Am I liable to give a refund?

400ixl

I can understand the cover of a days delay, but if the delivery does then not deliver to the customer, but puts it in an assumed safe place that the customer has not designated and agreed to then I would have thought they would be entitled to a refund as your courier has not actually delivered it into their possession.

The courier should not have left it as the customer had not agreed to a safe place for it to be left at. They may not have seen the notification of when it would be delivered and I don't believe you can over ride their rights of delivery into possession with a self identified safe place.

mjm3346

I sometimes order chilled food (outside my supermarket deliveries) and a delivery day is specified - if they were a day late I would not accept delivery unless the supplier had been in contact to say dispatch had been delayed by a day, certainly wouldn't take them if they had just been sitting with a courier for an extra day - so far have always been on time with DPD

photome

LouElm14 said:

pinkshoes said:

LouElm14 said:

Hello, 

I'm hoping for some advice. I run a fresh food delivery service. A parcel was delivered to a customer and they weren't home to recieve. Emails and texts sent with proof of delivery and tracking details updated on the link we provide to them.  There was an additonal days delay( i.e customer requested for Tuesday, delivered Wednesday) due to courier error, customer was clearly advised this could happen at the point of ordering and that goods are well packed to ensure freshness throughout and we're not liable for any delay as it's outwith our control. To be clear packaging has been fully tested and produce is completley safe and still chilled even if these delays occur. 

Customer claims they weren't home to recieve on the Wednesday, It's been left in a safe place ( as perishable deliveries always are as they cannot be returned to depot). Customer hasn't returned home until the following day and the goods by then are in an unsatisfactory condition and customer wants a refund.  

So a customer ordered fresh goods with delivery on Tuesday,  your T&Cs clearly (??) stated that although they have selected Tuesday delivery, this could in fact be Tuesday OR Wednesday, the customer agreed to these T&Cs but were actually away Wednesday and therefore did not get them until Thursday.

If these T&Cs were very clear to the customer (e.g. large print on the screen and easily visible, not some tiny NB note at the bottom or in a long T&Cs page) then I would say the customer was at fault and no refund was due.

If it was not clear however that the delivery could also be on a Wednesday, then I think you should refund.

Yes ordered for Tue, delivered wed, customer home Thurs. It does very cleary state this at the top of the order confirmation email and explains to contact us immediately if dates need to change. Also included on all delivery information pages, faqs and within t&c's so well advertised. 

For a small business, this sounds like a LOT of complaints. I suggest having a good look at your ordering page to see how clear the delivery scenario is to the customer, and/or get yourself a better courier company who will take responsibility for delayed packages. 

I can see why you'd think this but we've been in business just over 2 years, sent over 20,000 orders and I can hand on heart say the number of times a customer has made a complaint like that i can count on one hand. It's always because we say they are not entitled to a refund & understandably they get angry and lash out to try to get us to refund. We're a family business and therefore very protective of the reputation and genuinely do try to be fair to customers, even when we think the fault lies with them. Currently using DPD who by all accounts are the best of the bunch and no courier will accept liabilty for delayed fresh produce ( it would cost them too much) , some don't even deliver perishable produce so it's slim pickings! 

you say you cant afford to keep refunding but then say the above in bold, if you have  less than 5 complaints  over 20,000 deliveries, then maybe best to refund and move on

visidigi

I have to say - I feel for the OP here.

They tell the buyer there is a risk.
They tell the buyer to tell them if there is a problem.
They have the courier provide a heads up.
The courier provides the ability to manage the delivery.
They then aren't back, nor get anyone to help for 24hrs after delivery
And yet don't tell the OP on the day of delivery of the problem.

Courier delivery is an absolute nightmare - they offer buyers all the tools and options they can but the customer can ignore it, knowing it will fail, knowing they can threaten sellers.

Our old neighbour used to order all sorts knowing they wouldn't be in, not bothering to even offer us as a option when the courier allowed it (we didn't mind) - but frankly, she just couldn't be bothered!

I would be tempted to tell the buyer they can have a refund, but maybe not allow them to buy from you again.

user1977

After 20,000 orders, shouldn't you be getting proper legal advice about this, rather than relying on a (consumer-oriented) web forum for some free help?

sheramber

Are you more concerned about your rights or your reputation?

If you refuse a fund because it is your right your reputation will be affected.

Do you think a customer refused a refund will recommend you or complain about you?

Undervalued

LouElm14 said:

Thanks for the advice all, I'm not sure if my previous replies are showing ( i can't see them).

It's not a recurring customer.

Other customers have made threats such as scathing public reviews, compaints to enviromental heath and taking us to small claims courts. I understand it may be easier to just keep the customer happy in some cases but we just feel this one really isn't our fault and are fed up taking the hit. 

the_lunatic_is_in_my_head I understand re your take on the CRA. Though feel that's very unfair as many, many couriers leave deliveries in a safe place. If that was to be upheld, could it not be that everytime a parcel is left in a safe place, a company has no proof the customer actually received the delivery and the customer can argue it wasn't there when they got home or had been damaged between delivery and the customer getting it etc, even if the couriers photo & GPS stamp shows it to be there at their property? A genuine query not starting an argument!

Our terms also state that it's the customers responsibilty to make themselves available at the time of delivery and risk in the goods shall pass to the buyer upone delivery or where the buyer fails to take delivery, when delivery was attempted ( which i know other perishable companies also state). Not sure that makes a difference?

Proof is not the right word in this context.

If it came to court a judge would have to decide, on the balance of probabilities, who to believe. In other words 51%. This is very different from a criminal case when there can only be a conviction if guilt is proved beyond a reasonable doubt. That might be thought of as 95%.

Ultimately it is up to the judge, taking account of any other evidence presented, whether he considers the photo and GPS stamp to be adequate evidence. In a way, neither prove delivery. At best they show that the courier visited the property with the parcel at a particular time. Obviously he could be dishonest and have taken it away again or somebody else could have stolen it. Equally the parcel could have been tampered with by somebody before then or the seller could have sent a worthless item of a similar weight. All of these things do occasionally happen.

Any terms of sale are only enforceable if they do not restrict the buyer's legal rights. I doubt if the terms you quote would be enforceable in all circumstances.

Frustrating as it may be there is probably no way round this if a customer insists on their rights. You may have to decide if this type of sale is viable. I suspect many larger organisations just factor in a significant percentages of losses, which are paid for by the majority of problem free sales. Ultimately everybody ends up paying for the dishonest ones.

the_lunatic_is_in_my_head

user1977 said:

After 20,000 orders, shouldn't you be getting proper legal advice about this, rather than relying on a (consumer-oriented) web forum for some free help?

OP if you are still reading this isn't a bad idea but instead of paying for legal advice, call your local council, advise you are a local business and require assistance from a trading standards officer. 

They should let you speak to someone, personally I wouldn't mention your terms*, the point to focus on is solely passing of risk and when it occurs which ultimately comes down to what physical possession actually means. 

Anything they offer is likely to count as guidance which may be open to interpretation but that applies to pretty much anything other than a decision made during the small claims process. 

*I say this because terms that conflict with consumer rights are going to be classed as unfair. It's better to clarify what the legislation means and then act within it rather than inviting them to scrutinise your terms  

https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

Consumer contract terms which may be regarded as unfair

A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader.

LouElm14

Thank you everyone for the advice & opinions. I was just curious to know where we stood as I obviously understand the pros and cons and potential future losses of not just refunding and moving on. I thought this was a good forum for advice as I can see other business have asked questions previously and been given great responses, whether favourable to them or not. It was more the principle of the matter and the customer ignoring all information and not bothering to contact us which antagonised me as i know if i were in that situation, I'd make every attempt to resolve ahead of time ( but perhaps that's because of what i do!). 

Thanks again!

NBLondon

LouElm14 said:

Even if we clearly state Tuesday is an estimate not a guarantee to customer?

Customer had 3 & 1/2 hours  notice on the one hour window ( I can see the communicaitons via the courier admin site)  and also the entire day before to let us know they wouldn't be in the following day.

Customer has not nominated safe place, they've not actioned on the delivery at all and as it's perishable the courier leaves the parcel in a safe place by default, if one is not nominated. Clearly stated within our delivery terms also. In this case it was left in a front porch. 

You said in your OP "courier error".   That's not the customer's fault and you should refund them and claim from the courier.

Now you say the customer was notified that the delivery might be Tuesday (requested) or Wednesday.  Different scenario.  As I said before - the customer may have expected to be at home Wednesday but was away at 5 minutes notice due to an emergency.  So they would have had no time to notify you, or even may not have had time to see the communications from the courier.

Do your terms actually say:

LouElm14 said:

 there may be an additional day delay due to courier error. 

I'd not be ordering from you if I saw that - but maybe that's because I do read carefully.  If the courier is so bad that you expect them to make errors then you should get a better courier.  Or it reads as if you are denying responsibility up front.

Do they specifically say the customer should nominate a safe space or the courier will choose one?  Safe from opportunistic thieves and urban foxes or likely to stay cool for 24 hours?

And when exactly did the customer complain?  When they got home and found the items spoiled?  Or at some later stage as your OP suggests?

I think you should offer a replacement or a refund or be prepared to take the bad publicity.