Richard Durkin V. Dgs Retail Limited+hfc Bank Plc
| Jurisdiction | Scotland |
| Judge | Sheriff J K Tierney |
| Court | Sheriff Court |
| Date | 26 March 2008 |
| Docket Number | A187/04 |
| Published date | 28 March 2008 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
A187/04
| JUDGMENT of SHERIFF J K TIERNEY | ||
| in the cause | ||
| RICHARD DURKIN | ||
| Pursuer | ||
| against | ||
| DSG RETAIL LIMITED and HFC BANK PLC | ||
| Defenders |
Alt: McCallum, Solicitor
McShane, Advocate
ABERDEEN, March 2008.
The sheriff, having resumed consideration of the cause, Finds in Fact:-
1. The pursuer lives in Aberdeen and lived there in 1998/1999. Thereafter until March 2003 he lived partly in Spain and partly in Aberdeen . In about March 2003 he lived in rented property close to Marbella on the Costa del Sol in Spain. He is and was at all material times an offshore construction surveyor in the oil and gas industry. He works throughout the world. He is highly literate in respect of computers which he uses for his employment and also for recreation. When working offshore he takes a laptop or notebook computer with him.
2. The first defenders are a large retail company one of whose retail outlets is the nationwide store known as PC World. This shop specialises in the sale of computers and associated equipment. They have and had in 1998/99 a store in Aberdeen.
3. The second defenders are a bank which provides credit facilities to purchasers buying computers or equipment from the first defenders.
4. In December 1998, the pursuer decided to purchase a new laptop computer. He had certain technical requirements as to the capability of this computer and one specific hardware requirement, namely that the computer should have an internal modem. A modem is the means by which a computer can connect through the telephone system to the internet. .
5. The pursuer had no interest in acquiring a laptop computer unless it had an internal modem.
6. On or about the 28th December 1998, the pursuer visited the first defenders' retail unit, known as PC World, at 1 Berryden Road in Aberdeen for the purpose of purchasing the computer he wanted. He met a member of the management of the first defenders, Andrew Taylor, and explained his requirement to him. Mr Taylor arranged for an assistant, Robert Slorance, to deal with the pursuer. The pursuer immediately made known to Mr Slorance his fundamental requirements relating to the specification of the computer and the need for an inbuilt modem.
7. In the course of the transaction, which lasted about an hour, Mr Slorance identified a Hitachi 23T laptop computer (hereinafter "the laptop") as being a laptop which met the pursuer's specifications, but in respect of which he could not be sure whether it had an inbuilt modem.
8. The laptop was in a sealed box with technical information printed on the outside, which information was inconclusive as to whether the laptop had an inbuilt modem or not.
9. The only way in which the existence or otherwise of the modem could be ascertained was by removing the laptop from the box and operating it. The first defenders' policy did not allow this to be done prior to the customer having concluded his purchase. Mr Slorance indicated to the pursuer that he could not unequivocally state whether or not the laptop had a modem. He suggested that the pursuer should buy the laptop but if, on taking it home and operating it, he ascertained that it had no modem he could return it.
10. The pursuer purchased the laptop. He did so on the basis that it contained an internal modem but that, if that turned out to be incorrect, he could return the laptop and rescind the bargain.
11. The pursuer completed the purchase of the computer, signed the necessary documentation, paid a sum of £50 towards the price, and signed a credit agreement with the second defenders to fund the balance of the purchase. The amount of the credit afforded to the pursuer by the second defenders was £1,499. Mr Slorance acted on behalf of the second defenders in having this documentation completed by the pursuer and signed it on behalf of the second defenders. No individual from the second defenders was a party to any of the transactions at the first defenders' store, or had any dealings with the pursuer in respect of them Due to the lateness of the hour when the pursuer and the first defenders had completed the transaction for the purchase of the laptop and the pursuer had signed the credit agreement documentation provided to him by Mr Slorance on behalf of the second defenders, the paperwork in respect of that transaction could not be completed on that date and bears the date 29th December 1998.
12. The pursuer then removed the laptop as his property at or about 5 pm on the 28th December. The laptop did not have an internal modem. The pursuer ascertained this as soon as he took it home and attempted to operate it on the internet.
13. The following day, namely on or about 29th December 1998, the pursuer attended at the first defenders' store premises in Aberdeen at or about 9 o'clock. He rejected the goods as being disconform to contract, rescinded the contract, and sought repayment of the £50 he had paid and cancellation of the credit agreement.. He dealt with Mr Andrew Taylor. Mr Taylor refused to accept the pursuer's rejection of the goods and did not take any steps in respect of repayment of the money or cancellation of the credit agreement.
14. The pursuer left the laptop in the custody of the defenders and left the store.
15. The pursuer then went to work offshore and returned approximately two weeks later. On his return he found that the first defenders had delivered the laptop back to his home. He then again returned it to the first defenders. He made no payments to the second defenders in respect of the credit agreement.
16. In or about February 1999 following a request for payment from the second defenders the pursuer telephoned the second defenders, advised them that he had rejected the laptop and had rescinded the contract with the first defenders. He intimated to the second defenders that he rescinded the credit contract he had with them
17. On 8th March 1999 the pursuer wrote to the first defenders (5/4/1) confirming that he had rejected the laptop and seeking repayment of the sum of £50..
18. Thereafter in March 1999 the second defenders telephoned the pursuer and required him to make payment under the agreement he had entered into with them. The pursuer explained to them that the laptop had been rejected as disconform to contract and that he had terminated the contract with the first defenders and returned the laptop to them and that he would not pay any money to the second defenders.
19. On 22nd July 1999 the second defenders wrote to the pursuer (5/4/2) stating that if he failed to resume payments under the credit agreement possible consequences included the matter being reported to national credit reference agencies, and the pursuer having difficulties in the future in obtaining a mortgage or other credit.. The pursuer responded by telephone reaffirming his position as set out in finding in fact 16 and 18. Thereafter the second defenders issued a default notice to the pursuer and caused entries to be made in the registers of Experian Ltd and Equifax Ltd, the two largest UK credit reference agencies to the effect that the pursuer was in default of his obligations to the second defenders under the credit agreement, said alleged default being said to have commenced on 14th January 1999.
20. Between the appearance of the entries in the registers and 2003/04 the pursuer telephoned the second defenders repeatedly and sought to persuade them to remove the adverse notices, but without success. He was told by the representatives of the second defenders to whom he spoke that he should sort matters out with the first defenders
21. The second defenders did not make any inquiry into the pursuer's assertions that he had been entitled to and had rescinded his contract with the first defenders.
22. On 16 February 2000 the pursuer registered a notice of correction with Equifax (No, 5/2/3 page 5). He also intimated a correction to Experian. This had no effect on his ability to obtain new credit. He telephoned both credit agencies on a number of occasions and was told that only the second defenders could remove the entry. The entries remained on the registers until approximately 2005/2006.
23. In the period prior to January 1999 the pursuer was in the habit of funding or partially funding his lifestyle, including purchasing items and borrowing money, by credit cards. He then routinely made use of the 0% interest free credit on transferred balances which was at all relevant times available from many financial institutions in the UK. This involved the pursuer in transferring a debt due by him to one credit card company to another such company which would offer to charge no interest on the balance so transferred for a specified period of time, typically 9 months to a year. The pursuer would be charged a one off fee by the transferees, typically 2% of the balance transferred. He would be required to make a monthly payment of approximately 1.75 to 2% towards the capital outstanding and he would pay interest on all new purchases made during the life of the card. No later than the end of the interest free period the pursuer would transfer the outstanding balance together with the balance due on new purchases to another credit card provider offering 0% interest on transferred balances. This process required financial discipline on the part of the pursuer as if he failed to transfer the balance at the end of the credit free period this would result in him incurring high interest rates. The commercial benefit to the financial institutions lay in the fact that the majority of customers did not exercise the necessary discipline, did not transfer their balances out of the 0% account at the end of the credit free period, and accordingly incurred the high interest charges. There was no limit on how much someone such as the pursuer could accrue as debit...
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