How to Use The Misrepresentation Act 1967

Misrepresentation Act 1967

Been mis-sold a contract? Use the Misrepresentation Act 1967

This is a much underused Law. (It doesn’t cover Scotland but Scottish Law is broadly similar). It protects the consumer from being mis-led or mis-sold goods or services. If you enter into a contract and purchase an item or service because you believed a statement (not an opinion) regarding it, then you can end the contract, get a refund and claim compensation. There are three types of Misrepresentation where a false statement was made:

Fraudulently – statement made by someone that they know is untrue, believe it is untrue or is made recklessly
Negligently – statement made carelessly or without reasonable grounds for believing its truth.
Innocently – statement made without fault

Fraudulent/negligent statements
If you entered a contract as a result of a fraudulent or negligent statement you can cancel the contract. You can also claim damages in most cases. These claims are on the basis of negligence or fraud. The person who made the misrepresentation has to disprove the negligence. So for example, if you book a holiday on the basis that it is a holiday where children are not allowed and find that when you arrive the place is overrun with children then this is a clear breach. I used the Act  as part of a complaint for a story regarding misrepresenting a holiday booking.

Innocent statements
This is considered to be when either party enters into a contract having reasonable grounds for believing that his or her false statement was true. The contract is usually just cancelled in this situation.

Under Section 2(2) Misrepresentation Act 1967 the court has the discretion to award damages instead of allowing you to end the contract if it deems it appropriate. It cannot award both, judged on nature of misrepresentation and losses suffered.

Limitations
If you chose to continue with the contract although you were aware of the misrepresentation you will not be able to end the contract or claim damages. For example if you booked a holiday knowing that the hotel described in the brochure was family friendly but you knew this was a mis-print due to other factors in the brochure or had had it pointed out to you and you proceeded with the booking you will have, in law, “affirmed” the contract.

You need to act quickly after discovering the misrepresentation. For example, if you have been sold a mobile ‘phone contract on the basis of receiving 500 free texts a month and you have continued to use the ‘phone for a few months before complaining about being charged for them a court may say that you should have complained the first month in which you were charged. All cases are different though and are assessed as such.

I quoted this Act in a case against NatWest and Sunmaster. Which category of statement do you think they fell into? Have you used this Act? Will you now you know about it?!

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The Real Reason Clarke Was Pushed!

Because he never listened to anyone, least of all the customers.

Just like a child

Just like a child he thought he knew best, but unlike the child who learns to listen…

Who says?
Well, firstly, followers of this blog, know that I do and have frequently said it on many a blog post, including the very first one and Facebook status over the last couple of years. I have described how, many times he has ignored the comments of customers, ignored the complaints, ignored ideas to improve customer service and ignored opportunities to do something different and not just cut prices. Stick “Tesco complaint” into Google and up come the contact pages and my blog! I think that’s quite funny. But on a more serious note, what that and my statistics on which pages get the most views and comments (and their content) on Tesco posts show, is that people really want to complain about Tesco, are interested in other complaints about Tesco and want to know what else to do when they can’t get redress from all the contacts.

But hey, I’m just a customer, what do I know?

What did I say?
I won’t bore those of you who have read all, or at least some of my Tesco posts by going on one of my rants but in short I have always maintained:

  1. he ignored emails from customers (and by this I mean he didn’t even pass down to his executive team and many people have said this) Justin King of Sainsbury’s didn’t
  2. he didn’t go to the shop floor and talk to staff and find out what was going on, or ask for their ideas (after all they are customers too) Justin King of Sainsbury’s did…
  3. he didn’t look at or respond to my posts on here, Justin King did….
  4. he didn’t thank customers for bringing complaints to his attention, or apologise for  or learn from, complaints sent by customers,  Justin King did..
  5. that Clarke should have been sacked..

Justin King left Sainsbury’s this month having turned the place around, maybe he was getting out when he knew things were going to change who knows? But what we do know is that Justin King took up the post when the place was in trouble, Phillip Clarke didn’t. Although it was about to hit trouble of course and King’s replacement may be in the same kind of sinking ship as Clarke was. The new Tesco chappie has the opportunity to do what King did.

But hey, I’m just a customer, what do I know?

What did others say?
A few things:

  • One former Tesco director said Clarke, 54, “confused activity with progress,” took a series of “short term knee jerk decisions” and had failed to listen to colleagues. “Phil has never listened, Phil is a teller,” he said (Reuters)
  • Analysts said that Lewis’ “…experience with branding could help a company that was no longer associated by many Britons with either low prices or quality.”
  • ” … as shareholders and business analysts bemoan the falls in revenues, profits and market share. But he said: ‘I don’t listen to what others have to say about us’” said Clarke, quoted just 9 days ago…

But hey, I’m just a customer, what do I know?

New chappie
Dave Lewis, currently the head of Unilever’s personal care division. Lewis will be the first chief executive of Tesco who has not come from within the company. As someone who worked in local authority for many years and saw people being promoted from within to jobs way beyond their capability and by the same token seen many a useless highly paid consultant come in when the authority could have given someone extra duties and back filled the post, I personally think that’s probably a very good move.

But hey, I’m just a customer, what do I know?

According to this article in the Guardian today, Nick Bubb a veteran retail analyst said “Dave Lewis knows nothing about retailing, but maybe that doesn’t matter, because as a leading supplier he certainly knows how to win price wars and perhaps that is the big issue now facing Tesco in the UK.” Sir Richard Broadbent, chairman of Tesco, says Lewis knows the supermarket chain well”. “He knows the brand. He knows consumers. He is the right person to bring that perspective.” Ah now there’s the thing. He “knows consumers”. Does he? Does he listen to them and deliver what they want or is he going to tell everyone what consumers want? Clarke believed he knew consumers and what they wanted but he didn’t listen to any of them.

But hey I’m just a customer, what do I know?

 

The Complaining Cow’s Tesco other related posts:

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The Minimalist Guide to Complaining About Your Holiday

Package Travel, Package Holidays and Package Tour Regulations 1992
A package holiday is defined by law as having at least two of these three components, all as part of a ‘package’ that you pay an inclusive price for: transport (such as flights, transfers etc.) accommodation and/or another tourist service which makes up a significant proportion of the package. It also has to last for more than 24 hours, or at the very least include overnight accommodation as part of the trip. As an example, a day-trip to a tourist attraction in the UK which includes entry and travel to the attraction is not covered.

The organiser (tour operator) is liable for the failures of hoteliers, suppliers and services within the contract. if the holiday is cancelled, the consumer is entitled to a substitute package of equivalent or superior quality (if the other party to the contract is able to offer such a substitute) or to take a substitute package of lower quality and recover the difference in the price or to have a full refund.

Redress
The organiser must not provide mis-leading information and provide details about changes as soon as possible. The consumer is entitled to redress for a variety of things dependent on what regulation has broken and when.

Loss of value, the difference between the cost paid for the holiday and the one received.
Out-of-pocket expenses incurred reasonable costs as a result of the breach of contract
Loss of enjoyment, compensation for the disappointment and distress caused by things going wrong.
Personal injury, compensation for any personal injury incurred abroad (specialist legal advice is thoroughly recommended here).

Regulations 12 and 13 refer to alterations in the package holiday or to departure times or location and are probably the most used. I quoted them here when I got Adam and Mel most of their money back.

Full details of the Act here.

ABTA and ATOL. Members of the former follow a code of conduct, so break that and you can report them to ABTA. The ATOL scheme of financial protection covers flight-based holidays. If you buy a land- or sea-based holiday such as coach, rail or cruise holiday from an ABTA member your monies will be protected by the ABTA scheme of financial protection, so if your travel company fails and your holiday can no longer go ahead you will be entitled to a refund if you are yet to travel and hotel costs and transport home if you are abroad

ATOL stands for Air Travel Organisers’ Licence. It is a government-run financial protection scheme operated by the Civil Aviation Authority (CAA). All monies you pay for package holidays involving flights and holidays including a flight plus accommodation and/or car hire, must be protected under an ATOL licence.  You will receive an ATOL Certificate at the time you make your payment, and you will need to keep the certificate safe.

ATOL cover means that if your travel company fails and your holiday can no longer go ahead you will be entitled to a refund if you are yet to travel and hotel costs and flights home if you are abroad. Flights booked directly with airlines are not protected under the ATOL scheme. ATOL is a financial protection scheme, it does not provide other assistance if there are other problems with your holiday.

Remember, if you are unhappy with your accommodation you should complain about it to your representative as soon as possible as the company should be given a chance to put matters right. You may still be entitled to redress of course. If however you do not complain at the time you will be asked if it was really that bad as you didn’t ask to be moved.

Anyone got any holiday nightmares for which they got redress?

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How to Beat a Post Office Trick

Time for a story. Who shall we pick on this time? Let’s have a go at the Post Office and Royal Mail two different businesses in fact. The Post Office offers the Royal Mail services.

The parcel
Some time ago I helped someone with their Royal Mail problem. She had bought a bottle of perfume from a private seller on Ebay. The contents turned out to be fake. The seller agreed a full refund including postage. Not surprised given the considerable trouble she could have got into had Sarah simply reported her to certain authorities….

What's in your parcel?

What’s in your parcel?

Now, Royal Mail lost the item. No surprise there then. So, Sarah wrote to the Royal Mail and explained what had happened. Someone from the Royal Mail wrote back and said that she wouldn’t be getting a refund because she had posted a prohibited item. You can find a list of prohibited items here. Call me cynical but apart from some obvious stuff this list includes other toiletries which you may well send as gifts, so check this list before you post liquid gifts. After shaves, perfumes and nail varnishes are allowed but there are restrictions on size etc. Sarah told me that no-one in Royal Mail had asked her what was in the parcel and no reference was made to what wasn’t allowed. How many of you knew you can’t send certain after shave or nail varnish in the post? There is no information on the walls or in leaflets regarding this in the Post Office, so I think this was pretty unfair. I believe that the Post Office has a duty of care to ensure that the public knows Royal Mail policies. You aren’t allowed to send “filth” (that could be very subjective!) and no sending of human or animal remains about the UK either please. Or ice. Anyone ever sent ice? Why should anyone have to check the Internet before they post anything? How about people who don’t have the Internet? So I wrote Sarah’s letter for her, telling them exactly that and that I expected a full refund due to their failing to undertake reasonable skill and care in ensuring the public knew their rules. Matthew at Royal Mail agreed and Sarah got her full refund. Not that I got a thank you. Sarah is no longer my friend.

Other Royal Mail Complaints
Generally of course, it is letters and parcels that are acceptable to Royal Mail that go missing. If you need to complain the contact details are here. The things that are covered here and the levels of compensation here. What problems have you had with the Royal Mail (other than it being sold off too cheaply of course).

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Why You Suck at Gaining Redress (and what to do about it)

So, you get poor service at the restaurant and don’t complain or if you do complain you don’t gain redress. You buy an item that’s faulty but don’t get a refund. Why?

You need the adjustment

1) Your expectations are too low. You think that the item was cheap so what do you expect? You think the meal you had at that place last time was bad so you aren’t surprised when it is again. If a kettle was bought to boil water it should boil water. Simple! If you buy a meal it should be made with reasonable skill and care. If you had a bad meal there last time you should have complained and maybe things would have improved!

2) You don’t know your legal rights. The main ones you need to know are The Sale of Goods Act and The Supply of Goods and Services Act. Items should be of satisfactory quality and last a reasonable length of time. Your contract is always with the company that sold you the item. Services should be undertaken with reasonable skill and care and within a reasonable length of time.

3) You think it will take too much time and effort. Going back to the shop arguing about refunds. Well, if you know your legal rights you won’t arguing you’ll be assertive and if you still don’t gain redress you can take the matter further by which time you will be asking for more than a refund.

4) You shout at people on the ‘phone or in person. Would you give me what I wanted if I yelled at you? Think, be polite particularly as often the person or people at fault aren’t usually the people to whom you complain.

5) You’ve gone back to the wrong shop! Yes I have heard of this being done, frequently! Check your facts first.

6) You think that because you have lost the receipt that you can’t get your money back. Wrong. You just need proof of purchase such as a credit card bill.

7) You don’t like complaining and aren’t assertive. Fair enough, but seriously? You’d rather be out of pocket? If you are in the right you have nothing to worry about!

8) You are complaining about something trivial and you aren’t out of pocket. There is a difference between complaining about 69p because it is the principle of the thing and complaining that you don’t like the colour of the carpet.

So, get out there and complain when something goes wrong! Tips here on how to complain.

Who has got some complaining failures to tell? Customer Service representatives what other things can the complainer do that will ensure you don’t give redress?!

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