Next steps for refund of item not received

Heinz57Pedigree

I ordered an Apple watch from Studio at the end of August.  The order showed as being delivered direct from the supplier so I awaited an update.  Several weeks passed and there was still no update but I thought it was ok to continue waiting as Studio notify me when an item has been despatched and when it has been delivered.
It was more weeks later that I was asked about the watch and it prompted me to contact Studio about where it was.  I checked my orders which had now been updated to say that the item was despatched early in September and would be delivered within a week.  As we were now in November and still no item received I contacted Studio to enquire where it is.
Studio responded to say that it had been sent and I could check tracking in my orders.  No tracking details were provided so I contacted Studio again explaining that I hadn't received the item and asked for tracking details.  They responded to say they could not provide tracking as the item had been sent more than 45 days ago.
I complained and the same response was received.  

I now have no item and Studio won't credit me for the item.  They have never provided me with any proof of delivery and I wondered what my next steps should be now.  I have been in contact several times only to receive the same response that they can't provide tracking and as it's over 45 days they won't refund.
I checked the account shortly after ordering and it only said that the item was coming from the supplier.  It was only much later that Studio put that the despatch would be in early September and delivered within a week.  As soon as I saw that message I contacted Studio to say it had not been received.  Studio put that message on well after September but I have no screenshots to prove that they put a backdated despatch message on.

I am willing to pursue this through the small claims court but does a company have to show proof of delivery (or even despatch) or can they just say they sent it and that's it?

Flight3287462

The killer question you will need to answer is why did you leave it so long?

Manxman_in_exile

According to the law the watch is Studio's responsibility* until it has been delivered into either your "physical possession" or that of somebody nominated by you.

See s29(2) Consumer Rights Act 2015 (legislation.gov.uk)

Quote the relevant part of the legislation to Studio and challenge them to provide evidence that the watch was delivered into your "physical possession".  

If they can't do so and you can't reach a resolution with them, sue them.  It'll then be up to a court to decide whether you are entitled to get your money back.

The delay on your part will be an issue but I don't think it's necessarily fatal to any claim you might make.


*Assuming you didn't choose a different carrier from those offered by Studio

Heinz57Pedigree

Flight3287462 said:

The killer question you will need to answer is why did you leave it so long?

I have ordered from Studio before and they have taken ages to send items so waiting didn't seem unusual.  I checked regularly for a few weeks but there was no despatch details and then we had a death in the family so it fell by the wayside. 
When I checked back in early November, Studio had put a despatch and expected delivery date backdated several weeks (as it wasn't on there when I was checking at the time they profess to have despatched the item) on the order details and I then immediately complained. 
It then took 6 weeks to get a response to my complaint and to escalate the complaint and receive the same response.  We're now going in circles with me asking for proof of delivery and Studio not supplying it and just saying it's too late and I should pay for an item that was never sent.
I understand I left it a long time to query but surely if the item was sent they should have the proof of that available?

Manxman_in_exile

As I've already suggested, quote to them the law that I linked to above.

The law makes Studio responsible for the goods until they have arranged for them to be delivered into your "physical possession".  If they (1) can't provide proof of delivery to you when you ask them, and If they (2) won't refund you, then you'll have to go down the route of suing them and start off the process by sending them a Letter Before Claim.

Or if paid by credit card and >£100 you could try a s75 claim against your card provider, or a chargeback against your bank if paid by debit card.  But either way they (or a court) would have to accept your story that the watch was never delivered to you.

born_again

Manxman_in_exile said:

As I've already suggested, quote to them the law that I linked to above.

The law makes Studio responsible for the goods until they have arranged for them to be delivered into your "physical possession".  If they (1) can't provide proof of delivery to you when you ask them, and If they (2) won't refund you, then you'll have to go down the route of suing them and start off the process by sending them a Letter Before Claim.

Or if paid by credit card and >£100 you could try a s75 claim against your card provider, or a chargeback against your bank if paid by debit card.  But either way they (or a court) would have to accept your story that the watch was never delivered to you.

Unless Op has something to state deliver in the last 120 days then a chargeback is out of time.