Charged a restocking fee for a failed delivery

grumpled

Hi,

This has been going on a while now and perhaps I should have asked for advice here sooner, but I'm pretty sure I'm in the right (aren't we all?!).

So I purchased a fire bowl from a company online in August 2021 for £705 - I paid via bank transfer as they didn't accept card. They indicated it would be ready soon but it took until October (after a LOT of chasing) for them to arrange delivery.

When the courier arrived they were unable to get it out of their van (it was stone and very heavy). It also didn't look like the ones on the website (the seller had apparently made the bowls thicker to strengthen them, but in doing so had also made them too heavy and too shallow for a fire pit). The courier returned to base with it still in the van - not much else we could have done really!

I immediately emailed and asked for a full refund, following which the seller did process a refund quickly, albeit minus a 20% restocking fee (£98). As they didn't actually deliver it, I queried it as I don't believe I should have been liable for the charge.

I also suggested that I'd be happy with a replacement - assuming they could provide one that matched those on the website, and of course were able to deliver it. They never came back to me on thie suggestion.

Over the next few months I sent a lot of emails (most answered) requesting a refund or clarification as to why they believed I wasn't entitled to one. They failed to provide anything other than the occasional very terse response.

At one point they suggested I could pay the courier charge and they would refund the rest. At the time I again asked why they thought I should be liable for any costs, but in a later email I did raise this suggestion again, looking for a compromise, and didn't hear anything back.

As I was getting nowhere with them, I decided to raise a small claim via the HM Courts & Tribunals Service. It's not like it's a huge amount to lose but I wasn't happy with the way they were treating me as a customer (and potentially others). Funnily enough the seller came back to me immediately and is now threatening their own legal action if I waste their time any further. They have offered to split the refund 50:50, although I'm definately less inclined to compromise now that I've gone to the trouble, and expense, of raising a small claim. I can't really see that they would be able to sue me for anything, so I'm planning on sticking to my guns.

Any advice on whether or not my stance is overly stubborn would be appreciated!

Thanks.

TELLIT01

After all the hassle I can understand why you aren't keen to compromise BUT if you only really have a choice of half a cake or no cake at all, which is the better option to take?  Unfortunately, as you have started with the small claims route it's a bit late for that.

molerat

You are 100% in the right. The company failed to deliver the product so what are they going to sue you for ?  Stick with it.

Manxman_in_exile

I think I'd agree with Molerat that you are 100% in the right and they are 100% in the wrong - based on what you've told us.

(1) if what they attempted to deliver did not conform to contract and was not what you ordered, they are in breach of contract.

(2) they are responsible for the goods until they are delivered into your physical possession.  If the courier they selected couldn't even get it off the truck, that's the seller's problem, not yours.

(3) but I'm less sure about this, I thought restocking fees were unlawful.  Am I wrong about that, anyone?

Points (1) and (2) are covered by the legislation.  If you'd come here before issuing a claim you could have quoted the law to them and they might have folded straight away without going to court.

Out of interest, how have you worded your claim?

grumpled

Thanks all for your comments so far. @Manxman_in_exile, I've probably not worded the claim as well as I could have done, wrote it in a bit of a hurry earlier. It read as follows:

The claim relates to the purchase of a ceramic fire bowl, for which delivery was never completed due to the item being too heavy to lift out of the courier's van. The courier (arranged by the seller) was unable to offload the item alone and even when provided with assistance was still unable to complete the delivery. The product was also not as described, with a smaller internal volume that the ones displayed on the website. I also note that the website link has been removed, although can still be found via a search. I subsequently suggested that they might like to provide one of the bowls that we had ordered, but heard nothing back regarding this. The seller provided a full refund minus a restocking fee, which I do not believe I should be liable for as the item was simply not delivered.

the_lunatic_is_in_my_head

If the courier couldn't get it out of the van and the seller doesn't want to resend at their cost then the delivery of goods under the CRA come into play, basically full refund for non-delivery. 

https://www.legislation.gov.uk/ukpga/2015/15/section/28/enacted

(1)This section applies to any sales contract.

(2)Unless the trader and the consumer have agreed otherwise, the contract is to be treated as including a term that the trader must deliver the goods to the consumer.

(3)Unless there is an agreed time or period, the contract is to be treated as including a term that the trader must deliver the goods—

(a)without undue delay, and

(b)in any event, not more than 30 days after the day on which the contract is entered into.

(4)In this section—

(a)an “agreed” time or period means a time or period agreed by the trader and the consumer for delivery of the goods;

(b)if there is an obligation to deliver the goods at the time the contract is entered into, that time counts as the “agreed” time.

(5)Subsections (6) and (7) apply if the trader does not deliver the goods in accordance with subsection (3) or at the agreed time or within the agreed period.

(6)If the circumstances are that—

(a)the trader has refused to deliver the goods,

(b)delivery of the goods at the agreed time or within the agreed period is essential taking into account all the relevant circumstances at the time the contract was entered into, or

(c)the consumer told the trader before the contract was entered into that delivery in accordance with subsection (3), or at the agreed time or within the agreed period, was essential,

then the consumer may treat the contract as at an end.

(7)In any other circumstances, the consumer may specify a period that is appropriate in the circumstances and require the trader to deliver the goods before the end of that period.

(8)If the consumer specifies a period under subsection (7) but the goods are not delivered within that period, then the consumer may treat the contract as at an end.

(9)If the consumer treats the contract as at an end under subsection (6) or (8), the trader must without undue delay reimburse all payments made under the contract.

Manxman_in_exile

grumpled said:

Thanks all for your comments so far. @Manxman_in_exile, I've probably not worded the claim as well as I could have done, wrote it in a bit of a hurry earlier. It read as follows:

The claim relates to the purchase of a ceramic fire bowl, for which delivery was never completed due to the item being too heavy to lift out of the courier's van. The courier (arranged by the seller) was unable to offload the item alone and even when provided with assistance was still unable to complete the delivery. The product was also not as described, with a smaller internal volume that the ones displayed on the website. I also note that the website link has been removed, although can still be found via a search. I subsequently suggested that they might like to provide one of the bowls that we had ordered, but heard nothing back regarding this. The seller provided a full refund minus a restocking fee, which I do not believe I should be liable for as the item was simply not delivered.

That's probably OK.  It's usually better if you can provide links to which bits of law you are relying on (like in the previous post by @the_lunatic_is_in_my_head).

Basically, they failed to deliver the goods to you and what they tried to deliver was different from what you had ordered (if I understand you correctly) so you could have looked at relying on something like sections 11, 19, 28 and 29 from this legislation:  Consumer Rights Act 2015 (legislation.gov.uk)

What is the timescale for the claim?  Has the supplier acknowledged service or served a defence yet?  If what you have told us is accurate I can't imagine what their defence is.

(Presumably you specified the £98 as the amount you were claiming? )

PaulW922

You have an absolute right to a full refund, even if the item was as descried and delivered to your door - that is under the distance selling regulations. In this case though, based on what you say you are 100% in the right and I see no reason to settle for less, especially now the case has been raised. Whereas you could mention consumer law I would think that a basic breach of contract would be sufficient. You ordered and paid for something and they did not supply it.

I would not worry about threats to counter-sue. I cannot see any basis for that and even if they try not only will it cost them money to make the claim, they would need a sound basis on which to proceed. Just hold tight and do not settle for anything less than all your money back including the delivery and court fee. 

Manxman_in_exile

I'm happy to be corrected, but aren't restocking fees prevented by s20(17) of the Consumer Rights Act 2015?

s20(17)The trader must not impose any fee on the consumer in respect of the refund.   Is that the appropriate section?

If I were the OP I think I'd send all these links to the supplier and try to persuade them to settle early for the full amount claimed plus the fee I paid for filing the claim 

powerful_Rogue

PaulW922 said:

You have an absolute right to a full refund, even if the item was as descried and delivered to your door - that is under the distance selling regulations. In this case though, based on what you say you are 100% in the right and I see no reason to settle for less, especially now the case has been raised. Whereas you could mention consumer law I would think that a basic breach of contract would be sufficient. You ordered and paid for something and they did not supply it.

I would not worry about threats to counter-sue. I cannot see any basis for that and even if they try not only will it cost them money to make the claim, they would need a sound basis on which to proceed. Just hold tight and do not settle for anything less than all your money back including the delivery and court fee. 

The Distance Selling Regulations were replaced with the Consumer Contracts Regulations.

grumpled

Thanks again all, definitely reassuring to hear that I'm not completely unjustified in my complaint!

@Manxman_in_exile I opened the claim today (yes it was for the £98), so the seller has a month or so to respond I think. They have emailed me (as above) but doubt they have submitted an official response yet.

They did say that their "solicitor" had advised them they are within their rights to charge the fee. I very much doubt they would have spoken to a solicitor so quickly (unless it's their mate Dave) but thought I'd mention it. They also pointed out that the restocking charge was listed on the original invoice, which I knew, but still assume that makes no difference.

I'll give them a few days and then send over those links as you suggest (thanks @the_lunatic_is_in_my_head).