the Consumer Rights Act 2015, the charge has to be reasonable and a charge of £100 for storing a £16,000 motorcycle in commercial premises (not just in the lock-up garage) is not unreasonable. The courts found that £85 for overstaying in a car park in the supermarket for example is not a penalty but a reasonable charge! I find that somewhat bizarre.

I think that if you went to court on this you would lose although it will be Small Claims Court and even if he uses solicitors, you would not be liable for those solicitors costs other than a fixed fee of about £50 so it’s likely that the solicitor is a friend of his and has just popped this letter out free of charge.

With regard to the insurance, you haven’t given any details why this happened but it may be that you have a counterclaim for the amount of the insurance. It depends on the circumstances.

Can I clarify anything for you?

Please don’t forget to rate the service positively. If you don’t, I don’t get paid!

We can still exchange emails.

Best wishes.

FES.

Customer: replied 10 months ago.
Hello F E Smith,I am somewhat confused still? The facts are an agreement of sorts was made by phone, although the individual in question was very evasive when it came to discussing MONEY and some hard, fixed terms for storing my bike at his facilities. He insisted that the bike be insured and a named rider (a member of his family) be placed on the insurance policy. Therefore at his insistence. Now, the bike does NOT yet have a REGISTRATION number as it was recently imported from overseas when I brought it back from Saudi Arabia after completing a 4 yr contract over there. So, insuring a vehicle on a VIN number is ***** more expensive and only lasts for a maximum of 28 days. Then it has to be renewed and I LOSE money every time this has to be done!!! So, my contention is this individual has cost me considerable costs. NOW, for the last time, NO FIXED AGREED Sum of money was agreed, either verbally or in writing prior to me depositing my bike at his garage facilities. That is the whole crux of my dispute with this man. Despite my numerous requests/protestations and badgering him, he NEVER EVER stated a fee/cost/price whatever term you wish to use, to store my bike @ his premises, either on a monthly; 3 month;y; 6 monthly or yearly basis. NOTHING...OK. The advise I was given by the CAB and a Barrister friend is that, using the Consumer Contracts Regulations Act, 2013, because there is NO evidence to the contrary that any form of verbal agreement was made (yes I know a verbal agreement can be binding), the burden of proof is on him...Offer & acceptance, invitation to treat etc etc....I am fully conversant with Contract Law (I studied to LLB as well). MY bone of contention is that he caused no end of trouble for me in less than 24 hours notice to quit this so called agreement and costs in unnecessary insurance. Therefore, as there is no binding agreement why should I pay this 120GBP. However, I do NOT dispute the fact that my vehicle was stored at his premises from 07th June 2016 to 07th July 2016. I want a simple answer now, DO I PAY it or NOT? Thanks
Expert:  F E Smith replied 10 months ago.

Thank you. The reason he wanted the named rider on the policy was to allow it to be moved while insured. That makes sense.

It can be insured on a as you are aware, and I have done it many times, but it should not be more expensive. It does indeed only last 28 days.

At that stage however you were at liberty not to take up the storage if the cost was going to be disproportionate.

With regard to the actual cost of the storage itself, then under the Consumer Rights Act, then the cost must be reasonable and hundred pounds for a month in the garage, not a lock-up, is reasonable in the eyes of the court. I accept that no fixed sum was agreed but that’s not relevant. The cost has to be reasonable and therefore your only argument over whether £100 for a month storage in a motorcycle workshop is reasonable or not. It isn’t a lock-up, it’s a business and that floor space is at a premium.

It would be different if he had said that he was going to store it for nothing. What you have been told is correct, the burden of proof is on him to prove that there was an agreement and in my opinion, he would succeed in doing that.

The decision as to whether you pay it or not to let the court decide is entirely up to you. My colleague and I are both of the opinion that if you go to court, the court will find that there was an agreement between you and that you will have to pay. If you have been told the opposite, then don’t pay anything and let the judge decide.

F E Smith, Advocate
Category: Law
Satisfied Customers: 9032
Experience: I have been practising for 30 years.
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