Retailer refusing to refund lost order even though I didn’t specify a safe place & no signature

biscan25

If we are talking about balance of probabilities if it goes to court:
For the OP to win the case, they have to send LBA, submit evidence, go to court, etc. 
All this to put the back in the position they should have been and not profit from the case, a lot of effort if fraudulent.
If the OP stole the goods, after being called out by the retailer, they could have backed out at any time and either kept, or "found" the goods and returned them for a refund.
So if I was the judge I would side with the OP on the balance of probabilities in this case, given that 1%(say) of items are misdelivered.
I do have sympathy for the OP, my items get misdelivered at least 10% of the time, since there is an xx Way near my house, and I live on xx Road. Its an almost weekly trip to swap letters and parcels. On one occasion I opened the door to a Royal Mail parcel man, told him exactly where the other house was, then saw him on my Ring doorbell chucking the parcel over my fence as soon as I'd shut the door!

Sandtree

biscan25 said:

If we are talking about balance of probabilities if it goes to court:
For the OP to win the case, they have to send LBA, submit evidence, go to court, etc. 
All this to put the back in the position they should have been and not profit from the case, a lot of effort if fraudulent.

So what you are effectively saying is that the claimant should win in most cases... which is nonsense

Take the the thread that is currently immediately above, the OP in that case could have litigated about their faulty sofa but instead took it up with their bank. By your logic they would have won had they litigated.

The bank did a chargeback and so now the merchant is threatening to sue the OP of that thread and by your logic they'd win. But all has changed is who is the claimant and who is the defendant.

In practice in the majority of cases only one party is financially out of pocket and so only one can litigate. That doesnt increase their prospects of success. Else like the above sofa case you;d be saying if a chargeback was successful (which it wont be in this case) that Zara have a high prospect of success for suing the OP too.

Just look at the "crash for cash" scams... thousands end up in court litigated by the scammers.

unholyangel

In order to pass risk, the trader needs to show that the package came into the physical possession of the OP. 

While tracking may help show on the balance of probabilities that the package was delivered somewhere, it doesn't quite have the same weight on the balance when it comes to proving it entered the physical possession of the consumer. Particularly if the OP can prove they were not at home at the time the parcel was delivered (tracking data from phone if its turned on, letter from employer confirming they were there etc). 

Remember that committing fraud (which is what it would be if you claimed you didn't receive a parcel you did receive in order to get more goods/free goods) is a criminal offence for which the standard of proof is beyond reasonable doubt. A much higher standard to meet than the balance of probability.

The retailer could have their own delivery team, insist on seeing photo ID etc but they don't because of cost considerations. However as it is their choice (and for their benefit), they retain the risk & liability for that choice. This is precisely why the CRA 2015 state that the risk only passes when it enters the physical possession of the consumer or someone identified by the consumer. 


Also, you don't actually need to be financially out of pocket to take something to court. Specific performance is something the courts can order. Although it's generally reserved to cases where you can't source the goods/services elsewhere (ie valuable artwork) as it can be problematic to force a party to perform a contract they don't want to perform. 

cx6

As has been mentioned a couple of times on here, your best bet forward is to send a LBA followed by a Moneyclaimonline.

Meanwhile you could pop to your local sorting office and see if they can throw any light on what happened to the parcel.

It is not clear from the email from Zara if they have closed the case because the tracking says 'delivered' or if they have investigated with RM and procured more information. Maybe a polite reply asking this might also help

screech_78

I work for one of the uk’s biggest retailers and deal with complaints raised to executive level: this is something I see a lot! 

If zara are anything like my company, there won’t be any investigation with Royal Mail beyond some GPS data. Same goes for Hermes. They have escalation teams, however it’s a case of “system says this, investigation over”. The only courier that actually do proper digging are DPD. I’d say that Royal Mail deliveries receive the least complaints though. 

In my team, it would come down to customer’s order history. If it’s a one off, we would replace or refund. If the customer (or their address, email address etc) have previous, it’s a judgment call and sometimes a flat “no chance”. With DPD, we can also find out if they’ve claimed that other orders haven’t been delivered by other retailers. 

If they’re not budging, it’s an LBA and small claims. 

Manxman_in_exile

I was out last Saturday and returned to the house about 4pm.  My wife also was out.

As I was parking the car in the street a courier pulled up and delivered a parcel to our neighbours at number 12 (three doors up from us).  He then continued down our road with another package and turned up our path.  "That must be for us" I called out from the car, and I asked "Is the surname XXXX or YYYY?".  "Neither he replied".  "Is it for number 6?" (our house) I asked, and he said "No.  It's for number 4".

The courier had made the same mistake many people do and it happens quite frequently.  Because our neighbouring house at number 4 appears to be the first house (end of terrace) on the "even" side of our road, many people assume that it must be number 2 and that we must be number 4 - despite our house clearly being numbered 6.  (Number 2 on our road is physically the end of terrace on the road running at right angles to ours and looks as if it ought to belong to that road, and not ours).

If I hadn't been getting out of the car as he was walking up our path, I know what would 'robably have happened - and I think I know because it's happened before.  He would have left it in a redundant green recycling box next to our front door.  If he left a note saying that it was there, that would be fine.  But if he didn't leave a note - and that's quite common - it might not have been found for several weeks as we weren't expecting a delivery.  (The box is only used for storing odd garden items and is only opened* very infrequently.  Plus we have never ever given instructions for anything to be left there)

As far as Amazon and their courier would have been concerned, it would have been correctly delivered to number 4 even though it hadn't.  And the courier hadn't acted in bad faith - he'd simply made a mistake by not double-checking the house numbers.

And I don't see how GPS would have established anything in this case either, as the doorsteps of number 6 and number 4 are - at their closest to each other - no more than 18" apart.  It would be impossible for GPS to distinguish between them.

My point is that it can be very easy for stuff to be inadvertantly misdelivered (in the sense that it has not been delivered into the physical possession of the addressee) through no particular fault of the courier/delivery man, and that this might not be easily ascertainable by GPS or other tracking.  In the example here, if I hadn't been there at the time and the courier had laft the package and taken a photograph of our front door, it would have subsequently confirmed to number 4 that it had been delivered to the wrong address - even though the courier and Amazon thought it had been delivered correctly.  Why is it so difficult for a courier to take a photograph of the delivery location?  (I accept that a photo mignt not necessarily assist the OP here depending on what the photo showed, but if it showed a front door other than the OP's it would confirm that it hadn't been delivered into the physical possession of the OP).


*  And Royal Mail make delivery mistakes as well - although not necessarily like the one above.  Last Christmas my wife's niece sent her some small gift via RM that the niece said "needed to be signed for".  It didn't turn up and we forgot about it over Christmas and New Year.  (The niece had assured my wife that it wasn't of any particular significance or value so, although we wondered what had happened to it, we weren't concerned that it had never arrived.)  Then, at the end of January, we got a note from Amazon to say they'd left a parcel in the green recycling box while we were out.  We opened the box and there was the parcel from Amazon and, underneath it, the tiny package from the niece!  It had been in there for nearly a month because we'd never received a note or anything through the door from RM to say it had been delivered.

Manxman_in_exile

unholyangel said:

In order to pass risk, the trader needs to show that the package came into the physical possession of the OP. 

While tracking may help show on the balance of probabilities that the package was delivered somewhere, it doesn't quite have the same weight on the balance when it comes to proving it entered the physical possession of the consumer....

Remember that committing fraud (which is what it would be if you claimed you didn't receive a parcel you did receive in order to get more goods/free goods) is a criminal offence for which the standard of proof is beyond reasonable doubt. A much higher standard to meet than the balance of probability.

The retailer could have their own delivery team, insist on seeing photo ID etc but they don't because of cost considerations. However as it is their choice (and for their benefit), they retain the risk & liability for that choice. This is precisely why the CRA 2015 state that the risk only passes when it enters the physical possession of the consumer or someone identified by the consumer. 
...

Welcome back.  (Hope you are well).

Thank you for explaining far more succinctly and far more clearly what I was trying (and clearly failing) to express in previous posts.  I particularly like the phrase "However as it is their [the retailer's] choice (and for their benefit), they retain the risk & liability for that choice".  I think this applies equally to the choice not to take a photo of the delivery location as it does not to get proof of identity.

(As a general observation - not necessarily the case in this thread - I'm often surprised at how quick some posters are to ascribe the possibility of malign intent to OPs and to defend retailers failing to fulfill their statutory obligations - often on irrelevant grounds of cost and/or inconvenience).

Manxman_in_exile

Sandtree said:

Manxman_in_exile said:
How difficult these days is it to take a photo of actual delivery to the consumer?  It's in the retailer's interest to insist on their courier doing this.

With GDPR? A lot more difficult than just pressing the shutter button. 

If the retailer (or rather their agent the courier) has delivered the goods into the physical possession of the consumer, are you suggesting that a simple photograph of an open and identifiable front door would be a GDPR breach?  I've certainly had this happen to me - when it's not just been dumped in the green box! - and I've not had an issue with it.

What do you think is a problem?

Sandtree

Manxman_in_exile said:

Sandtree said:

Manxman_in_exile said:
How difficult these days is it to take a photo of actual delivery to the consumer?  It's in the retailer's interest to insist on their courier doing this.

With GDPR? A lot more difficult than just pressing the shutter button. 

If the retailer (or rather their agent the courier) has delivered the goods into the physical possession of the consumer, are you suggesting that a simple photograph of an open and identifiable front door would be a GDPR breach?  I've certainly had this happen to me - when it's not just been dumped in the green box! - and I've not had an issue with it.

What do you think is a problem?

A photo of an identifiable door doesnt prove it was handed to the named person on the package... for that you need an image of the recipient, with the parcel. 

A picture of a person does fall within GDPR and the complexities of consent, privacy notices, issues with minors etc. Some may take a risk based approach that if they pose for the photo that they've consented and can go to the website for the privacy notice etc but given the potential fines under GDPR many wont hence they go for a photo of the open door that doesnt prove anything... I can ring a doorbell, snap as the door opens and run away then claim parcel delivered.

Manxman_in_exile

So because  "A photo of an identifiable door doesnt prove it was handed to the named person on the package... for that you need an image of the recipient, with the parcel" that is one of your "reasons" in favour of the courier NOT taking a photograph?

You forget that all the photo has to do (from the retailer's point of view) is to provide additional evidence that contributes to establishing "on the balance of probabilities" that the item has been correctly delivered into the possession of the addressee.  (That's why it says "on the balance".) 

You appear to be suggesting that because a photograph of the open front door to the addressee's dwelling with the package sitting on the doorstep doesn't necessarily 100% conclusively prove that it's been delivered into the physical possession of the consumer, then such a photo has no evidential value whatsoever, and does not contribute one iota to the balance of probablilities one way or the other?  Is that really what you believe, or are you just demonstrating a contrarian point of view?

In the event such a photograph exists, what do you honestly think it most likely tends to prove on the balance of probabilities?  That (a) the item has been correctly delivered to the addressee; or (b) that it has not been correctly delivered to the addressee and the front door had been opened by (i) a dishonest member of their household who has stolen it; or (ii) a burglar who had just broken into their property and has stolen it; or (iii) the item had been stolen by space aliens; or (iv) the delivery man picked it up straight after taking the photo and ran off with it thumbing their nose and blowing raspberries; or (c) the OP is lying about not having received it?

I have a reasonably clear view of what the probative value of such a photo would be, and I'd be surprised if a court thought differently.

I think I'm saying this for the third or fourth time now - I can see no valid reason whatsoever for a courier not taking such a photo.  It's in their and their principal's interests to do so.

And if the addressee doesn't want to be photographed, they don't have to be.  As above - just leave the parcel on the doorstep with the door open or ajar.  It might help though if their feet or lower legs were visible in the shot as well.  (Although no doubt you will suggest that there's nothing to stop a dishonest courier having an accomplice hidden in the van who's feet could stand in for the addressee's, or they might even have two fake lower legs in the van that could be used as well... )