Simple procedure?

disco_elmo

Hello. I'm looking for some help. I bought a large mirror online from a company based in England (I'm in Scotland). As we were still getting work done, I didn't open the box up but put the unwrapped package in a spare and unused room. When I unboxed it, 2 months after it arrived, it's really badly scratched so unusable unless I try to get it repaired. I spent just over £300 on this and they've told me its my fault I didn't open the box sooner (I am kicking myself for this) and have offered me a 10% refund. I ordered it on 7 may, it arrived approx 3 weeks later and I unboxed on 25 July. I totally get I should have checked it earlier but they're now ignoring my emails and I'm at stalemate. I got a huge mirror with 3 large scratches on it that I contest they should have picked up before it was packaged. And I should have checked it before I did (so annoyed).

Help. What next? They're ignoring me. Can I do a simple procedure, ie small claims court, to claim something back if I'm in Scotland and they are in England?

Thanks so much.

PHK

Due to the time that's passed I think a claim for delivery damage will fail. Not to rub it in but I think a reasonable person would check a fragile object.

However, if this was factory packaging and it isn't damaged  then you might be more successful claiming the mirror was inherently faulty.

As, the supplier is refuting this the problem here is that you'll now need to prove that you didn't damage the mirror. Or on the balance of probability.

The contract (terms and conditions) will tell you under which law it's formed. 

Okell

PHK said:

Due to the time that's passed I think a claim for delivery damage will fail. Not to rub it in but I think a reasonable person would check a fragile object.

However, if this was factory packaging and it isn't damaged  then you might be more successful claiming the mirror was inherently faulty.

As, the supplier is refuting this the problem here is that you'll now need to prove that you didn't damage the mirror. Or on the balance of probability.

The contract (terms and conditions) will tell you under which law it's formed. 

Does the consumer have to do that, or is it the case that the seller has to establish that the mirror was undamaged when it was delivered to the OP?

s19(14) and (15) and s29 the  Consumer Rights Act 2015 (legislation.gov.uk)

Grumpy_chap

Okell said:

Does the consumer have to do that, or is it the case that the seller has to establish that the mirror was undamaged when it was delivered to the OP?

s19(14) and (15) and s29 the  Consumer Rights Act 2015 (legislation.gov.uk)

It is hard to see that as reasonable in this case.  The whole issue is the mirror arriving damaged but that damage being of a type that could quite plausibly have occurred after delivery and the consumer would have been expected to report the damage sooner if it was present at the point of delivery.

Let's look at the clauses referenced:

(14)For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

(15)Subsection (14) does not apply if—

(a)it is established that the goods did conform to the contract on that day, or

(b)its application is incompatible with the nature of the goods or with how they fail to conform to the contract.

I would suggest that the scratched mirror falls under the part (15) (b) - application of 14 incompatible with the nature of failure to conform.

29Passing of risk

(1)A sales contract is to be treated as including the following provisions as terms.

(2)The goods remain at the trader’s risk until they come into the physical possession of—

(a)the consumer, or

(b)a person identified by the consumer to take possession of the goods.

(3)Subsection (2) does not apply if the goods are delivered to a carrier who—

(a)is commissioned by the consumer to deliver the goods, and

(b)is not a carrier the trader named as an option for the consumer.

(4)In that case the goods are at the consumer’s risk on and after delivery to the carrier.

(5)Subsection (4) does not affect any liability of the carrier to the consumer in respect of the goods.

(6)See section 2(5) and (6) for the application of this section where goods are sold at public auction.

This seems irrelevant in this case as the goods have been in the consumer's possession (risk) for a couple of months before the damage was noted.

PHK

Okell said:

PHK said:

Due to the time that's passed I think a claim for delivery damage will fail. Not to rub it in but I think a reasonable person would check a fragile object.

However, if this was factory packaging and it isn't damaged  then you might be more successful claiming the mirror was inherently faulty.

As, the supplier is refuting this the problem here is that you'll now need to prove that you didn't damage the mirror. Or on the balance of probability.

The contract (terms and conditions) will tell you under which law it's formed. 

Does the consumer have to do that, or is it the case that the seller has to establish that the mirror was undamaged when it was delivered to the OP?

s19(14) and (15) and s29 the  Consumer Rights Act 2015 (legislation.gov.uk)

As well as Grumpy_chaps excellent answer. Remember the seller is refuting the claim so the OP is going to court effectively to enforce their rights. So it's the court they'll need to persuade that the mirror was faulty and they didn't damage it.

disco_elmo

PHK said:

Due to the time that's passed I think a claim for delivery damage will fail. Not to rub it in but I think a reasonable person would check a fragile object.

However, if this was factory packaging and it isn't damaged  then you might be more successful claiming the mirror was inherently faulty.

As, the supplier is refuting this the problem here is that you'll now need to prove that you didn't damage the mirror. Or on the balance of probability.

The contract (terms and conditions) will tell you under which law it's formed. 

Thanks for your feedback. I've been all over the website that I bought it from. Is this where I should be looking for the contract? And a reasonable person would check a fragile object. Life got in the way and I am kicking myself 🤦🏻‍♀️. I'm honestly normally not this daft.

user1977

disco_elmo said:

PHK said:

Due to the time that's passed I think a claim for delivery damage will fail. Not to rub it in but I think a reasonable person would check a fragile object.

However, if this was factory packaging and it isn't damaged  then you might be more successful claiming the mirror was inherently faulty.

As, the supplier is refuting this the problem here is that you'll now need to prove that you didn't damage the mirror. Or on the balance of probability.

The contract (terms and conditions) will tell you under which law it's formed. 

I've been all over the website that I bought it from. Is this where I should be looking for the contract?

And/or in whatever correspondence you've had with them.

What's the website?

disco_elmo

user1977 said:

disco_elmo said:

PHK said:

Due to the time that's passed I think a claim for delivery damage will fail. Not to rub it in but I think a reasonable person would check a fragile object.

However, if this was factory packaging and it isn't damaged  then you might be more successful claiming the mirror was inherently faulty.

As, the supplier is refuting this the problem here is that you'll now need to prove that you didn't damage the mirror. Or on the balance of probability.

The contract (terms and conditions) will tell you under which law it's formed. 

I've been all over the website that I bought it from. Is this where I should be looking for the contract?

And/or in whatever correspondence you've had with them.

What's the website?

I've found the terms and conditions in the very small print at the bottom of their website. Thank you. I'll take that as a win for today 👍🏻

tightauldgit

PHK said:

Okell said:

PHK said:

Due to the time that's passed I think a claim for delivery damage will fail. Not to rub it in but I think a reasonable person would check a fragile object.

However, if this was factory packaging and it isn't damaged  then you might be more successful claiming the mirror was inherently faulty.

As, the supplier is refuting this the problem here is that you'll now need to prove that you didn't damage the mirror. Or on the balance of probability.

The contract (terms and conditions) will tell you under which law it's formed. 

Does the consumer have to do that, or is it the case that the seller has to establish that the mirror was undamaged when it was delivered to the OP?

s19(14) and (15) and s29 the  Consumer Rights Act 2015 (legislation.gov.uk)

As well as Grumpy_chaps excellent answer. Remember the seller is refuting the claim so the OP is going to court effectively to enforce their rights. So it's the court they'll need to persuade that the mirror was faulty and they didn't damage it.

True, but the court should be following the legislation which says its up to the seller to show that it wasn't like that when they sent it. In practical terms it probably just comes down to who the judge believes but if its not clear then the benefit of the doubt should go to the buyer.

The fact that the seller seems to have no desire to comply with the law at all would surely go in the buyer's favour here. They don't seem to have made any efforts to establish whether the damage was caused by the buyer, or indeed accepted their responsibilities under the CRA to address the issue. They simply said the buyer is too late to get any recourse - which simply isn't the law. 

disco_elmo

Thanks all. The terms and conditions make really interesting reading, most of which I think the CRA would supercede. I've nothing to lose here apart from a deposit to go to court, so I'm going to do a bit more reading, mainly experiences on this forum, and go from there. Very much appreciated.

PHK

tightauldgit said:

PHK said:

Okell said:

PHK said:

Due to the time that's passed I think a claim for delivery damage will fail. Not to rub it in but I think a reasonable person would check a fragile object.

However, if this was factory packaging and it isn't damaged  then you might be more successful claiming the mirror was inherently faulty.

As, the supplier is refuting this the problem here is that you'll now need to prove that you didn't damage the mirror. Or on the balance of probability.

The contract (terms and conditions) will tell you under which law it's formed. 

Does the consumer have to do that, or is it the case that the seller has to establish that the mirror was undamaged when it was delivered to the OP?

s19(14) and (15) and s29 the  Consumer Rights Act 2015 (legislation.gov.uk)

As well as Grumpy_chaps excellent answer. Remember the seller is refuting the claim so the OP is going to court effectively to enforce their rights. So it's the court they'll need to persuade that the mirror was faulty and they didn't damage it.

True, but the court should be following the legislation which says its up to the seller to show that it wasn't like that when they sent it. In practical terms it probably just comes down to who the judge believes but if its not clear then the benefit of the doubt should go to the buyer.

The fact that the seller seems to have no desire to comply with the law at all would surely go in the buyer's favour here. They don't seem to have made any efforts to establish whether the damage was caused by the buyer, or indeed accepted their responsibilities under the CRA to address the issue. They simply said the buyer is too late to get any recourse - which simply isn't the law. 

That's true but can only happen when the OP goes to court. The court will listen to both parties and make a decision. So I think my point stands, the OP will need to counter the sellers argument.