Log Burner that has been returned arrived with retailer mysteriously damaged.

Fuzzy16

We could no longer to ahead with our log burner project to decided to return, we had it one week before arranging to return, so went ahead and organised a courier to collect, this in itself was a nightmare that I'm not going to go into now.

The retailer was contacted and we were told to pack it the same way we received it, photos were taken before and after packing. We were also told that if it gets returned back to them after 14 days then we would incur a restocking fee of 33% the burner cost £642. The burner was received by them before close of business on the 14th day.

The retailer rang my husband to say they had received it and upon it being opened in the warehouse it was damaged so therefore they were not going to refund us. They emailed me 3 photos that someone had taken in the warehouse. We couldn't believe the damage, the top of the burner was severely scratched, two chips out of the front edge and bottom air intake steel knob sheared off. This happened (allegedly)while the burner was wrapped up exactly as we received it, Brown packing paper,polystyrene, plastic wrapping all encased in a 4 sided wooden crate on a pallet, secured with heavy duty tie wraps.

When hubby spoke to somebody over the weekend they said it looked like the box had been on its front and that's why the knob was off, but we want to know if the box was damaged, and they couldn't tell us that, £86 was paid to a courier to collect, the item was insured but not sure if they would even pay out, as they also have their own packaging policy. Hubby thinks we're being 'done over'and the burner could've been swapped in the warehouse, we are expecting a phone call tomorrow from them to say if the box was damaged on arrival if it was then we may have a case to claim.
Thanks in advance

Alderbank

Yes, it will be interesting to see what they say tomorrow.

Please keep us informed.

the_lunatic_is_in_my_head

Hello OP

What’s the name of the company you ordered from please? 

km1500

Hopefully the £86 you paid the courier included insurance. Claim on that insurance for damage in transit.

pinkshoes

The damage sustained doesn't quite sound in line with what is feasible with that level of packaging (other than the knob being sheered off if it had been tipped on its side which is feasible).

The scratching would indicate the packaging on the outside would have been quite severely damage, so any reputable company would have taken a photo of this before unwrapping it. Otherwise they're implying you have done the damage BEFORE sending it back.

Also, if this is a UK firm then they cannot charge restocking fees. They can make you pay return postage but need to refund the initial payment in full, so that in itself hints that this company might be try to scam some money out of you.

Did you also meet the courier's packaging policy?

Undervalued

Who paid for the return?

If it was the retailer then generally it would be up to them to claim from the courier for any damage - assuming the packaging was adequate.

If you paid for the courier then it is for you to claim for the damage, up to the insurance level you opted for.

Fuzzy16

The company is West Country Fires and yes the £86 I paid for postage included insurance. I have had a couple of emails today, no phone call, warehouse manager reckoned it had been on its side at some point and also be reckons wooden crate wasn't tied securely to small pallet. There is no photographic proof to show this upon delivery. They took a photo after unpacking it.

Unfortunately I became aware of DHL's packaging policy too late, it was repackaged exactly as it came to us, paper, polystyrene, plastic wrapping internally, how the top got so severely chipped and scratched is beyond me.

Assessor is going to ring me before 5pm on Wednesday, have to say I'm not confident, £728 down the drain.

the_lunatic_is_in_my_head

If you purchased this from their website without visiting their store beforehand I would say their terms on cancellation do not meet the required information and thus they are not permitted to reduce the refund and must refund in full.

For staters they say returns must be made within 14 days of delivery but it’s within 14 days of cancellation.

Their limits on non-stock items don’t meet the regulations either. 

They mention reducing the value but then say the goods must be “mint” cannot be fitted, must new and unused, none of which meets the regulations.

If they didn’t tell you the estimated cost of return they are liable for the return cost as well.

If you packaged the stove as they sent it my opinion is they will find it hard to argue you were negligent with that regard. 

They are unlikely to accept this and you will probably need to send a letter before action and then issue small claims.

I’m on my phone at the moment so will post the legislation that supports your position and quote their terms that contradict the legislation in the morning. 

Fuzzy16

That's brilliant thank you.

the_lunatic_is_in_my_head

Morning OP

I've composed an email below which you can send to them if you wish, you say they are due to phone and I would let that happen first, see what they say and then if you aren't happy (or they don't phone you) pop the email over. 

I wouldn't mention the contents of the email on the phone as they are likely to disagree and it's harder to compose your thoughts "in real time" on the phone  

--------------------------------------------------------------------------------------------------------------------

Dear West Country Fires

I am writing regarding order number xxxx and to notify you that I am cancelling my contract under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

As discussed the goods have been returned and received by you and so a refund is due without undue delay and within 14 days. 

With regards to the condition of the stove, as the required information has not been provided a deduction is not permitted and a full refund is due. Please see below for the legislation and how it differs from your terms.

You are required to provide:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/13

13.—(1) Before the consumer is bound by a distance contract, the trader—

(a)must give or make available to the consumer the information listed in Schedule 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and

(b)if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.

https://www.legislation.gov.uk/uksi/2013/3134/schedule/2

(l)where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;

Sections 27-38 are detailed here:

https://www.legislation.gov.uk/uksi/2013/3134/part/3

Firstly your terms refer to the "Distance Selling Regulations" which have been superseded by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013..

Your terms state:

To receive any refund, you must return the goods to us within 14 days of delivery

However 

https://www.legislation.gov.uk/uksi/2013/3134/regulation/35

(4) The consumer must send off the goods under paragraph (2)(a), or hand them over under paragraph (2)(b), without undue delay and in any event not later than 14 days after the day on which the consumer informs the trader [of their right to cancel] as required by regulation 32(2).

Thus your period to return the goods is too short.

Section 34 permits you to reduce the refund for any excessive handling that diminishes the value of the goods:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/34

(9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

However your terms repeatedly refer to the goods being in a specific condition in order to be returned

We are unable to issue a refund or accept a return if the product has been fitted or attempted to be fitted.
To receive any refund, you must return the goods to us within 14 days of delivery in as new, unopened condition within the original packaging, products and packaging undamaged.
It is the Customer’s responsibility that all goods returned are [....] in mint condition. Damaged packaging or incomplete goods will not be accepted for credit 

It is not permitted to deny the consumer the right to cancel based upon the condition of the goods and refusal to refund outright is also not permitted (unless the value has been diminished by 100% of the contract price).

Your terms also incorrectly deny the consumer the right of cancellation under the following conditions:

All Ex display models or Clearance models are strictly non returnable and non refundable.

The company reserves the right of discretion, to accept or refuse the return of any goods supplied 
Any product that is not a stock product is deemed as a non-stock item. All non-stock items that are ordered are deemed to be ordered as a “special order” and as such would be subject to 33% re-stocking charge into our Warehouse whether already delivered or being held for delivery.
if, upon receipt and examination of returned goods, the Company finds there is a discrepancy in the Customer’s stated reason for returning the goods, the Company reserves the right to charge in full for the goods in question.

These conditions do not meet the Limits of Application 

https://www.legislation.gov.uk/uksi/2013/3134/regulation/28

Your terms also state

This does not affect your statutory rights as a consumer.

But then go on to deny the consumer their statutory rights in several aspects.

Therefore I am highlight the following

https://www.legislation.gov.uk/uksi/2013/3134/regulation/34

(9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price.

(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.

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

As the information you were required to provide does not conform to the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38 a reduction to the refund is not permitted and this is my reason for requesting a full refund.

I am also requesting a refund of the £83 return cost as you have failed to meet the following:

https://www.legislation.gov.uk/uksi/2013/3134/schedule/2

(m)where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;

which requires you to cover the cost of return:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/35

(5) The consumer must bear the direct cost of returning goods under paragraph (2), unless—

(a)the trader has agreed to bear those costs, or

(b)the trader failed to provide the consumer with the information about the consumer bearing those costs, required by paragraph (m) of Schedule 2, in accordance with Part 2.

A copy of my receipt for the return costs is attached to this email. 

I hope we can resolve this matter in an amicable manner and I look forward to receiving a full refund of £642 plus the £83 for the return without undue delay.

Sincerely
wildz

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Please proof read and correct any spelling or such I may have missed!

OP your local council won't want consumers to contact Trading Standards directly but a bit of a Google can usually pull up a contact email somewhere and I would cc in your council's Trading Standards dept. I doubt they will reply or get involved but the company may notice you have done this.

With regards to the first line about cancelling, this is to cover yourself and as they have not provided the required info the cancellation period is extended, if they try to argue about the cancellation period by saying you are outside of 14 days you can highlight:

https://www.legislation.gov.uk/uksi/2013/3134/regulation/31

31.—(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

Although I wouldn't bother with too much back and fourth with them. 

I'm going off the information on their website 

https://westcountryfires.co.uk/

You should check the information given to you by email and/or on paper with the goods to see if there are any differences. If there was no info anywhere else grab screenshots of the terms (both the full refunds page and the returns section in the T&Cs page) on their website before sending the email. 

I'm sometimes pulled up on taking the legislation to the letter rather than allowing a broader interpretation (which is a fair criticism) but with this subject my view is that not being able to reduce the refund is a punishment imposed by the law for the retailer failing to provide the required information so it fits with not only the letter but also the spirit of the law IMO. 

If the email doesn't see you a result you'd then need to send a letter before action (templates on Google, basically exactly the same as the email but with a clear line at the top stating you will commence small claims action without further contact if not resolved in say 28 days). This will only cost you a stamp so is a cheap investment. 

If that doesn't work you have to consider small claims, the filing fee would be £70, I believe there is a process of mediation in an attempt to get it sorted and if that fails it can progress to the court for which there is another fee (£50 springs to mind). I think as you are a consumer you can request the case be at your local court, this is obviously a burden for the trader but should they win you might have to pay costs (they are very limited a figure of around £90 max has been stated on this forum in the past). I'm not knowledgeable on the process in detail, hopefully others may be if you need or will correct any of my mistakes.  

The legislation above is taken from an EU Directive and the guidance notes specifically state that the Directive does not impose who is responsible for risk of return and it is down to the laws of each EU member (which the UK was at the time the UK legislation was drawn up).

It comes up on here often (who is responsible for risk of return) but I've yet to see an answer as to how it works legally, whether this would affect your position I don't know. @unholyangel might have an opinion on this if she is passing. 

My post is guidance and really anything anyone else tells you is guidance also but obviously if you get it from a solicitor you'd expect (or perhaps hope!) it would be far more credible than my free amateur guidance and you have to consider you may be out another £200 odd if you lost the claim in court. 

Government backed guidance for traders also supports the above:

https://www.businesscompanion.info/en/quick-guides/distance-sales/consumer-contracts-distance-sales#Effectsofwithdrawalorcancellation

You (the trader) are not able to make any deduction for diminishing the value of the goods if you have not provided consumers with the information about their right to cancel (information item 'l' above).

Worth a note they may have sold you the stove for £642 (which would be your claim + the return costs) however £107 is VAT and they presumably had a bit of profit in it so the net cost to the trader may have been around £400-£500 which is their actual loss and it's a question of whether they are happy to write that off without a fight really. 

Another angle for this is DHL, they can have their packing requirements but that doesn't affect their obligation to carry out the service with due care and skill, you do have the potential to chase them for a refund by arguing they were negligent. They too are likely to dig their heels in and refuse but are less likely to want to go to small claims to defend a claim. 

Not a great situation to be in but hopefully the above helps you get started if you have the inclination to run with seeking a refund from either the trader or the courier  

Fuzzy16

No they didn't ring, just an email saying it wasn't secured to pallet properly, if it hadn't been I'm sure the driver wouldn't have taken.  If the crate was damaged they did not take a photo when it arrived, The insurance assessor is ringing me tomorrow before 5pm.