returning via Evri to retailer

powerful_Rogue

My view on this as it's been discussed in detail before.

It maybe what legislation states, however as OP paid for the postage, the goods remain are their responsability until they arrive back with the retailer.

1) OP sends goods back and has evidence of this. Goods lost in post, retailer refunds due to the legislation. Retailer then takes the OP to scc to recover that cost back.

2) OP sends goods back and has evidence of this. Goods lost in post, retailer refuses to refund. OP takes SCC action, retailer counter claims the cost as they never received the goods back.

If I was a retailer, I would always be going with option 2. With adequate postal insurance, this would be a null issue.

Manxman_in_exile

@JGPeterkin -  as you'll appreciate from the above two posts the law is not entirely certain and the relevant wording of the statute might not be clear.  (Well I think it's clear but everybody else thinks I'm wrong!  Which I might be - I'm not a lawyer).

Assuming the shoes you tried to return don't turn up in the next couple of days, I'd still try to blag it out with SportsShoes and say "Here's the evidence I sent them back using the courier you recommended and here is the tracking to say they've been lost.  Under s34(5)(b) of the legislation I'm entitled to a refund from you in the next 14 days" and see how they respond.

Alternatively, depending on how much time you want to spend on this you could also try looking at the Postal and Delivery Services - Consumer Action Group forum.  They claim to have helped posters make successful claims against Evri for lost parcels regardless of whether they took out insurance or not.  For £200 I'd suggest it's worth exploring with them the possibility of claiming against Evri if you get nowhere with SportsShoes.  Have a read of some of their threads.  I think they base their arguments on unfair contract terms and failing to provide services with reasonable care.

PS - I've just had a new pair of running shoes delivered this morning.  I buy from Start Fitness - Running, Cycling & Sportswear Supplier.  I've used them for almost 20 years and given a choice between them and SS, I know who I'd choose...

Gavin83

Manxman_in_exile said:

@JGPeterkin -  as you'll appreciate from the above two posts the law is not entirely certain and the relevant wording of the statute might not be clear.  (Well I think it's clear but everybody else thinks I'm wrong!  Which I might be - I'm not a lawyer).

Assuming the shoes you tried to return don't turn up in the next couple of days, I'd still try to blag it out with SportsShoes and say "Here's the evidence I sent them back using the courier you recommended and here is the tracking to say they've been lost.  Under s34(5)(b) of the legislation I'm entitled to a refund from you in the next 14 days" and see how they respond.

Alternatively, depending on how much time you want to spend on this you could also try looking at the Postal and Delivery Services - Consumer Action Group forum.  They claim to have helped posters make successful claims against Evri for lost parcels regardless of whether they took out insurance or not.  For £200 I'd suggest it's worth exploring with them the possibility of claiming against Evri if you get nowhere with SportsShoes.  Have a read of some of their threads.  I think they base their arguments on unfair contract terms and failing to provide services with reasonable care.

PS - I've just had a new pair of running shoes delivered this morning.  I buy from Start Fitness - Running, Cycling & Sportswear Supplier.  I've used them for almost 20 years and given a choice between them and SS, I know who I'd choose...

I definitely agree with the above that it's worth pushing it with SportsShoes even if it's not clear cut. It's the reason I asked in my first post whether they offered you any alternative postage methods. If they didn't I think it strengthens your argument somewhat.

I think this thread demonstrates that laws are often not black and white and different people can interpret them differently. It's probably the reason solicitors are paid so well!

JGPeterkin

Thanks again everybody. @Gavin83 @Manxman_in_exile @powerful_Rogue

I had a reply from SS (in future i will use Start Fitness) this is the reply.
Shall I  hit back? 

Thank you for getting back to us! 
I have taken a look into this return case to see what has happened. 
As the tracking on both parcels is showing a) Collected at parcel shop, and b) scanned into the Plymouth hub respectively with no further movement, we would have to direct you back to Evri to raise a claim for the missing parcels. 
As the return was purchased from Evri, the contract for the return, including the agreed upon insurance is between Evri and yourself. 
If the parcel reaches the National Return Centre, (NRC hub) we are able to raise the claim for you, however on this occasion this has not happened. 
 
In reference to your consumer rights, you are correct that you have the right to cancel your order within 14 days of purchase, however, to do this you must abide by the retailers cancellation policy. 
In our case, the cancellation policy is that you return the items to us in a perfect unworn condition, and we will process your refund upon receipt of the items. 
 
If you would please follow the instructions provided in the previous email to contact Evri regarding this, we will be on hand to assist in anyway possible, to speed up your claim or provide you any needed information or documentation. 

Jenni_D

Everything they say is OK except this:

In reference to your consumer rights, you are correct that you have the right to cancel your order within 14 days of purchase (i), however, to do this you must abide by the retailers cancellation policy (ii). 

(i) It is 14 days from delivery, not purchase
(ii) That's not what the legislation says. (Previous posts have already discussed this point)

Misleading a consumer as to their statutory rights may be a criminal act.

Manxman_in_exile

@JGPeterkin -  OK.  So you are basically left with two options:

The first is to write off the £200 and move on thus avoiding any more hassle and time wasted on this.  I think you can see from the response by SS that they aren't simply going to roll over and pay up, so you will have a struggle on your hands.

If it were me I would carry on.  But that's easy for me to say as I'm retired with spare time on my hands and (obviously) I'm more interested in consumer rights than the average person.  If you decide it isn't worth pursuing any further then that's fair enough and perfectly understandable.  (And I'm not a lawyer and none of this is legal advice!).

The second choice is to continue to pursue this, but I'm sure you will appreciate from the posts already made on this thread that the law is unclear in this area and that you will have no guarantee of success.

If you do decide to go ahead, you have another choice to make.  Do you pursue Evri (which is what I suspected you originally wanted to do) or SportsShoes?  I think you can go after SS (and I'll deal with them in a later post today) but do you also have anything you can use against Evri?

Go to the Consumer Action Group as I suggested yesterday, and look at this for a starter:  The courier industry insurance requirements are unenforceable because: - Postal and Delivery Services - Consumer Action Group.  In particular, download and read the pdf documents in post #2 from July 22nd.  (I think you may need to register with the forum to access the documents).

I may be mistaken but my understanding of their argument is: (1) that the Consumer Rights Act 2015 imposes a duty on couriers to carry out their services with reasonable care and skill; (2) that the courier cannot impose any unfair conditions on a consumer that have the effect of reducing a consumer's rights; (3) losing a parcel is evidence in itself that the courier DID NOT exercise reasonable care and skill; (4) the requirement to buy extra insurance is an unfair term designed to limit a consumer's rights under the legislation; (5) therefore the requirement to buy extra insurance is unenforceable and Evri are liable to the consumer.

That's how I understand it - but I may be wrong.

Also do a search on there for Evri and you will find a lot of posts to read.  If CAG are to be believed they have had a lot of success agianst Evri.  (CAG is a self-help forum and I would suggest that you join their forum and ask your question there.  Make sure you have read through some Evri threads on there before posting as they expect people to have some understanding of what they are doing).

You will appreciate from other posters on this thread that they believe you are necessarily bound by the T&Cs of your contract with Evri.  CAG would say that that is not the case here and that people sometimes forget that consumers have certain statutory rights that take precedence over T&Cs and which a trader cannot make you contract out of.

So have a look at CAG.  And you might want to post your question there...

(I'll come back to SS later today).

Manxman_in_exile

Just to add a further comment re Evri before I forget.

This situation may be a bit more complicated than those given in CAG.  I'm not quite sure what the exact situation is in the OP's case, but it would appear that SS give a £3.50 voucher towards return postage, but that this only gave insurance cover up to a value of £50, unless the consumer bought extra insurance cover.  The OP used the voucher but did not buy extra insurance.

So the OP hasn't selected Evri themselves, they've been encouraged by SS to use them and SS have provided a pre-paid voucher, but that voucher only provides limited cover up to £50.  That is different from the situations on CAG, but I'm not certain that the difference is significant, just that here it might be SS rather than Evri trying to rely on an unfair term.

I would advise that if the OP wants to explore taking action against Evri as the courier who actually lost the shoes*, or if they want to explore taking action against Evri and/or SS on the specific issue of unfair contract terms (ie an unfair requirement to purchase extra insurance if you want cover to the full value of the returned goods) then they try posting on CAG as they appear to have a lot of experience in theis area.  And claim to have a good track record.


* One of the pdf documents that can be downloaded from CAG is from a County Court judgment in May this year against Parcelhero.  I particularly like this comment from the judge:

"14. The starting point, it seems to me, is that financial responsibility for the loss of the goods should lie with the party that was responsible for losing the goods. Patently, in this context, that is not the Claimant and obviously, it is a matter for the Defendant company as to how they wish to deal with that liability vis a vis their suppliers but it Page 4 of 4 seems to me that the balance of prejudice lies in favour of the consumer in this case, in view of the legislative provisions."

Why should the customer have have to take out insurance against the couriers incompetence?

the_lunatic_is_in_my_head

Our regs are drawn from the EU Consumer Rights Directive and their guidance states that:

The Directive does not regulate who bears the risk for accidental damage or loss during the return of the goods when the consumer withdraws from the contract. Therefore, this matter is also subject to national laws, which may, for example, provide that the risk during the return of the goods lies with the consumer once it is transferred to him upon delivery in accordance with Article 20*. 

In principle, when returning the goods, the consumer should take reasonable care, for example, by choosing an established transport or postal service provider, to ensure that the goods reach the trader and are not damaged in transit.

*Article 20 is passing of risk so if risk hasn't passed but the goods are returned (refused delivery for example) risk is still with the trader.

I agree that the trader should refund regardless and then if applicable seek any losses from the consumer should they wish to, the answer to this predicament appears to be what our laws have to say on such matters but I don't know the answer to that, although it would be nice to know the answer. 

As a side note, a standard shoe box should fit within a Royal Mail small parcel which is currently £3.30 fully tracked with £100 cover. Free collection until the end of the year and they'll bring the label. 

https://send.royalmail.com/ 

If returning goods to traders where the trader doesn't give a label I'd recommend giving Ervi a wide berth.  

Jenni_D

If SS gave a voucher redeemable only with Evri then SS have de facto selected the returns method and paid for it. Thus the OP's liability ended when the goods were handed to Evri.

If SS only gave a voucher and it was the OP that selected Evri then this specific liability/passing of risk argument becomes less clear.

@JGPeterkin - who chose Evri for the return?

Manxman_in_exile

@the_lunatic_is_in_my_head -  out of interest, where do you get the guidance from on the European Directive?

If the guidance says that whoever bears the risk should be determined by national laws, doesn't s34(5)(b) at least imply (if not explicitly state) that it must lie with the trader?  Otherwise what is the point of s34(5)(b) saying that a refund can be paid before the goods are received back, without qualifying it by saying that the goods must eventually be received back? 

Are we saying that if, after three months, the goods fail to materialise then the retailer can claim the refund back from the consumer?  If that was what Parliament intended (ie that the retailer was not really liable to pay a refund until the goods were actually received back by them) why does the legislation require the trader (in certain circumstances) to pay a refund before they get the returned goods back?  There's no point in making them pay it if they can subsequently claim it back.

Why would Parliament create a provision that clearly says that (in certain circumstances) a refund must be paid by the retailer before the goods are received back, if the retailer can reclaim the refund back from the consumer if the goods are subsequently discovered to be lost or destroyed?  That would be completely pointless.  Surely part of the purpose of s34(5)(b) is to cover situations where the returned goods are never delivered to the trader?  For whatever reason, whether lost, stolen or destroyed,

(I feel that I'm not expressing myself very well as it seems perfectly obvious to me but clearly it isn't obvious to everybody else!  Maybe I'm completely wrong...    )

I know this same issue has cropped up several times here in the last couple of years and there has been much discussion about it, but so far nobody has been able to come up with a convincing argument one way or the other.

It just seems weird to me that Parliament would pass a specific piece of legislation directing a trader to pay a refund under certain circumstances, if Parliament was fully aware that the trader could then claim the refund back if the returned goods never got back to them.  If that is the case then I don't understand what contribution that section makes to the legislation.

Yes, it's unfair on traders, but surely the whole point of consumer protection legislation is that it's intended to be unfair on traders and biased in favour of consumers?  It's not meant to comply with previous case law and general principles of contract law.  It's intended to give consumers an advantage.

(Apologies for repeating the same point again and again, but I feel I'm not expressing my views very well and not getting them across effectively)