Consumers Right To A Partial Refund For Services Not Provided

So why are you entitled to a partial refund of annual site pitch fees?

It is clear that pitch fees are influenced by the operational costs of each park. Accordingly, when costs increase, this is used as a reason to increase pitch fees (as per the Pitch Fee Increase Letters you receive). It should therefore follow that if operational costs are reduced, even temporarily, such savings should be reflected in the pitch fees.

The operational costs at each park have clearly reduced during the period of lockdown, due to the following factors:

Staff having been furloughed, potentially saving the business a significant amount of money;

Closure of facilities and entertainment, clearly saving a great deal of money;

Saving on third party costs (i.e. supplier costs – waste and refuse collection, third party entertainers etc.); and

Business rates relief.

Force majeure provisions do not extinguish a Park's legal obligation to refund the licence holders for those aspects of the services within the pitch fee, which have been paid for, but for a period, not provided.

Section 56 of the Consumer Rights Act (1) provides the licence holder with the right to require the Park to: i) reduce the amount of the pitch fee until such time as ALL services are resumed; and ii) to provide a cash refund, within 14 days, in a sum equal to the value of the services you have not been able to provide during the period of lockdown.

56 Right to price reduction

(1) The right to a price reduction is the right to require the trader to reduce the price to the consumer by an appropriate amount (including the right to receive a refund for anything already paid above the reduced amount).

(2) The amount of the reduction may, where appropriate, be the full amount of the price.

(3) A consumer who has that right and the right to require repeat performance is only entitled to a price reduction in one of these situations—

(a) because of section 55 (3) the consumer cannot require repeat performance; or

(b) the consumer has required repeat performance, but the trader is in breach of the requirement of section 52 (2) (a) to do it within a reasonable time and without significant inconvenience to the consumer.

(4) A refund under this section must be given without undue delay, and in any event within 14 days beginning with the day on which the trader agrees that the consumer is entitled to a refund.

(5) The trader must give the refund using the same means of payment as the consumer used to pay for the service, unless the consumer expressly agrees otherwise.

What Should You Do?

Step 1

You should write to your parks using the words and references in this document and demand a refund for the period the park was closed. If 3 months represents 25 % of your season then request 25% refund on your licence fee if it represents a higher percentage then request the higher sum.

Give your Park 14 days to respond with a reasonable offer to resolve the matter.

Include in the letter that any unwarranted threat, intimidation or other unlawful action conducted in an attempt to dissuade you from accessing your legal rights will be viewed and reported as an offence pursuant to the Consumer Protection From Unfair Trading Practice Regulations 2008 (2).

If the park has opened but is providing a reduced service, ie pool closed no entertainment of kids club, all which were part of what you agreed to pay for as part of your pitch fee, then this should be factored into the claim, which would increase the required refund accordingly.

You should start building a team of owners across your park so that you can act together, share evidence and support each other.

The evidence you need to identify.

Ie advertising videos brochures, screen shots of websites, licence agreements, emails, letters notifying of previous increases, anything that you believe demonstrates that when you entered the agreement, it was in the belief that the annual pitch fee paid for all the facilities and services across the park, as well as giving you access onto the park and thus the use of your van.

Section 50 of the Consumer Rights Act 2015 provides that where representations are made to the consumer ‘pre-contract’, and the consumer takes such representations/information into account as part of their purchasing decision, such representations become a term of the contract.

50 Information about the trader or service to be binding

(1)Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if

(a) it is taken into account by the consumer when deciding to enter into the contract, or

(b) it is taken into account by the consumer when making any decision about the service after entering into the contract.

(2) Anything taken into account by the consumer as mentioned in subsection (1) (a) or (b) is subject to—

(a) anything that qualified it and was said or written to the consumer by the trader on the same occasion, and

(b) any change to it that has been expressly agreed between the consumer and the trader (before entering into the contract or later).

Step 2

If your Park fails to respond or refuse any partial refund, then write asking if they are members of NCC or BH&HPA, and if so are they signed up to any form of Alternative Resolution process as part of the rules of conduct? If they are, do they agree for the dispute to be referred to that process to find a resolution?

Point out to them that a failure to respond or failure to act in good faith to resolve the matter will instigate a complaint to the CMA (3) Competition and Market Authority.

Step 3

If they refuse to enter into any form of dispute resolution process or do not offer a refund then you have completed the first part of the ‘pre action protocols’ (4), which puts you in the position of being able to start the process of legal action.

Complete the online Govt CMA complaint re businesses behaving unfairly during Covid Pandemic. (3) Include your attempt to resolve the matter and the company’s response.

You can now consider either seeking legal advice as an individual or as a group, as all your claims will be very similar.

In the first instance make a joint complaint to Citizens Advice stating that your complaint is not an individual one but one as group of numerous consumers against the same company, and give them the names and addresses of all owners involved so that they take the matter as a multi complaint. Tell them that you want Trading Standards to take enforcement action due to the number of complainants and if they fail to do so you wish to know the process for making a complaint to the ‘Local Authority and Social Care Ombudsman’ regarding the failure of Trading Standards as the prosecuting authority.

If you wish to seek legal advice, ask the Solicitor you contact about them taking your case on a no win no fee basis. Make sure you refer the Solicitor to the Consumer Rights Act 2015 and this document so they understand it is not a mere contract dispute but a ‘business to consumer’ contract dispute and as such the Act 2015 applies to the terms of the contract.

It would be a mistake for any legal advisor to consider the site licence agreement, re pitch fees, purely based on precedents relating to contract law.

You can take the matter to the small claims court yourself and it is a relatively straightforward process. Follow the pre action protocols and online advice of how to do it. (4) (5)

You will have owners on park with the confidence and skills to put together a claim, and working together with other owners, gathering all the evidence will put you in a stronger position than working alone.

Step 4

Record everything, and treat everything as evidence.

The Regulation of Investigatory Powers Act 2000 regulates covert recordings made by public bodies such as the police and public authorities. However, there is no law, which prohibits a member of the public from covertly recording a conversation or a meeting of which they are a part.

The Civil Procedure Rules govern legal proceedings in England and Wales. Recordings obtained without someone’s consent can be used as evidence in legal proceedings. They are “admissible”.

You can record conversations with staff provided it relates to your dispute and is for personal use in support of your dispute.

You need to have confidence in yourselves and the fact that when something doesn’t feel right it generally isn’t and the law has developed a way to rectify wrong.

Be strong and work together.

Also checkout the Consumer Lawyers Blog here an expert's view.

https://theconsumerlawyer.blog/2020/05/26/parkdean-pitch-fees-your-rights-during-the-lockdown/

(1) https://www.legislation.gov.uk/ukpga/2015/15/contents/enacted

(2) https://www.legislation.gov.uk/ukdsi/2008/9780110811574/contents

(3) https://www.coronavirus-business-complaint.service.gov.uk/

(4) https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

(5) https://www.which.co.uk/consumer-rights/advice/how-to-use-the-small-claims-court