Paying a Trader 'Under Protest': Your Rights

When a service you've paid for doesn't meet your expectations, or you find yourself disputing the quality of work or an unexpected charge, it can feel like you're caught between a rock and a hard place. You need the work completed, but you don't want to lose your right to challenge the payment. This is where the concept of paying a trader 'under protest' becomes a crucial tool in your consumer arsenal. It's a method to settle an immediate financial demand while formally reserving your right to pursue further action for compensation or resolution. This guide delves into the specifics of how and why to employ this strategy, particularly in the context of service contracts entered into before 1 October 2015, which are governed by the Supply of Goods and Services Act 1982.

Understanding Your Rights: The Supply of Goods and Services Act 1982

Before 1 October 2015, contracts for services in the UK were primarily governed by the Supply of Goods and Services Act 1982. This Act laid down fundamental protections for consumers, implying certain terms into every service contract, even if they weren't explicitly written down. For contracts entered into on or after this date, the Consumer Rights Act 2015 applies, offering similar, updated protections. However, for any historic contracts preceding October 2015, the 1982 Act remains highly relevant.

What Constitutes a 'Service'?

The term 'services' under the Act is incredibly broad, encompassing a vast array of work. This could range from minor vehicle repairs where no written agreement exists, to significant building projects with detailed contracts. Services can be offered on their own, such as a gym membership or dry cleaning, or they can be combined with goods, for instance, when a company supplies and installs a new kitchen or carries out car repairs involving replacement parts. Other examples include work by professionals like solicitors or accountants, entertainment, parking, and private health treatments.

Implied Terms of Service Contracts

Under the Supply of Goods and Services Act 1982, three key terms were implied into all contracts for work or services:

1. Reasonable Care and Skill: The work must be carried out with the level of care and skill that a competent person in that profession would exercise.
2. Reasonable Time: If no specific timeframe for completion was agreed upon, the work must be finished within a reasonable period.
3. Reasonable Charge: If no fixed price was set in advance, the charge for the service must be reasonable.

Additionally, any goods or parts supplied as part of the service (e.g., new components in a car repair) must be:

• As described
• Of satisfactory quality
• Fit for their purpose

Defining 'Reasonable'

Determining what is 'reasonable' can often be subjective and is a common point of dispute. Here's how you can gain clarity:

• Standards of Work: Contact a relevant trade or professional association for guidance on expected standards. If goods are involved, manufacturers can provide insights.
• Independent Expert Opinion: Consider commissioning an independent expert to assess the work. Be mindful that this can be costly, and recovering these fees from the trader isn't always guaranteed, even if the expert supports your claim.
• Timeliness: Ask other traders how long they would typically take to complete similar work.
• Pricing: If no price was agreed, obtain quotes from other traders for the same job to gauge a reasonable charge.

When Things Go Wrong: Addressing Problems with Service Contracts

If you've encountered issues with a service provided under a contract entered into before 30 September 2015 – perhaps the work is unsatisfactory, costs more than agreed, or took too long – you have several avenues to explore for compensation or resolution.

Breach of Contract and 'Time of the Essence'

If work isn't completed on time, or within a reasonable timeframe, you can formally write to the trader to make 'time of the essence of the contract'. This means you set a specific, new deadline for completion. If the trader fails to meet this deadline, they will be considered in breach of contract. This then frees you to seek estimates from other traders, have the work finished elsewhere, and hold the original company responsible for the additional costs incurred. While court action is a last resort, negotiating fair compensation for the delay might be a more practical initial solution.

Dealing with Unauthorised Work

It's not uncommon for traders to carry out additional work without your explicit authorisation. In such cases, you are generally not obliged to pay for this extra work. However, a pragmatic approach might involve:

• Accepting the work if it seems genuinely necessary and reasonable, and then negotiating a fair price.
• Asking the trader to undo the unauthorised work.

Guarantees vs. Statutory Rights

A trader's guarantee on their work does not diminish your statutory rights under the Supply of Goods and Services Act 1982. Your legal entitlement to work done with reasonable care and skill, using satisfactory and fit-for-purpose materials, persists beyond any guarantee period. A trader cannot deny remedial work simply because their guarantee has expired; you may still be legally entitled to free repairs or replacements for issues related to poor quality work.

The Power of Paying 'Under Protest'

If you're in a dispute with a trader but need to make a payment – perhaps to retrieve your vehicle, avoid further charges, or simply move forward – paying 'under protest' is a vital legal mechanism. This action signals that you are making the payment under duress and do not agree that the full amount is legitimately owed, thereby preserving your right to pursue a claim for compensation or a refund later.

How to Pay 'Under Protest'

The process is straightforward:

• If paying by cheque, write 'paid under protest' clearly on the back of the cheque.
• If paying by bank transfer, card, or cash, hand or send the trader a separate covering letter stating unequivocally that you are paying 'under protest'. This letter should outline the specific reasons for your dispute and your intention to seek redress.

This simple act creates a formal record that your payment is not an acceptance of the service or charge, but rather a necessary step taken while a dispute remains unresolved.

Considering Withholding Payment

Alternatively, if you are genuinely dissatisfied with the standard of work, you are perfectly entitled to withhold some or all of the payment. You'll need to decide whether to pay a portion of the bill and retain a reasonable amount to cover the disputed area, or to delay the entire payment. Crucially, always inform the trader clearly and in writing about what you are doing and why. Being reasonable and prepared to negotiate can often help avoid legal proceedings.

Gathering Evidence: Building Your Case

Should your dispute escalate, you will need robust supporting evidence. The burden of proof rests with you to demonstrate your case 'on the balance of probabilities', meaning you must show a court that your version of events is more likely to be correct than not.

Key Evidence to Collect:

• Documentation: Keep meticulous copies of all letters, emails, contracts, invoices, and payment records.
• Photographs: Take clear, dated photographs of the problem areas, before, during, and after any remedial attempts.
• Expert Reports: If necessary, obtain an independent expert's report. Try to agree with the trader on which expert to use; if they refuse, proceed with your own. For small claims court, aim to keep the report cost below £200, as this is the maximum recoverable amount for such expenses. The report should detail:
• The nature of the problem.
• Its cause (e.g., poor workmanship, faulty components).
• What is required to rectify the issue.
• The estimated cost of rectification.
• Relevant supporting visuals (photos, diagrams).
• Ensure the expert provides their qualifications.

Alternative Dispute Resolution and Further Avenues

Before resorting to court, consider these options:

Ombudsman Schemes

Many service sectors have ombudsman schemes designed to resolve disputes without the need for court action. Check if your trader is a member of such a scheme. These schemes can often provide a quicker, less formal, and less expensive route to resolution.

Regulators for Specific Services

For services like gas, electricity, telecommunications, and water, independent regulators exist to handle consumer complaints.

Section 75 of the Consumer Credit Act 1974

If you paid for the service using a credit card, and the cost was between £100 and £30,000, you might be able to pursue a claim under Section 75 of the Consumer Credit Act 1974. This makes your credit card provider equally liable with the trader for any breach of contract or misrepresentation. This can be a powerful tool, especially if the trader becomes uncooperative or ceases trading.

Important Considerations

Before investing significant time or money into a dispute, consider the practicalities:

• Can you locate the trader?
• Do they have the financial means to pay compensation?
• Can you definitively prove your case?

If the work or a product leads to an accident, personal injury, or property damage, seek further advice as this falls into a more complex legal area. Your local Trading Standards Service can offer basic guidance on unsafe products.

Frequently Asked Questions (FAQs)

Q: What's the main difference between the Supply of Goods and Services Act 1982 and the Consumer Rights Act 2015?

A: The Consumer Rights Act 2015 replaced the Supply of Goods and Services Act 1982 for contracts entered into on or after 1 October 2015. While both aim to protect consumers, the 2015 Act modernised and consolidated consumer law, making rights clearer and often stronger. However, for older contracts, the 1982 Act remains the governing legislation.

Q: Can I refuse to pay a trader if I'm unhappy with their work?

A: Yes, you are generally entitled to withhold payment if you are genuinely unhappy with the standard of work. However, you must inform the trader in writing of your reasons and the specific issues. It's often advisable to withhold a reasonable amount corresponding to the disputed work rather than the entire bill, and be prepared to negotiate.

Q: What if the trader insists on immediate full payment despite my dispute?

A: If you need to make the payment (e.g., to retrieve property) but wish to preserve your right to dispute the charges, pay 'under protest'. This means clearly indicating your dispute when making the payment, for example, by writing 'paid under protest' on a cheque or sending a formal letter alongside your payment.

Q: How much compensation can I claim for an expert report in small claims court?

A: In the small claims court, the maximum amount you can typically recover for the cost of an expert’s report is £200. It's wise to keep this in mind when commissioning reports for your case.

Q: Does a trader's guarantee mean I can't claim if problems arise after it expires?

A: No, a trader's guarantee does not override your statutory rights. Under the Supply of Goods and Services Act 1982, you are entitled to work done with reasonable care and skill, and goods that are satisfactory and fit for purpose. These statutory rights can extend beyond a guarantee period, meaning you may still be entitled to free repairs or rectification for latent defects.

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