Time is of the essence with B&Q

[Max Brown]

I have recently bought two items on separate occasions from B&Q for home delivery (on separate occasions) - having paid extra for the home-deliveries.

Each item was not delivered on the first stated delivery date, and not delivered on a rearranged second delivery date. The first item has now been delivered on a third rearranged delivery date, and I have now been given a third delivery date for the second item.

I have now taken 5 days of my annual leave in order to receive these goods - and planning to use a 6th for the eventual(?) delivery of the second item.

On none of the delivery days was I contacted to be told that the item was not coming. I even phoned on the morning of one of the days to check, and it was confirmed that it was on its way. When I phoned after lunch, I was told that there were "problems" with the delivery and another date would have to be arranged.

B&Q are unwilling to compensate me for my days I took as holiday.

In the future, if I wrote "time is of the essence" on the order which I signed - could I then take them to court to recover my loss of earnings for the wasted holidays (which is what it is effectively).

You may say that this is over the top - even when the items only cost tens of pounds - but it is the fact that they are so incompetent and obviously get away with this on a regular basis (having spoken to other people with similar experiences).

So what can I do regarding the past; what can I do in the future?

[Mary]

[manatbandq]

Go to

and launch a claim for loss of earnings or some such. Then write to the branch manager, regional manager, etc., and tell them what you've done.

That may elicit a better response.

MBQ

[Tommo]

The is a common misconception about the meaning of 'time of the essence'. This means that it is a condition of the contract that performance will take place as agreed, and that if not you are entitled to terminate the agreement. If time is not of the essence you may nevertheless be able to claim damages for late performance.

In other words, timing being of the essence gives you the option to terminate the agreement but adds nothing to your existing right to claim damages if they breach a contractual date for performance.

Be aware of a couple of other points. B&Q may have terms and conditions of sale that say that delivery dates are estimates only and are not contractually binding. If so, this would scupper your claim.

Further, you would have to prove your loss (holiday) was reasonably foreseeable and not too remote to be recoverable. I think that you would struggle on this ground.

Ultimately, I think you would be unwise to pursue a claim (whether now or in the future) and your best bet may be to pt it down to experience and put your business elsewhere next time. Got an Ikea anywhere nearby?

[Codswallop]

I agree, an absolute shower. Unless it involves goods only available from B&Q, in future it would be worth giving your business to Wickes, Build Centre, Travis Perkins, Focus or Homebase, or whatever alternative builders merchant is convenient to you. As for the past, I would leave it in the past.

[Harry the Horse]

If B&Q can truly walk away from such shoddy service without penalty then it would appear that 'compensation culture' has not gone nearly far enough in the UK.

[bcc97]

Not necessarily. A term like that could be unfair and unenforceable (Unfair Terms in Consumer Contracts Regulations 1999). If it were taken literally, it would potentially mean that the customer had to wait in for delivery for several days before and after the estimated date.

Although the estimated delivery date might not be a condition of the contract, it's probably a warranty. Failure to delivery on that date would therefore be a breach, as has already been said, and would entitle the buyer to damages. If the seller is diligent about informing the consumer that they cannot deliver on time, then it is likely that the buyer will be able to avoid any losses (for example by rescheduling other appointments, or perhaps rescheduling a workman who's been booked to fit the items).

However, the cost of annual leave might not be too easy to recover, for the reasons already stated. It would be easier to recover if you make it clear, when you place the order, that you will have to take a day off work to take delivery, being a day you otherwise wouldn't have taken off work.

[Willy]

I disagree, purely on the point of experience, I ordered a TV from Curry's, I was told a delivery date and therefore took the time of work as holiday.

The process with Curry's was you had to telephone the delivery centre to confirm the time of delivery after 5.00pm the day prior to the set delivery day. This i did and was informed that the given delivery date was wrong and that it was the following week instead.

I issued in the local court and Curry's paid me =A3380.00 in total (they paid without going to court), I have actually kept the cheque and framed it, it is available for inspection if anyone cares to dispute the above.

[bcc97]

Ironically, however, if the matter had gone to court, you would only have been able to claim a maximum of =A350 per day loss of earnings to attend the hearing!

[Willy]

I claimed for costs as well, which included court fee, telephone charge and interest as well as work; I claimed my day off work at full cost and got work to provide evidence of this. I believe you might be confusing what the witness costs are to attend court as opposed to liquidated damages.

[Tommo]

I suspect that they paid out because it would be cheaper to do so than to defend the case even if they won.

[Willy]

I am convinced of that, but it was fun conversing with them ;-)

[Stuart]

Excellent - what was the essence of your claim?

[bcc97]

I hadn't got confused, but perhaps I wasn't clear. The =A350 is what you might have been able to claim as witness costs, on top of the amount claimed as damages for breach of contract.

The irony is that, if it had gone to a hearing and if your daily earnings were =A3300, then you could lose almost a whole day's earnings (=A3250) having your claim for a day's earnings heard.

[Tommo]

Fair enough!

[Willy]

breach of contract

[Willy]

I see, I never expected it to go all the way, you are indeed correct, but i suspect it would have been listed for 30 minutes to an hour max.

[bcc97]

Trouble is, you could be sitting around in Court for much longer than this, just waiting for your hearing (depending on how and when it's listed, and on what other cases are being dealt with that day).

But, if there's at least a reasonable case to answer, chances are that it won't go all the way under these sorts of circumstances -- looks like you calculated your approach correctly. The cost of sending a lawyer to your local Court to defend the claim could easily have been more than you claimed -- and this cost would not normally be recoverable in a Small Claim even if your claim failed.

By the way, it's interesting to note that the Practice Direction to CPR

27 allows up to =A350 for loss or earnings or 'loss of leave'.

[Willy]

I feel you are correct on the cost issue, it is about pitching the claim at the right level. I rather suspect i was more of an annoyance factor than any real legal procedural threat.

[tim(yet another new home)]

This doesn't meant that you won't win if you sue them

Some have.

tim