Returning goods purchased online - return delivery costs

tightauldgit

the_lunatic_is_in_my_head said:

tightauldgit said:

the_lunatic_is_in_my_head said:

powerful_Rogue said:

I'm still of the logic that if you pay for the return postage and the item is lost, then you claim from the courier.

Although it states that they must refund within 14 days of supplying evidence of returning goods, if no goods have been received then the diminished value will be a 100% reduction from the refund.

Otherwise people could claim a refund from the courier and also the retailer.

Can only reference the above guidence again

Although Article 14(2) entitles the trader to hold the consumer liable for any diminished value of the goods caused by mishandling during the right of withdrawal period, under Article 13(3) the trader must reimburse the consumer after having received evidence that the goods have been sent back.

If the lost in transit issue was considered handling then there wouldn't be mention of a refund being due in either the guidance or the legislation, equally delivery not occurring within 14 days doesn't mean the goods have been lost in transit either. 

Even if that is the case, at best there would still be an outstanding issue for the consumer that they have not fulfilled the contract on the return - they have received a refund but not returned the item. So there would still be a claim by the seller against the consumer, all that's happened is the legal can is kicked down the road.

Not to mention that the goods value to the supplier have been diminished 100% by the fact that they don't own them or have them in their possession.

If your interpretation was correct I could see a real booming market in 'guaranteed 15 day delivery' courier services - buy diamonds from a retailer and return carpet sweepings in 15 days for a refund.  

Use of language is important, the consumer has indeed returned the goods, or more accurately sent them back as the regs state the consumer must, they however haven't been delivered.

Again 

Although Article 14(2) entitles the trader to hold the consumer liable for any diminished value of the goods caused by mishandling during the right of withdrawal period, under Article 13(3) the trader must reimburse the consumer after having received evidence that the goods have been sent back.

If lost or delayed in transit was classed as diminished value it wouldn't say the trader must reimburse the consumer after having received evidence that the goods have been sent back.

As I presented before "the legal can is kicked down the road" is indeed a valid reasoning, placing the burden of that can upon the trader instead of the consumer, which in this country means for low value goods the trader's legal can is empty if the amount is too small to go via small claims without being dismissed as de minus.

The consumer has not returned the goods - they have sent the goods, but ownership has not passed to the seller because they haven't received it. 

The trader also cannot possibly assess any diminished value of the goods until they have them. Equally if the item is being returned as faulty as not conforming then they also cannot confirm that to be the case without actually receiving the goods. 

Equally I'd have a good go at arguing that proof of posting is not evidence that the goods have been sent back especially if the courier subsequently says the items are lost. A statement from the courier that the items are lost would be evidence indeed that they have not been sent back. 

In any case, the original point was that if you use the supplier's courier then none of this becomes an issue and you don't have to worry about it. Which given the back and forward on this would at least seem to be some kind of benefit. I don't think we will agree on the topic at hand but surely we can agree that not having to concern yourself with it is a win?

the_lunatic_is_in_my_head

You said there was a well-established principle of English law that tells us when risk passes from A to B.

I asked for a source but was advised not all laws are written in legislation.

I noted this was often referred to as case law or common law and would there not be a record of that somewhere to which there wasn't a reply so I asked how you learnt this principle but didn't get an answer to that either.

When I started reading this forum I knew little about consumer rights, over the years I've read legislation, guidance and the information given by other posters, when discussing points that are, lets say, complicated, I always try to give a source for the information I'm offering, I'm not a lawyer, I haven't gone to school to learn this stuff and so it would arrogant of me to expect people to accept what I have to say simply at face value.

As I've said before what we all give here is guidance and anything else, other than decisions by the courts, is also guidance and, whilst not infallible, that guidance which comes from the UK government, the EU, or something like Business Companion (which is government backed) is always going to be more credible than anything someone here, including myself, says without a source. 

When it comes to a discussion like this it doesn't matter as it's just a chat between the two of us (I think OP has gone and it's now musings on the topic rather than advice) but when it comes to offering advice to those seeking help that should come with responsibility and I think it's disingenuous to present information as fact but when that information is questioned there is no answer as to how it was formed other than opinion. It would appear that, with all due respect to anyone here, with some posters there's a fundamental lack of understanding of what consumer rights are to begin with and what the legislation and guidance both says and means, which isn't a problem if that info is either offered as opinion or is offered with something that at least shows some kind of substance or backing demonstrate how it was formed but sadly often that's not the case. I'm always happy to be shown to be incorrect as it's a good opportunity to learn something new but it would be foolish to take on information as knowledge that wasn't based on that substance or backing. 

The last comment above highlights this last paragraph, 

The consumer has not returned the goods - they have sent the goods

The legislation says the consumer must "send them back" rather than using the word return them so by your own words the consumer has done what the legislation says they must.

We can of course agree to disagree  

gokhart

Hello,

Thanks for the replies, and ensuing discussion. However, I don't think they address my queries. The goods are not faulty in any way, I simply returned them, and accept that I need to pay return postage. They arrived safely, and the condition of them on receipt was not questioned in any way.

The company claim they deducted £8 for postage. I can see from the website of the courier they used that the actual postage was less than half of this. Are they at liberty to charge a postal return fee that exceeds the actual cost of postage? Are any other UK sellers known to do this?

Furthermore, are they allowed to withhold their return address – effectively tying me to using their preferred returns method?

Their refund policy is fairly brief, and states:

Returns:

We offer a risk-free 30-day money back guarantee.* If you're not happy, we're not happy. We are confident that you will absolutely love your XXXXXX cookware and if you do not we will be happy to refund you within our 30-day return window.

*Customer is responsible for paying return shipping.

To complete your return, we require a receipt or proof of purchase.

Refunds:

If you are not completely satisfied with your purchase, we’re here to help. You have 30 calendar days to return an item from the date of purchase.

Late or missing refunds:

If you haven’t received a refund yet, first check your bank account again. Then, contact your credit card company, it may take some time before your refund is officially posted.

Next, contact your bank. There is often some processing time before a refund is posted.

If you’ve done all of this and you still have not received your refund yet, please contact us HERE. Exchanges:

We only replace items if they are defective or damaged. Please note: Since all of our cookware is made by hand, it is possible your new cookware may have very minor blemishes. This will not affect the performance of your cookware.

Price Match Policy:

At this time, XXXXXX does not offer price matching on free promotional deals.

Pricing and sales on XXXXXX.com are subject to change. We offer a 14-day price match guarantee on XXXXXX.com only. If you purchased an item on our website and the price of that item decreases within the 14-day window we will refund you the difference.

We do not price match 3rd Party Sellers or Retailers.

Discount Codes:

Only one discount code can be used per order. More than one discount code cannot be applied to an order.

And there is another page that says:

How do I set up a return?

UK Returns:

Order that are made on XXXXXXX.co.uk can be returned via our returns portal within the first 30 days. XXXXXX does not charge a restocking fee, however customer are responsible for return shipping costs. Once your return is received and inspected, we will send you an email to notify you that we have received your returned item. We will also notify you of the approval of your refund.

Manxman_in_exile

gokhart said:

...My query is:
- am I obliged to return items using the seller’s specified carrier, or am I at liberty to use whichever postage option I wish (ie the cheapest)
- is the seller obliged to set out the return postage cost before processing the return? Had I known return shipping would have cost me £8, I may have reconsidered...

As I suggested in the first reply to this thread - I think it "Sort of depends on what grounds you returned them..." 

For the sake of argument (and to provide a very short answer) I'm going to assume that you returned the goods under the trader's own 30 day no-quibble refund policy, and that you did not specifically inform them that you were exercising your statutory right to cancel the contract under Part 3 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk) - even though you were well within the 14 day cancellation window and could have done so.

Working on that assumption (ie that you returned the goods under the trader's own returns policy) then so far as I'm aware the trader is perfectly entitled to charge you whatever fee(s) they like, and they can stipulate whatever method of return they like.

I am also not aware that - if you have chosen to use the trader's own returns policy - the trader is legally obliged to provide you with a physical return address or to tell you what a return will cost .  It's possible that the law might require any returns cost to be "reasonable", but I wouldn't consider a charge of £8 unreasonable even if you could have posted it for half that.

That's the very short answer - now for a longer answer...

If, on the other hand, you had returned the goods by exercising your statutory right to cancel under the regulations linked to above, then you might be in a stronger position (hence the "Top tip" I gave in my first reply).

But in order to exercise that statutory right you have to tell the trader within 14 days of delivery that you are doing so by following the instructions in regulation 32(3):

"(3) To inform the trader under paragraph (2) the consumer may either—

(a) use a form following the model cancellation form in part B of Schedule 3, or

(b) make any other clear statement setting out the decision to cancel the contract."

If you have complied with that requirement then regulation 35 governs how goods are to be returned and who pays for them.  Basically: (i) you either have to send them back or give them to someone "authorised by the trader to receive them" and (ii) you have to pay for the return unless the trader says that they will pay - see 35(5)(a).  

Regarding the returns address, regulation 35(3) says:

"(3) The address to which goods must be sent under paragraph (2)(a) is—

(a) any address specified by the trader for sending the goods back;

(b) if no address is specified for that purpose, any address specified by the trader for the consumer to contact the trader;

(c) if no address is specified for either of those purposes, any place of business of the trader"

Whether only being able to access the returns address via the trader's online returns policy - thus restricting you to the trader's preferred (and possibly more costly) choice of carrier - I simply don't know.  Others might know.

But as I suspect you returned the goods under the trader's own returns policy and you didn't exercise your statutory right to cancel, the question is probably academic.

Does that help?

the_lunatic_is_in_my_head

Manxman_in_exile said:

If, on the other hand, you had returned the goods by exercising your statutory right to cancel .... you have to tell the trader within 14 days of delivery 

@Manxman_in_exile  Just to clarify 14 days is the normal cancellation period but it can be extended for failure to provide the required information, if OP purchased from Hexclad I can't see mention on site of the right to cancel (unless I'm missing it as usual) so OP would have to check emails, etc to see if it were mentioned there and if not they'd still be within the extended cancellation period and without mention of the consumer being responsible for the cost of return in the event of withdrawal/cancellation the trader must bear this cost. 

In any event you hit the nail on the head in the first post to the thread  

Manxman_in_exile said:

In either case you have the practical difficulty of extracting your 8 quid form them...

sheramber

Does your quote include any insurance?

Undervalued

gokhart said:

Hello,

Thanks for the replies, and ensuing discussion. However, I don't think they address my queries. The goods are not faulty in any way, I simply returned them, and accept that I need to pay return postage. They arrived safely, and the condition of them on receipt was not questioned in any way.

The company claim they deducted £8 for postage. I can see from the website of the courier they used that the actual postage was less than half of this. Are they at liberty to charge a postal return fee that exceeds the actual cost of postage? Are any other UK sellers known to do this?

Furthermore, are they allowed to withhold their return address – effectively tying me to using their preferred returns method?

Their refund policy is fairly brief, and states:

Returns:

We offer a risk-free 30-day money back guarantee.* If you're not happy, we're not happy. We are confident that you will absolutely love your XXXXXX cookware and if you do not we will be happy to refund you within our 30-day return window.

*Customer is responsible for paying return shipping.

To complete your return, we require a receipt or proof of purchase.

Refunds:

If you are not completely satisfied with your purchase, we’re here to help. You have 30 calendar days to return an item from the date of purchase.

Late or missing refunds:

If you haven’t received a refund yet, first check your bank account again. Then, contact your credit card company, it may take some time before your refund is officially posted.

Next, contact your bank. There is often some processing time before a refund is posted.

If you’ve done all of this and you still have not received your refund yet, please contact us HERE. Exchanges:

We only replace items if they are defective or damaged. Please note: Since all of our cookware is made by hand, it is possible your new cookware may have very minor blemishes. This will not affect the performance of your cookware.

Price Match Policy:

At this time, XXXXXX does not offer price matching on free promotional deals.

Pricing and sales on XXXXXX.com are subject to change. We offer a 14-day price match guarantee on XXXXXX.com only. If you purchased an item on our website and the price of that item decreases within the 14-day window we will refund you the difference.

We do not price match 3rd Party Sellers or Retailers.

Discount Codes:

Only one discount code can be used per order. More than one discount code cannot be applied to an order.

And there is another page that says:

How do I set up a return?

UK Returns:

Order that are made on XXXXXXX.co.uk can be returned via our returns portal within the first 30 days. XXXXXX does not charge a restocking fee, however customer are responsible for return shipping costs. Once your return is received and inspected, we will send you an email to notify you that we have received your returned item. We will also notify you of the approval of your refund.

Almost certainly yes. They have the cost and work involved in packing and arranging the dispatch.

When I was VAT registered I was reminded that whilst there is no VAT on postage, post and packing as a service added to an invoice attracted VAT on the whole charge. So If I sold somebody a few postage stamps from my draw there was no VAT but if I packed and posted their purchase for, say, £8 I had to pay the government over a pound in VAT.

Manxman_in_exile

the_lunatic_is_in_my_head said:

 At a glance that third parties Act mentions third party rights where they are mentioned in the contract or the term purports to confer a benefit on him (I read the guidance notes too but still don't understand what that means). 

Are the Consumer Action Group winning cases in court (excluding by default) or is it the case the couriers simply pay out as it's the easiest/cheapest option to them regardless of the reasoning put forward by the other side? 

Not an area I'm overly familiar with regrading contract law, would passing of risk be an implied term through legislation or case law? 

Sorry I haven't replied to this earlier but I was away over the weekend.

I think they might have actually won some cases in court but I'm not 100% sure of that.  I thought I'd bookmarked some winning threads but can't find them now.  They've certainly had threads where they've used the argument and the courier has simply folded and paid up.  (Note - I did find a bookmark of a court decision from their site on a completely different matter that you and others might find interesting and I'll put it in a new thread.  It's about couriers and insurance)

I'm not 100% convinced myself by the third party rights argument, but they seem to like it.  I'm also not 100% convinced by all the other advice they give and I think I'm seen as a bit of a troublemaker because they don't like other people questioning their advice and they can get very defensive (or aggressive!) if you challenge them*.  I don't know if you follow the private parking board on MSE, but the expert posters on there have been very critical of the CAG approach to private parking cases.

One of the other odd things is they won't allow you to link to other forums - which seems daft for a consumer advice forum if you want posters to access the best advice.

They are, however, pretty good at advising on claims and court procedure etc.  If I wanted advice on how to make and manage a claim I'd ask there rather than here.

*I've had insulting comments directed at me by five regular posters there whan I've challenged what they've said.  In all but one instance I turned out to be right and they were wrong.  The outcome of the remaining instance was never updated.

==============================================

Regarding this current thread I agree with your comments made over the weekend.

I'm pro-Brexit and even I can't see how Brexit would affect the EU guidance explaining the regs that the UK pretty much adopted wholesale.

I also can't see a trader successfully suing a consumer on the grounds that they'd had to comply with statutory regulations, but they thought they were wrong...

gokhart

Hi everyone,

The company has agreed to refund the postage charges in full.

I sent them the screenshots of their returns policy and returns info pages, pointing out that they did not give any returns address or state what the returns charges would be. I also showed them my evidence that return postage was £3.91 (using their preferred courier) and invited them to provide their evidence of the higher postage cost, or return the postage fee paid.

I also asked them why they didn't provide their company address, anywhere on their site, and if they weren't going to agree to refund the postage charge, to kindly provide their company address so I could handle the matter in writing.

They didn't answer any of my queries but simply stated that they'd refund my £7.95 within 7-10 working days.

Lastly - in response to Manxman-in-Exile, there was no facility anywhere to specify what on what grounds the return was being made. It's an automated returns portal which the customer is directed to – there's no other mechanism. Theoretically, the only way I could have specified this was by emailing customer service saying 'I'd like to return the item under under Part 3 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 rather than your 30 day return policy – how should I proceed in this case?'. Anyway, I'll leave that for another day.

Bit of a hassle, but I got there.

So far they haven't updated their returns policy in any way, I am a little surprised

Thanks everyone and I shall probably come back and study these replies in more depth later, as there is a lot of detail in here that I can learn from.

Manxman_in_exile

Glad you finally sorted it out.

Well done for persevering.

If you think you are in the right and you have the time and/or inclination to be awkward (or just to assert your consumer rights) I think it's always worth while being persistent and not giving up.