Am I wrong?

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Discussion

Efbe

Original Poster:

9,251 posts

165 months

Thursday 17th July 2014
quotequote all
Thanks Trashbat.

anyone else with some legal training able to help out?

mikeveal

4,559 posts

249 months

Thursday 17th July 2014
quotequote all
Yes, you are wrong.
Looks like your contract is with the mechanic. Not the booking agent. Very clear in the booking agent's Ts & Cs.

Your alternatives appear to be: stop wasting your time and use VISA charge back as you've been advised, or have your day in court and very probably lose.

My legal training doesn't extend beyond a module on contract law studies 20+ years ago. So feel free to ignore my advice along with all the other advice you're getting telling you exactly the same thing. But if you do keep ignoring the advice, please come back and post the results; laughing at people isn't kind, but it is gratifying.

JustinP1

13,330 posts

229 months

Thursday 17th July 2014
quotequote all
Efbe said:
Hi All

so could do with some help again on this one!

I did file this through moneyclaimonline to the small claims court, and after an acknowledgement of service a lawyer has finally replied with two points which I could do with knowing roughly where they/I stand on this smile

firstly they say:
"your claim has no basis in law because the contract is not with ClickMechanic. The contract to undertake the work on your car was with the particular mechanic, xxxxx of xxx. This is because a contract in law is made between parties which exchange 'consideration' (i.e. the legal term for a price paid, and the service rendered). As you will see fro your invoice, you paid consideration to the mechanic, the person with whom you were in contract."

which they also say is in their terms:
"A Booking represents a contract between you and the Mechanic. By using the Website to request the services of a Mechanic, you authorise ClickMechanic to collect payments relating to the Booking on behalf of a Mechanic, including any discretionary charges stated in this Agreement. You accept that ClickMechanic bears no liability for any services performed as part of a Booking, or for any warranties or assurances given."


The second part of the defence revolves around whether they had said they would reset the oil service counter or not. Though I would be willing to see what a Judge says on this one.

So what do you guys think?
With regards to the first bit, their terms actually state that you *do* have an agreement with them, and in fact you need to tick a box to ensure that you understand the agreement.

It is not as clear cut as they make out. Simply because terms state 'We don't have a contract', that does not mean that in law the circumstances prove the same. Indeed, on the face of it, you have more of a contract with the people you paid the money to than the actual mechanic. It could be interpreted on the facts that in fact they are merely subcontracting the work. The very best case scenario for them is that it is interpreted that they are an agent of the mechanic, and they would still have a liability in their agency.

Finally, do the terms *they supplied to you* actually state what they've said? This is vitally important, as it doesn't matter what their terms state unless they have introduced them. The terms on their site, by my scan reading are not the same.

Edited by JustinP1 on Thursday 17th July 16:10

Efbe

Original Poster:

9,251 posts

165 months

Thursday 17th July 2014
quotequote all
JustinP1 said:
With regards to the first bit, their terms actually state that you *do* have an agreement with them, and in fact you need to tick a box to ensure that you understand the agreement.

It is not as clear cut as they make out. Simply because terms state 'We don't have a contract', that does not mean that in law the circumstances prove the same. Indeed, on the face of it, you have more of a contract with the people you paid the money to than the actual mechanic. It could be interpreted on the facts that in fact they are merely subcontracting the work. The very best case scenario for them is that it is interpreted that they are an agent of the mechanic, and they would still have a liability in their agency.

Finally, do the terms *they supplied to you* actually state what they've said? This is vitally important, as it doesn't matter what their terms state unless they have introduced them. The terms on their site, by my scan reading are not the same.

Edited by JustinP1 on Thursday 17th July 16:10
Thanks Justin.

The only terms supplied are those on the website. As it is all booked online, the only other terms are those in the e-mail receipt:
[i]"Thank you for requesting a booking using ClickMechanic!

We are now arranging for a mobile mechanic at the specified time. You will receive a confirmation email with the mechanic's name once it has been scheduled.

In the rare instance that none of our mechanics are available at your chosen time, we'll contact you immediately to find an alternative that works for you.
...
Payment & booking info
...

TERMS & CONDITIONS



Read more about how ClickMechanic works, our term and conditions, and our booking policies at http://www.clickmechanic.com/terms . In particular please note that £20‒£40 charge may apply (at our discretion) when cancelling or rescheduling less than 24 hours before the earliest arrival time.


If you have any queries please contact us at mail@clickmechanic.com"[/i]

so you think they are either subcontracting, or acting as an agency. That helps, gives me some stuff to go away and look at.

The reason I thought I had the contract with them and not the mechanic, is because even at this stage I do not know who the mechanic is, they essentially saying one has yet to be assigned. Let me know if I am wrong here.

The payment bit is awkward. You give them your card details before you book, then I assume they do a pre-payment authorisation, then you pay when the mechanic has finished the job, using their click mechanic app on the mechanics phone.


As Mikeveal was nicely saying though, if I do turn out not to have a case, I will back down, I do not want to waste the courts time!

JustinP1

13,330 posts

229 months

Thursday 17th July 2014
quotequote all
Efbe said:
The only terms supplied are those on the website. As it is all booked online, the only other terms are those in the e-mail receipt:
[i]"Thank you for requesting a booking using ClickMechanic!
If they've not introduced those terms for you to accept, then there is the argument that they are not part of the contract.

The wording is somewhat ambiguous, as it sounds at that point that there is no contract in place. What happens if you were to pull out at that point? Would they charge you?

With regards to pulling out, you have to look at the whole picture.

If you don't withdraw, they have a litigation risk. They *might* lose. Judges can be random, and see things differently to either party. So, after they invest more than the amount of the claim on sending an employee, they might be doubly down.

For this amount, I'd be surprised if they didn't look to settle if you stood your ground at 50-100% of the claim. It's be cheaper for them to do this than come to court and win.

Efbe

Original Poster:

9,251 posts

165 months

Thursday 17th July 2014
quotequote all
JustinP1 said:
Efbe said:
The only terms supplied are those on the website. As it is all booked online, the only other terms are those in the e-mail receipt:
[i]"Thank you for requesting a booking using ClickMechanic!
If they've not introduced those terms for you to accept, then there is the argument that they are not part of the contract.

The wording is somewhat ambiguous, as it sounds at that point that there is no contract in place. What happens if you were to pull out at that point? Would they charge you?

With regards to pulling out, you have to look at the whole picture.

If you don't withdraw, they have a litigation risk. They *might* lose. Judges can be random, and see things differently to either party. So, after they invest more than the amount of the claim on sending an employee, they might be doubly down.

For this amount, I'd be surprised if they didn't look to settle if you stood your ground at 50-100% of the claim. It's be cheaper for them to do this than come to court and win.
Justin

Yes, I would be charged at that part if I cancelled the booking. does that mean I am in contract at that point?

And I would be happy for them to settle. I don't really need my day in court, but I do hate companies that treat the customer like dirt wink

JustinP1

13,330 posts

229 months

Thursday 17th July 2014
quotequote all
Efbe said:
JustinP1 said:
Efbe said:
The only terms supplied are those on the website. As it is all booked online, the only other terms are those in the e-mail receipt:
[i]"Thank you for requesting a booking using ClickMechanic!
If they've not introduced those terms for you to accept, then there is the argument that they are not part of the contract.

The wording is somewhat ambiguous, as it sounds at that point that there is no contract in place. What happens if you were to pull out at that point? Would they charge you?

With regards to pulling out, you have to look at the whole picture.

If you don't withdraw, they have a litigation risk. They *might* lose. Judges can be random, and see things differently to either party. So, after they invest more than the amount of the claim on sending an employee, they might be doubly down.

For this amount, I'd be surprised if they didn't look to settle if you stood your ground at 50-100% of the claim. It's be cheaper for them to do this than come to court and win.
Justin

Yes, I would be charged at that part if I cancelled the booking. does that mean I am in contract at that point?

And I would be happy for them to settle. I don't really need my day in court, but I do hate companies that treat the customer like dirt wink
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...?

Efbe

Original Poster:

9,251 posts

165 months

Friday 18th July 2014
quotequote all
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,

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 smile

Edited by Efbe on Friday 18th July 11:18

JustinP1

13,330 posts

229 months

Friday 18th July 2014
quotequote all
Efbe said:
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 smile
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.

Efbe

Original Poster:

9,251 posts

165 months

Friday 18th July 2014
quotequote all
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 smile

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

13,330 posts

229 months

Friday 18th July 2014
quotequote all
Efbe said:
does this mean the contract formation was when I clicked the botton above and received an e-mail confirmation for them?
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.

Efbe

Original Poster:

9,251 posts

165 months

Friday 18th July 2014
quotequote all
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.

If you are ever up north, I owe you a pint smile

tenpenceshort

32,880 posts

216 months

Friday 18th July 2014
quotequote all
IANAL, but so far it looks to me as if it's an agency with an undisclosed principle.

Efbe

Original Poster:

9,251 posts

165 months

Friday 18th July 2014
quotequote all
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?

CYMR0

3,940 posts

199 months

Friday 18th July 2014
quotequote all
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?
I've not read the whole contract but lawyer's terms will be good enough for me as I don't get it either!

Presumably though they're not denying that there was some contract somewhere.

Efbe

Original Poster:

9,251 posts

165 months

Friday 18th July 2014
quotequote all
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?
I've not read the whole contract but lawyer's terms will be good enough for me as I don't get it either!

Presumably though they're not denying that there was some contract somewhere.
they are saying the contract was with the mechanic, rather than themselves, hence I am going for the wrong people.

tenpenceshort

32,880 posts

216 months

Friday 18th July 2014
quotequote all
CYMR0 said:
I've not read the whole contract but lawyer's terms will be good enough for me as I don't get it either!

Presumably though they're not denying that there was some contract somewhere.
The website is agent to the mechanic, however in the contract with the third party (the OP) this might not be sufficiently obvious, as it doesn't make clear this is the case and doesn't name who the OP is contracting with (if not the website). In that instance it can be that agent has rights (and liabilities) under the contract, as if it were principle.

Zeeky

2,779 posts

211 months

Friday 18th July 2014
quotequote all
I think you mean prinicipal. That makes more sense.

tenpenceshort

32,880 posts

216 months

Friday 18th July 2014
quotequote all
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?

SV8Predator

2,102 posts

164 months

Friday 18th July 2014
quotequote all
10 penceshort said:
What I meant is that in the OPs dispute 'ClickMechanic' is claiming to act as agent for the principle (the mechanic themselves).
Do you understand the difference between "principle" and "principal"?