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JimLawyer
JimLawyer, Solicitor
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Experience:  Senior Associate Solicitor
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I've signed a legal document which is to authorise bespoked

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I've signed a legal document which is to authorise bespoked windows for production, however subsequently wrote to the company to stop production until planning approval is obtained. The window company had written back to confirm that they will not send the windows for production. Planning came back to say they had some issues with the windows and would likely not approve it. With that, I wrote to the company seeking refund of the deposit paid.
JA: Where are you? It matters because laws vary by location.
Customer: The window company has a clause with says: If you wish to cancel your order you must write to inform us immediately, before the company undertakes a technical survey for a full refund. Should the company have already completed or begun the technical survey then we reserve the right to withhold 7% of your order value or £500.00 (whichever is the greater amount) to cover the costs already incurred. If you wish to cancel your order after the survey has been completed and after the products have already been signed off, by you the client, for production then you will be liable to pay the full contract value as detailed in your Order Acknowledgement. In this case, I did sign it off for production and subsequently contacted the company to not produce till planning approval is obtained. Will i be entitled a refund of my deposit take away 7%
JA: What steps have you taken so far?
Customer: I had submitted a claim and had obtained a default judgement against the deposit. However, the default judgement was set aside and I have now received a defence which cites the fact that i have signed off the document for production and as such am not entilted to any refund
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no
Customer: replied 9 days ago.
I'm based in birmignham united kingdom

Hi, this is Jim, thank you for the question - I will resolve this for you.

Sorry to hear of the issue. The CCJ has been set aside and the defence has now been served. The next stage is the court to list directions for the claim. Whether you succeed in recovering the deposit depends if the company had completed or started the technical survey. I am not sure whether they did this or not from reading your question. Your question says that they allege you signed off the document for production. If they had started the survey or completed it, you should be due your deposit back minus the 7%. If the survey was completed AND the products signed off, then their terms say you are liable to pay the full contract value. If what you are saying is that you signed off the products (they are bespoke) then they may have a valid defence to this action, under contract law. As the products are bespoke there is no cooling off period either. I fear that the defence may have merit here and they are entitled to keep the money paid. The only time you could realistically sue them is if their work was not carried out with care and skill, or if they misrepresented the contact in some way (i.e. misled you).

I hope this helps and answers the question - please feel free to ask me anything else.

Have a good day,
Jim

Customer: replied 9 days ago.
They have done their technical survey and completed it.
Customer: replied 9 days ago.
the products were signed off as the window company was very certain they will obtain planning permission. but the very same day or next day, we emailed them to not produce it as winter had passed and there were no need to rush the production and we rather wait for the planning approval before producing them. as such we wrote them an email to stop the production and had obtained an email confirmation from them that it will not be sent for production.

OK, if they told you they were certain planning permission would be obtained, they made a false representation to you - which you relied on, and as such you have a case against them. They are the experts in this area so I would have thought the court would be sympathetic to your situation

Customer: replied 9 days ago.
THANK YOU that is very helpful. Is there any law that stipulates that when faced with a cancellation request or a complaint, that the merchant must acknowledge or respond in some reasonable fashion within a certain timeline? As we were ignored and put off, time and time again for perhaps more than a year
Customer: replied 9 days ago.
Also, regardless of the terms and conditions, and accepting that this is a bespoke product we are discussing, are there general consumer laws that allow for refunds, in the case that the goods are not fit for purpose? (in our case given that if manufactured it would have been illegal to fit them given planning permission)

Hi there, not as such, no - the catch-all law is the Consumer Rights Act 2015 whereby the window company must carry out their service with "reasonable care and skill". And in contract law, they cannot misrepresent the situation either - they should never have said you would get planning permission - the fact they said that induced you to sign and therefore commit yourself to the order. I see no problem with your claim. I realise they have filed a defence though the above should be brought to their attention - hopefully they will settle the claim. If not then you will need to go though the court process - the court will list directions shortly. I can help you further if required.
To answer your further question, if the goods are not fit for purpose the Consumer Rights Act 2015 allows you to claim a refund - you have strong statutory rights under the above law.

Customer: replied 9 days ago.
At the hearing for setting aside, the judge advised that on receiving the defence, I should prepare a response, and then submit this with directions questionnaire, presumably ahead of a summary hearing
Customer: replied 9 days ago.
you are sure that the Consumer Rights Act 2015 and refunds / fit for purpose, is still applicable, even for bespoke products? I know that double glazing companies rely heavily upon some exclusions to get away with ... a lot
Customer: replied 9 days ago.
when we signed the document to authorise production, and then changed our minds in all prudence later, can we rely upon any sort of statutory 14 day cooling off period in this regard? not sure if such a thing can be covered under say contract law
Customer: replied 9 days ago.
have I got a leg to stand on, to argue that the phrasing of the standard T&C clause is unfair, in that it should really rest upon whether the product has commenced manufacture, not 'signed off' for manufacture?

Yes, I am sure the CRA 2015 applies, as you are a consumer. This is why the law was introduced: to give you strong rights. You can ask Trading Standards on 0808(###) ###-####if you need confirmation. There is no 14 day cooling off period like I said earlier - because these as bespoke products. Your only claim is that they told you that you would get planning permission in y view - which was a false statement and therefore misrepresentation applies.

JimLawyer and other Law Specialists are ready to help you
Customer: replied 9 days ago.
Thank you JimLawyer. You have been excellent, especially on a friday night. It is very much appreciated, helping to soften what was otherwise a terrible start to the weekend. Many thanks

Thanks for the kind words - I realise it's stressful. Just take away from this that the law protects you in this situation. Yes, there is a defence but one is required (or they are taken to admit the claim in full) - they may still settle. If you go back to them and reiterate the fact they told you that planning permission would not be an issue, or words to that effect - and as a consumer, you took their word for it (they hold themselves out as experts) - so by rights you should not be penalised by having to forego the money which you paid to them.
I am free most days including weekends so if you have further questions or concerns, feel free to get in contact.
Have a good weekend,
Jim

Customer: replied 9 days ago.
Dear *****Lawyer, taking a step back here, we had a hearing for setting aside the default judgement some weeks ago, at which the judge ordered (and we agreed) that the judgement would be set aside on condition that the defendant submit his defence by 7 Oct, and seek advice to help do so if required. The defendant has not served any document on me, but today (16 Oct) emailed me a copy of their defence as sent to court and dated 14 Oct. Is this a sufficient basis for me to have the default judgement reinstated? (or apply for a new default judgement?!)
Customer: replied 9 days ago.
They clearly missed the agreed deadline of 7 October

Hi, thanks for that - they missed the deadline by a week so are out of time and they need to apply to the court for relief from sanction. You should write to the court to say the defendant filed the defence out of time and ask the court to grant you judgment by default. You can send the attached form to the court by post and email.

Customer: replied 6 days ago.
Dear *****, when the defendant sent me their defence, besides being late, it was by email. With reference to Practice Direction 6a 4.1a, I don't recall agreeing to receive notices by email, and don't see it in their terms and conditions. Should I reply to them? The court set me a deadline for a reply also. Given that I only received the defence late (and likely not via an acceptable means), instead of filing a reply, should I file a letter to the court asking for default judgement and/or more time? I have already filed an application for default judgement, but could make reference to this in my letter

Yes, service by email is not permitted unless you agree to that. I would go with the request for default judgment and a covering letter to the court to explain the situation. And if you copy in the other side to your letter.

Customer: replied 6 days ago.
Thanks Jim. My initial deadline to reply to the defence is this Wednesday. It's doable but doesn't give me much time, in my cover letter should I add that if the court will not grant the default judgement, they permit me to apply for an extension? In reality I may not receive approval of an extension prior to Wednesday, which would leave me in a quandry I fear. Plus strategically by mentioning the extension, I fear it lessens the conviction of asking for the default judgement

Hi, you do not need to reply to the defence unless there is a counter claim in it. You can put that in the letter, yes. So it's only if there is a counter claim being made against you that you would need to file a "reply to defence and counter claim". If it's simply a defence then no need to respond to it - the next step is the court sends you the directions questionnaire in the post, assuming the court lets the defence stand.

Customer: replied 6 days ago.
there is a counterclaim indeed. outrageous, now they are claiming that we owe them the full amount of 100% instead of retaining the 50% deposit, even though no window was manufactured. Am I right to understand that whilst the Judge set out that I should file reply to defence by 21/10 and Directions Questionnaires by 30/10, that there is a separate timeline (and handling) for my defence to counterclaim?

Right, OK, you would need to address each allegation in their counter claim, I have attached a template for you to use. The reply to defence and counter claim should be filed along with the directions questionnaire under rule 15.8: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part15#15.8

Though you should file the reply to defence and counter claim within 14 days of service of the counter claim - it sounds like you have been given a date to do this, being Wednesday this week, 21st October. You should do the reply to defence and counter claim as soon as possible, then post it today ideally (or tomorrow at the latest).

Just to be clear, if there was no counter claim, the "reply to defence" would be filed at the same time as the directions questionnaire.
As there is a counter claim, it is as if they have sued you, so you need to file the reply to defence and counter claim within 14 days (from the date of their counter claim). If you do not do so on time, they can request judgment by default for the counter claim sum, then it is payable within 14 days, so it's vital you do the reply to defence and counter claim as soon as possible. I know there is an issue with their defence and so on but until it is struck out then it is still valid.

Customer: replied 6 days ago.
Dear ***** thank you for your continued support with this matter. With specific regards ***** ***** counterclaim, in which the Defendant alleges that having authorised production (despite days later sobering up and asking them to hold back from production), I am now liable for 100% of the order value. Besides the arguments we discussed for rebutting their defence, is there specific legislation that I can rely upon for defence against the counterclaim? I'm thinking that it's certainly an 'unfair term' to rely upon, for a product that was never manufactured and wouldn't have been fit for purpose. Anything else? I'm guessing it's common in deposit cases that the trader would keep the deposit and forfeit the rest. But is this encased in law somewhere?

Hi there, you can rely upon the Consumer Rights Act 2015 - the service must be carried out with reasonable care and skill, the materials used also need to be fit for purpose - and not only that, if they tell you something such as "you will get planning permission" and you rely upon that statement - which turns out to be untrue, you have a case in breach of contract too. An unfair term seeks to limit your consumer rights to their advantage.
So there is a statutory right (CRA 2015), and a contractual issue too, which is the basis of your claim. You could quote this in the reply to the counter claim and deny the full counter claim sum.

Customer: replied 6 days ago.
Thanks Jim. I have two counts of 'misleading actions' under Consumer Protection from Unfair Trading Regulations 2008. False assurances re planning permission, and also failing to uphold commitments of a code of conduct for a trade organisation to which they purport to belong to. I understand these are considered 'criminal offences', although the regulations now include Civil redress. How does this affect the way in which the Civil Court would view them, can they rule on them independently? Does such an accusation need to get passed on to the CPS??

Hi, this being a civil claim, the court will only consider civil law and breaches of contract / breach of consumer rights. It's only if a party lies in court or in court documents that a civil court judge has the remit to impose a criminal sanction such as prison. You would need to ask a criminal lawyer on this site about the CPS as I am not sure about that particular question. There are a few criminal lawyers on the site so you could ask about any overlap between civil and criminal liability.