returning via Evri to retailer

JGPeterkin

Hi There 
I returned 2 packages back to Sports Shoes via Evri on the 27th August. I had to pay for both packages (via Zig Zag as prompted by Evri)  to be returned and under the bar code on my receipt the 2 packages where identified. 

The small package containing one paid of shoes was delivered back to the retailer with progress reported on the system. The second (more valuable package) still reads "we've got it" dated the 28th August. Its now the 20th September. 

Evri is particularly painful to deal with, numerous emails have been sent and have all gone unanswered. How on earth can I escalate this or take to a small claims court? I feel that i have upheld my part of the deal but they have not. I wouldn't be surprised if the shoes have been nicked. I have tried calling but its impossible to get past their cleverly designed "bot"

I would just like my money back. Circa £200 is a big hole in the monthly budget.
ANy help - much appreciated. 
Thanks

mattyprice4004

On booking in via Sports Shoes you'll see this under the terms:

• IMPORTANT PLEASE NOTE - The £3.50 returns label only insures your parcel up to £50.00 if the parcel is lost or damaged in transit.

If it's under £50 you can claim via Zig Zag, but over that and you'll be out of pocket as you agreed the compensation is limited to £50. 

Manxman_in_exile

Why did you return the shoes to Sports Shoes?

If you were exercising your right to cancel an online sale under s29 of The Consumer Contracts (Information, Cancellation and Additional Information) Regulations 2013, then the retailer must refund you no later than 14 days after either (1) they have received the goods back or (2) you have supplied evidence of having sent the goods back.

This is nothing to do with Evri if you were exercising your statutory right to cancel - it's the retailer's problem.  See s34(4) and (5)(b) here:  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

So quote the law as above to Sports shoes and provide the evidence (tracking or whatever) that you sent the goods back.  so long as you sent them back it isn't your problem that they went astray and got lost.

If you weren't exercising your statutory right to cancel it might be more difficult...

JGPeterkin

Thank you very much both.
@Manxman_in_exile
I returned them as they were all too small - does that qualify as my right to cancel? Also @mattyprice4004 is correct the £3.50 covers only upto £50. By paying this postage and accepting the cover does that interfere with my right to cancel?
So impressed by the help. Thank you both J

Gavin83

I actually think this isn’t a simple case. Typically if the retailer were to arrange the return they’d be responsible for it and if you were to arrange for the return you’d be responsible for it. In this case it appears that to a degree both scenarios are true.

I suspect Sports Shoes will hide behind their terms and refund you £50. I imagine you’ll be in for a fight to get more than this and should it go to court I wouldn’t confidently predict which way it’ll go, although on the balance of probabilities I think it more likely they’ll side with the retailer.

Did they offer you advanced return postage for cover beyond £50?

Manxman_in_exile

Under s29 of the legislation I linked to earlier you are entitled to cancel an online purchase and return the goods to the retailer for a refund.  You are entitled to a full refund so long as you have not diminished the value of the goods by "excessively handling them" ie doing more with them than you'd be allowed to do in a shop - so you are allowed to try them on for size etc as you would in a shop.

You need to clearly inform* the seller within 14 days of receipt that you are cancelling the order and returning the goods for a refund.  See s32(2) and (3).  You need to send the goods back no later than 14 days after you have informed the seller that you are cancelling the contract.

The seller then has to refund you without undue delay and in any case no later than 14 days after either (1) they receive the goods back or (2) you have provided evidence to them of sending the goods back.

*The difficulty you might have is that as you clearly don't know that you are entitled to cancel an online sale, then you might not have clearly told them that that is what you are doing, so they might argue that you were simply using their own returns policy (whatever that is) and that you are bound by the terms of that policy (whatever they are).  However, if I were you I would still argue that you were cancelling under your statutory right to cancel rather than under their returns policy, and that you are entitled to a refund so long as you can provide evidence that you sent the shoes back.  But you will probably have to argue this point with them.

Read through Part 3 of the legislation here, especially sections 29, 30, 32 and 34:  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk) and then go back and put your argument to the seller.

The moral here is that if you make an online purchase that you want to return, make sure you do so by exercising your stautory right to cancel the contract and not the seller's own returns policy - unless their policy is more generous to consumers than the statute.

Manxman_in_exile

Gavin83 said:

I actually think this isn’t a simple case. Typically if the retailer were to arrange the return they’d be responsible for it and if you were to arrange for the return you’d be responsible for it. In this case it appears that to a degree both scenarios are true.

I suspect Sports Shoes will hide behind their terms and refund you £50. I imagine you’ll be in for a fight to get more than this and should it go to court I wouldn’t confidently predict which way it’ll go, although on the balance of probabilities I think it more likely they’ll side with the retailer.

Did they offer you advanced return postage for cover beyond £50?

I agree that it's not clearcut what a court would decide, but the legislation doesn't appear to support what you say.  It appears to say that if the consumer has cancelled under s29 then, provided the consumer can provide evidence of having sent the goods back, the seller must refund within 14 days of being provided with that evidence.  It doesn't make the refund conditional on the seller actually receiving the goods back, just on the consumer providing evidence that they sent them back.  [Edit: it also doesn't matter who organised or paid for the return... ]

So long as the OP cancelled the contract under their statutory right to do so, and they have evidence that they sent the shoes back and that Evri has lost them (which it sounds like they have) then the OP is entitled to a refund.  Nothing in Sports Shoes T&Cs can get round that and it's exactly the sort of situation (where returns are lost through no fault of the consumer) that the law is designed to deal with.

But as I said earlier, I expect it's more likely that SS can argue that the OP didn't exercise their statutory right to cancel in the right manner...

JGPeterkin

Manxman_in_exile said:

Gavin83 said:

I actually think this isn’t a simple case. Typically if the retailer were to arrange the return they’d be responsible for it and if you were to arrange for the return you’d be responsible for it. In this case it appears that to a degree both scenarios are true.

I suspect Sports Shoes will hide behind their terms and refund you £50. I imagine you’ll be in for a fight to get more than this and should it go to court I wouldn’t confidently predict which way it’ll go, although on the balance of probabilities I think it more likely they’ll side with the retailer.

Did they offer you advanced return postage for cover beyond £50?

I agree that it's not clearcut what a court would decide, but the legislation doesn't appear to support what you say.  It appears to say that if the consumer has cancelled under s29 then, provided the consumer can provide evidence of having sent the goods back, the seller must refund within 14 days of being provided with that evidence.  It doesn't make the refund conditional on the seller actually receiving the goods back, just on the consumer providing evidence that they sent them back.  [Edit: it also doesn't matter who organised or paid for the return... ]

So long as the OP cancelled the contract under their statutory right to do so, and they have evidence that they sent the shoes back and that Evri has lost them (which it sounds like they have) then the OP is entitled to a refund.  Nothing in Sports Shoes T&Cs can get round that and it's exactly the sort of situation (where returns are lost through no fault of the consumer) that the law is designed to deal with.

But as I said earlier, I expect it's more likely that SS can argue that the OP didn't exercise their statutory right to cancel in the right manner...

Thanks again Both - this has been hugely enlightening and makes me realise that most of us do our purchasing etc with our eyes wide closed and the retailers know this! Thanks again. Wish me luck. 
Best wishes
J 

Manxman_in_exile

Good luck.

Hopefully they will pay up if you explain the legislation to them as best you can.  However, if they take the view that you didn't cancel under the legislation but under their own returns policy instead, then you will probably have a fight on your hands.  But unless the parcel turns up, you don't have anything to lose by putting it to them, so you may as well do so.

If they don't pay up you need to consider whether it's worth trying to sue them.  But what @Gavin83 says is right.  If you were to take it to court it might go either way, unless you were able to convince the court that you were cancelling under the legislation.

If you get nowhere with them, come back here to see what others say

Gavin83

Manxman_in_exile said:

Gavin83 said:

I actually think this isn’t a simple case. Typically if the retailer were to arrange the return they’d be responsible for it and if you were to arrange for the return you’d be responsible for it. In this case it appears that to a degree both scenarios are true.

I suspect Sports Shoes will hide behind their terms and refund you £50. I imagine you’ll be in for a fight to get more than this and should it go to court I wouldn’t confidently predict which way it’ll go, although on the balance of probabilities I think it more likely they’ll side with the retailer.

Did they offer you advanced return postage for cover beyond £50?

I agree that it's not clearcut what a court would decide, but the legislation doesn't appear to support what you say.  It appears to say that if the consumer has cancelled under s29 then, provided the consumer can provide evidence of having sent the goods back, the seller must refund within 14 days of being provided with that evidence.  It doesn't make the refund conditional on the seller actually receiving the goods back, just on the consumer providing evidence that they sent them back.  [Edit: it also doesn't matter who organised or paid for the return... ]

So long as the OP cancelled the contract under their statutory right to do so, and they have evidence that they sent the shoes back and that Evri has lost them (which it sounds like they have) then the OP is entitled to a refund.  Nothing in Sports Shoes T&Cs can get round that and it's exactly the sort of situation (where returns are lost through no fault of the consumer) that the law is designed to deal with.

But as I said earlier, I expect it's more likely that SS can argue that the OP didn't exercise their statutory right to cancel in the right manner...

I partially agree with you. Ultimately once the OP can show evidence that they've sent the return back they're entitled to a refund within 14 days.

However I disagree with you on the second part. Ultimately you suggest that once there's evidence the items have been posted back it's entirely the retailers problem. This isn't true. The OP still has a responsibility to make sure the goods arrive back to the retailer and if they don't the retailer is entitled to recover the costs of the item back off of the OP. What I suspect would happen in practice is the retailer would refuse the refund and then when the consumer took them to court they'd countersue for the value of the item.

The buyer can't just send the item back by any crappy delivery service they wish and push the problem to the problem to the retailer when it doesn't arrive. Whoever initiated the return is ultimately responsible for it until it arrives at it's destination. It's why returns due to faults are either collected or arranged by the retailer as they're responsible for the return from the consumers house.

The thing that clouds this case somewhat is that the return was arranged via the retailer but given the terms, plus the OP paying for it they'd likely argue this wouldn't work in the same way as if they were collecting it.

I stand by my original statement. I'm not entirely confident what the result would be if it went to court but if I had to choose I suspect the OP would be leaving with a £50 refund.

Manxman_in_exile

Gavin83 said:

Manxman_in_exile said:

Gavin83 said:

I actually think this isn’t a simple case. Typically if the retailer were to arrange the return they’d be responsible for it and if you were to arrange for the return you’d be responsible for it. In this case it appears that to a degree both scenarios are true.

I suspect Sports Shoes will hide behind their terms and refund you £50. I imagine you’ll be in for a fight to get more than this and should it go to court I wouldn’t confidently predict which way it’ll go, although on the balance of probabilities I think it more likely they’ll side with the retailer.

Did they offer you advanced return postage for cover beyond £50?

I agree that it's not clearcut what a court would decide, but the legislation doesn't appear to support what you say.  It appears to say that if the consumer has cancelled under s29 then, provided the consumer can provide evidence of having sent the goods back, the seller must refund within 14 days of being provided with that evidence.  It doesn't make the refund conditional on the seller actually receiving the goods back, just on the consumer providing evidence that they sent them back.  [Edit: it also doesn't matter who organised or paid for the return... ]

So long as the OP cancelled the contract under their statutory right to do so, and they have evidence that they sent the shoes back and that Evri has lost them (which it sounds like they have) then the OP is entitled to a refund.  Nothing in Sports Shoes T&Cs can get round that and it's exactly the sort of situation (where returns are lost through no fault of the consumer) that the law is designed to deal with.

But as I said earlier, I expect it's more likely that SS can argue that the OP didn't exercise their statutory right to cancel in the right manner...

... However I disagree with you on the second part. Ultimately you suggest that once there's evidence the items have been posted back it's entirely the retailers problem. This isn't true. The OP still has a responsibility to make sure the goods arrive back to the retailer and if they don't the retailer is entitled to recover the costs of the item back off of the OP. What I suspect would happen in practice is the retailer would refuse the refund and then when the consumer took them to court they'd countersue for the value of the item.

The buyer can't just send the item back by any crappy delivery service they wish and push the problem to the problem to the retailer when it doesn't arrive. Whoever initiated the return is ultimately responsible for it until it arrives at it's destination...

I understand your point and if a consumer ever brought something like this to a court I don't know how a trader would defend it or how a court would decide it.

However, if your view is right it seems to me that you have to ask what the wording of s34(5)(b) actually means and why, if Parliament intended that a refund would only be paid to the consumer if the goods eventually did find their way back to the trader, they didn't just come out and simply say that?  It would have been no trouble whatsoever to amend the wording to make that perfectly clear.  But they didn't do that.  Perhaps because that isn't what they wanted?

As it stands the wording simply says that a consumer who has cancelled an order and who has evidence of having sent the goods back is entitled to be paid a refund 14 days after providing that evidence to the trader, even if the trader has not yet received the returned items back.  That provision doesn't appear to make the payment of the refund conditional in any way on the returned goods eventually being delivered back to the trader, or on them not being permanently lost or whatever.

If that isn't what the wording means then I don't know how else you can interpret it except as meaning that a refund is payable when a returned item is temporarily lost or delayed in transit only if it eventually turns up, perhaps weeks or months later, but not payable if a returned item is permanently lost and never turns up. 

But that would make no sense at all as at the time the trader was paying the refund they wouldn't know if the returned item was permanently lost or only temporarily lost or delayed, meaning that many refunds would be paid unnecessarily.  Why would Parliament have intended that?  If Parliament had not wanted traders to pay unnecessary refunds until they had actually received the goods back, what is the point of s34(5)(b) at all? 

(It might well be that there is some other point to the provision, but somebody will have to tell me what it is as I can't see it at the moment).

FWIW, if you are arguing that on principle traders should not have to pay refunds in respect of returned goods that never get back to them, then I would agree with you, on principle.  But the problem here is that Parliament appears to have chucked that principle out of the window when they voted on 34(5)(b).  Perhaps it's a drafting error, but if it is I think it would be a very confident claims court judge who substituted what they think it should mean for the plain words used in the Act.

Regarding a trader countersuing for the value of the returned goods that never get back to them - yes, I suppose they could try that, but what would they be basing their claim on?  Assuming my interpretation is correct, what would prevent the consumer simply pointing at the legislation and saying "Nothing else matters - the law says I'm entitled to my refund because I've complied with the legislation.  I sent the goods back and it's not my fault the courier recommended by the defendant lost them.  The legislation doesn't say I have to insure the goods or anything else about how they need to be returned. The provision in s34(5)(b) of the legislation supersedes any prior statute or case law that the defendant seeks to base their counterclaim on.  I therefore win".

Having said all that, I have no idea what a court would decide if presented with this issue.  To my mind the wording of the statutory provision is quite clear and unambiguous; but at the same time it doesn't seem right and it seems to be wrong in principle.  But as it's a piece of legislation intended and designed to protect consumers, perhaps it's not surprising that it is balanced in favour of consumers and not traders?