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Voyager

My money claim has just been updated at the last minute.

 

"Claim status

The defendant’s response

DSG Retail Ltd has rejected the claim. They’ve suggested mediation to help resolve this dispute.

Find out how mediation works (PDF, 399KB) (opens in a new window)

You need to email moneyclaims@hmcts.gsi.gov.uk before 6 October 2018 to tell us if you agree to mediation or not.

If you don’t send an email before the deadline, the claim will proceed without mediation."

 

What do I do now? 

Voyager

Here is their response in full:

 

1. The Defendant admits supplying the Claimant with a Samsung 65KS8000
Television (referred to below as 'the TV') under a contract of sale dated 3rd
September 2016. The purchase price was £2,199.00.

 

2. The TV was provided with a
12 month guarantee covering parts and labour but which excluded damage caused
by accident, misuse, neglect or fair wear and tear.

 

3. The Defendant contends that
the principal purpose of the TV was to watch broadcast television programmes.

 

4. The Defendant makes no admissions as to the subsequent performance of the TV
as alleged or at all.

 

5. The Defendant contends that an additional feature which was to be launched at some point in the future by Samsung would allow consumers to use their TV and control other devices such as their home windows, doors or
lighting (referred to below as ‘Smarthings feature’), which would become accessible
once consumers plugged a ‘Smarthings dongle’ (referred to below as the ‘dongle’) in
to the TV. A live internet connection would be required at the consumer’s premises,
in order to use the Smarthings feature together with the purchase of additional
equipment.

 

6. For technical reasons Samsung Smarthings were unable to release
the dongle in the UK.

 

7. The Defendant contends that there was no contact fromthe Claimant until 7th August 2018, where the Claimant advised the Defendant’s

Customer Services Department (referred to below as ‘Customer Services’) that he

required a full refund of the TV as the sale had been mis-sold and misrepresented

by the Defendant, due to the dongle not being available to access the Smarthings

feature.

 

8. On the 8th August 2018 Customer Services contacted the Claimant and

advised him that Samsung had been independently responsible for the decision

not to introduce the dongle, and that they could not have known or predicted at

the time of sale that the dongle would not be introduced for technical reasons.

Therefore the Defendant could not be held liable for the service being unavailable

in the future. The Defendant denied any miss selling and advised the Claimant that

as a gesture of goodwill it would offer depreciated credit in voucher form in the

sum of £1,374.23, to enable him to purchase an alternative television and which

took into account the price paid, age of the TV and the use derived of the TV by the

Claimant over the previous 23 months. Alternatively, as a gesture of goodwill

Customer Services also offered a goodwill payment of £200 if the Claimant wished

to keep the TV as its primary function was still being performed.

 

9. On or around 8th August 2018 the Claimant called Customer Services and rejected the offer  

referred to in paragraph 8 above and referred to the Misrepresentation Act 1967

(‘the 1967 Act’).

 

10. On the 23rd August 2018 Customer Services provided a final

response letter to the Claimant restating the offer referred to in paragraph 8 above.

 

 

11. Further email exchanges ensued and on the 30th August 2018 the Claimant

issued legal proceedings.

 

12. The Defendant contends that the TV was of

satisfactory quality at the time of sale, in accordance with section 9 of the

Consumer Rights Act 2015 (referred to below as the ‘2015 Act’).

 

13. The Defendant

also contends that the TV was fit for its purpose at the time of sale, in accordance

with section 10 of the 2015 Act.

 

14. Alternatively, the Defendant contends that

section 19(3), of the Consumer Rights Act 2015, provides consumers with additional

rights, in the event that the TV did not conform to either sections 9 and 10 at the

time of sale which the Defendant maintains it did.

 

15. If the TV is deemed not to

have conformed to the contract of sale, the Claimant had a short term right to

reject the TV within 30 days from when the TV was supplied, under section 22(3) of

the 2015 Act. However they Claimant has lost his short term right to reject, as the

time period for doing so passed.

 

16. A Claimant, who has lost the short term right

to reject, must accept either one repair or one replacement before seeking a price

reduction or final right to reject, in accordance with section 24(5)(a) of the 2015 Act.

However section 23 (3) of the 2015 Act states that the consumer cannot require the

trader to repair or replace the goods if that remedy was (a) impossible or b)

disproportionate compared to the other of those remedies.

 

17. The Defendant

contends that since the dongle was not available they were unable to provide

either a repair or replacement.

 

18. Under section 24 (5) of the 2015 Act the

Claimant may only seek a price reduction or final right to reject if a repair or replacement of the television was impossible or disproportionate compared to the other of those respective remedies; or where the Claimant has required the Defendant to repair or replace the television and the Defendant has failed to do so  

within a reasonable time, and without causing significant inconvenience to the

Claimant.

 

19. Accordingly, the Defendant denies the Claimant is entitled to recover

the purchase price since this would take no account of the use derived from the TV.

The Defendant further contends that a remedy of a partial refund was a reasonable

remedy since the Claimant still had use of the TV.

 

20. The Defendant contends that

at the time of sale the statement related to a future additional feature which at that

time was not false. The Defendant denies they made an untrue statement of fact

that induced the Claimant to enter into the contract and that would entitle him to

rescind the contract by virtue of section 1 of the 1967 Act as alleged or at all.

 

21.

Further, the Defendant had no special knowledge about the dongle or its future

implementation or otherwise and made no statements of existing fact. Any other

statements made were of an honestly held opinion or belief.

 

22. If, which is not

admitted, there has been a misrepresentation under section 2(2) of the 1967 Act

the Defendant contends that the contract should be held to be subsisting and

damages in lieu of rescission be awarded as it is impossible to restore the parties

substantially to their original position, as the Claimant has had use of the TV for

almost two years.

 

23. The Defendant contends that there was in fact no

consideration paid by the Claimant for the dongle which was to have been provide

at some point in the future at no cost. Accordingly, the Defendant denies that there

has been a breach of contract upon which the Claimant can found a claim since a

general promise unsupported by consideration is not a binding contract.

 

24. The

Defendant does not admit and requires the Claimant to prove that he is entitled to

recover 12 hours @ £15:00 per hour on ‘emails + preparations’ and that the

Defendant can be held liable for such a loss in any event as alleged in the

particulars of claim or at all.

 

25. Accordingly, the Defendant denies being indebted

to the Claimant in the sum claimed as alleged or at all.

 

26. Save as is hereinbefore

specifically admitted or not admitted, the Defendant denies each and every

allegation contained in the Statement of Claim as though the same were herein set

forth and traversed seriatim.

Explorer

It is interesting that in point 20 they make the distinction between a statement of fact and a statement of intent, that I posted some time ago that the Citizen advice upon my inquiry, informed me that it could be a weak link to my argumentation and ongoing claim as well. 

 

The John Lewis website advertises the Dongle in what I consider a statement of fact (it could be not though):

 

"Control Your Connected Home With SmartThings Extend
Developed alongside SmartThings, Samsung’s SUHD TV will have built-in software to let you do anything from switching on your lights to locking your doors**. It will connect to over 200 SmartThings compatible devices and put your home under complete wireless control – all from your TV. This way, you’ll be able to set the right scene in your living room without getting off the sofa. Please note that this feature is coming soon.

 

**With free Samsung SmartThings Extend USB adapter available within 2016, additional purchase necessary to connect other appliances to the TV."

 

How is Curry's advertising it? They have offered you as well a partial refund before you did the claim?

 

In addition they mention a 1967 Act to justify why a contract can be rescinded which from a short google it points to https://www.legislation.gov.uk/ukpga/1967/7 which is a misrepresentation act. I haven't read it yet, I will do it once home, but shouldn't this be superceded by the consumer right act as described clause (11)?

 

Consumer Right Act 2015 paragraph 19.3, which is describing the case when a good is not as described, points apart from a) the short right to reject (sections 20 and 22) also (b)the right to repair or replacement (section 23); and

(c)the right to a price reduction or the final right to reject (sections 20 and 24). 

 

Section 22 deals with the short right to reject. It mentions that

 

(3)The time limit for exercising the short-term right to reject (unless subsection (4) applies) is the end of 30 days beginning with the first day after these have all happened—

(a)ownership or (in the case of a contract for the hire of goods, a hire-purchase agreement or a conditional sales contract) possession of the goods has been transferred to the consumer,

(b)the goods have been delivered, and

(c)where the contract requires the trader to install the goods or take other action to enable the consumer to use them, the trader has notified the consumer that the action has been taken.

 

In our cases, I would and potentially will argue that even though a and b have happened, c did not happen because till Samsung's announcement about the USB Dongle, our inquiry to the trader and subsequent offer for a SmartHub, the contract was requiring the trader to take other action to enable the consumer to use the goods

 

And then there is clause c describing the right to price reduction or final right to reject

 

(5)A consumer who has the right to a price reduction and the final right to reject may only exercise one (not both), and may only do so in one of these situations—

(a)after one repair or one replacement, the goods do not conform to the contract;

(b)because of section 23(3) the consumer can require neither repair nor replacement of the goods; or

(c)the consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement of section 23(2)(a) to do so within a reasonable time and without significant inconvenience to the consumer.

 

Perhaps a choice is to ask a repair or replacement so that the TV will have the intended functionality, and since they won't be able to do that, you can exercise your final right to reject?

 

Somebody more legally adept can hopefully help more than I do!

 

Pathfinder

M,@Tyler_Durden wrote:

My money claim has just been updated at the last minute.

 

"Claim status

The defendant’s response

DSG Retail Ltd has rejected the claim. They’ve suggested mediation to help resolve this dispute.

Find out how mediation works (PDF, 399KB) (opens in a new window)

You need to email moneyclaims@hmcts.gsi.gov.uk before 6 October 2018 to tell us if you agree to mediation or not.

If you don’t send an email before the deadline, the claim will proceed without mediation."

 

What do I do now? 


It would be prudent to agree to mediation. That involves a conference call with an independent mediator and the Defendant and is a final attempt to agree to settle the claim before it gets to a hearing. There's no obligation for you to accept anything as a result of that mediation, nor to even have the call, but it shows the Court that you are being reasonable in attempting to resolve the issue.

 

The mediation call gives you an opportunity to address the Defendant's response to your claim. It would be worth going through it, writing down bullet points shooting down each of their false statements so that you can express it clearly and calmly.

 

Depending on how that goes they MAY propose a settlement offer but it will unlikely be the full value of the claim. In case they do make an offer, have a think about the minimum you'd be willing to accept.  Having said that, this is Currys so they may well look to take it all the way.

Black Belt 

@Moily wrote:

M,@Tyler_Durden wrote:

My money claim has just been updated at the last minute.

 

"Claim status

The defendant’s response

DSG Retail Ltd has rejected the claim. They’ve suggested mediation to help resolve this dispute.

Find out how mediation works (PDF, 399KB) (opens in a new window)

You need to email moneyclaims@hmcts.gsi.gov.uk before 6 October 2018 to tell us if you agree to mediation or not.

If you don’t send an email before the deadline, the claim will proceed without mediation."

 

What do I do now? 


It would be prudent to agree to mediation. That involves a conference call with an independent mediator and the Defendant and is a final attempt to agree to settle the claim before it gets to a hearing. There's no obligation for you to accept anything as a result of that mediation, nor to even have the call, but it shows the Court that you are being reasonable in attempting to resolve the issue.

 

The mediation call gives you an opportunity to address the Defendant's response to your claim. It would be worth going through it, writing down bullet points shooting down each of their false statements so that you can express it clearly and calmly.

 

Depending on how that goes they MAY propose a settlement offer but it will unlikely be the full value of the claim. In case they do make an offer, have a think about the minimum you'd be willing to accept.  Having said that, this is Currys so they may well look to take it all the way.


Hi,  just read their response and had not had long to fully go over it,  but it does seem to have a lot of misinformation in it and seems to stretch the law. As said mediation is a reasonable way,  as it's no cost to you and it could work like the ADR. I think we, all need to go over each sentence and as said have a response for each of their arguments. This is part of the process. 

Paul

Voyager

Thanks for your input guys.

I would appreciate all help regarding arguments against each of the statements that I/we disagree with.

 

For Example

17. The Defendant contends that since the dongle was not available they were unable to provide either a repair or replacement.

 

Response:

There are a number of Samsung TVs that Currys currently stock that have the built in Smart Hub feature that would have served as a suitable replacement.  The SAMSUNG QE65Q9FNATXXU and SAMSUNG QE65Q8DNATXXU to name but 2.

Black Belt 

@Tyler_Durden wrote:

Thanks for your input guys.

I would appreciate all help regarding arguments against each of the statements that I/we disagree with.

 

For Example

17. The Defendant contends that since the dongle was not available they were unable to provide either a repair or replacement.

 

Response:

There are a number of Samsung TVs that Currys currently stock that have the built in Smart Hub feature that would have served as a suitable replacement.  The SAMSUNG QE65Q9FNATXXU and SAMSUNG QE65Q8CNATXXU to name but 2.


You have just blown one hole in their defense and there are more. If you can show at mediation that there defense is misleading then that would really help,  and destroy there credibility. 

They go on about the right to reject in the first 30 days,  but this has nothing to do with your argument. They also say you have had full use for nearly 2 years,  but you have  not. The smart things capabilities we're clearly advertised by them as a major issue,  and promised a lot of functions which you have not had the use of. 

They have used these misleading tactics since day one,  and I am not surprised. 

Paul

Voyager

Paul, if you are able it would be really helpful if you could quote the relevant points that currys have made then give the arguments to that point.

This is how I hope to tackle the mediation call should that happen.

Highlighted
Black Belt 

@Tyler_Durden wrote:

Paul, if you are able it would be really helpful if you could quote the relevant points that currys have made then give the arguments to that point.

This is how I hope to tackle the mediation call should that happen.


Will do,  just initial thoughts. Will go over it tomorrow. 

Voyager

I have just come to answer point 2.

2. The TV was provided with a 12 month guarantee covering parts and labour but which excluded damage caused by accident, misuse, neglect or fair wear and tear

 

I realised that I took out the "Whatever Happens" insurance policy that I am still paying for, and wonder whether this policy has cover for this kind of incident. Perhaps I could have avoided all this by requesting a refund through the policy rather than Currys direct!

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