Distance selling regulations – Refund for item damaged in transit on return

Dermh

Can anyone assist, I recently returned an item purchased online under a distance selling regulation contract, for one reason or another we needed to return it, we notified trader within 7 days etc and they happily accepted that we could return it but as set out in their T&Cs we needed to pay for shipment.

Unfortunately the item was damaged on return and the courier is denying they caused the damage and trader is now refusing refund as they deem item to be unsellable.
I have researched my rights under the DSR and although this exact scenario isn’t detailed but there is mention of;

• Items being in unsellable condition cannot be made a condition for refusing refund and
• Any damage is a breach of my statutory duty to take good care of the item and cannot be made condition of refusal to refund.

The trader is refusing to budge and is adamant law is on their side however I am not convinced and I feel they are flouting DSR so I am forced to use small claims court to try and settle this. However before I do, am I right or wrong here? I don’t want to go to SCC and lose and end up even further out of pocket.

PS The item is only superficially damaged and could be repaired but trader is refusing any suggestion of doing this, they want the full item just written off.

Any advice/help welcome
Thanks

halibut2209

Your right to a refund is unconditional. If you went to court, they would counter claim for the damage. You would definitely win your refund. Whether they would win would depend on whatever proof was available

bod1467

My fishy friend is correct. They CANNOT refuse you your refund (for the goods AND the initial delivery charge if applicable). By doing so they are breaking the law.

http://dshub.tradingstandards.gov.uk/dsrexplained

See the section Your customers’ rights on refunds and returning goods

unholyangel

This is one of those muddy situations.

Yes the retailer should - by law - refund you within 30 days of your cancellation regardless of whether they receive the item back or not. They should then file a claim against you for breach of care. You would (assuming the courier was the one who damaged the item) then make a claim against the courier for the losses you incurred (ie monies you were due the retailer for the diminished value).

You could try pointing out to them that the consumer rights directive was introduced to clarify existing law - and that consumer rights directive makes it clear that even a clear breach of duty/care does not remove your right to cancel - however it does allow them to make a deduction for its diminished value (instead of having to chase the consumer under breach of care).

Was the packaging damaged? What was the item? Was it sufficiently packaged?