Small Claims Court....

Ravers

LE
Kit Reviewer
Book Reviewer
#1
A little advice if you please.

In March I had some blinds fitted in my flat. I was at work at the time but my missus stayed at the gaff to let the fitter in.

During the course of fitting the blinds, the fitter knocked over my guitar, cracking the neck in the process.

My wife witnessed this.

The fitter put the guitar back on its stand claiming it wasn’t damaged and completed the installation of the blinds.

When I returned to the flat I noticed that the head of the guitar was bent over and a substantial crack was present. On picking the guitar up the head fell off completely.

I suspect that the guitar had been cracked when dropped and the tension of the strings had slowly pulled the head away, making the crack bigger, hence why the fitter and my wife did not initially notice the damage.

Anyway, I’ve been playing email tennis with the company for the past 3 months. They have admitted that the guitar was dropped, but are saying it was not damaged. They are refusing to accept that their installer caused the extent of damage to the guitar. I believe that because the crack got bigger overtime due to the tension of the strings, they genuinely believe the guitar was OK.

As a good will gesture they offered to have the guitar repaired. While not ideal, I agreed to this. Unfortunately after much trying, the Luthier found the guitar to be beyond repair.

They then offered me £150 in compensation. Since the guitar cost £468, I replied saying this was unacceptable and I require a full like for like replacement. I helpfully pointed out that the identical make and model of guitar is currently on sale for £379 and would be happy to accept this figure as settlement.

They came back upping their offer to £200. Final offer. They also say that their terms and conditions state that all possessions must be removed from the installation area. They are now hiding behind this.

This was well hidden in the small print and I never received a copy of these Ts & Cs.

I would argue that the “installation area” is not clearly defined. Are customers meant to remove all items from the property otherwise the installer has free reign to go banzai smashing up all your stuff?

Essentially their Ts & Cs give their fitters free reign to destroy anything in your property and claim it was in the “installation area.”

Regardless, my missus was present the whole time and would’ve gladly moved the guitar if asked.

I’ve given them until Friday to pay me £379 which is the cost of buying the identical guitar (currently on sale).

So what’s the consensus?

Take the 200 quid and be done with it? In which case I’m down the difference of 179 quid (assuming the guitar is still on sale. If not I’m down £268 ). Out of principle I’m loathed to do this. I have no liability here, this is completely the fault of their installer and my wife witnessed the event.

Or....small claims court.

Anyone been down this route? What’s the crack? If I’m going down this road I’m going the whole hog, claiming for the full RRP of the guitar (not the sale price), compensation for the 3 months I’ve been without a guitar, hurt feelings, PTSD etc. etc. (Alright maybe not PTSD but you get the idea).
 
#2
It's done via Money Claim Online these days. Used that quite a bit for work, normally just the letter from the court dropping on the doormat was enough to make debtors pay up.

You'd pay £25-35 for an online claim. See a bit more information here. The key bit is establishing they owe you anything in the first case. I would have thought their liability insurance would pay up for this kind of damage in any event.
 
#3
It's done via Money Claim Online these days. Used that quite a bit for work, normally just the letter from the court dropping on the doormat was enough to make debtors pay up.

You'd pay £25-35 for an online claim. See a bit more information here. The key bit is establishing they owe you anything in the first case. I would have thought their liability insurance would pay up for this kind of damage in any event.
The bit in bold.
 
#5
small claims court I believe is £125 from you (which you can claim off them as well) usually they will fold before this
Look at my second link under "Court Fees". It's a sliding scale depending on the value of the claim.

[pedant] There was never anything called "the Small Claims Court" either. It was the Small Claims Track of the County Court. [/pedant]
 
#6
Does any of the family business/estate have retained lawyer? If so, a letter from them requesting payment and threatening to file a claim may yield results inexpensively.
 
#8
I've used the "small claims" court once and was very successful. I used it when a dealership servicing my car "lost" my service record book, which had the record of 10 service events at dealers across the country (I was a high milage driver in those days) so my book had a full record of all dealership services in 2 years. The garage tried to fob me off by getting a new book out and stamping 10 service stamps into the pages, I refused this as the loss of the original book would have a financial impact when I came to selling the car, which I did every 2 1/2 years. The book had been stolen by someone in the service department.

I won the case, was granted my £750 as the impairment and my costs to the garage. The adjudicator looked at all correspondence between myself and the garage (a major dealership in Hampshire) he was disgusted by the garage's response and set a tight deadline on them to make payment, or he would hand the case to the high court. The garage had tried moving the case to different cities in order to make me drop the case.

The dealership paid in full, and sent their cheque via a courier the next day.
 

ugly

LE
Moderator
#9
Duck me Ravers, its only a few quid, just slag them off on trust a trader, they will soon pay up m'lord
 
#10
Know nothing about the legal side, but my mate runs Lewis Guitar Works, he's bloody magic on repairs, might be worth a shout. Mention me. (Heh heh. That'll be the drunk in the corner of the rugby club bar)
 
#11
Bloody hell Ravers, it’s taken me two hours to work through your post, that’s £200 you owe me straight of the bat and I’m cutting myself to the bone there.

I’ll start with my usual caveat that I’m not a qualified solicitor and beyond a simple claim you should seek legal advice.

The issue is that you contracted someone to provide a service and during the provision of that service they damaged your personal property without your consent.

The issue hinges on liability, the acceptance of liability and contractural exclusion of liability.

Liability - Under s.49 of the Consumer Rights Act 2015 (CRA 2015) a trader must perform the service with reasonable care and skill.

As a trader who’s service involves entering peoples homes skill and care can reasonably be expected to include a clients possessions.

We are all under a general duty to be mindful in our actions and not cause harm or damage to others or their property, the courts provide remedies to compensate for such actions.

Acceptance of Liability - The burden of proof for any civil claim is on the balance of probabilities. The claimant has to show that what they are claiming happenned more likely than not.

Initially you had no case, the only people present were your wife and the person performing the service. Fortunately they have accepted the incident has happened, which you now have evidence in the form of an e-mail.

They claim there was no damage done, there clearly was or you would not be making a claim. The contractors initial rudimentary inspection of the guitar and assessment that no damage was done is fair in the circumstances you described. It is also fair to accept that the damage was not immediately visible, but non the less causation can be attributed to the contractor negligently knocking the guitar over.

Furthermore, the contracting company appears to accept liability for the continued offers of monetary compensation, although they specify this is a good will gesture what purpose does it do other than to acknowledge the guitar was damaged and caused by their agent?

Therefore it appears, by their emails, they have admitted liability.

Exclusion of Liability - The terms of the contract provide that personal property is to be removed from the area of work (or words to that effect).

As previously under s.49 of the Consumer Rights Act 2015 (CRA 2015) a trader must perform the service with reasonable care and skill. S.57(4)(a) CRA 2015 provides that any claim that excludes s.49 of the Act is not binding on you.

You could also argue that the trader should not start work whilst there are objects in the work are, they should draw the clients attention to the clause and ask the client to move the objects.

Case law also provides the red hand rule by Lord Denning MR that some clauses could only be valid if they were printed in red ink, with a red hand pointing to them. In short, the trader should have made it obvious to you that the clause existed.

You could also argue that the exclusion clause is too wide, therefore unfair and should not be binding on you. Your response below is entirely reasonable.

would argue that the “installation area” is not clearly defined. Are customers meant to remove all items from the property otherwise the installer has free reign to go banzai smashing up all your stuff?
Remedies - You could make a personal claim against the individual who broke your guitar.

The company you contracted with has vicarious liability for the actions of its employees. This allows you to make a claim against the parent company.

You can elect to go to the small claims court, as the amount you are claiming is between £301.01 and £500 it will cost you £35 if you complete the form online. If you win your case you can asked to be reimbursed this amount and any costs stemming from your claim (such as travel expenses to th court).

You can also elect for mediation, the trader has to accept this and a neutral person will work so that both parties can come to an agreement, this decision is not binding, but a court will take a dim view if an agreement has been made and one party has reneged on the agreement (essentially you are wasting the court’s time). The cost of this is £125 for an hours mediation. The advantage is that it is quick, the courts are backed up and you could wait a long time for a resolution.


I think you should know that I bombed on my contract law and tort exam last year, but there is a story behind that.
 

Ravers

LE
Kit Reviewer
Book Reviewer
#12
Does any of the family business/estate have retained lawyer? If so, a letter from them requesting payment and threatening to file a claim may yield results inexpensively.
Unfortunately not anymore.
 
#13
It's done via Money Claim Online these days. Used that quite a bit for work, normally just the letter from the court dropping on the doormat was enough to make debtors pay up.

You'd pay £25-35 for an online claim. See a bit more information here. The key bit is establishing they owe you anything in the first case. I would have thought their liability insurance would pay up for this kind of damage in any event.
The liability insurance might exclude this type of claim and even if it did cover it there would be an increase in premiums. It’s always best for companies not to pay out.
 

Ravers

LE
Kit Reviewer
Book Reviewer
#14
Bloody hell Ravers, it’s taken me two hours to work through your post, that’s £200 you owe me straight of the bat and I’m cutting myself to the bone there.

I’ll start with my usual caveat that I’m not a qualified solicitor and beyond a simple claim you should seek legal advice.

The issue is that you contracted someone to provide a service and during the provision of that service they damaged your personal property without your consent.

The issue hinges on liability, the acceptance of liability and contractural exclusion of liability.

Liability - Under s.49 of the Consumer Rights Act 2015 (CRA 2015) a trader must perform the service with reasonable care and skill.

As a trader who’s service involves entering peoples homes skill and care can reasonably be expected to include a clients possessions.

We are all under a general duty to be mindful in our actions and not cause harm or damage to others or their property, the courts provide remedies to compensate for such actions.

Acceptance of Liability - The burden of proof for any civil claim is on the balance of probabilities. The claimant has to show that what they are claiming happenned more likely than not.

Initially you had no case, the only people present were your wife and the person performing the service. Fortunately they have accepted the incident has happened, which you now have evidence in the form of an e-mail.

They claim there was no damage done, there clearly was or you would not be making a claim. The contractors initial rudimentary inspection of the guitar and assessment that no damage was done is fair in the circumstances you described. It is also fair to accept that the damage was not immediately visible, but non the less causation can be attributed to the contractor negligently knocking the guitar over.

Furthermore, the contracting company appears to accept liability for the continued offers of monetary compensation, although they specify this is a good will gesture what purpose does it do other than to acknowledge the guitar was damaged and caused by their agent?

Therefore it appears, by their emails, they have admitted liability.

Exclusion of Liability - The terms of the contract provide that personal property is to be removed from the area of work (or words to that effect).

As previously under s.49 of the Consumer Rights Act 2015 (CRA 2015) a trader must perform the service with reasonable care and skill. S.57(4)(a) CRA 2015 provides that any claim that excludes s.49 of the Act is not binding on you.

You could also argue that the trader should not start work whilst there are objects in the work are, they should draw the clients attention to the clause and ask the client to move the objects.

Case law also provides the red hand rule by Lord Denning MR that some clauses could only be valid if they were printed in red ink, with a red hand pointing to them. In short, the trader should have made it obvious to you that the clause existed.

You could also argue that the exclusion clause is too wide, therefore unfair and should not be binding on you. Your response below is entirely reasonable.



Remedies - You could make a personal claim against the individual who broke your guitar.

The company you contracted with has vicarious liability for the actions of its employees. This allows you to make a claim against the parent company.

You can elect to go to the small claims court, as the amount you are claiming is between £301.01 and £500 it will cost you £35 if you complete the form online. If you win your case you can asked to be reimbursed this amount and any costs stemming from your claim (such as travel expenses to th court).

You can also elect for mediation, the trader has to accept this and a neutral person will work so that both parties can come to an agreement, this decision is not binding, but a court will take a dim view if an agreement has been made and one party has reneged on the agreement (essentially you are wasting the court’s time). The cost of this is £125 for an hours mediation. The advantage is that it is quick, the courts are backed up and you could wait a long time for a resolution.


I think you should know that I bombed on my contract law and tort exam last year, but there is a story behind that.
Awesome.

Very many thanks.
 
#15
Alternatively I can send you the instructions for a postal IED if you like.
 
#17
Unfortunately after much trying, the Luthier found the guitar to be beyond repair.

...compensation for the 3 months I’ve been without a guitar...
Did your neighbours put him up to it?
 
#18
compensation for the 3 months I’ve been without a guitar, hurt feelings, PTSD
You haven’t suffered a perceivable loss.

You could claim if other losses stemmed from it, for example if you had been contracted to play at a gig and the contract was frustrated due to the broken guitar you could claim for the loss.
 

Wordsmith

LE
Book Reviewer
#19
As a good will gesture they offered to have the guitar repaired. While not ideal, I agreed to this. Unfortunately after much trying, the Luthier found the guitar to be beyond repair.

They then offered me £150 in compensation. Since the guitar cost £468, I replied saying this was unacceptable and I require a full like for like replacement. I helpfully pointed out that the identical make and model of guitar is currently on sale for £379 and would be happy to accept this figure as settlement.

They came back upping their offer to £200. Final offer. They also say that their terms and conditions state that all possessions must be removed from the installation area. They are now hiding behind this.
I'd write to them saying that legal tennis was of no benefit to either side and you accept the £200 offer.

Unless the guitar was new, the insurance claim will replace 'like for like' - for example, if the guitar was five years old and well used, you couldn't expect to get a new guitar out of it, but one of a similar age and condition in playable condition. The idea being that you can't gain from the insurance claim, but just get the damaged property replaced with something similar.

When my house was flooded 10 years back, I had an ancient VHS player that went to the great electronic graveyard in the sky. I'd have been happy with the replacement value and put that towards a DVD player. They actually sourced another (new) VHS player rather than give me the money.

Wordsmith
 

Joker62

ADC
Book Reviewer
#20
Do you not have any ruffians working on the estate who'd pop round for a quiet chat (with menaces obviously) with these tradesmen?
 

Latest Threads

Top