supply of goods and services act

Mrs Jones, the client, has presented a case of poor workmanship from Wesson Kitchen Fitters and of a service below the standard that could reasonably be expected of a professional kitchen fitting service provider. Mrs Jones engaged Wesson to provide her with kitchen fitting services on 26th October 2007 and has subsequently been dissatisfied with the time taken to provide the service and the standard of service she received.

Analysis of the Issues

The issues under dispute broadly fall within two categories: 1) the quality of the work provided; and 2) the timescale in which the works were completed. Supply of Goods and Services Act 1982 states that services provided should be:

Carried out with reasonable skill and care;
Carried out within a reasonable time; and
Charged in a way that is reasonable for the work completed.

Mrs Jones contends that sections 13 and 14 of the Act have been breached as the time taken to complete the works was 6 weeks in total, in contrast to the expected 2 week timeframe. Further, the work was not completed to a satisfactory standard. Mrs Jones has stated that the floor is not even, there are gaps between the floor tiles and that the work surface provided by Mrs Jones has been chipped during the installation process. These are implied terms and do not need to be expressly contained in the contract between Wesson and Mrs Jones. There has also been damage to Mrs Jones's driveway due to the failure of a Wesson employee to use a secure method to remove equipment from the kitchen. This has been admitted by Wesson and an agreement reached whereby Wesson will pay for a company to remedy the damage to Mrs Jones's driveway. It is not clear, based on the file, whether or not this agreement has been documented and what conditions have been placed on this work.

The timeframe of 6 weeks to complete the works is considered unreasonable by Mrs Jones. Upon entering into the contract, Mrs Jones had the expectation that the works would take no more than 2 weeks in total. It is not clear, based on the information in the file, whether or not the timescale of 2 weeks and the start date of 26th October, 2007 were stated as terms in the contract. Failure to meet with the time specified or agreed as part of the contract could enable Mrs Jones to claim damages for breach of this term. Wesson have contended that the delay in completing the contract was due to the need for additional works to make the floor sufficiently stable to tile. The total time taken to complete these additional works was in fact less than 8 days. This does not represent a substantial proportion of the total time of 6 weeks as taken by Wesson to complete the whole contract.

Work was expected to begin on 26th October 2007. Work in fact began on 6th November 2007, a full 11 days later than anticipated. As the original time scale agreed was 2 weeks, the delay in starting the works would have resulted in the time scale being breached prior to the discovery of the need for the necessary additional works.

It is not clear whether the completion of the works within 2 weeks was an express term within the contract between Mrs Jones and Wesson. In the event that Mrs Jones cannot rely on an express term, it will be necessary to show that time was an implied term and that Mrs Jones has suffered any subsequent loss related to the failure of Wesson to provide the service in a timely manner.

Mrs Jones is also claiming that the work was not completed to a satisfactory standard. Mrs Jones may have a claim against Wesson in either contract or tort. Failure to comply with the terms of the contract would enable Mrs Jones to claim damages from Wesson for breach of contract. Alternatively, in the absence of any contractual provision, Mrs Jones may be able to rely on the tort of negligence whereby Wesson failed to provide the level of care and skill that could reasonably be expected of a professional kitchen fitter purporting to hold a level of skill in the trade.

There are particular issues of standard with the floor not being level, there being gaps between the tiles and the chipped work surface. In relation to the floor, it is likely that Wesson will not accept responsibility for this due to the fact that a third party company, Sorters, was brought in to complete the levelling works. In order to claim damages from Wesson, it would be necessary for Mrs Jones to prove that they were indeed at fault for the un-level floor.

Mrs Jones has indicated that she would like to obtain financial compensation for the time delay, the sub-standard finish and the damage to the work surface. Mrs Jones has also indicated that she has been offered a remedy for the damage to her driveway. It is not clear, however, whether this offer is acceptable to Mrs Jones.

The file does not state whether or not Mrs Jones has paid the agreed sum of �9,500, either in whole or part. Any negotiation for compensation would in effect reduce this amount and therefore it is necessary to know whether the amount has in fact been paid over in full or whether Wesson are still awaiting payment.

Possible Resolutions

In order to resolve this matter it will be necessary to enter into dialogue with Wesson. In the first instance a mutual agreement should attempt to be reached, this will be the most time and cost effective approach to dealing with a case of this nature. Alternatively, arbitration should be considered. Arbitration is available through the Small Claims Court procedure. This is available for most cases under �5,000 in value. It will be necessary to discuss with Mrs Jones the expected financial compensation levels to determine whether this is a possible course of action.

It is not clear whether Wesson belong to a trade body or association. Most trade associations relating to building services offer an independent arbitration service which allows an independent expert to make a determination based on the facts of the case. This alternative is likely to prove less costly and quicker than a more formal legal procedure through the courts. Bear in mind that the courts are reluctant to award damages for distress and therefore settling outside of court may produce a favourable alternative for Mrs Jones.

Initially, written discussions should be entered into with Wesson in an attempt to negotiate and meet a mutually acceptable resolution for all parties. It will also be necessary to consider whether Mrs Jones wishes to pursue Sorters for the un-level floor. As Mrs Jones used the third party firm to level the floor, the possibility of obtaining compensation from Sorters should be considered. Expert advice should be sought to determine where the poor workmanship has occurred and the possibility of pursuing the third party should also be considered in light of a professional report.

Actions

The file is currently missing several vital pieces of information which need to be gathered in order to facilitate a negotiated settlement with Wesson. It is vital that we receive instructions from Mrs Jones in relation to what she hopes to achieve from this action. In particular, we will need to ascertain her expectations in terms of level of compensation and whether she wishes Wesson to repair the damage they have done, pay for another firm to repair the damage or whether she simply wants financial compensation.

Estimates need to be obtained from alternative professional fitters as to the amount it would cost to rectify the damage done. Mrs Jones should also provide details of any subsequent economic loss that she has suffered due to the failing of Wesson. Copies of all written correspondence and in particular the original contract need to be seen to ascertain whether there are any actions possible under the terms of the contract. In particular, the contract should be analysed to determine whether or not there is a clause dealing with disputes and how disputes should be managed. A trade association body should be contacted, preferably one of which Wesson is a member, to obtain an independent report by a professional as to the service and quality received by Mrs Jones.

Interview with Mrs Jones

An interview should be arranged with Mrs Jones to discuss the next possible steps to resolve this case. One of the most important things to ascertain from Mrs Jones is her expectations of what she hopes to achieve and what she is prepared to accept as a resolution. This will give an indication of the boundaries in which negotiation can occur. Mrs Jones should be asked about the possibility of pursuing Sorters for the uneven floor. As this firm was recommended by a family member, it may be that she is reluctant to pursue this line. Her attitude to such an action should be explored. All paperwork needs to be gathered, in particular any written undertakings by Wesson in relation to timing and the standard of the workmanship.

Outline of a Letter to Wesson

As the first action should be to open communication with Wesson, a letter needs to be drafted outlining Mrs Jones's position, her issues and the possible resolutions. In particular, the following should be underlined. The issues relating to the time in which it took to complete the works need to be detailed with particular reference made to any written statement of time and any expectation or understanding that existed between the parties. The delay in starting the works should be clearly stated as unacceptable and the issue of requiring third party intervention to level the floor should be raised and the arguments against the relevance of this delay should be forwarded. Including a chronology, either in the body of the letter or in the appendix, would be a useful visual aid to support the argument that the time taken to complete the work was unreasonable.

The contention that the uneven floor, the gaps between the tiles and the damaged work surface shows a standard of care below that which would be reasonably expected from a professional kitchen fitter should be made. This contention should be supported by an independent report from a trade body or association. In particular, the probable counter argument by Wesson that the un-level floor was due to the third party contractor should be dealt with to limit the scope of any rejection of responsibility by Wesson on this matter.

The issue of the damaged driveway should then be raised. Although liability is not in contention and Wesson have agreed to pay to rectify the situation, the requirements relating to this offer should be laid out including any specific requirements made by Mrs Jones relating to the timing of the repairs and the contractor that should be used to complete the repairs.

In order to facilitate the negotiations, the letter should indicate the desired outcomes. Reference to whether or not Mrs Jones is prepared to allow Wesson to correct the work such as re-laying the tiles or replacing the work surface should be made. Suggested costs for repairs or compensation for delay should also be made, preferably with reference to quotations for repair and statements of any economic loss suffered by Mrs Jones.

Finally, a deadline for response should be stated. This should be between 7 and 14 days from the date of the letter being received by Wesson. It should be made clear what the secondary steps will be, for example, arbitration or court action if an agreement cannot be reached.

Communication and Negotiation Strategies

Negotiating in a business and legal context is often seen as an important skill in itself. Whilst cases are ultimately won by legal merit, sound use of negotiation and communication theories can facilitate the process and can provide a more favourable result than the true legal position necessarily warrants.

This case should enter into a period of negotiation in a bid to find a mutually acceptable resolution. The figures in question are relatively small (no more than �9,500) and court proceedings are therefore likely to be prohibitively costly. For this reason, negotiation and arbitration will be fundamental to achieving the desired outcome for Mrs Jones.

Several theories can be drawn upon to conduct these negotiations. The most fundamental of these theories being the desire of the parties involved to find a resolution to the issues in question. It is presumed that in order for a negotiation to take place, both parties will ultimately be looking to find a resolution. This is true in this instance as Mrs Jones will want to receive her compensation and get her kitchen completed to the standard expected and Wesson will want to receive payment for the work completed. Both parties have something to gain from reaching a resolution and therefore negotiation is possible in this case.

Negotiation theories often follow the notion that there are alternative acceptable 'spaces' that each agent can move to, during negotiations. Essentially, this theory states that both agents start at a given point, which would be their ideal solution. From this point there is a range of other acceptable alternatives, some being more acceptable than others. These are the positions in which the agent is prepared to move to in order to reach a resolution. By drawing a circle linking the outermost acceptable points and centred around the optimum point for each agent, the overlap spaces can be seen as those locations whereby both agents would be in an 'acceptable' position and therefore able to reach an agreement. In this case, it would be necessary to determine the range of potentially acceptable resolutions to Mrs Jones and to compare these with the likely range of possible solutions for Wesson. The overlap will be the main parameters for negotiation. For example, if Mrs Jones is prepared to accept no less than �1,000 in compensation but Wesson is prepared to offer no more than �1200, then the range for negotiation is from �1,000 to �1,200. As representatives for Mrs Jones, it is therefore necessary to use negotiation to get as close to �1,200 as possible.

Two other theories which are relevant in negotiations are that of Pareto Efficiency and Game Theory. Both of these are rooted in Economics; however, with impact on interpersonal communications and negotiations.

Pareto efficiency states that an agreement should be reached at the point whereby no one person can be made better off without another being made worse off. Therefore, agreeing or capitulating on a point that is of no detriment to you but will, nevertheless, benefit the other party will result in a better overall resolution. In the case of these negotiations, it is helpful to determine which issues Mrs Jones simply is not bothered about, for example, who conducts the repairs or when exactly the repairs take place. By ascertaining the factors that will be of no detriment to Mrs Jones, these compromises can be offered to Wesson in order to reach an overall better resolution.

Game theory suggests that a truly optimal solution can only be reached by fully understanding the other parties' objectives and requirements. By understanding the importance of certain issues to the other party, negotiations can be more open and a Pareto efficient solution more easily obtained. In order to do this in this case it will be necessary to gather information on Wesson's point of view. This should be established at the earliest possible stage during the initial discussions when information on the possible resolutions that Wesson sees as acceptable should be gathered.

With negotiations and communication of this sort, it is rare that both parties are acting in a fully detached or rational manner. Psychology and personal feelings, temperament and personality will come into play when attempting to find a resolution. For example, Mrs Jones may feel particularly aggrieved by her treatment; Wesson may feel that their professionalism is being questioned, both of which could result in an irrational stubbornness and reluctance to accept what appears to be a fair resolution. The theory created by M Young deals with the coherent personality element of negotiation. This suggests that there will be other factors, such as the desire not to receive bad publicity, which will have an impact on the stances taken by different agents. This could be particularly relevant in the case of Wesson whereby any good will or good public relations that they currently have will be of considerable importance to them and the danger of weakening these may result in Wesson being prepared to accept a seemingly irrationally draconian settlement.

The win / win theory of interaction and negotiation should be followed in this case. Traditionally, it has been thought that during negotiations one must lose for another to gain. The win / win theory developed by Mary Parker Follett essentially states that agreements should be reached by looking at the underlying interests and objectives rather than by looking at the starting points of the negotiations. This is fundamental with Mrs Jones. By ascertaining exactly what it is that she hopes to achieve, i.e. a repaired kitchen worktop within 2 weeks, other factors such as who exactly fits the product can be compromised on with no detriment to Mrs Jones but benefit to Wesson.

Having a positive attitude to negotiations is proved to result in a better resolution for the agent displaying the positive approach. By being less aggressive, less contentious and more cooperative, agents are more open to finding alternative resolutions and for using creative thinking to resolve the issues. Maintaining a positive and open approach throughout this negotiation will also portray confidence and result in a better resolution for Mrs Jones.

Combining these theories will allow for the negotiation of an acceptable and speedy resolution to all parties at the least possible costs both in time and monetary value.

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