Newspaper deal tablet - damaged

the_lunatic_is_in_my_head

Ergates said:

the_lunatic_is_in_my_head said:

Ergates said:

the_lunatic_is_in_my_head said:

One last post on this topic, the site below contains impartial free information, and is Government-backed. The content on Business Companion is written and verified by expert contributors, but is not designed to be a replacement for professional advice and is intended only for guidance. Only the courts can give an authoritative interpretation of the law.

Yes I know it's only guidance and I have indeed read the last line but it's a credible source, if anyone has the court's interpretation of the law please feel free to post it. I'm always happy to be corrected with a credible source and be graceful in defeat. 

https://www.businesscompanion.info/en/quick-guides/off-premises-sales/consumer-contracts-off-premises-sales#Supplyofaserviceinthecancellationperiod

A consumer loses their right to cancel a service contract that has been performed fully within the cancellation period, providing they requested this and acknowledged that they would lose their right to cancel once the contract had been performed fully. This does not apply to gas or electricity utility contracts.

Where a service has been started within the cancellation period at the express request of the consumer, but has not been completed, the consumer still has the right to cancel. However, the consumer will have to pay for the service used during the time up to when they informed you of their decision to cancel.

A consumer will not have to pay you for services supplied in the cancellation period if you have not provided them with information items 'l' and 'n' above if they had not expressly requested that you start within the cancellation period. Therefore if you start to deliver a service on your own initiative during the cancellation period the consumer will not have to pay you if they decide to cancel.

l. The conditions, time limits and procedure for exercising a right to cancel, if there is one (the next section covers cancellation in detail). This information may be provided by correctly filling in and providing the 'Model instructions for cancellation' provided by the Regulations.

This directly supports my view on the topic of not paying the trader for the service if you cancel within the cancellation period and they have not provided the required info.

The view that the legislation is mirroring what would be experienced in a shop is incredibly simplistic, it covers 3 main aspects the first of which is information, the second is the right to cancel and as such details how these two are intertwined. Given the title of the legislation the information is clearly a prominent feature, how that interacts with other aspects can't simply be ignored or have it's importance diminished. 

The above shows the legislation punishes the trader of a service for not providing the required information and in exactly the same vein the legislation also punishes the trader of goods by removing their ability to reduce the refund for any diminished value. I don't see how the court can ignore this aspect, it is present twice, in both goods and services, and supports a fundamental aspect of the legislation, the requirement to provide the consumer with correct information. 

Regarding clutching at straws, to be frank, telling me you disagree and then misquoting a simple line of text to support your view isn't much of a debating point.  

I tend to agree with the others on this.  Regardless of the exact wording of the legislation, laws are meant to be applied in a manner that is fair and reasonable and this is how they would be interpreted by a judge/magistrate.

If somebody bought a top of the line Macbook for £2600 then dropped it in the bath, it would not be fair to force the company to give the customer a full refund because, for instance, they got one word wrong in the returns details.  Or if their returns policy complied (and even went above) all the necessary regulations, but they way in which they communicated it to the customer was not correct.  To do that would be excessively punitive.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

No, because you can't actually give a company an unlimited fine (an infinite amount of money) - it just means the legislation doesn't apply any restrictions on the amount that can or should be applied

In any prosecution, the punishment (in this case a fine) would (or should) take into account the severity of the offence.  A fine that was excessive under the circumstances of the case (e.g. the business missed one of the bits of required info and was given a 600 billion pound fine) would be appealed and overturned.

The law is interpreted by humans, not text parsers.

https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/fines-and-financial-orders/approach-to-the-assessment-of-fines-2/9-maximum-fines/

Level 1 £200

Level 2 £500

Level 3 £1,000

Level 4 £2,500

Level 5 Unlimited (for offences committed after 13 March 2015)*


Unlimited is the term used to describe level 5, it's not my wording and of course a fine has to be a finite amount.

The point is there are 5 level of fines and the legislation didn't impose a lower level of fine allowing it to be capped as above but instead classed it under level 5. 

The fact that it carries a fine at all, in the case of an off premises contract at least, highlights the importance of the information being supplied. 

Ergates

Again, though, a fine would only be applied *if* the judge involved in the case decided it was warranted and would only be set at a level that the judge decided was appropriate.  That the legislation allows for a fine to be given doesn't mean that any and all breaches of the legislation are considered serious enough to require one.

Allowing a customer to get a full refund on an item that they broke would be the equivalent of a fine.  If it came to court, whether or not the judge decided that was an appropriate outcome would depend on their analysis of the case in question.  It is not an automatic (and guaranteed) outcome, in the same way that the business being slapped with a massive fine is not an automatic outcome - it would be decided on the merits of the case in question.

If the company in question was guilty of an egregious and deliberate breach - then the judge might decide that was fair.  If the company was guilty of a minor breach and/or a breach by oversight then it would be unlikely.

the_lunatic_is_in_my_head

You make a reasonable and well balanced post Ergates  

I understand that a fine, in terms of the offence, will be proportionate to the situation and unlimited doesn't equal hundreds of millions. 

But I remain firm on the view regarding diminished value as a punishment or fine or however we wish to label it. 

The legislation removes the trader's obligation not to bear the cost of return if certain durable information isn't provided, it forces the trader to cover the cost of returning goods which can not be returned by normal post if the costs of return are not provided, it also extends the cancellation period, the period of 1 year and 14 days could be viewed as significantly disproportionate, again against not supplying a little bit of information

It's a continues this theme by removing the trader's right to reduce the refund for diminished value and removing the consumer's obligations to pay for a service cancelled within the cancellation period (in both cases where the info isn't provided).

As I said above, the information plays a key part in the legislation and whist some may view not providing this as trivial I do not believe the intention of the legislation shares this view, this very simple point would appear to be the centre of all disagreement on the matter. 

There are many threads on this board where the OP will have an off premises or distance contract and the answer to their concerns will vary significantly depending upon the information given by the trader.

This thread linked below for example, such a simple question but it's not possible to answer without knowing how long the cancellation period was and that depends upon the information that was given by the trader:

https://forums.moneysavingexpert.com/discussion/6328294/online-xmas-purchase-right-to-a-refund#latest

Lastly the EU Directive from which the legislation came gives the same intention but with slightly different wording, it expects the consumer to take care of the goods but still maintains that in any event they shall not be liable for diminished value in the event of the trader not providing the information:

https://eur-lex.europa.eu/eli/dir/2011/83/oj

(47) Some consumers exercise their right of withdrawal after having used the goods to an extent more than necessary to establish the nature, characteristics and the functioning of the goods. In this case the consumer should not lose the right to withdraw but should be liable for any diminished value of the goods. In order to establish the nature, characteristics and functioning of the goods, the consumer should only handle and inspect them in the same manner as he would be allowed to do in a shop. For example, the consumer should only try on a garment and should not be allowed to wear it. Consequently, the consumer should handle and inspect the goods with due care during the withdrawal period. The obligations of the consumer in the event of withdrawal should not discourage the consumer from exercising his right of withdrawal.

2.   The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. The consumer shall in any event not be liable for diminished value of the goods where the trader has failed to provide notice of the right of withdrawal in accordance with point (h) of Article 6(1).

Carrot007

MattMattMattUK said:

mobileron said:

Why didnt they ask you what they should buy.

Probably because parents often like to be independent, regardless of age. Old people are also much more likely to trust advertisements in general, especially ones in print.

To be fair the youth get ripped of just as much. See any advert on facebook usually saying "special sale now only...", "We are teh only people that sell this" for a variety of useful to junk but whateevr can usually be had well under half price elsewhere.

MarvinDay

the_lunatic_is_in_my_head said:

MarvinDay said:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

Just because the option for an unlimited fine is available doesn't mean that it can or will be applied in all cases. It's probably only there for if and when the courts deal with large scale or repeat offenders and not for instances where a retailer has left a word or paragraph out of their T&C's.

If I was to buy a ticket for the upcoming Arsenal vs Burnley footie match and then found out that due to work commitments I wouldn't be able to go so I sold the ticket to a mate (even if I sold it for less than I paid), I too could be prosecuted and hit with "a fine not exceeding level 5 on the standard scale."
I think we all know that although the legislation allows it,  it would never happen.

In respect of what we are talking about, no you couldn't be as you are not a trader... 

And what does it matter if I'm not a trader? There is nothing in the legislation (Criminal Justice and Public order act) that states it's only an offence for an unauthorised trader to resell tickets:

166 Sale of tickets by unauthorised persons.

[F1(1)It is an offence for an unauthorised person to—

(a)sell a ticket for a designated football match, or

(b)otherwise to dispose of such a ticket to another person.]

https://www.inbrief.co.uk/football-law/ticket-touting-and-football/

Does the sale have to be in the course of trade of business?

It used to be a requirement under CJPOA 1994 that the sale was in the course of trade of business. This has now been removed by VCRA 2006 as this is not a concern from a public order perspective.

So according to you, I could face an unlimited fine for selling a ticket even if I sell it at a loss.

the_lunatic_is_in_my_head

MarvinDay said:

the_lunatic_is_in_my_head said:

MarvinDay said:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

Just because the option for an unlimited fine is available doesn't mean that it can or will be applied in all cases. It's probably only there for if and when the courts deal with large scale or repeat offenders and not for instances where a retailer has left a word or paragraph out of their T&C's.

If I was to buy a ticket for the upcoming Arsenal vs Burnley footie match and then found out that due to work commitments I wouldn't be able to go so I sold the ticket to a mate (even if I sold it for less than I paid), I too could be prosecuted and hit with "a fine not exceeding level 5 on the standard scale."
I think we all know that although the legislation allows it,  it would never happen.

In respect of what we are talking about, no you couldn't be as you are not a trader... 

And what does it matter if I'm not a trader? There is nothing in the legislation (Criminal Justice and Public order act) that states it's only an offence for an unauthorised trader to resell tickets:

166 Sale of tickets by unauthorised persons.

[F1(1)It is an offence for an unauthorised person to—

(a)sell a ticket for a designated football match, or

(b)otherwise to dispose of such a ticket to another person.]

https://www.inbrief.co.uk/football-law/ticket-touting-and-football/

Does the sale have to be in the course of trade of business?

It used to be a requirement under CJPOA 1994 that the sale was in the course of trade of business. This has now been removed by VCRA 2006 as this is not a concern from a public order perspective.

So according to you, I could face an unlimited fine for selling a ticket even if I sell it at a loss.

I have zero interest in football, I know nothing about football tickets and most importantly we aren't talking about football tickets, not really sure why you brought it up to begin with.

MarvinDay

the_lunatic_is_in_my_head said:

MarvinDay said:

the_lunatic_is_in_my_head said:

MarvinDay said:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

Just because the option for an unlimited fine is available doesn't mean that it can or will be applied in all cases. It's probably only there for if and when the courts deal with large scale or repeat offenders and not for instances where a retailer has left a word or paragraph out of their T&C's.

If I was to buy a ticket for the upcoming Arsenal vs Burnley footie match and then found out that due to work commitments I wouldn't be able to go so I sold the ticket to a mate (even if I sold it for less than I paid), I too could be prosecuted and hit with "a fine not exceeding level 5 on the standard scale."
I think we all know that although the legislation allows it,  it would never happen.

In respect of what we are talking about, no you couldn't be as you are not a trader... 

And what does it matter if I'm not a trader? There is nothing in the legislation (Criminal Justice and Public order act) that states it's only an offence for an unauthorised trader to resell tickets:

166 Sale of tickets by unauthorised persons.

[F1(1)It is an offence for an unauthorised person to—

(a)sell a ticket for a designated football match, or

(b)otherwise to dispose of such a ticket to another person.]

https://www.inbrief.co.uk/football-law/ticket-touting-and-football/

Does the sale have to be in the course of trade of business?

It used to be a requirement under CJPOA 1994 that the sale was in the course of trade of business. This has now been removed by VCRA 2006 as this is not a concern from a public order perspective.

So according to you, I could face an unlimited fine for selling a ticket even if I sell it at a loss.

I have zero interest in football, I know nothing about football tickets and most importantly we aren't talking about football tickets, not really sure why you brought it up to begin with.

No, we're not talking about football tickets but we are talking about breaches of UK legislation and as you seemed to imply that a breach of the CCR's can be so severe as to allow the offender to be punished with an unlimited fine, I was simply pointing out that this possibility of unlimited fines covers other things that may not even be the cause of loss or distress to others, things such as selling an unwanted ticket.
It's strange that you weren't concerned about me mentioning tickets when you thought it only applied to traders but now you know if covers everyone, you've decided to divert the discussion.

In a nutshell, just because the law states that a huge fine is possible, any sensible person knows that it's never going to be applied simply because a trader failed to get their returns policy written so that it's 100% perfect

the_lunatic_is_in_my_head

MarvinDay said:

the_lunatic_is_in_my_head said:

MarvinDay said:

the_lunatic_is_in_my_head said:

MarvinDay said:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/19

Offence relating to the failure to give notice of the right to cancel

19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.

(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Is an unlimited fine not also excessively punitive?

Just because the option for an unlimited fine is available doesn't mean that it can or will be applied in all cases. It's probably only there for if and when the courts deal with large scale or repeat offenders and not for instances where a retailer has left a word or paragraph out of their T&C's.

If I was to buy a ticket for the upcoming Arsenal vs Burnley footie match and then found out that due to work commitments I wouldn't be able to go so I sold the ticket to a mate (even if I sold it for less than I paid), I too could be prosecuted and hit with "a fine not exceeding level 5 on the standard scale."
I think we all know that although the legislation allows it,  it would never happen.

In respect of what we are talking about, no you couldn't be as you are not a trader... 

And what does it matter if I'm not a trader? There is nothing in the legislation (Criminal Justice and Public order act) that states it's only an offence for an unauthorised trader to resell tickets:

166 Sale of tickets by unauthorised persons.

[F1(1)It is an offence for an unauthorised person to—

(a)sell a ticket for a designated football match, or

(b)otherwise to dispose of such a ticket to another person.]

https://www.inbrief.co.uk/football-law/ticket-touting-and-football/

Does the sale have to be in the course of trade of business?

It used to be a requirement under CJPOA 1994 that the sale was in the course of trade of business. This has now been removed by VCRA 2006 as this is not a concern from a public order perspective.

So according to you, I could face an unlimited fine for selling a ticket even if I sell it at a loss.

I have zero interest in football, I know nothing about football tickets and most importantly we aren't talking about football tickets, not really sure why you brought it up to begin with.

No, we're not talking about football tickets but we are talking about breaches of UK legislation and as you seemed to imply that a breach of the CCR's can be so severe as to allow the offender to be punished with an unlimited fine, I was simply pointing out that this possibility of unlimited fines covers other things that may not even be the cause of loss or distress to others, things such as selling an unwanted ticket.
It's strange that you weren't concerned about me mentioning tickets when you thought it only applied to traders but now you know if covers everyone, you've decided to divert the discussion.

In a nutshell, just because the law states that a huge fine is possible, any sensible person knows that it's never going to be applied simply because a trader failed to get their returns policy written so that it's 100% perfect

When I replied to say you wasn't a trader I assumed you meant you could get a fine for not giving your mate the required information.

How am I supposed to know it's illegal for an individual to sell a football ticket? You left that nugget of information out of the post.