Discussion
JustinP1 said:
In which case then, from what you've said, the terms that they've introduced at that point is after the formation of contract. Ergo, they are not part of the contract.
From what you've said, everything is all very legally wishy washy. On the one hand, if you cancel, they charge you, even though apparently your contract is with a mechanic, not them, and at that point, there is no mechanic...?
Hi Justin,From what you've said, everything is all very legally wishy washy. On the one hand, if you cancel, they charge you, even though apparently your contract is with a mechanic, not them, and at that point, there is no mechanic...?
I have been through their booking process again, and this is the screen you are presented with the terms at:
image removed
There are no checkboxes. As you have mentioned, and as detailed here: http://www.out-law.com/page-394, I am not sure that they have introduced the terms correctly. am looking for case law now
Edited by Efbe on Friday 18th July 11:18
JustinP1 said:
You won't need the case law, as its a bit basic and rather old and fundamental now.
However, Olley v Marlborough Court Hotel is probably the one that will help in your investigation! That's about an exclusion clause written on the back of a hotel door not being part of the hotel's contract. So, a decent simile of this matter.
What makes it key is if *you cannot cancel* without charge at the time they introduce the terms. If you could have pulled out at any point, then they could argue that the contract was not in place at that point, and it was formed when they found the mechanic for you and confirmed it.
Thanks for all your help on this Justin However, Olley v Marlborough Court Hotel is probably the one that will help in your investigation! That's about an exclusion clause written on the back of a hotel door not being part of the hotel's contract. So, a decent simile of this matter.
What makes it key is if *you cannot cancel* without charge at the time they introduce the terms. If you could have pulled out at any point, then they could argue that the contract was not in place at that point, and it was formed when they found the mechanic for you and confirmed it.
This bit you advise on is a little awkward.
Their policy is such
[i]Cancellations
You have the right to cancel a Booking without charge when giving a minimum of 24 hours notice before the earliest scheduled arrival time specified in the Booking details. When less than 24 hours notice is given, we reserve the right to make Late Cancellation, Extra-Late Cancellation and In-Progress Cancellation charges (as specified under “Extra Charges”) on behalf of a Mechanic at our sole discretion.
[/i]
They are bound by distance selling rules, hence cannot impose a charge immediately.
However there is not a point of the process in which I confirm the date/mechanic at a later point. The confirmation shown on the image previosly is the only one. after that, I get an e-mail confirmation, followed by a further reminder of the booking stating the mechanic's name and retsting the date/time, which was agreed to in the booking process at the start.
My first direct contract with the mechanic is when he turns up at my house. At this point I would have to pay a cancellation fee of :
[i]"Late Cancellation, Late Rescheduling – Up to £20 for cancelling/rescheduling with less than 24 hours notice before the earliest scheduled arrival time specified in the Booking details.
Extra-Late Cancellation, Extra-Late Rescheduling – Up to £40 for cancelling/rescheduling after a Mechanic has started travelling to the location specified in the Booking details.
In-Progress Cancellation – When a Booking is cancelled after a Mechanic has started Work upon the specified Vehicle, you will be charged for any labour costs already incurred and parts already fitted, in addition to any labour costs incurred in restoring the Vehicle to its original state (if requested), and subject to our Minimum Labour Charge. "[/i]
does this mean the contract formation was when I clicked the botton above and received an e-mail confirmation for them?
JustinP1 said:
Very possibly - with contracts it depends on the exact timeline.
From what you have said though, this argument about there not being a contract with them, and no consideration isn't true.
Clearly, if they have a cancellation policy, then they are putting forward in their standard terms that you *do* have a contract with them, and furthermore you must be under contract at that point. Furthermore, what's the point in taking credit card details unless you are going to take payment from them if the customer pulls out?
As I've said before their legal founding in how they deal with things is very poor. Their T&Cs look like standard ones taken off the net, and if you click on each of the three links for terms on that screen cap they all go to the same page!
From what you've said, I'd run with this. The Judge will pick out what the pertinent points are. For me, the fact that you asked a specific question about the service and got a direct answer is important. The question is whether in law this is all meaningless because they've introduced terms, most likely, too late, to state that the information they give they cannot be held by.
What the email responder should have said is 'I don't know' or, 'I am reasonably sure, but I'm afraid if they can't then there's no refund', or even failing that warning you directly in that email that the comments can't be relied upon.
Thankyou Justin, You have been very helpful, and given me plenty to work with.From what you have said though, this argument about there not being a contract with them, and no consideration isn't true.
Clearly, if they have a cancellation policy, then they are putting forward in their standard terms that you *do* have a contract with them, and furthermore you must be under contract at that point. Furthermore, what's the point in taking credit card details unless you are going to take payment from them if the customer pulls out?
As I've said before their legal founding in how they deal with things is very poor. Their T&Cs look like standard ones taken off the net, and if you click on each of the three links for terms on that screen cap they all go to the same page!
From what you've said, I'd run with this. The Judge will pick out what the pertinent points are. For me, the fact that you asked a specific question about the service and got a direct answer is important. The question is whether in law this is all meaningless because they've introduced terms, most likely, too late, to state that the information they give they cannot be held by.
What the email responder should have said is 'I don't know' or, 'I am reasonably sure, but I'm afraid if they can't then there's no refund', or even failing that warning you directly in that email that the comments can't be relied upon.
If you are ever up north, I owe you a pint
CYMR0 said:
Efbe said:
tenpenceshort said:
IANAL, but so far it looks to me as if it's an agency with an undisclosed principle.
ten pence.Thanks for that, but what does that mean in laymans terms?
Presumably though they're not denying that there was some contract somewhere.
tenpenceshort said:
Zeeky said:
I think you mean prinicipal. That makes more sense.
What I meant is that in the OPs dispute 'ClickMechanic' is claiming to act as agent for the principle (the mechanic themselves). Looking at the site and the T&Cs, it doesn't seem to explicitly state this and it looks to my untrained eye as being a situation where there's an undisclosed principle.A punter looking at the contract could understandably believe they were contracting only with ClickMechanic.
In that sense, couldn't (or wouldn't) the agent then become liable under the common law agency rules regards undisclosed principle?
exactly the stuff I am after
tenpenceshort said:
Efbe said:
Cheers 10pence
exactly the stuff I am after
Just remember I'm not a lawyer and I wouldn't like you to hang your hat entirely on my ramblings.exactly the stuff I am after
I'm pretty certain I have a few angles of attack.
contract not introduced properly.
not obvious it's an agent.
contract formed prior to mechanic being assigned.
company held the expertise in field to assign mechanic to job.
Have case law to back up 2 of these points. And am hoping if any one of them is right (and I think all 4 are) then I have a good shot.
Obviously there is another point for which there is reams of case law about whether the oil service counter being reset formed part of the contract. This one looks easy. (well easier!)
of course all this relies on me not turning into a quivering wreck in front of a fast talking hard shooting lawyer called Perry Mason
Spangles said:
Efbe said:
put the paperwork in, but got a new job at work, so without the additional time to waste on what was only ever going to be a moral win, I let it slip 
Ah OK, thanks for the update. It's just I've joined Clickmechanic from the other side and was curious how they handled this sort of stuff.So basically the bailed on the mechanic, were willing to give me his details so I could pursue him, leaving them high and dry. Even though the mistake was in them claiming this mechanic could do something he was unaware of.
So... should you work for them, make sure you get some public liability insurance or whatever you need
And as one last part, just tried to do an oil change today and the sump plug has been over-tightened by the clickmechanic mechanic. grrr. Stripped it, so a new one ordered before I attack it again.
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