Where do we stand?(Legal advice)
 

Someone I know did a job for a company(sub contracting) about 6 months ago, and accidentally damaged some materials on site. He was expecting at the time to be charged for a replacement, or for the cost to be deducted from the bill. But at the time the company simply said it would be fine, they would order a replacement for him to finish the job - nothing mentioned about cost.

Anyway, he sent off his invoice as normal and recieved the full original agreed price for the job, with no mention of the damaged material in the paperwork he recieved with the cheque.

That was a one off job, with no long term contract with the company. Nothing ever written down in paper about the damage.

A few months later the company contacted him again asking him to do another job down south and a price was agreed. This time he stayed away, and paid for digs, food etc for 4-5 days, which was all included in the price agreed for the job. This probably came to £400 or so for him and his labourer. He sent away the invoice this time, and a cheque came back for half the price of the job. The remittance advice only showed the tax deducted and nothing showing or explaining where the other £500 or so had disappeared to.

He phoned the company and was told it was for the damaged materials. Can they really do that about 4 months after the job on which it happened, with nothing written down?? And without telling him about it or showing it in remittance advice??

Also, they obviously wouldn't have got the money back unless he had done this second job for them, so in my opinion they got him to do that job by deception, and have had a very difficult job done at half the price, putting him out of pocket for the digs and leaving him no profit whatsoever at what is a difficult time for anyone in the construction industry.


Any advice appreciated

Deny all knowledge of causing damage. If it was not logged then demand the money ;) :D

I guess it depends on how honest and fair the guy is if he wants to just hold his hands up and say fair enough.

But the thing is, we don't know if they have it logged. He was warned beforehand that the company is run, and makes it's profit in underhand ways...but this just takes the p*$$ in my opinion. It's obvious whether they were legally right or wrong, that he has been tricked into doing this job so it would be cheaper for them.

Don't know how good an idea it is to deny all knowledge, as he has more chance of being tripped up somehow along the way.

He's sent a letter off to a solicitor, but was just wanting a few opinions.

Cheers

if there was no writen confirmation of the damage and no writen contact made reagarding compensation then they don't have a leg to stand on and will have to pay the contracted amount.

however this is dependant on a few things, 1. if theres writen information about the event, 2. how hard do you want to push for the rest of the money, 3. how hard are they willing to argue.

i think if its only £500 then they'll either pay it with little arguement or they wont and it wont be worth chasing it with lawyers etc involved which tends to become pricey and can give you a bad reputation, even if its not your fault

I think that this is really underhand behaviour. The whole point is that the company said that the damge was of no consequence and to suddenly change their minds and charge him is very poor behaviour.

In the absence of any proof of what they said earlier it is rather difficult to come to a positive outcome in his favour. He will have to see what the solicitor thinks but in the meantime he should be careful what he says to the other company and avoid admitting anything that happened during the first job.

Les

Want the money back at all costs. More a matter of principal than anything else. As I said I don't know if they have written confirmation, but we certainly havn't had anything in any of the remittance advice or anything even mentioning the damage or the fact that we had to repay it. All we were sent was remittance advice with a large amount deducted with no mention of it being deducted, and no explanation as to why, it was just missing from the total.

The person I'm talking about here is my Dad, so I'm obviously taking it very personally.

Ok thanks Leslie, he can only try.

I think to any sensible person with a conscience, this would come across as underhand. But as you say, legally it could be difficult convincing anyone.

To me, the proof here is the lack of it: i.e nothing written down mentioning the money being deducted.

Also, as I said - how would they have gone about getting the money back without him having done this job for them? Would have been difficult I think.

If he's invoiced them for the work and they haven't paid the full amount, send in the debt collectors. He probably won't get his money back but they won't get to keep it either. That appeals to my passive-aggressive side ;)

:lol1: ! Is that a serious suggestion? Is it legal?

Debt collectors can't do anything other than ask for the money.

Needs to go to court!

simple -- lodge a claim in the small claims court

V quick and V easy

write down all the facts in a clear and concise way and submit it to the court along with all relevant paperwork, hotel receipts remittence advice travel costs, timesheets, all correspondence, notes on the times involved etc for the current job and the previous job (photocopies will do)

they then have either two choices

either defend it -- which they will have to do in court

or pay up

if they do neither at least they will have a CCJ against them


we did this to a nationwide storage firm who lost a Grand Piano (long story) they had in storage for us -- we had paid over 6 years worth of storage costs and when we asked for it back they delivered the wrong one -- admitting they had lost ours, completely stonewalled us when we asked for compensation -- untill they got the court papers!!! and we got settlement and a cheque within 2 days

Sounds like good advice to me.

Les

My first thought is that legally, they don't have a leg to stand on. If you want to do some reading, look into the Housing Grants, Construction, and Regeneration Act (in particular Part 2 - Construction Contracts).

Basically, without serving notice of intention to withhold payment, they can't.

Which area are you from? If you're in the Lancashire area, I can put you onto a QS who knows his stuff, but I suspect to get someone involved would cost most of what you might recover anyway.

If it had happened to us, I think we'd probably just submit our own claim through the small claims court rather than get someone in.

Hodgy0_2 - Thanks a lot for that, very helpful

john_s - Thanks, it's good to read positive opinions. We actually stay in Central Scotland, but cheers anyway.


Will keep this thread updated with as much info as I can.

Here you go!
https://www.moneyclaim.gov.uk/csmco2/index.jsp
As said above, unless they informed you of their intention to withhold moneys due for damage, they can't!
Write, informing them of your intention to claim the amount due through the courts, give them a fair time to pay, then start the claim!
If you win and they don't pay, then you can have the bailiffs sent in. This is very expensive ... for them!:norty:
Anyways, it's all in that link.
Good Luck!

Thanks nixxon. Small claims seems the way to go.

no worries -- hope it works out

the point about making a claim is that they HAVE to do something

they cant ignore it

I heard a wonderfull story the other day about a guy who took Tesco's to court -- i.e filled a small claims against them, regarding crap fuel he filled up with and knackered his Van

Tesco's just ignored it -- the net result was the Bailifs turned up at the Glousester super store to distress some goods -- from the beers wines a spirits section

the guy soon got paid (whether he had a valid claim or not)

Its his word against theirs ultimately, and he would come off worse with nothing in writing. You'd be amazed what documentation companies like that can produce, seemingly out of thin air - notice of intention to withhold moneys, for example.

Small claims actions are very easily defended, especially in matters like this, and especially where you are dealing with a company that is probably no stranger to such matters.

Unfair yes, but at the end of the day he should have had them confirm in writing that they would not pursue the damage.

If he's genuine, I'd take the £500 on the chin and anonymously report the company to HMRC for its underhand dealings.

Was this a main contractor?

Under what form of sub contract was he employed?

The company in question was the main contractor. They supplied all the material and were responsible for completion of the job - only sub contracted my Dad for the skilled labour involved.

Main contractors normally pass down risk of damage to the works to the subcontractor... check any standard contract wording he was employed under (if you have anything?)

It becomes quite complicated (as in agreeing final accounts) for subcontract works as i believe if your subcontract is inline with the main contract at all (which i would be suprised if it was not) then they have a period of time in which to agree your final account following completion of the main contract (which could be months after you have finished)

Unless you have signed a final account statement to the original sum paid?

Did he sign a final account statement for this work? As you are not allowed to 'set off' costs from other contracts (as they are in actual fact seperate).

They are two separate contracts, you cannot hold funds back on one with relation to a problem on another.
Small claims and good luck.

True as i said in my post, but if the other contract is not fully settled / agreed correctly you can recover your cost as they can not legally allowed to set off, but then they will simply attemp to recover their cost from you on the original contract (assuming that they are legally entitled to).

They still have to provide an actual notice of intent to with-hold payment regardless of whatever contractual wording is in place since they have to detail the amount intended to be with-held. Think there's also a legal requirement for the other party to agree to this aswell.

Payment is usually agreement of closure / settlement on the job for the subcontracted parties although in some cases there is a formal handover but that's normally for the Main contractor rather than the sub.

If they've not contacted him regarding the damaged materials then they don't have a leg to stand on and aside from that, unless specifically stated in terms somewhere it's general practice for the Main Contractor to be held responsible for their materials and property anyway. It's not normally documented from my experience but to be fair, it's an unwritten rule that "if ya break it ya buy it" for most since you generally want repeat business ..... in the 17 years we've been trading (including in the building environment), we've always operated on that basis for exactly that reason. I would however be asking for a detailed receipt in this circumstance since it does seem a little underhand.

If you did decided to pursue legal action against them, small claims isn't your only avenue now either - some banks will allow you to "mortgage" outstanding / unpaid bills whereby they effectively buy the debt from you then start cranking the juice on for them and in our current climate they're not really being to subtle about collecting what they're owed are they? ;) :norty:

Thanks for all the great advice here, it's definetly helped us out no end.

I really hope a lot of the above applies to Scottish law as well...as it can sometimes be very different.

Thanks again...Scoobynet is always helpful. :)

Now you say...:eek:

Sorry. I mentioned we were in Scotland in an earlier post, but maybe should have made it more clear from the start.

I shouldn't think it would make much difference, TBH. Scottish Law is supposed to be a tad "fairer", in many respects, than English Law.
That link may have further links to the Scottish equivalent to the Small Claims Court.
Small claims in the sheriff court
Your rights - Taking a dispute to the small claims court - Your rights - Which? Advice

Yes, we've been on the website that you can download the forms from.

Time to cross our fingers...although it can't hurt trying.

couldn't you just grab the offending bloke and paint the wrong football team colours on him then "drop him off" in the wrong place? .... gather that can be a fairly effective way of resolving issues up there! :D lol!