What aer your rights ?

What are your rights?

26th Nov 2018

With Christmas fast approaching and our holidays in the summer becoming a distant memory, we are all now considering the expensive task of buying Christmas presents. Not only can it be a difficult task actually choosing the gifts, what happens if we get that choice wrong, they don’t work or quickly break?

When the Consumer Rights Act 2015 became law in October 2015, it was introduced to simplify, strengthen and modernise the law, giving us clearer shopping rights. The Act gives the legal right to reject goods that are of:-

1. Unsatisfactory quality or
2. Unfit for purpose or
3. Not as described.

If this applies, you can obtain a full refund – as long as it is done quickly.

This right is limited to 30 days from the date the product is bought. After this period, you are not legally entitled to a full refund if the item develops a fault, although some sellers may offer an extended refund period especially over the Christmas period. In fact, you should ask for this.

If what has been bought does not satisfy any the above criteria, you have a claim under the Consumer Rights Act 2015. There are several ways of resolving the issue, which depend on, for example, on how you want the retailer to remedy the situation. Your rights under the Act are against the retailer that sold you the product, although you may have other rights against the manufacturer but not under the Act.

If the item was bought over 30 days ago, the retailer has one opportunity to repair or replace any goods or digital content which are of unsatisfactory quality, unfit for purpose or not as described. You can state your preference, but the retailer can normally choose whichever would be cheapest or easier for it to do. If the attempt at a repair or replacement is unsuccessful, you can then claim a refund or a price reduction if you wish to keep the product

If a fault is discovered within six months of buying the product, it is presumed to have been there since the time of purchase – unless the retailer can prove otherwise. During this time, it’s up to the retailer to prove that the fault wasn’t there when you bought it – it’s not up to you to prove that it was.

If a fault develops after the first six months, the burden is on the purchaser to prove that the product was faulty at the time of delivery. In practice, this may require some form of expert report, opinion or evidence of similar problems across the product range.

Digital content

The Act defines digital content as ‘data which are produced and supplied in digital form.’

Just like goods, digital content must be:

1. Of satisfactory quality.
2. Fit for a particular purpose.
3. As described by the seller.

If digital content does not conform to these criteria, you have the right to a repair or replacement of the digital content you’ve bought.

But if a repair or replacement isn’t possible, or doesn’t fix the situation, you can ask for a price reduction. This can be up to 100% of the cost of the digital content.

The retailer will also have to compensate you if any device or other digital content you own is damaged as a result of the faulty digital content you’ve downloaded.

This applies where that damage would not have occurred had ‘reasonable care and skill’ been exercised in the provision of the digital content – even if that content was provided free of charge.

Late deliveries

There is a default delivery period of 30 days, during which the retailer needs to deliver unless a longer period has been agreed.

If the retailer fails to deliver within the 30 days, or on the date that has been agreed, you can do the following:

1. If your delivery is later than agreed and it was essential that it was delivered on time, then you have the right to terminate the purchase and get a full refund.
2. If the delivery isn’t time-essential but another reasonable delivery time can’t be agreed, you’re also within your right to cancel the order for a full refund.

If the retailer proves troublesome it is possible to get a refund through the credit card company under Section 75 of the Consumer Credit Act. Under Section 75, your credit card company is jointly liable for any breach of contract by the company. If a card was used to buy the product then contact the credit card company.

You should also look out for Unfair Terms

Some examples of terms that may be unfair under the Act include:

1. Fees and charges hidden in the small print.
2. Wording that tries to limit your legal right.
3. Disproportionate default charges
4. Excessive early termination charges.

Dementia Workshop

Our Dementia Champion and Private Client Solicitor Laura Rumsey is very busy running Dementia Friends sessions at the moment.

Laura received great feedback from her recent talk at Welborne Village Hall and was praised for making a difficult subject interesting.

She also held a session for staff, to ensure that we maintain our commitment that all those who work at Rogers & Norton have an understanding of how to support those living with Dementia.

We are also running a Dementia Workshop at The Assembly House next Wednesday 28^th November starting at 3.00pm for all those who wish to attend – this is the latest in a series to help give a better understanding to those who live with Dementia.

If you want to come along you can contact me on gr@rogers-norton.co.uk.

Trademark Infringements

Our litigation team recently obtained an injunction for a national company regarding a trademark infringement and advised a worldwide company on the issue of how damages should be calculated for a trademark infringement.

Any compensation due should be calculated by reference to the profits arising from the wrongful use of the mark by the defendant or damages suffered.

Damages are intended to put the claimant in the position it would have been in if the infringing act had not occurred, while an account of profits is intended to make the defendant return the profits made as a result of the infringing act.

Unfortunately it is impossible to claim you are an ‘innocent infringer’ under trademark law, as a registered trademark gives the owner a monopoly right. Though some companies do claim that no confusion has been caused for consumers and customers by the trademarks involved.

In most trademark cases the remedy sought is an injunction, as the cost of bringing the claim can easily exceed any financial remedy. If a company is successful in proving the marks are similar enough to confuse the average customer, they will then have to prove the loss they have suffered, which may well be minimal in many cases.

Most companies, no matter what their size or turnover, are fiercely protective of their trademarks. It may be that the infringing company are substantially smaller, or do not trade in the same sphere of business, a company will strongly defend what they believe is an intrinsic part of their identity.

By taking legal advice early on in the process a balanced viewpoint can be established.

If you believe that you or your company is a victim of trademark infringement you can contact the litigation team on ph@rogers-norton.co.uk or on 01603 675639.

The New Insolvency Rules

We wrote an article concerning the changes to the Insolvency Rules that came into force in April 2017, with the aim of reducing the burden of red tape and bureaucracy together with modernising and consolidating the existing rules.

The main changes for creditors related to the lack of meetings being undertaken and the introduction of a deemed consent procedure. Any claims under £1,000 were deemed approved for dividend purposes, without the need for a proof of debt to be submitted. Creditors were also encouraged to use email and web communication were encouraged giving them the ability to opt out of certain reporting.

Eighteen months on the feedback has been fairly uniform in terms of the positives and negatives. Creditors have welcomed the reduction in the amount of paperwork they receive, as the administration time tended to outweigh the benefits. They can now choose to monitor those cases that are important to them via online portal systems, safe in the knowledge that any dividend information will still arrive by post.

The removal of the need to submit a proof of debt for claims under £1,000 appears to have saved time and costs for all parties, however the level of claims that fall into this bracket is often small.

For those companies that have frequent and often large debts, many have said that claims under £1,000 have now ceased to be administered at all due to the relative size of any dividend received.

The biggest point of debate regarding the changes is the implementation of the deemed consent procedure. Initially it was viewed positively – why have a meeting when more often than not, creditors do not attend?

Issues have arisen however, when creditors want to engage with the process and have the opportunity to question the director or appoint their choice of IP. This maybe because of the size of the debt or the events leading up to insolvency. One creditor’s claim is rarely sufficient (10%) to request that a meeting is convened, so they must now wait until the full list of creditors is available to try to procure the additional support required.

The concept of virtual meetings, however, has been very well received. They can take place as an alternative to the deemed consent procedure and allow to creditors to vote and engage in a similar way to physical meetings. Travelling time to meetings, together with the costs involved, can often discourage attendance, simply dialling in from home is far easy to do.

On balance the changes seem to have been welcomed the by creditors, as it has given them the opportunity to get more involved with the procedures.

Here at Rogers & Norton, the team are experienced in acting for Insolvency Practitioners, businesses, individuals and directors on non-contentious and contentious insolvency matters especially winding up petitions (presentation and opposing). In particular, we advise directors on the potential liabilities of the director. We also advise on Business Recovery and all forms of Insolvency including Liquidation, Corporate Voluntary Arrangement, Administration and Bankruptcy. Our team assist directors who are the subject of personal guarantees.

For more information contact me at ph@rogers-norton.co.uk or on 01603 675639.

No More Smash & Grab

We have reported previously on an important decision made by Mr Justice Coulson regarding the case of Grove Developments Ltd v S&T (UK) Ltd [2018] EWHC 123 (TCC). The ruling effectively ended the ‘smash & grab’ adjudications that had become prevalent in recent years, when it stated that an employer is entitled to run a second decision to determine the ‘true’ value of an interim application for payment, even if the employer’s payment notice and payless notice were invalid.

The highly anticipated Court of Appeal decision has recently been handed down. In a judgment given by Sir Rupert Jackson, that is highly significant for the construction industry, the Court of Appeal has upheld the decision of Mr Justice Coulson.

By a JCT Design & Build Contract 2011, Grove engaged S&T to design and build a new Premier Inn Hotel at Heathrow Terminal 4. The parties fell into dispute about the sum payable as an interim payment together with the deduction of liquidated damages

S&T contended that the Deduction Notice was invalid, because it had not received the Warning Notice before the Deduction Notice was sent, neither had it been given time to read or digest the Warning Notice first. Thus, to use the contractual language, it had not been ‘notified’ by the Warning Notice before Grove ‘gave notice’ in the Deduction Notice.

The Court of Appeal rejected that argument, holding that:

(1) The words “notified” and “give notice” both require the sending and receipt of a notice, so if both notices are received in the correct sequence that is enough to satisfy the requirements of the clause.

(2) No specific time period is required for a party to consider the Warning Notice before the Deduction Notice is received. Whilst the Court acknowledged that this removes any real purpose for the clause, it held that it is impossible to identify any specific period of time which should elapse between serving the two notices, and a requirement for a ‘reasonable’ lapse of time is unworkable and does not satisfy the requirements for an implied term.

This is a significant determination as it makes the Warning Notice a mere procedural hurdle. The Court of Appeal acknowledged that the system provides “no obvious benefit to anyone, if the employer warns the contractor of what he may do just seven or eight seconds before he actually does it”.

However surprising it may seem, the contract requires no more than the giving of notices in a specified sequence – Judges should not generally impose their notions of commercial common sense upon the parties to business disputes. It is sufficient that a scintilla of time elapses between the giving of notices two and three.

If parties wish to give more strength to the Warning Notice, they may wish to consider a bespoke amendment to the standard form.

Our litigation team continue to receive instructions from Developers; Employers; Contractors; Architects; Surveyors and Suppliers (including builders merchants), providing advice on both contentious and non-contentious issues that affect all those within the construction industry.