returning via Evri to retailer

Manxman_in_exile

Jenni_D said:

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.

Yes to both (i) and (ii), and also that misleading a consumer as to their statutory rights might sometimes be a criminal offence*.  (Unfortunately I think only Trading Standards can prosecute it and they're as much use as a chocolate teapot... )

Specifically regarding (ii) nowhere does the legislation say that the consumer must abide by the retailer's cancellation policy.  Provided the consumer is exercising their right to cancel under s29 of the previously quoted legislation**, the terms of the trader's returns policy are irrelevant.  The trader is conflating and confusing statutory consumer right with their own returns policy.

And where they say the goods must be returned in a "perfect unworn condition", that also is irrelevant to consumer rights reagrding a contract cancelled under the legislation.  Indeed the legislation allows consumers to handle the goods as they could in a shop, which would include trying on (ie wearing) a pair of shoes.


* s5(2) and s5(4)(k) might apply?  The Consumer Protection from Unfair Trading Regulations 2008 (legislation.gov.uk).  Also see Consumer protection from unfair trading | Business Companion

**  I pointed out in an earlier post that the OP might have difficulty establishing that he actually cancelled under the legislation as opposed to just returning the shoes under the SS returns policy.  ie did the OP clearly inform the trader that he was cancelling the contract rather than just sending the shoes back with SS own returns form?

Manxman_in_exile

@JGPeterkin -  as you will no doubt appreciate by now your problem has opened a can of worms and much doubt over whether you should try to pursue SS or Evri, or whether you have any case to pursue at all other than claim back £50.

I still feel that you can argue the point with SS, but I feel that most other contributors either disagree with my view or are not convinced* by it.  And I don't want to encourage you to bang your head against a brick wall with no hope of winning.

I would strongly advise you again to go and post your problem on CAG and see what they say. 

Explain what has happened: you were returning goods bought online; the trader provided a returns voucher with Evri; the voucher limited cover to £50; you didn't follow advice** to purchase insurance to value of £200; the parcel has been lost.  Ask whether you have any claim against Evri and/or SportsShoes.  Make sure you explain how and why you came to choose Evri and whether you notified them of the parcel's value***.  Just give them a full and accurate account of what has happened.

If they reckon you have reasonable chance of success then they will help you proceed and - if it gets that far - will assist you in drafting a Letter Before Claim and Particulars of claim.

* I feel like the Tom Baker sea captian character in Blackadder who says "Opinion is divided on the subject, my lord.  I say one thing - and everybody else says the other"!

** It's not clear to me whether you were aware that SS returns policy was suggesting you took extra insurance if the value of the goods was over £50?

*** Although of course SS knew the value of the goods so perhaps it was unfair of them to provide a voucher that only provided cover up to a value of £50?

the_lunatic_is_in_my_head

Hi @Manxman_in_exile  

The guidance is available here:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021XC1229(04)&qid=1640961745514

with the above taken from 5.5.5.

I understand your point, if we look at the rules around diminished value for example it says:

(10) An amount that may be recovered under paragraph (9)—

(a)may be deducted from the amount to be reimbursed under paragraph (1);

(b)otherwise, must be paid by the consumer to the trader.

I suspect (b) is to cover instances where the refund has been made within the required timeframe but the diminished value has become apparent later, perhaps, as an example, due to the return arriving after the required refund period. 

The thing with the cancellation regs is they aren't really written by Parliament, the EU Directive was drafted and each member state had to incorporate the Directive into their laws, in many cases the wording in the cancellation regs is very similar or identical to the Directive.

So rather than asking the intention of Parliament we'd need to ask the intention of the EU law makers which the guidance suggests was not to impose a condition upon who bears the risk during return. 

You mention that consumer rights aren't always fair on the trader, with which I completely agree and think it's something that's often misunderstood because some things don't sound "right", but I think we need to look to other types of law (common? contract? no idea really) to find the answer to this question. 

Manxman_in_exile

Thanks for the link.

the_lunatic_is_in_my_head 

... The thing with the cancellation regs is they aren't really written by Parliament, the EU Directive was drafted and each member state had to incorporate the Directive into their laws, in many cases the wording in the cancellation regs is very similar or identical to the Directive...

I'm sure you'll understand I'm not being argumentative and that I'm just engaging in debate(!).

The point is that whether the EU wording was amended by Parliament or not is sort of irrelevant(?).  Parliament passed the directive into UK law so I think it must be reasonable to say that the wording of the legislation reflects what Parliament intended to enact.  And to me - at least? - the wording seems quite clear...

(I think one of the problems regarding much UK legislation derived from EU directives is that the UK has different legal traditions and conventions with regards to interpreting legislation.  UK courts tend to look very closely at the words actually used, and their strict meaning.  That's one of the reasons why UK legislation is so verbose and complex - it tries to leave nothing to interpretation and courts tend to follow the wording very closely.  In european jurisdictions they put more emphasis on trying to follow the spirit rather than the written letter of the law)

the_lunatic_is_in_my_head said:

... You mention that consumer rights aren't always fair on the trader, with which I completely agree and think it's something that's often misunderstood because some things don't sound "right", but I think we need to look to other types of law (common? contract? no idea really) to find the answer to this question. 

I don't know when The Consumer Contract (Cancellation etc... ) Regulations came into force, but I'd suggest (perhaps wrongly!) that their provisions supersede and take precedence over any prior principles of contract etc law.  After all, isn't the whole point of enacting legislation that it replace previous case law and statutory provision insofar as that is inconsistent with the more recent legislation?  Isn't that how the law is changed these days?

I am not a lawyer...

JGPeterkin

Manxman_in_exile said:

@JGPeterkin -  as you will no doubt appreciate by now your problem has opened a can of worms and much doubt over whether you should try to pursue SS or Evri, or whether you have any case to pursue at all other than claim back £50.

I still feel that you can argue the point with SS, but I feel that most other contributors either disagree with my view or are not convinced* by it.  And I don't want to encourage you to bang your head against a brick wall with no hope of winning.

I would strongly advise you again to go and post your problem on CAG and see what they say. 

Explain what has happened: you were returning goods bought online; the trader provided a returns voucher with Evri; the voucher limited cover to £50; you didn't follow advice** to purchase insurance to value of £200; the parcel has been lost.  Ask whether you have any claim against Evri and/or SportsShoes.  Make sure you explain how and why you came to choose Evri and whether you notified them of the parcel's value***.  Just give them a full and accurate account of what has happened.

If they reckon you have reasonable chance of success then they will help you proceed and - if it gets that far - will assist you in drafting a Letter Before Claim and Particulars of claim.

* I feel like the Tom Baker sea captian character in Blackadder who says "Opinion is divided on the subject, my lord.  I say one thing - and everybody else says the other"!

** It's not clear to me whether you were aware that SS returns policy was suggesting you took extra insurance if the value of the goods was over £50?

*** Although of course SS knew the value of the goods so perhaps it was unfair of them to provide a voucher that only provided cover up to a value of £50?

My goodness a huge can of worms and all enjoyable reading. I will go to CAG - I hate losing and refuse to do so. Thank you for all the support.

Manxman_in_exile

I certainly think it is worth trying them.  I looked over there earlier today (to see if you'd started a thread actually!) and you will find many, many threads regarding Evri.   I suggest you have a read through several of those more recent threads to get a feel for the issues involved*.  (If you follow the link I gave yesterday if will take you straight to a "general" Evri thread.)

Most of the threads are about people claiming for goods lost by Evri and who did not pay for the extra insurance. 

Your situation might be a bit more complicated than most as it's not clear to me whether you actually paid for the return delivery costs yourself or SportsShoes did.  Either way, one of them ought to be responsible for compensating you, but make sure you explain the facts clearly and accurately when you start your thread in order to get the best advice.

Good luck.

*Make sure you do read some threads.  They expect you to have some understanding of how they can help you to help yourself!

sheramber

Please keep us updated on this.

the_lunatic_is_in_my_head

Manxman_in_exile said:

Thanks for the link.

the_lunatic_is_in_my_head 

... The thing with the cancellation regs is they aren't really written by Parliament, the EU Directive was drafted and each member state had to incorporate the Directive into their laws, in many cases the wording in the cancellation regs is very similar or identical to the Directive...

I'm sure you'll understand I'm not being argumentative and that I'm just engaging in debate(!).

The point is that whether the EU wording was amended by Parliament or not is sort of irrelevant(?).  Parliament passed the directive into UK law so I think it must be reasonable to say that the wording of the legislation reflects what Parliament intended to enact.  And to me - at least? - the wording seems quite clear...

(I think one of the problems regarding much UK legislation derived from EU directives is that the UK has different legal traditions and conventions with regards to interpreting legislation.  UK courts tend to look very closely at the words actually used, and their strict meaning.  That's one of the reasons why UK legislation is so verbose and complex - it tries to leave nothing to interpretation and courts tend to follow the wording very closely.  In european jurisdictions they put more emphasis on trying to follow the spirit rather than the written letter of the law)

the_lunatic_is_in_my_head said:

... You mention that consumer rights aren't always fair on the trader, with which I completely agree and think it's something that's often misunderstood because some things don't sound "right", but I think we need to look to other types of law (common? contract? no idea really) to find the answer to this question. 

I don't know when The Consumer Contract (Cancellation etc... ) Regulations came into force, but I'd suggest (perhaps wrongly!) that their provisions supersede and take precedence over any prior principles of contract etc law.  After all, isn't the whole point of enacting legislation that it replace previous case law and statutory provision insofar as that is inconsistent with the more recent legislation?  Isn't that how the law is changed these days?

I am not a lawyer...

Debate away  

My understanding is that with the EU Directives Parliament didn't have a choice, all member states have to write the Directives into their legislation. 

There is one part of the Consumer Rights Directive (at least, the 50EUR/£42 exception for off-premises) where member states have a choice whether to include that certain aspect or not and there is (at least) one part where member states can not impose any additional requirements than that laid out for the particular point.

But generally what was written had to be included, so the required information as an example, (hypothetical obviously) our government might have felt that businesses having to advise of the cost of return where goods can't be returned by normal post is a grossly unfair burden to the trader but they would still have had to write that requirement into the legislation, there would be no choice to leave it out or change it.

I assume some poor soul has the job of looking at all the new legislation and then making sure any older is amended to remove any conflicts.

As an example the CRA replaced many parts of the SOGA, the SOGA legislation is still there, and still applies in some respects, but that which was taken over by the CRA has been removed. 

As the cancellation regs don't specifically mention risk for the return I can't see that particular aspect has superseded anything previous because it's just not there in the new legistation. 

The rest has nothing to do with consumer rights really, more my opinions, but when I ran a business and customers wanted to send stuff back because they'd changed their mind my philosophy was that I gave them very clear instructions, if they meet those instructions I would take responsibility (and suffer the loss) for anything that went wrong, if they didn't then it was on them, fortunately returns were rare and no problems ever cropped up. I felt it was my responsibility to instruct them on how to act because I as a business knew the ins and outs yet they as a normal person may have no clue how to package a parcel and what to do when sending it (this isn't intended to be patronising, it's just sensible). 

If I had a customer wanting to return £200 worth of goods they'd be told to use Special Delivery, if they expressed issues over the extra cost then I would have offered to pay the difference or worst case the full return cost as it is better that I lose £10 or whatever but get £200 worth of stuff back safely, plus the £10 is less than time I'd lose arguing the toss about who was at fault. Obviously big business can't micro manage customers in this way but on the flipside they have the scale and technology to automatically offer the customer different methods of return depending upon the order value.

Regarding the OP, the company do offer several options, mention the compensation limit and advise to purchase insurance if over but I think IMHO they should automatically apply the appropriate cover and charge the customer for this if they are going to offer "easy" returns rather than letting the customer figure it out by themselves. 

If the customer isn't happy with that they can go and figure it themselves but I suspect many would simply follow the returns flow and pay the extra costs, what the company doesn't want is expensive return charges costing them repeat business but IMHO it's unfair they earn that repeat business from the majority at the expense of the minority who suffer a missing parcel that is under "insured".