Unable to deliver parcel problem with charges

Alias_Omega

molerat,

When i was reading the DSR's, i noticed they cover the EU, and also the Non-EU.


Yesterday i instructed the seller to take receipt of the seller, they had failed to deliver it to the BFPO system.

This morning, i received an email telling me that it was to cost me £X & £Y out of my initial £159.99. Ive mailed them back with a few quotes and references to see what they see, i know what there responce will be.


Inital views are good, looks like Andy might of saved the say here..

adam.mt

Sorry Alias_Omega, but IMO your post here now seems to put a slightly different light on the matter:

Alias_Omega wrote: »

Im kinda at your position, ive contacted the seller and am waiting for a reply. I know im going to get the 'your not getting a refund on postage' reply, but for me the seller is to cover both postage out & back as they did not state it in there emails, only on the website. (Para 3.10).

If you ordered the product from their website (which I obviously assume you did), then you're subject to it's T&Cs (as long as they don't infringe your statutory rights).

However, in your case I think you're also be covered by the DSRs so at most you'll just have to pay the return delivery cost.

Alias_Omega

Sorry Adam,

I'll post more in detail.

Yesterday morning, I had an email from the seller telling me that I would have to pay £X & £Y in postal charges, £X being the initial postage out, and £Y being the postage for return.

I sent the seller an email explaining about the DSR and where i feel i stand with them. That i should have a full refund, plus postal charges.

This morning, i received an email saying that they are going to take both postal charges out of the amount paid to them, and refund me the rest. So about £72 coming back to myself. I have emailed them back repeating the information that i sent yesterday, if i dont get a reply, i plan to press on with the Paypal dispute, as recommended by Consumer Direct.

I also feel that i should not pay the return fee for the postal charges either.

The booklet says that -

Who pays for returning the goods if the consumer cancels
an order?

3.55 If you want the consumer to return the goods and to pay for that
return, you must make it clear in the contract and as part of the
required written information – see paragraph 3.10. If the consumer
then fails to return the goods, or sends them at your expense, you
can charge them the direct cost to you of the return, even if you
have already refunded the consumer’s money. You are not allowed
to make any further charges, such as a restocking charge or an
administration charge.

Which i think is pretty clear & cut that im paying, until you read the next section.

Written and additional information (Regulation 8)

3.10 If you provide pre-contractual information in a form that does not
allow it to be stored or reproduced by the consumer, such as during a
phone call or on a website, then you must confirm in writing, or in
another durable medium available and accessible to the consumer,
the information given at paragraph 3.1(i) to (viii).

In all cases you must also give your consumers the following
information in a durable medium:

when and how to exercise their rights under the DSRs to cancel including:

·for goods - whether you require goods to be returned by the consumer and if so who will pay for their return.

For more information on this see paragraph 3.55
·

Durable medium is not defined in the DSRs. Our view is that it means a form in which information can be retained and reproduced
but cannot be edited, such as an email that can be printed or a letter,
fax or brochure that can be kept for future reference. We do not
consider that information on a website is durable as it can be changed
at any time after the consumer has accessed it. Technological
advances may change what we regard as durable in the future.

From reading this, it leads me to believe that i can actually claim that i dont have to pay any postage costs. The only information i have received from them was an email with the order, the address & some contact details from themselves. There were no terms & conditions.

I found the return postage statement on a hidden piece of there website under the customer service section of the forum.

As Para 3.10 states, it must be in a Durable Medium which it isnt, so I believe that I am not eligible to pay any postage costs, as this term on the website cannot be relied upon, as it can be changed.


Alias

adam.mt

Thanks. I can see your point. However, where is that quote from?

The reason I ask is because I've not read that as being part of DSR law before - 2nd and 3rd quotes (although could be my mistake); so it's possibly it's some writers interpretation (in fact quote 3 definitely is!). Importantly I can tell you from experience that 95% of web retailers don't quote full DSR terms and T&Cs on confirmation emails; it's on their website only and you agree to them by placing the order.

If it's as you say then 95% of web retailers are thus in contravention of DSR legislation! Although, some companies are (witness Next in the news) for it to be so widespread would be a real revelation. And in terms of this board also mean the wrong advice has been repeatedly given out!

It's my understanding details on the website are sufficient, it does not have to be in written (physical or email) means.

adam.mt

Okay, found it - the OFT. After looking through their PDF it isn't actually that clear!
(http://www.oft.gov.uk/about-the-oft/legal-powers/legal/distance-selling-regulations/)

It asks for DSRs to be provided in 'durable medium' but then goes on to say that there's no exact meaning of that defined in the DSRs, but in their opinion it doesn't include websites. However, elsewhere it states that the information just needs to be reproduceable, and it's obviously possible to save a website page, print it or otherwise electronically store; thus, it's arguable that it is durable (particularly since they consider emails such).

Further, the ECRs (as defined in the PDF) contradict this and say that the information is only required in an electronic medium, not a 'durable' one (as defined before)!

In conclusion, you're argument Alias would seem to be based on the interpretation of the law rather than a clear breech. You could be right but you could be equally as wrong (IMO). This would seem rocky ground and I wouldn't be so sure of yourself. Particularly in light, as I've said, that most online retailers don't conform to that interpretation!

Perhaps, there's a 'legal expert' who may be able to assist more? Failing that it's down to the court, and often in cases between consumers and retailers it's judged based on a lack of defence by the latter (or a clear flaunting of the laws).

Alias_Omega

Adam,

As the consumer direct telephone man said, worst case i am reliable for the return postage, which is just over £35. Certaintly not the whole £88 they want to charge me. I wonder how many other people they have done this too.

I guess i could argue for the whole refund, based on the definition of 'durable medium'. As it depends on what explanation is used to define it. Though as the claimaint, i would be batting for my side and using a explanation that worked for me.

Ive not had a reply yet from the seller as of yet, i'm probably on there christmas card blacklist.

Who knows, they could be seeing legal advice & they may come through with an offer. If all fails, and i do take the £88 hit, and Paypal fails to agree with me. I can process the small claims court route again when i return to the UK in 2.5 years, when all is forgotten.