Ongoing dispute with retailer, just come from court - help please!

foolishboy

Hello,

I currently have small claims court proceedings against a company that supplied, in my opinion, defective goods and is rejecting my request for a refund.

Initially I filed the claim and was awarded judgement as the defendant didn't respond. I heard nothing until I issued the warrant of execution and suddenly they pipe up and ask the court to set aside the judgement as the MD of the company in question was sick while the claim was active. All very convenient it sounds but unfortunately I went to court this afternoon and they set the judgement aside as requested so I'm back to square one!

In summary I bought a platinum wedding band and was told at time of sale it was 'medium' weight, on arrival it was deemed to be 'light'. As we'd only paid for 'light' (apparently) we paid an extra £100 to get the 'medium' weight ring.

On arrival the replacement was missing a hallmark, they apologised and said they would replace it with another but we asked for time to think and rejected the ring and asked for our money back a day later. We never took possession of the ring. The missing hallmark, coupled with the initial 'mistake' put a sour taste in our mouths and we did not want to conduct further business with the retailer.

A few days later they're on the phone saying they've got another, with hallmark, and very keen for us to come get it - of course we refused as we'd already asked for our money back.

I am claiming based on sales of goods act which states I am entitled to a full refund if goods are not as described, which I deem to be the case with a ring that's missing a vital part that contributes to it's value significantly.

Am I right to claim on this basis? Is there a better argument I can put forward?

I've now seen their statements, that'll end up at the hearing in a few weeks time and of course they're denying that we ever rejected the ring and declined a replacement. They're also saying that I said on the phone at the time of asking for the refund that I'd bought another already - total BS and I have receipt to prove that.

I've had a preliminary meeting with their defence solicitor (happens to be daughter of the MD of defendant conveniently) who says that missing the hallmark is not a justifiable reason to reject the ring and now says it was 'partially' removed during polishing process and nothing wrong with the item itself - they also claim we were told this at the time the unhallmarked ring was rejected - this is not true, at the time I was told that they had no idea why it didn't have a hallmark.

From a logical, legal and sensible point of view - what are my chances here? Of course their defense would want to convince me that there is no case there but now I'm doubting things myself.

Thanks, quite panicked!!
Foolish

MX5huggy

On the hallmarking thing:-

What needs to be hallmarked?
Any article described as being wholly or partly made of gold, silver or platinum
that is not covered under exempt articles.


http://www.theassayoffice.co.uk/images/pdfs/Hallmark%20guidance%20Notes%20FINAL.pdf

phlogeston

MX5huggy wrote: »

On the hallmarking thing

As the above leaflet says : "It is therefore a legal requirement to hallmark all articles consisting of gold, silver or platinum (subject to certain exemptions) if they are to be described as such."

The hallmark was a legal requirement. The ring could not be described as platinum unless it had a hallmark.

Therefore:
You were not supplied with a platinum ring, you were given a white metal ring. This is clearly a breach of contract.

Take a copy of the leaflet with you to court, you should not have any problems.

foolishboy

Thanks for the info .. I shall definitely take a copy along.

What they're arguing now is that as the hallmark was polished off (their story anyway) and it was explained to us as such (again, their word against ours) they should have been given a chance to put it right. They even said it happens fairly often and other customers have let them simply rectify it. Are they only saying this to make me doubt my case?

My view is that hallmark was missing, dont know or care why, but I want a refund and dont want to give them the chance to rectify - is that in itself unreasonable regardless of the history of the 1st ring that obviously made me more likely to go for the refund?

Cheers,
Foolish

phlogeston

foolishboy wrote: »

...as the hallmark was polished off (their story anyway)

I'm not a jeweller, but if anyone with any sense looks at a ring and the depth to which a hallmark is stamped by the Assay Office, it is clear that one would need to remove a fair amount of platinum to wear away a hallmark.

The hallmark is punched into the metal and I would venture the opinion that it would need to be ground away to remove any trace of it. The action of polishing, like the constant action of wearing a ring, would take decades, if not centuries to remove the hallmark.

scullster

In summary, discontent commenced with the receipt of the initial "light" ring. You had been led to believe you were getting medium, for the initial outlay but were then understandably miffed when you had to pay another £100. You rejected the second because of lack of hallmark although they have sourced a hallmarked medium weight ring for which you have paid.
I'm assuming that because you've gone to court, you've already spoken with local trading standards? Sometimes, they've been known to comment to retailers reputation but thats an aside.

I agree with phlogeston that the polishing theory sounds a little far fetched but I'd imagine that you quickly chase that up by wandering into another this morning and asking a couple of jewellers their opinion on the theory.

However, I think your grounds to reject are potentially flawed now as the retailer has a ring that fulfils the contract, i.e. hallmarked medium weight Pt ring which you are refusing to take delivery of. I don't believe the retailer has any obligation to issue a refund as the contract is now fulfilled? I'm no expert on this but your opportunity to cancel was missed when you had to pay the additional £100, and possibly then when the unhallmarked ring was rejected - your word against there's re: the rejection / thinking time, but the ring is available for collection and in the current climate, I'm not sure the court will be sympathetic to sour tastes and the tarnished symbol of marriage.

foolishboy

phlogeston wrote: »

I'm not a jeweller, but if anyone with any sense looks at a ring and the depth to which a hallmark is stamped by the Assay Office, it is clear that one would need to remove a fair amount of platinum to wear away a hallmark.

The hallmark is punched into the metal and I would venture the opinion that it would need to be ground away to remove any trace of it. The action of polishing, like the constant action of wearing a ring, would take decades, if not centuries to remove the hallmark.

New hallmarks are laser etched, not stamped, apparently ...
Thanks,
Foolish

foolishboy

scullster wrote: »

In summary, discontent commenced with the receipt of the initial "light" ring. You had been led to believe you were getting medium, for the initial outlay but were then understandably miffed when you had to pay another £100. You rejected the second because of lack of hallmark although they have sourced a hallmarked medium weight ring for which you have paid.
I'm assuming that because you've gone to court, you've already spoken with local trading standards? Sometimes, they've been known to comment to retailers reputation but thats an aside.

I agree with phlogeston that the polishing theory sounds a little far fetched but I'd imagine that you quickly chase that up by wandering into another this morning and asking a couple of jewellers their opinion on the theory.

However, I think your grounds to reject are potentially flawed now as the retailer has a ring that fulfils the contract, i.e. hallmarked medium weight Pt ring which you are refusing to take delivery of. I don't believe the retailer has any obligation to issue a refund as the contract is now fulfilled? I'm no expert on this but your opportunity to cancel was missed when you had to pay the additional £100, and possibly then when the unhallmarked ring was rejected - your word against there's re: the rejection / thinking time, but the ring is available for collection and in the current climate, I'm not sure the court will be sympathetic to sour tastes and the tarnished symbol of marriage.

I appreciate the honest response however rejecting the unhallmarked ring and asking for a refund before we agreed to any kind of replacement surely was the right thing to do and well within my rights as per sales of goods act - or is my interpretation incorrect? Consumer direct advice at the time was that I was within my rights ... but I could be way off base.

Cheers,
Foolish

foolishboy

I suppose the real focus of the matter is whether I'm within my rights (sales of goods act) to ask for a refund when I'd been handled a shonky ring and whether I have to give them a further chance to correct their mistake.

Cheers,
Foolish

phlogeston

foolishboy wrote: »

I suppose the real focus of the matter is whether I'm within my rights (sales of goods act) to ask for a refund when I'd been handled a shonky ring and whether I have to give them a further chance to correct their mistake.

Cheers,
Foolish

Sale of Goods Act is largely irrelevant. They failed to supply a platinum ring, it is a breach of contract.

You lost faith in them because they tried to supply a ring which was not platinum (but was described as platinum) - an offence under the Hallmarking Act 1973.

You have rejected the goods and asked for your money back.

They breached the contract, they broke the law - they are not entitled to a second chance.

scullster

Accepted that they breached the contract first time around but they appear to have delivered in good faith second time - is the law so clear cut? Naive maybe on my part, but why would the retailer even put up a defence if that was was case - what would they offer in terms of a defense (I've a not too dissimilar case involving a garden building (okay a shed) - the thread has been doing the rounds in the last week)