Apple Iphone 13

2daystheday2

Will be giving it a go thanks

RefluentBeans

Okell said:

In this situation I think I personally would put the ball back in Tesco's court and send them a Letter Before Claim.

I've no idea what an Apple iPhone 13 costs (I only have a 13 year-old Samsung "stupid" 'phone) but if the only choices before me are to pay £400+ to repair it or to buy a new one, I think I'd call Tesco's bluff.

I think I'm right in saying that court fees for a claim up to £500 are £50, and £70 for a claim up to £1000.

I'd argue that it was clearly obvious that a piece of tech costing £(whatever it cost) which had failed totally after just 14 months and which would now cost £400+ to repair was clearly not of satisfactory quality under s9 of the Consumer Rights Act 2015 (legislation.gov.uk)

"9  Goods to be of satisfactory quality

(1) Every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory.

(2) The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory, taking account of— ...

... (b) the price or other consideration for the goods (if relevant), ...

... (3)The quality of goods includes their state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of goods—

(a)fitness for all the purposes for which goods of that kind are usually supplied; ...

... (e)durability."

My argument would be that a "reasonable person" would not consider this 'phone to be of satisfactory quality in the circumstances.  The fact of the failure - after just 14 months - with no evidence of misuse or user caused damage speaks for itself.

The issue raised by Tesco of it being outside Apple's warranty period is irrelevant to the OP's statutory rights - in fact, if I wanted to be cheeky, I might want to point out that even Apple don't consider their products reasonably durable if they don't want guarantee them for more than 12 months.  (   )

I don't see what the OP has to lose by sending a Letter Before Claim to Tesco.  (Well, except for the claim fee if the OP wants to follow it through and issue a claim - which I would if Tesco won't play ball)

I think the issue is that Tesco (and retailers in general) do a poor job when warranties are involved. By saying that the repair would be out of warranty and cost £400, it doesn't mention that the consumer wishes to claim under the CRA. Of course, the CRA puts the burden on the consumer to prove the fault was inherent, or didn't last long enough time. Whilst a lay person can say that a £1000 phone should last longer than 12 months, it is not a lay persons report that a court will consider.

Not all faults require a technical explanation - a zipper on a pair of trousers that has come apart from the material is clear to anyone, and if this occurred 190 days after the purchase then I think anyone would consider that to be a fault. The issue here is that the fault has not been identified. What is malfunctioning - the sim card reader, the motherboard, the antennas, other internal connectors? Is there any water damage? Whilst the law the doesnt require beyond a reasonable doubt, it does require a greater than 50% chance. 

It's worth considering if Tesco doesn't replace or repair the phone, the onus is on the OP to prove the fault fits the statutes. Tesco (and others) don't need to prove the phone isn't faulty, or that the OP caused the damage; it's on the consumer to show that the fault is inherent or due to non-satisfactory quality. And the person being convinced is a judge. I don't think simply having a faulty device at 14months is enough to meet the 'obvious' poor quality, and without a report, there's not much that can be done...

Also a letter before action/claim is a nuclear option, so if the OP does send it, that's the end of any negotiations of goodwill via customer service, so I'd also be sure that the end of the negotiations has been reached before sending the letter, as it is certainly a line in the sand!

Okell

2daystheday2 said:

Will be giving it a go thanks

Following from my earlier post - when you complained to Tesco did you make it clear to them that you were relying on your statutory rights under the Consumer Rights Act 2015 (legislation.gov.uk) in that the 'phone was not of satisfactory quality, and that you were not attempting to rely on any warranty from Apple?

If you didn't, then go back to them now and do so.  Quote to them those parts of s9 that I quoted.  Give them the link too.

See what they say then.

If they won't play ball and won't make you a better offer, and you don't want to pay them £400+ to repair it and you don't want to buy a replacement yourself, you can then consider further whether to send a letter before claim and threaten to sue

Okell

@RefluentBeans -  what better suggestion can you give the OP?

If Tesco are saying they'll charge the OP £400+ to repair it and that's their best offer, what has the OP got to lose by making a claim under the CRA?  Apart from £70 claim fee.

The legislation does not - AIUI - require any independent evidence regarding the 'phone not being of satisfactory quality.  Yes, the OP would need to "prove" their claim, but their evidence is that they bought a 'phone costing £1000 (I have no idea but you mentioned that figure and you seem to know a lot about tech issues) and it broke after 13 months and then again (to the extent it needs £400+ worth of repairs) just one month later.  In the words of s9 I don't think that a "reasonable person" would consider that 'phone to be of satisfactory quality considering (1) its price and (2) its age.  

While you are correct in stating that it is not normally up to the seller to prove after 6 months that the item was of satisfactory quality, I would argue that the OP can produce a sufficiently strong prima facie argument on the facts alone that a judge (if it ever got to court) would be quite justified in deciding that the OP had done enough to satisfy the initial burden of proof, and then ask Tesco to rebut that argument by justifying why they think "a reasonable person" could not expect their £1000 'phone to last longer than 14 months.  Would they really want to follow that line of argument by telling the world that it would be unreasonable to expect their 'phones to last longer than a year?

I'm not telling the OP that they would be guaranteed to succeed if it got to court.  A judge might well ask the OP why they didn't have any other independent evidence to support their claim, and chuck it out when the OP admits they have none.  But I think that courts in this sort of situation tend to bend over backwards to help a consumer David against a retailer Goliath, and give them much more leeway than other litigants.  You have to remember that judges also buy smart 'phones...

We've seen examples on here: there were a couple of decisions posted up by @Manxman_in_exile against courier companies where many posters here thought the courier companies should have won, and there was another example - from I think @screech_78 - where a consumer had returned goods to completely the wrong address but a court still found in their favour even though it had been entirely their own fault that the goods got lost!

If anybody can explain why the OP shouldn't consider this approach I'd be happy to be told but I can't see what they have to lose - other than the claim fee.  I think Tesco have got more to lose than the OP...

(PS - the only other thing the OP might lose is Tesco's goodwill - but there doesn't seem to be any...)

RefluentBeans

@Okell - my point was very much to ensure that the OP has exhausted the customer service route before threatening to sue. Much akin to your earlier post of explaining to ensure that the OP explains that they wish to return under the CRA, and not under a warranty repair. Like I said - retailers in tech do a particularly bad job of explaining what they mean when they say that the phone is out of warranty and a repair will cost £X to repair. 

Given that most phone repairs are due to consumer negligence either because the consumer got the device wet, or because they’ve cracked the screen or dropped the device; I don’t actually think that these retailers are actively trying to work to undermine rights, it’s just that almost every case they see is a phone that is broken because someone dropped it or got the device wet. So the first thing to do retailers do is understandably look through the lens of a guarantee or warranty. The rest of not understanding consumer rights is a problem endemic with retailers - that most front line customer service staff don’t know the law, and so it’s better to speak to a supervisor or manager who has probably received some training. 

The issue is that a phone and car share a lot of similarities - they are both engineered products that contain a myriad of other components, most of which require technical expertise to ‘fix’. The issue is the size - most of the components in a phone are soldered to a PCB, and thus outside of microelectronic specialists (that even Apple doesn’t use) the cheapest and most economical thing to do is to replace the whole board the faulty component is attached to. Additionally if any of the water sensors inside the device goes off, it voids the warranty; but should that void the CRA? It’s not clear if it does, especially as Apple (and thus retailers using Apples marketing materials) pitches the products as waterproof. 

With regards to the law, it is my feeling that the burden hasn’t yet been met the consumer. The OP hasn’t shown the profit to be inherently faulty, and hasn’t pointed to a part of the device that is at fault. As far as I can tell, the device hasn’t even been opened up to be inspected. 

Of course if this is taken to court, Tesco will likely ‘cave’ before then, but if they don’t and actually fight this, then I think they’ve got a good case. It depends on what the judges background is, and how the cases are presented. 

My advice is simply to exhaust all customer service options first. Jumping straight from ‘sorry not under warranty but we can repair the device for £400’ to ‘righteo I’m going to sue you’ is a bit silly and not the best way to get the outcome the OP wants, something reiterated in your second post with making it clear what the OP is actually claiming. 

PHK

I think we need to simplify this for the OP:

1) Go to Tesco explicitly staying that you are rejecting the iPhone under the Consumer Rights Act. 
2) If they won't budge then get the repairer to write down what they told you.
3) Present this to Tesco saying you've proved it's faulty and are exercising your rights under the CRA
4) If they still won't play ball then that is the point that you send a Letter Before Action. Citizens Advice will help you draft it.

Okell

PHK said:

I think we need to simplify this for the OP:

1) Go to Tesco explicitly staying that you are rejecting the iPhone under the Consumer Rights Act. 
2) If they won't budge then get the repairer to write down what they told you.
3) Present this to Tesco saying you've proved it's faulty and are exercising your rights under the CRA
4) If they still won't play ball then that is the point that you send a Letter Before Action. Citizens Advice will help you draft it.

I think that's very well put and very clear advice for the OP to follow.  (Although I suspect 2. might now be difficult to obtain...)

It would be very useful for the OP to feed back on how they get on - especially if they have to get to step 4.

(Just my personal view but I still find it very difficult to believe that Tesco would be able to persuade a court that - absent any evidence of misuse or accidental damage by the OP - any "reasonable person" would consider a £1000 phone that failed twice within 14 months - the second time requiring £400+ of repairs - was "satisfactory".  But that's just my view...)

2daystheday2

Thank you everyone for your help- Tesco complaint’s team all stated no - However sent an email to the CEO and they have now agreed to replace the phone- did get a report from Apple stating it was a fault and not of my making 

Okell

2daystheday2 said:

Thank you everyone for your help- Tesco complaint’s team all stated no - However sent an email to the CEO and they have now agreed to replace the phone- did get a report from Apple stating it was a fault and not of my making 

Good.  That's the right result.

Can I ask, how did you word your complaint to the CEO to persuade him that you were in the right?

Did you argue it obviously wasn't of satisfactory quality because it hadn't lasted long enough?

2daystheday2

Stated that I probably would win under consumer rights and that I still had nearly 2 years to run on my contract also that I had to give up my job to care for my wife and it is was used to contact me in emergencies