Difficult vendor relationship - request for advice...

[paulbandler]

I have recently taken delivery of about 2/3rds of an order of timber windows for a renovation and extension of a modest 1920's cottage. I've paid for what's been delivered and a deposit for the outstanding windows but the relationship with the supplier has become somewhat 'strained' and I need some advice both whether I'm being unreasonable, how best to proceed, and also my rights...

I chose a small specialist joinery company because they seemed more willing to get involved with the project by coming to visit the site for measuring and discussing the details. They also promised delivery in December and I'd seen the quality of their work in another house nearby. Although they originally indicated that they'd start delivering windows in November, they fell behind and eventually delivered 2/3rds of the windows in the last week. When the deal was struck I paid a 20% deposit, and as agreed after they'd been delivered I payed the balance for what had been delivered plus a further 20% on the outstanding windows.

Unfortunately when it came to the installation of the casement windows, despite the joiner having visited the site to take the measurements of all the masonry openings and agreeing a 'fitting' tolerance of 5mm with the builder, the builder was unable to get the windows in without recourse to taking an angle grinder to the masonry and a saw to the side and head of a couple of the windows to shave about 3mm off. Now these windows are just about the single most expensive item I've ever purchased (apart from a property) so I was somewhat upset to see that this was necessary and also at the time it took the builder to do the install. However these casements were being installed into new masonry I'm willing to believe that the overly tight fit won't show or be a concern going forward.

However, the outstanding windows yet to be manufactured (I think) or delivered are to be fitted within a conservatory like structural wooden framework, and I am very concerned that if similar inaccuracies are repeated with those windows that it might be more difficult to hide such 'bodging' during their install. So with this concern in mind I wrote to the supplier, by email, indicating the trouble we'd had during install and the concern should it be repeated on the outstanding windows.... I didn't think this an unreasonable thing to raise. I also raised a concern that I've written about in a different post http://periodproperty.co.uk/forum/viewtopic.php?t=8853 about how the sliding sash have become damaged due in part I feel to a design flaw.

Well, perhaps the tone of my email to the supplier revealed some of my 'frustration' but I believe it was civil and factually accurate. However this has had the unfortunate effect of the supplier sending a somewhat indignant reply suggesting I now remake all the measurements of the outstanding windows myself for them to work to, and further that we should perhaps cancel the order for the outstanding windows. Their email was written in somewhat litigious terminology (WITHOUT PREJUDICE etc).

My questions are:-
- if I were to cancel the order, am I entitled to the full return of my deposit?
- any other suggestions on how to handle the situation - my preference by far is that they finish the job asap so that the remaining windows match the others in style and fixtures etc. While I'm frustrated by the timeframe and the inaccuracies and damage to the sliding sash, the quality of window construction overall is (as expected) very good.

Thank you for reading this long and thank you in advance for any tips and advice.

 

[middi]

If the joinery company made the initial measurements and agreed the spec including installing charges , then it is entirely down to them to complete the job to your satisfaction. The fact that they had to do some " trimming" to either the windows or openings, and as long as this was well done without compromising the aesthetic aspect of the opening, it is not unusual or a major issue. Just more work than they originally envisaged. If the end product is what you expected there should be no real concern to yourself.

I agree that due to late delivery, combined with incomplete order and the fact that the windows were not a " perfect " fit has probably " rattled you chain " ( and rightly so), which may have caused you to overeact a bit in your complaint.

My guess is that now the small firm , already with their profit margin dwindling away because of their self inflicted extra work, combined with the (very?) harsh letter/email, have probably decided that the whole job has become too much hassle. My guess also is that they are more than willing to offer back your 20% ,cut their losses and have a peacefull Xmas.

If you agree ( as guessed) as above, you then have to find someonelse that can manufacture the remaining windows.

I would be tempted to reflect on the situation then aprroach the owner/director in person and explain the circumstances which have prompted you to send the " harsh" email. You may be pleasantly surprised, especially if the small firm are serious in carrying on with their reputation.

Have a nice Xmas.

 

[skier-hughes]

Very difficult one.
Without reading the contract and your letters it's even harder to say.

If you cancel the contract then you would most likely lose your deposit, plus anything else that the contract says you'd be liable for, it's very hard as they've suggested you cancel the order, so a properly wored cancellation letter, saying as advised by yourself etc etc, may see you winning a court fight!!

As an outsider, they promised delivery in December, which hasn't yet finished so you can't grumble that the windows you did receive were late. I agree though that it is most unlikely that any further delivery in this month is likely.

I can see why they want you to measure the windows, as you've obviously pointed out that they can't do it properly. Did you measure the windows to see if they met the spec that they had on the plans? IE were the windows out of the size range or was the original measuring at fault.

Have you double checked the measuring for the windows still to come?

You must have a set date and say that time is of the essence, in order to pursue time issues, otherwise a "reasonable" timescale is what is used. What is reasonable to the vendor is never the same as the seller.

Have you discussed with them the reasons for the delay?

I would sit back and re-read your letter, look at it from their point of view and perhaps look at building bridges by sending a further letter indicating that you were frustrated with the proceedingss and maybe you were a little harsh, so you'd like to come to an agreement on how you move forward.

 

[skier-hughes]

Actually was the builder employed by you?
Did they supply and fit?

 

[paulbandler]

Thanks for your comments folks.

The joinery company are supply only - I employed the builder (who is building the extension) to install the windows. They were both present for the measuring, but I procured the windows directly from the joinery company and employed the builder separately.

I'm less concerned about assigning responsibility for what has gone, but am really concerned to ensure the remaining windows are right because due to the nature of the timber structure they're going into, problems will be more difficult to hide, hence my email that has clearly 'upset' the supplier. The supplier all along indicated that my 'little' job was being fitted into a gap that they had, and I suspect it fell behind due to other work being given priority, and now suspect it is in the way of what they really want to be getting on with and hence want a way out of any more 'hassle'...

 

[alice]

"Little" job and "filling in [production] gaps" speaks volumes to me. One of the major problems I've had with contractors is battling the lure of the next big check, when my job has become small and stale. Aside from of the measuring problem, I would attempt to get a firm finish date and do everything you can to get the job completed quickly. This might mean that you have to re-arrange your schedule, but a quick push to the finish might prevent this project from dragging out a millennia or two. The longer it lasts, the more frustrated you'll get and you'll be unhappier with the quality of the job.

alice

 

[BMcD]

paulbandler wrote:

Well, perhaps the tone of my email to the supplier revealed some of my 'frustration' but I believe it was civil and factually accurate. However this has had the unfortunate effect of the supplier sending a somewhat indignant reply suggesting I now remake all the measurements of the outstanding windows myself for them to work to, and further that we should perhaps cancel the order for the outstanding windows. Their email was written in somewhat litigious terminology (WITHOUT PREJUDICE etc).

I Take it you were not asking for refunds in your email just pointing out some mistakes in their work and expressing some concerns you have with the remaining order and fact have paid a further 20% towards the remaining windows totalling 40% paid up front?

For them to say that you measure them yourself could be viewed as a breach of contract as could the suggestion of cancelling the order. You have entered into a contract with these people to measure and supply windows to a satisfactory
size and finish. The first lot delivered were perhaps borderline satisfactory but you accepted them and paid for them but raised concerns regarding the measuring. Don't forget the contract includes measuring so under the sales of goods and services act this too has to be satisfactory and to suggest you do it yourself, to me, is not satisfactory.

Now the term "Without Prejudice" is a legal term used in settling disputes and basically means any negotiations and offers of settlement discussed under the term Without Prejudice cannot be used in court. However for this to be enforceable court proceeding must first be under way.
Now it sounds like they don't particularly want to continue with the work but also don't want to be liable for breaking the contract so have INCORRECTLY used the "Without Prejudice" term to suggest you do the measuring (whereby making you liable for all mistakes) or you cancel the order (whereby they become the wronged party and as such keep your deposit)

So you can either insist they finish the work including the measuring to a satisfactory degree as this is the contract entered into or you have the contract terminated by mutual consent whereby all deposits are returned and compromise agreements signed to prevent future court action regarding this.
If they refuse you can use the email they sent under the Without Prejudice term as evidence of their intention to break the contract, as they have used the term incorrectly.

I must point out that I am not legally trained and would advise that legal advice is sought before bringing any action

 

[skier-hughes]

Now the term "Without Prejudice" is a legal term used in settling disputes and basically means any negotiations and offers of settlement discussed under the term Without Prejudice cannot be used in court. However for this to be enforceable court proceeding must first be under way.

I'm pretty sure this is wrong, as letters written "Without Prejudice" cannot be used in a court of law as evidence unless both parties agree to it, and this will apply to letters written before any proceedings are undertaken.

For us to give full info we really need to read both letters, as to say that the company is breaking the contract by saying they want you to now measure is correct, unless something was written in the first letter which contradicts this.

 

[biffvernon]

I wouldn't want to take sides but I'd just point out that in my experience all holes in walls that need windows are not square and do not have straight sides (even on brand new builds, as I found last week). Measurement is more art than science and one has to make a judgment between excessive gaps requiring fillers and the frustration of planing bits off the frame and chipping off bits of excess masonry. I try to remember to point this out to customers when measuring.

When measuring up for windows where there is no hole, that is where the old window has not been taken out yet, the problems are even greater. You just have to take an educated guess at where the wall ends covered by fillets of mortar.

Oh and here's the Small Print from my website:

No responsibility or liability will be accepted for any loss or damage caused through the purchase of anything from me.

Compliance with Building Regulations or other legislation must not be assumed.

No guarantees, warranties or other assurances are offered in connection with anything I do or make. All windows, doors and other stuff are sold on the basis that they are probably useless, unwanted and not fit for any supposed purpose. Manufacture is likely to be inconsistent and basically rubbish. The possibility of spontaneous combustion, self destruction or annihilation in random quantum fluctuations or jumps through wormholes in the fabric of space-time must not be discounted.

Prospective customers are strongly recommended to look at examples of my previous work (locations can be supplied on request) but they should not assume that quality will be maintained as I slip gently into my dotage. Note in particular that it is in the nature of hand-weaving that straight edges, flat surfaces and square corners are rare and probably accidental. All measurements are likely to be vague approximations to those intended, on a good day. Design is chaotic.

Prices and delivery schedules, howsoever promised, may vary at my whim.

Once an order is accepted by me the customer is obliged to hand over the agreed price in folding money of legal tender in the UK whether or not I supply the goods to the customer's satisfaction and before the goods pass into the customer's ownership.

The conditions above apply to customers wherever domiciled and supersede any consumer rights, human rights, sentient being rights or other legislation, anywhere in the multiverse.

 

[skier-hughes]

Do you have the same sort of terms for the B&B?
Ie, a bed must be paid for in advance but is not guaranteed to be available on arrival, or may be occupied by up to one or two others at the same time? :wink:

 

[Flyfisher]

No responsibility or liability will be accepted for any loss or damage caused through the purchase of anything from me.

I believe there are implied conditions in law that no-one is entitled to avoid through such disclaimers.

Negligence is certainly one. When you park your car in car park with the standard 'no responsibility for anything' notice and a lamp post falls on your car because of poor installation or maintenance, the 'no responsibility' notice is no defence.

Think about it. All health & safety issues could be avoided by such notices, but they're not because of the overriding 'duty of care'.

The conditions above apply to customers wherever domiciled and supersede any consumer rights, human rights, sentient being rights or other legislation, anywhere in the multiverse.

Ah, now I know you are only joking :wink:

 

[BMcD]

BMcD wrote:

Now the term "Without Prejudice" is a legal term used in settling disputes and basically means any negotiations and offers of settlement discussed under the term Without Prejudice cannot be used in court. However for this to be enforceable court proceeding must first be under way.

Skier-Hughes

I'm pretty sure this is wrong, as letters written "Without Prejudice" cannot be used in a court of law as evidence unless both parties agree to it,

I beg your pardon Skier-Hughes, you're right in that, it's not the case that proceedings have to be under way but it is the case that a dispute has to be, so to say letters written Without Prejudice cannot be used in court is wrong. So the window company should have asked if a dispute is taking place, else it would seem they have misused the term Without Prejudice. See last paragraph of link

http://www.geoffreyleaver.com/resources/resource.asp?DeptID=2&SubDeptID=126&toolkitid=130

So "Without Prejudice" dose have limitations and is not the great get out many companies believe it to be