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Joshua
Joshua, Lawyer
Category: UK Law
Satisfied Customers: 24292
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, In October 2011, I purchased a kart training package

Resolved Question:

Hi,

In October 2011, I purchased a kart training package of seven all-day sessions for my then 7 year old son for a discounted price of £1890 including VAT. This was arranged between myself and one of the directors, SF.

After two sessions, it was still very clear that my son was frightened of the kart, the track and its traffic therefore it was agreed between the trainer (who is also a director of the company, SZ) and I that instead of "wasting" more sessions, I would take my son to the local kart track to try increase his confidence and karting experience.

However, I asked SZ what would happen to the remaining five sessions should my son continue to be frightened of the whole karting experience at the local track and the trainer verbally agreed that it would be immoral and rather cruel to force my son to finish the remaining sessions when very clearly frightened so therefore I would receive a refund.

Come April 2013, after my son confirms his continued fear of karting, I contacted SF to explain the outcome and how we could arrange for the refund to be made. SF eventually took 3 months to write to me to say that they met the regulations set out by the Supply of Goods and Services Act by supposedly "repeatedly offering dates and private training if my son was feeling nervous" in order for the service to be "provided in reasonable time" therefore they "are not obliged to give a refund as [they] are not in breach of contract". This was not the case at all as:

a) I did not receive a "contract" to sign, let alone receive Terms and Conditions before making the full payment of the package that stated that the service is non-refundable and
b) I did not receive any such offers of dates or training because SF agreed, in an email dated 7th February 2012, to "take it from there" after my son tries karting at the local track.

Therefore, my point to SF is that when SF issued the invoice for the package, that because no Terms and Conditions were given to me that states their service is non refundable, regardless of SZ verbally agreeing to refund the amount of the remaining sessions not used, that I am indeed eligible for a refund.

Am I correct in this, please?

I look forward to hear from you.

Regards,
R.
Submitted: 9 months ago.
Category: UK Law
Expert:  Joshua replied 9 months ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Customer:

Hi Joshua?

Joshua :

Does the company admit the verbal conversation you have with the representative confirming a refund would be made?

Joshua :

My apologies for the delay - had thought the above had posted.

Customer:

no problem, joshua. the company does not mention about the verbal conversation, whether it is to admit to it or claim it never happened

Customer:

they just banged on about how they've been in touch with the Trading Standards and how they're regulated by the Supply of Goods and Services Act and that because they've apparently "repeatedly" offered dates and training for the service to be provided in "reasonable time" they are not obliged to give me the refund - this is despite the fact they did not supply me the Ts and Cs before making the payment, regardless if one of the directors verbally agreed to refund if my son could not shake off his fear of the karting experience after trying it more at the local kart track

Joshua :

Thanks. Have you ever put the point to them in an email regarding the offer?

Joshua :

... of refund?

Customer:

yes, several times since april this year

Joshua :

And it has been ignored each time?

Customer:

yes

Joshua :

Thanks. Finally when you bought the package, was anything discussed or agreed regarding your son trying out the karting first with a refund being agreed if he did not like it? Is there anyone else that would like the package and or have you asked the company to resell the package>

Customer:

the only thing that was discussed, by email, was SF saying we will see how my son gets on before agreeing to any further dates. as for trying to sell the package on to a third party i have been very active in doing so on most of the kart pages on Facebook, as well as to my friends, but to no avail. the company has offered to put the package up for sale on their website but my point to them is that if you're selling it "again" there is no reason not to refund me now as it would be unfair on me to have to wait until the package is sold. and besides, how would i know that the package has been sold?

Customer:

having that the latter, however, SF's most recent letter to me did not offer to sell the package on their website but rather that "as a gesture of goodwill" they are willing to offer the remaining sessions to me within the next two years.

Customer:

"having said* the latter...", beg pardon

Joshua :

Thanks. The position is that the company cannot retrospectively include terms and conditions in your agreement that were not made available to you prior to agreeing to purchase the package. The Supply of Goods and Services Act implies a number of terms into your agreement that the service supplied must be of satisfactory quality and fit for purpose and must be provided within a reasonable time. There is no statutory right to a refund other than potentially a cooling off period which if applicable would have long since expired.

Joshua :

However if a company representative promised you a refund or a condition was agreed between you and the company prior to purchase that you could effectively "try before you buy" then you can rely on either of these representations however as there is nothing in writing if they deny your claim it is a question of your word against theirs

Joshua :

Even if you have no right of refund as above it does not necessarily follow that the company can keep all of your money however...

Customer:

right, so if no Ts and Cs were given to me prior to purchase, this does not grant me refund for unused services for valid reasons that my son is frightened of continuing the karting experience?

Joshua :

It must to its best to mitigate its losses. This means it cannot profit from your inability to complete the package and must try to resell the package. If you can demonstrate that the package was not fit for purpose then you may be able to claim a refund however this would depend on whether such a package was fit for a child of your son's age. If your son is unusual in not liking the Karts but the package is generally suitable for boys of his age this would not assist.

Customer:

i have got an email from SF (one of the directors) saying that "we will see how he gets on" but admittedly there's no mention of refund. but the end result is that alex was frightened and i got word from SZ (the trainer and the other director) that i would get the refund if my son fails to improve his confidence in the kart

Joshua :

Unfortunately there is universal overriding legal right to a refund of unused services - rather the monies a company can keep in such circumstances is determined by the above principles. I note you have attempted to resell the package yourself. If there are no legal grounds to demand a refund - of course the promise of a refund would be a legal basis if it could be proved - there is nothing stopping you from attempting to resell the package at a lower price to generate interest in order to recover some of your losses.

Joshua :

From what you say above the promise of a refund would be your word against the trainers. Other than holding the company to its obligations to mitigate loss as above and your own attempts to resell the course yourself, the only legal recourse I can see that is available to you is to attempt to show that either a) the course is not suitable for your son because he was too young at the time or that the course was mis sold on the basis of a misrepresentation that it was implied (or ideally expressly stated) that the course would be refundable if your son did not like the experience.

Joshua :

If you can demonstrate either of these things or prove on the balance of probability that you were promised a refund , there may be a legal basis for demanding a refund for the unused service. In the alternative your best approach would appear to be reselling the remaining package for the best price you can achieve.

Customer:

right, well, there is no written proof that the package would be partially refunded if my son did not like the experience.

Customer:

so if i've got an email from SF saying they are willing to sell the package on their website, and that if they do sell it on my behalf, what's stopping them from refunding the unused costs if they'll get it back anyway?

Joshua :

If they are able to resell the package the must refund the unused package costs or the amount the resell the package for whichever the higher less a reasonable nominal sum for their administrative costs in reselling the same. They are not under a legal obligation to refund you earlier than they manage to resell the same however if their business is selling karting experiences it seems odd to me that they are finding it so difficult to resell the package or failing which resell the individual karting days to a third party. Presumably they are able to sell the time as a package or individually as days at the right price one way or another to enable them to refund you much of your money. If they cannot show that they are making a genuine attempt to resell you may have a claim against them for the monies on the basis of their failure to mitigate their losses by doing as above.

Joshua :

Is there anything above I can clarify for you?

Customer:

hold on, i've just found an email from SF about my son's very first "taster" session. it was agreed that if my son enjoyed it, we would then consider doing the package in order to train him up to do the exam to get his licence. what SF hasn't explained that the package will include traffic (other track users) of which my son's fear derives from and spinning off the track because of it. so does that give me any hope of possible "mis-selling"?

Joshua :

Are you able to copy and paste the wording?

Customer:

ah, one minute...

Customer:

ok, i have found the email from SF explaining costs, before i purchased the package. it does, however, mention "traffic" but she doesn't say anything about what if my son can't cope with the traffic. here it comes:

Customer:

From January Alex will be able to attend club meetings at any of the tracks we attend, i.e. Kimbolton (second weekend of each month) or Shenington (third weekend of each month). Provided he has been out in traffic on one or both of the November dates there is no reason why he would not be ok on the Saturday practice day at a club meeting. We can then do a regular monthly training session and get him through his ARKS test when he is ready and he can start doing a whole weekend, i.e. practice Saturday and race on Sunday.



In terms of budget, our normal hire/training costs are £250 + VAT per day, i.e. £300. On top of this you will need to pay the track test fees which are usually around £40 inc VAT and any accident damage howsoever caused. Normally if a customer books and pays for 10 days in advance we offer a 10% discount on our fees. We are prepared to offer this discount to you if you book and pay for 7 days. That amounts to £1750 - £175 = £1575 + VAT, i.e. £1890. Which is the equivalent to £270 per meeting instead of £300. You would still need to pay the track fees each time and accident damage.



We would hope, although cannot guarantee, that Alex would be trained to ARKS standard by the end of the 7 sessions and have his race licence. We can then reassess and discuss future racing and his next steps.


Joshua :

Thanks. Unfortunately I cannot see that this would assist in terms of evidencing a promise of a refund if your son did not like the experience or make place other conditions on the purchase. Unless you have anything else that refers to such conditions I consider that your most appropriate approach will be using the above techniques to seek to recover some of the funds paid.

Customer:

ok, so if SF offered to put my package on the website before sending me the letter offering me a "gesture of goodwill" for me to do the remaining sessions, do you think they ought to still offer to put it on their website?

Customer:

especially i have the email of such offer?

Customer:

i have actually got to go now - it's my daughter's ballet exam today. are we able to continue this another time, or reply in our own times, etc?

Joshua :

I cannot see that their offering to let you use the remaining sessions is a gesture of good will as such. Since there is no condition stating an expiry of the package then the service is yours to use withing a reasonable time. What is reasonable is ultimately up to a court but the limit would be 6 years.

Customer:

sorry i really have to go now - will check my emails. thank you in advance and i will rate you this evening

Joshua :

Yes certainly. You can reply back to this thread at any time if you have any further questions. If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though. The thread will save to your account and you can return to it at any time if you have any follow up questions.

Joshua :

Best wishes

Customer:

hi joshua, i have one more question in hope that it may grant some kind of refund: in the last letter i received from SF, she states that the company has "repeatedly" offered dates and private training if my son was still nervous but this was not the case because we agreed in our last two emails that we would see how he got on at the local track to get used to his driving experience and that i would let her know what happens so there was no point for the company offering dates if my son wasn't ready. SF replied on 7th Feb 2012 to confirm this a good idea to wait and see and that "we'll go from there". although, SF doesn't mention anything about a refund so SF can't claim that the company has been offering the service if my son can't access it due to his fear?

Joshua :

clearly you will want to pull the company up on its assertions that they have continued to offer dates if this is not the case however not offering dates is not in and of itself evidence that the company is unwilling to provide the service you paid for. if the company stands ready to provide the service upon request, this is sufficient to fulfil its obligations under the contract.

Joshua :

if you can demonstrate by a combination of correspondence and your own witness statement that the company either offered you a refund and/ or agreed some form of condition upon your entering into the agreement with them whereby purchase was conditional upon your son enjoying the experience or something of that nature either of these provisions would be potentially sufficient to secure a refund however it is not clear to me from the above that this is the case other than of course your statement in respect of the promise of a refund verbally by the company's representative

Customer:

yes, i can appreciate that from the legal point of view. shame that "moral" has not to do with it and i would be surprised if SZ can sleep at night knowing he did indeed verbally agree to the refund

Customer:

not = nothing*, even

Customer:

it's just that i can't prove he said it

Joshua :

if you cannot on the balance of probability demonstrate the promise of a refund or a condition agreed as above, your fallback strategy would appear to be one of requiring them to resell the package either as a package or as individual track days in order to enable them to refund your payment as discussed above. Also as discussed above, I cannot see any reason why a company specialising in karting is finding it so difficult to resell package you purchased as presumably any package can be sold at the right price and the question would appear to arise as to whether they are truly trying to resell the same or rather hoping that you will eventually give up and go away and I can keep your money

Customer:

how about i ask them to put -my- contact details on the sales page as the person to buy it from, rather than question if they're really trying?

Joshua :

quite. You do have a have your own statement as to the facts and although you have no proof beyond this, your own statement is evidence in and of itself though of course not evidence which is of high value due to its lack of independent nature; but if you were to go to court, and certainly be worth including in your statement what was said alongside your other arguments as we discussed above, in particular? As to whether they are truly attempting to resell the package and hence mitigate the losses

Customer:

i have draft written my letter reply to SF and would appreciate your confirmation if i have worded it fairly?

Customer:

but if i went to court, i wouldn't have a leg to stand on?

Joshua :

in respect of court action, although in respect of a claim for a refund. On a promise of a refund and a claim for misrepresentation based on condition agreed having not been fulfilled, I would agree that your claims would appear to be thin. However, depending on the company's actions and efforts in terms of attempting to resell the package you purchased either as a whole or individually, it is not clear to me why they are finding it so difficult to do so.

Customer:

fair enough

Customer:

can i copy and paste my draft letter for you to check over?

Joshua :

unless they have good reason to demonstrate why they are finding it so difficult to resell package, you would have the potential claim against them for failure to mitigate their losses. The amount of the such a head of claim you could potentially attempt would be the unused track time you have paid for them less any difference between what they can resell the package for could reasonably be expected to sell the same for less a reasonable sum for their administrative costs in doing so

Joshua :

is of course...

Joshua :

correction - yes of course...

Customer:

"


Dear Ms Ford,


 


Many thanks for your letter that I received on Saturday 6th June.


 


Firstly, I would like to apologise for giving you the wrong information regarding only having used one training session out of the seven when you are indeed correct that Alex has used two, one on 23rd November 2011 and the other 14th December 2011, both at Whilton Mill. This would no doubt lessen the amount of refund that I originally asked for.


 


I have sought legal advice regarding this matter and you are indeed also correct that you are not obliged to give the refund.


 


However, as I mentioned in our previous correspondence, Stuart agreed, verbally, that a refund for the remaining sessions would be given. The fundamental reason for this agreement was that, as you know, Alex was frightened of the kart, track and traffic and that I would continue to try my best to support Alex in becoming more confident with his driving experience by taking him to the local kart track and that if Alex continues not to improve his confidence it would be deemed inconsiderate and immoral to force Alex back on the track when very clearly frightened just for the sake of using the remaining sessions.


 


I would also like to think that such agreement was made because Alex and I gave it a fair try over three full days (once at Thruxton and twice at Whilton Mill) rather than giving it up the first time as well as trying it locally once Alex grew some inches in his legs.


 


You state in your letter that Ziemelis Motorsport has “repeatedly” offered dates and private training if Alex was still nervous in order that the service could be provided in reasonable time but this was not the case as we did not receive anything from Ziemelis Motorsport/you since 7th February 2012.


 


As you will see from our last two emails, you agreed to wait and see how Alex got on at the local track in trying to boost his confidence and karting experience and that “we’ll go from there”. Although, you didn’t mention anything about a refund should Alex not succeed, this does go against what you claim in your letter.


 


I can only hope that my points are fair and that you would reconsider giving the refund for the unused sessions that Stuart (a director of the company) verbally agreeing to do so. It is interesting that every time I mentioned this verbal agreement between Stuart and I, via the emails to you since April, you never replied to confirm whether Stuart admits to it or not.


 


Personally, because I bought this package in good faith and good intentions but unfortunately it was just unlucky that Alex is scared and couldn’t access your services because of his fear (not his fault, surely?), I would feel it would be rather unfair and disappointing of Stuart if he denies ever having verbally agreed to it and I would struggle to understand how he sleeps at night knowing that he did.


 


However, in order to move on from this, and in hope that a moral approach is opted for this, I would be happy drop the refund request to £990 which would mean £300, full price, per session used (not the discounted £270) and, as a gesture of goodwill, another £300 for an “inconvenience charge” – i.e., £1890 – £300 – £300 – £300 = £990.


 


Otherwise, and as I have made every effort to try sell the package to a third party through various karting pages on Facebook (even Thruxton and Whilton Mill, themselves) and that I have no interest in the package myself (which was bought for Alex), I would prefer to take up your original offer of selling the package on your website, if this would be possible, please. Instead of the full £1290 for 5 sessions, I would be happy to sell it for £995 – or to sell each session, individually, for £199.


 


Please could you email me within 7 days of this letter of what you would like to do so we can make the necessary arrangements."

Joshua :

that would appear to be a very fair letter. If the company does not give you what you consider to be a positive response, you may wish to consider a further letter expressing disappointment and reminding them of their common law obligation to mitigate their losses and accordingly that you require them to resell the package for the best reasonable price they can your payment unless the sums described above failing which she will have no option but to consider issuing proceedings and the County Court for breach of common law duty on their part

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

to be honest, i'm a little lost on that last paragraph of yours re the County Court - do you mean that if wrote another letter reminding them of the common law obligation to mitigate their losses by reselling my package on their website and failing to do so, the County Court would be approached by me for them not being able to sell?

Customer:

(i promise, you'll get a tip for all these questions, lol!)

Joshua :

my apologies if this was not clear. if following a request by you to resell the package, they failed to do so without it appears to use be reasonable excuse all reason, you may have a claim against the company for breach of common law duty to mitigate loss and accordingly a claim for a refund less the sums referred to and discussed above and can consider an application to the County Court for such a sum in the circumstances.

Joshua :

The simplest way to issue proceedings if you decide to do so is by using the courts online issuing process

Joshua :

https://www.moneyclaim.gov.uk/

Customer:

ok, thank you joshua and thanks for the link. this conversation will be saved in my justanswer account, yes? i will go over it again for future referencing, etc

Joshua :

absolutely

Customer:

so as long as you think my letter reply to SF is fair, i will go ahead and post it "signed for" post today

Joshua :

It would appear to be very fair in so far as it contains little in the way of "stick". It is a soft opening gambit which you may wish upgrade with additional "stick" in due course as above depending upon their reply.

Customer:

ok, thanks joshua

Customer:

right, i will now rate you and pay you, lol

Joshua :

A pleasure - I wish you luck in recovering some of your monies

Customer:

many thanks! take care

Joshua :

And you

Joshua, Lawyer
Category: UK Law
Satisfied Customers: 24292
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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