Am I entitled to a refund? As i'm being refused!

neilmcl

nox118 wrote: »

Although you have entered into a contact for a service, e.g. entertainment, you did so online, so I would say that the DSR apply.
The questions I would ask you are
- when did you book your event.
- were there any cancellation rights as detailed in the DSR in their T&C's
- were you then supplied the cancellation rights in a durable format as per the DSR's e.g. via email order with the tickets.

If no to the latter then you are able to cancel as the service has not started.

From the DSR http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf
For services:

if you give your consumer the required written information on or
before the day the contract is concluded, their cancellation

rights will last for seven working days, counting from the day after
the contract was concluded, or
If the required written information is providedafter the contract is
concluded but within three months(beginning the day after the
contract was concluded), cancellation rights will last for seven working days after the information is received.

The cop out could be the Package tour regulations
a ‘Package’ means a pre-arranged combination of at least two components. When they are sold or offered for sale they must be done so at an all-inclusive price, and when the contract is for more than 24 hours or has overnight accommodation, has either:

Transport;
Accommodation;
A ‘tourist service’ not ‘ancillary to transport or accommodation’ and accounting for a significant proportion of the package’

DSRs (right to cancel) don't apply in this instance because it's a leisure/entertainment service for a specific date.

If you're going to link the OFT's guidance to DSRs it may be an idea you read it yourself first.

wealdroam

nox118 wrote: »

Although you have entered into a contact for a service, e.g. entertainment, you did so online, so I would say that the DSR apply.

And I agree.

However, on page 9 of the OFT's Guide to the DSRs it says...

Contracts to which only part of the DSRs apply (Regulation 6)
2.20 The requirements to provide pre-contractual information, written and additional information, the right to cancel and the obligation on the supplier to carry out the contract within a maximum of 30 days do not apply to the following types of contract:

• Contracts for the supply of food, drinks or other goods for everyday consumption delivered to the consumer’s home or workplace by regular roundsmen, for example milkmen. In our view this exemption does not apply to home deliveries by supermarkets or other home delivery grocery businesses. However, in relation to the right to cancel, such businesses can often rely on some of the exceptions listed under paragraph 3.38.
• Contracts to provide accommodation, transport, catering or leisure services (for example hotel accommodation; plane, train, or concert tickets; car hire; or sporting events) where you agree to provide the service on a specific date or within a specific period. However, long-term residential hotel accommodation agreed under a distance contract may be considered to be rented accommodation and therefore subject to the DSRs.

I believe the second bullet point means that the OP has no cancellation right under the Distance Selling regulations.

unholyangel

neilmcl wrote: »

DSRs don't apply in this instance because it's a leisure/entertainment service for a specific date.

If you're going to link the OFT's guidance to DSRs it may be an idea you read it yourself first.

Well they do apply. The problem is that all the useful parts (7 to 19) dont apply.

neilmcl

unholyangel wrote: »

Well they do apply. The problem is that all the useful parts (7 to 19) dont apply.

Seeing as you going to be pedantic I've updated my post.

unholyangel

neilmcl wrote: »

Seeing as you going to be pedantic I've updated my post.

Sorry! One of my bad habits :X

nox118

My mistake re DSR's applying i only order tickets online where they have decent cancellation policies.

Does the supplier of the service have a right to cancel an event, if they do then should the consumer have a right to cancel as well, otherwise it's an unfair condition of a consumer contract?

arcon5

I blanket term allowing them to cancel under any eventuality would probably be deemed unfair leaving them liable for your losses - in many cases though this is nothing more than the cost of the ticket.
But it's likely such a term would cover certain instances so what's fair and unfair would be determined by the nature of the service and the wording of the term. For example a term giving a sky diving instructor the right to cancel in case of bad weathers would likely be seen as fair, but a term giving him the right to cancel if his cup of coffee only had one sugar instead of two could see him liable for consequential losses.

But this isn't relevant as they haven't cancelled

nox118

arcon5 wrote: »

I blanket term allowing them to cancel under any eventuality would probably be deemed unfair leaving them liable for your losses - in many cases though this is nothing more than the cost of the ticket.
But it's likely such a term would cover certain instances so what's fair and unfair would be determined by the nature of the service and the wording of the term. For example a term giving a sky diving instructor the right to cancel in case of bad weathers would likely be seen as fair, but a term giving him the right to cancel if his cup of coffee only had one sugar instead of two could see him liable for consequential losses.

But this isn't relevant as they haven't cancelled

In the above quote, you would be entitled to a full refund in either case, as the supplier has cancelled or rescheuled the event.
see - Guidance on unfair terms in consumer entertainment contracts -OFT667.pdf.


I was thinking more along the lines of the following from OFT667

Potential right to some refund even where the consumer has cancelled without justification
6.28 Where the consumer cancels without any such justification,
and the supplier suffers a loss as a result, the consumer cannot expect a full refund of all prepayments. But a term under which they lose all prepayments, regardless of the amount of any losses incurred by the supplier, is at risk of being considered an unfair penalty. Please also note the related discussion of penalty terms below.

Mitigation
6.33 Under general contractual principles, suppliers are expected
to mitigate any loss they suffer when a consumer cancels.
The OFT objects to terms that explicitly ignore any real
possibility of such mitigation.

So under general contractual principles, the supplier should mitigate losses when a consumer cancels (e.g. buy insurance against customers cancelling, having a reserve list), and has to at least part refund the customer.

Discuss

arcon5

In what is quoted, do take particular notice of the term:

is at risk of being considered an unfair penalty

It doesn't say it's automatically unfair - it basically says may be unfair. It says this because consumer protection laws are often based around what is 'reasonable'. Because it simply cannot govern every possible scenario.

We all know pre-payments & deposits aren't necessarily non-refundable as it depends on the losses incurred as a result of any breach. But at what point can the retailer reject any kind of breach.... 1 day before the show? 1 hour? 1 minute before it starts?

At what point does it become impossible for them to mitigate their losses?
What is reasonably practical when mitigating losses?

I'm betting most would agree with 1 days notice they will struggle to attempt to mitigate their losses and having reserve lists wouldn't be practical for them.

Then there is the aspect of loss of profits in case of cancellations.

Ectophile

nox118 wrote: »

Mitigation
6.33 Under general contractual principles, suppliers are expected
to mitigate any loss they suffer when a consumer cancels.
The OFT objects to terms that explicitly ignore any real
possibility of such mitigation.

So under general contractual principles, the supplier should mitigate losses when a consumer cancels (e.g. buy insurance against customers cancelling, having a reserve list), and has to at least part refund the customer.

Discuss

I think you're placing a lot of burden on the supplier. Taking out insurance against a customer cancelling would cost money.

A reserve list - or selling late tickets - would be possible, but the supplier would have to offer a substantial discount to the new customer.

Both require the supplier to do extra work, and costs them money as well.