Cancelled the upgrade, phone still delivered

sufu1980

Afternoon all, I'm hoping I could get your advice and thoughts on situation I've found myself in...

Some background: I've been with Three UK since March, notably without issue, on a 1 month rolling plan. After the new iPhone was announced I decided to upgrade, and then the problems began..

1) On September 28th I was looking on the Three UK site and found I couldn't upgrade the contract online, and so decided to order a new 24 month contract with an iPhone 5. So far so good.
2) I called to cancel my 1 month rolling contract and was informed I could upgrade instead, and so I did.
3) I was then passed to another department to cancel the online order, which was successfull eventually (took them 3 weeks to refund the money they took in seconds, but I digress...)
4) I was given a delivery date of 19th October, and was informed my new contract would not begin until the billing period within which the new phone is delivered. This is confirmed on the Three uk site.
5) On October 16th I was informed the phone would be delayed until November 2nd, and so I sent a letter, recorded delivery, informing them of my wish to both cancel the upgrade and the original contract.
6) I heard nothing back from them until October the 18th, where I received confirmation from the Royal Mail that the letter was signed for by a Three UK staff member. I then received an email from their Executive Office informing me they would look into the matter, and would contact me within the next 7 days.
7) That 7 day period passed without any contact whatsoever, no confirmation of cancellation, no information related to the upgrade contract, basically no communication from them at all since
8) On October 31st I received the iPhone 5, notably outside of the 30 day window in the DSR, and without my agreement to proceed with the contract based on this new delivery date.
9) That same day I sent them a letter including the original cancellation later, proof of delivery, proof of receipt (signed for by a Three staff member), and an offer to return the phone if they arrange collection at my convenience, by 9th November, after which I will assume the title of the phone under my rights covered by the Distance Selling Regulations.

My position at this point appears to be dependent on a few factors:

1) The new contract cannot begin until the phone has arrived, as per Three UK's own T&Cs
2) My contract period is from 28th to 27th of each month, I haven't used the Three sim card since 25th October.
3) I have proof that the cancellation letter was received by Three UK on 18th October, and under the DSR my right to cancel before goods or services commence is unconditional.
4) I signed for the iPhone 5, which is effectively now an unsolicited gift, as covered by the DSR, though I am making the good will gesture of offering to return it at my convenience within a reasonable time frame (by 9th November)

As far as I can tell I can only be held liable for an additional 30 days of the original 1 month contract, which I agree with, and for which I have made a token gesture and payment of £36, under the reasoning I owe them for the 30 days cancellation period, and for any additional calll charges, but not the iPhone 5 and it's associated service, as I'd cancelled before goods and services were delivered, available, or used, making the iPhone 5 an unsolicited gift.

I've been through Three's T&Cs, and the DSR as thoroughly as I'm able, and I can't find anything that contravenes what I've detailed above. Any advice or thoughts would be greatly appreciated!

Liam

Mickyk

Not an expert, but I would imagine by accepting the goods you would be agreeing to the contract, and this would void any other correspondence with them.

You may wish to phone them, play coy a bit, first check if your contract is still active, if so, when is the contract end date, if they have indeed extended it in line with the new goods, then you will have no option but to return the goods and cancel said contract. If you are lucky enough that the contract end date has not been amended, then either check that a cancellation has been scheduled or get it scheduled.

If the latter is the case, then I would revert back to the unsolicited goods, and give them a time frame for collection.

sufu1980

Mickyk wrote: »

Not an expert, but I would imagine by accepting the goods you would be agreeing to the contract, and this would void any other correspondence with them.

You may wish to phone them, play coy a bit, first check if your contract is still active, if so, when is the contract end date, if they have indeed extended it in line with the new goods, then you will have no option but to return the goods and cancel said contract. If you are lucky enough that the contract end date has not been amended, then either check that a cancellation has been scheduled or get it scheduled.

If the latter is the case, then I would revert back to the unsolicited goods, and give them a time frame for collection.

Accepting delivery of goods is not an agreement to the contract, especially when my neighbor is the one who signed for them.

Three so far are ignoring all written contact, including the cancellation, and I will not be phoning them again due to the staff incompetence, so I'm preparing myself for a legal battle to clear any damage to my credit record, prove cancellation of the original contract and the upgrade, and to provide evidence to any company that attempts debt collection.

Mickyk

But by not phoning them all you are doing is avoiding the most direct form of contact, and I can imagine this would come up in a legal qualm.
They will simply ask, after you received the device why did you not contact us in the most direct manner to clear up any confusion.
I think that you could possibly be looking to get your self a slice of cake, and eat it as well.

sufu1980

Mickyk wrote: »

I think that you could possibly be looking to get your self a slice of cake, and eat it as well.

Hardly a fair interpretation; I've attempted to cancel the contract in a method that guarantees they cannot claim the request was not received. I've offered to return the device as soon as it has been received, again via a method that guarantees that cannot claim otherwise.

sufu1980

sufu1980 wrote: »

Hardly a fair interpretation; I've attempted to cancel the contract in a method that guarantees they cannot claim the request was not received. I've offered to return the device as soon as it has been received, again via a method that guarantees that cannot claim otherwise.

Even the DSR supports my method of contact:

What customers must do if they want to cancel

A customer must tell you in writing, or in another durable medium, if they want to cancel. The customer can give notice by
leaving a notice addressed to you at your last address known to the customer, in which case notice is said to have been given on the day on which it was left at your address
posting the notice to you at the address last known to the customer, in which case notice is said to have been given on the day it was posted
faxing or emailing the notice to you on the last fax number or email address known to the customer, in which case notice is said to have been given on the day it was sent.
A phone call is not enough unless you say in your terms and conditions that you will accept cancellations by phone.
The effective date for cancellations under the DSRs is the date on which the customer gives notice of cancellation to you. This ensures that the customer can take advantage of the full cancellation period provided for in the DSRs.

gjchester

sufu1980 wrote: »

4) I signed for the iPhone 5, which is effectively now an unsolicited gift

It may be the phone order was allocated in a picking queue that could not be cancelled in time, or someone hit the wrong button, eitherway it's not an unsolicited gift it's a logistical error.

You are right you should return it at a time of your convience but as you are aware it's an error you are also liable for it's safekeeping until it is collected.

It may be a pain but phone up and get it returned, it would be far easier to call and sort this out now than ignore it and potentially have to go through the courts. Ask yourself the reasonable man question, given the circumstances would a reasonable man accept this was a free gift, or an error. Most courts would side with the error than the gift.

sufu1980

gjchester wrote: »

It may be the phone order was allocated in a picking queue that could not be cancelled in time, or someone hit the wrong button, eitherway it's not an unsolicited gift it's a logistical error.

This is the bit that's not entirely accurate; It's not a mistake of their delivery or picking system, it's a mistake of their admin teams to not accept the cancellation letter, and so initiate a process that would cancel the picking and delivery processes.

I tried being reasonable with them by phone, instead I ended up being passed from pillar to post between departments, with each promising the refund for the original order would be processed in mere hours, an instead it took 3 weeks. That's enough to dent anyone's faith in the telephone support. All I ended up with was a feeling of frustration at their complete inability to understand they'd lied to me on a repeated basis.

chanz4

At the end of the day the phones not your property, and you have a duty to give it back. Plus if you dont they will blacklist it as lost/stolen

gjchester

sufu1980 wrote: »

This is the bit that's not entirely accurate; It's not a mistake of their delivery or picking system, it's a mistake of their admin teams to not accept the cancellation letter, and so initiate a process that would cancel the picking and delivery processes..

Regardless it's still a mistake not a unsolicited gift. An unsolicited giftis one where you have no reason for it being delivered, this is a logistics mistake.

sufu1980 wrote: »

I tried being reasonable with them by phone, instead I ended up being passed from pillar to post between departments, with each promising the refund for the original order would be processed in mere hours, an instead it took 3 weeks. That's enough to dent anyone's faith in the telephone support. All I ended up with was a feeling of frustration at their complete inability to understand they'd lied to me on a repeated basis.

I can understand that, but it doesnt change the fact its not unsolicited.

Ned_Ludd

Sufu,

When you wrote to 3 Recorded Delivery, did you make any reference to the delivery of the cancelled order?