Product bought delivered to neighbour, out of 14 day return period?

celesp

Exodi said:

celesp said:

Exodi said:

Okell said:

celesp said:

Hi,

I bought a product (headset) on 12th October,  The Item was delivered to my neighbour and there is image proof of this on the 16th October. They did not give it to me until the 4th Nov as they went away on Holiday. When does the 14 days start? Surely the contract is with me and not my neighbour?

They are now not accepting a return because of this.

What can I do?

Why do you want to return it?  Is it faulty or is it a change of mind or what?

(a)  If it's faulty - or not as described etc - there is basically no time limit on returns.

(b)  If it's simply a "change of mind" and you want to exercise your statutory right to cancel* the contract under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk), then the 14 days runs from the day the goods were delivered into the physical possession of either you, or somebody nominated by you to take possession of them.  (See regulation 30(3) in the above link).

So if you nominated your neighbour, the 14 days runs from 16 October when the goods were delivered to your nieghbour, but if you did not nominate them, I would argue the 14 days runs from 4th November when your neighbour gave them to you.  but I'm sure you will need to argue this point strongly with the seller if you want to persuade them.  Quote the regulation I refer to above.  If the seller still won't accept the return you might be able to get a chargeback or s75 claim depending on how you paid and how much you paid.  Or you'll have to consider if it's worth issuing a money claim based on the wording of reg 30(3).


*To exercise your statutory right to cancel you have to clearly tell the seller you are doing so within 14 days of the goods coming into your physical possession, and return the goods within a further 14 days


[Edit: cross-posted with @DullGreyGuy -  I agree with "Secondly, under 31, if the merchant hasn't provided you all the pre-sales information they are supposed to in the format prescribed by the law the cancellation period doesn't start until such time as they do provide it to a maximum on 12 months"]

I'd be careful relying on this, as it feels like this legislation hasn't quite kept pace with modern fulfillment and  there are very few cases of it being tested in court.

If we look at: "which the goods come into the physical possession of— (a)the consumer, or (b)a person, other than the carrier, identified by the consumer to take possession of them."

The modern day 'leave in safe-place' facility isn't enshrined in legislation. You could argue that on a delivery where the consumer nominates a safe place, their statutory rights override requiring the goods to be physically received.

Separately, It is commonplace for Amazon, Evri, etc to leave parcels round the side of a house, without a safe-place nominated. You could say that all these deliveries (perhaps the majority of the deliveries in the UK) are non-compliant.

Also, couriers do not ID recipients of parcels at the address, nor enforce that the parcel may only be received by the person named on the order. A parcel being received by anyone not named on the order (or even the person named on the order, but unprovably) you could say is non-compliant.

However, in a lot of cases, consumers enjoy the convenience of parcels being left outside their house, and of not being required to sit in all day waiting for deliveries - so are perhaps more than happy to waive their statutory rights in lieu of convenience a lot of cases.

Was the item faulty? It's a much easier return if it was.

It was delivered by royal mail, the photo shows my neighbour door number, they never left a "we left it with a neighbour" card and I have never asked them to leave it in a safe place, I would rather it go back to the depot as its only 5 minute walk.

as far as I know, the Item is not faulty, it's still sealed and boxed.

Sorry, I had drifted into probably irrelevant technical musings.

Regardless of our interpretations on legislation, if it was me, I'd go back in the first instance and inform them that I only took physical possession of the goods on the 4th November, so understood you would have 14 days from receiving the goods to return them, i.e. until the 18th November. You can prove that the goods were not delivered to you, so would hope they can appreciate that there would have been a delay in you receiving the goods.

In the second instance, I might mention that it was my understanding under The Consumer Contracts Regulations (linked above) that the cancellation period started when you came into possession of the goods, not when the goods were provably delivered to a different house.

What is the value of the goods out of interest? Unfortunately, if they don't play ball, the next course of action would probably be threatening litigation, and as above I'm not completely confident. If we're talking £20, I'd probably exchange a few more emails then give up at that stage (and if there's nothing wrong with the item, sell it to recoup some of the money or something). Others may opt to take it further.

£180 altogether. I have explained the above consumer contract regulations and their reply has been.

"We really wish we could do more for you here, but according to our policies, the item can only be returned within 14 days. The tracking shows that the item was delivered on October 16, and this is the date we consider the delivery date. It is of course your right to take the matter to court."

Olinda99

well at least you know where you stand they have made their position very clear

if you want to take the mass of further issue  lba and then court

Exodi

I think I would probably make one further attempt highlighting that consumer legislation supersedes their company policies and that it seems there is disagreement that the goods were not delivered to the address on the order. Maybe I'd also consider trying to bring it to the attention of someone more senior in the business.

But to be honest, I kind of agree with the poster above, I think they're politely telling you to go away.

If you can't have them agree to a refund, as above, LBA and then court. Some solicitors are happy to send LBA's for as cheap as £20 (in the hope that it scares them into settlement).

If you had to take this to small claims, the filing fee would be £35 (and a similar hearing fee) for a debt of £180, though runs of the risk of losing and being liable for their expenses (though not their legal fees) and losing your fees.

Personally, I'm not confident and I wouldn't let it get that far for £180, though some are braver than I am.

DullGreyGuy

Exodi said:

being liable for their expenses (though not their legal fees) and losing your fees.

You aren't liable for expenses of the defendant in the small claims court only that of witnesses and a limited scope for expert reports etc. 

Exodi

DullGreyGuy said:

Exodi said:

being liable for their expenses (though not their legal fees) and losing your fees.

You aren't liable for expenses of the defendant in the small claims court only that of witnesses and a limited scope for expert reports etc. 

Sorry, I looked up the fees on MSE and just echoed what it said: https://www.moneysavingexpert.com/reclaim/small-claims-court/

(The article is about a year old so may not be correct.)

Expenses can be awarded against you if you lose

You shouldn't have the other party's lawyer's fees awarded against you – but you could find yourself paying certain expenses of theirs if you lose, and you won't get the court fees back. You'll have to pay within 14 days of the hearing, but you can ask for more time to pay the costs and anything else by instalments once the court has seen full details of your income, expenses, assets and liabilities. You could end up paying:

£90/day For loss of earnings or leave to attend a hearing, plus reasonable travelling expenses for each of the other side and any necessary witnesses they take along to court.

£750 If the judge gave them permission to get evidence from an expert, eg, having to get an expert to inspect a sofa for a fault.

celesp

I reiterated the consumer contract and their reply is the below, once again I have re-iterate my contract is with them to deliver the product to me and I did not ask them to leave it with a neighbour, that's on them.

"We truly understand your frustration.

But please note that the last-mile delivery is done by local courier services that have their own workflow. Some companies leave packages in safe places (porch/reception/mailbox), some hand them over to addressees or ask ones to pick parcels up at their offices. Sometimes couriers leave parcels with neighbors. In all these cases, packages are considered to be officially delivered."

DigSunPap

Have you spoke with the neighbour and asked why they didnt give it to you right away? Sounds strange to me - at least get in contact with the company who delivered it

born_again

Exodi said:

I think I would probably make one further attempt highlighting that consumer legislation supersedes their company policies and that it seems there is disagreement that the goods were not delivered to the address on the order. Maybe I'd also consider trying to bring it to the attention of someone more senior in the business.

But to be honest, I kind of agree with the poster above, I think they're politely telling you to go away.

If you can't have them agree to a refund, as above, LBA and then court. Some solicitors are happy to send LBA's for as cheap as £20 (in the hope that it scares them into settlement).

If you had to take this to small claims, the filing fee would be £35 (and a similar hearing fee) for a debt of £180, though runs of the risk of losing and being liable for their expenses (though not their legal fees) and losing your fees.

Personally, I'm not confident and I wouldn't let it get that far for £180, though some are braver than I am.

Why pay someone when you can do it for free yourself... This is MSE 🤷‍♀️

Okell

Exodi said:

Okell said:

celesp said:

Hi,

I bought a product (headset) on 12th October,  The Item was delivered to my neighbour and there is image proof of this on the 16th October. They did not give it to me until the 4th Nov as they went away on Holiday. When does the 14 days start? Surely the contract is with me and not my neighbour?

They are now not accepting a return because of this.

What can I do?

Why do you want to return it?  Is it faulty or is it a change of mind or what?

(a)  If it's faulty - or not as described etc - there is basically no time limit on returns.

(b)  If it's simply a "change of mind" and you want to exercise your statutory right to cancel* the contract under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk), then the 14 days runs from the day the goods were delivered into the physical possession of either you, or somebody nominated by you to take possession of them.  (See regulation 30(3) in the above link).

So if you nominated your neighbour, the 14 days runs from 16 October when the goods were delivered to your nieghbour, but if you did not nominate them, I would argue the 14 days runs from 4th November when your neighbour gave them to you.  but I'm sure you will need to argue this point strongly with the seller if you want to persuade them.  Quote the regulation I refer to above.  If the seller still won't accept the return you might be able to get a chargeback or s75 claim depending on how you paid and how much you paid.  Or you'll have to consider if it's worth issuing a money claim based on the wording of reg 30(3).


*To exercise your statutory right to cancel you have to clearly tell the seller you are doing so within 14 days of the goods coming into your physical possession, and return the goods within a further 14 days


[Edit: cross-posted with @DullGreyGuy -  I agree with "Secondly, under 31, if the merchant hasn't provided you all the pre-sales information they are supposed to in the format prescribed by the law the cancellation period doesn't start until such time as they do provide it to a maximum on 12 months"]

I'd be careful relying on this, as it feels like this legislation hasn't quite kept pace with modern fulfillment and  there are very few cases of it being tested in court...

I'm not sure what point you are trying to make?

So far as I’m aware the courts still look at the plain and ordinary meaning of the words used by the legislature when interpreting Acts of Parliament and Statutory Instruments etc.  I don’t think they have yet had to resort to taking account of the questionable commercial practices of couriers and large retailers who seem to believe that they should not be bound by legislation affording statutory protection to consumers.

It might be commonplace for companies like Amazon and Evri to deliver goods anywhere other than into the physical possession of the consumer, but I don’t think even Amazon has yet been given the power to make new law or to amend existing law.

Exodi said:

...If we look at: "which the goods come into the physical possession of— (a)the consumer, or (b)a person, other than the carrier, identified by the consumer to take possession of them."...

I think the meaning of the words in regulation 30(3) is clear, unambiguous and does not lead to any "manifest absurdity".  That being so I'd expect a court to hold that the words mean what they say -  that the 14 day cancellation window does not start to run until the consumer has actually taken possession of the goods themself.  The fact that the courier delivered them to the wrong person does not affect that.

Exodi said:

... The modern day 'leave in safe-place' facility isn't enshrined in legislation...

That is the whole point.  The fact that couriers and retailers find the existing law inconvenient and/or difficult to comply with does not alter the letter of the law.

As the retailer in this case is refusing to accept the OP’s cancellation of the contract then – as I think I’ve already said -  if the OP is not in a position to ask for a chargeback or to make a s75 claim, I don’t see what they have to lose by making a moneyclaim.

If the OP does nothing they are certain to be down £180 with a set of headphones they don’t want.  If they send a LBA the seller might just cough up.  If the seller doesn’t cough up the OP can then decide whether they think it worthwhile to proceed with a claim or not – it’s entirely up to them.

The way I look at it even - say - a 40% chance of recovering £215 (£180 plus £35 claim fee) as opposed to a 60% chance of losing £215, is a far more attractive bet than the 100% chance of losing £180.  (I honestly don’t know about the retailer’s expenses you say could be awarded against the OP if they lose.  I’d always taken this to mean personal expenses incurred when the respondent was an ordinary person, not a business.  But I may be wrong.  The OP needs to satisfy themself about that.)

And all the above doesn't even take account of @DullGreyGuy's point that if the seller hasn't complied with regulation 31 and paragraph (l) of Schedule 2, then the cancellation period is extended by up to a year anyway.

So the OP can try quoting the law to the seller again, but if they don't get anywhere they'll need to consider (i) a chargeback or s75 (if applicable), or (ii) sending a LBA and suing the seller, or (iii) writing off the £180.

[Edit: as explained in my previous post, if the OP wants to rely on their statutory right under the regulations to cancel the contract, they must exercise that right as per regulation 32 and return the goods as per regulation 35]

SiliconChip

Okell said:

Exodi said:

Okell said:

celesp said:

Hi,

I bought a product (headset) on 12th October,  The Item was delivered to my neighbour and there is image proof of this on the 16th October. They did not give it to me until the 4th Nov as they went away on Holiday. When does the 14 days start? Surely the contract is with me and not my neighbour?

They are now not accepting a return because of this.

What can I do?

Why do you want to return it?  Is it faulty or is it a change of mind or what?

(a)  If it's faulty - or not as described etc - there is basically no time limit on returns.

(b)  If it's simply a "change of mind" and you want to exercise your statutory right to cancel* the contract under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk), then the 14 days runs from the day the goods were delivered into the physical possession of either you, or somebody nominated by you to take possession of them.  (See regulation 30(3) in the above link).

So if you nominated your neighbour, the 14 days runs from 16 October when the goods were delivered to your nieghbour, but if you did not nominate them, I would argue the 14 days runs from 4th November when your neighbour gave them to you.  but I'm sure you will need to argue this point strongly with the seller if you want to persuade them.  Quote the regulation I refer to above.  If the seller still won't accept the return you might be able to get a chargeback or s75 claim depending on how you paid and how much you paid.  Or you'll have to consider if it's worth issuing a money claim based on the wording of reg 30(3).


*To exercise your statutory right to cancel you have to clearly tell the seller you are doing so within 14 days of the goods coming into your physical possession, and return the goods within a further 14 days


[Edit: cross-posted with @DullGreyGuy -  I agree with "Secondly, under 31, if the merchant hasn't provided you all the pre-sales information they are supposed to in the format prescribed by the law the cancellation period doesn't start until such time as they do provide it to a maximum on 12 months"]

I'd be careful relying on this, as it feels like this legislation hasn't quite kept pace with modern fulfillment and  there are very few cases of it being tested in court...

The way I look at it even - say - a 40% chance of recovering £215 (£180 plus £35 claim fee) as opposed to a 60% chance of losing £215, is a far more attractive bet than the 100% chance of losing £180.

Your calculations fail to take into account the alternative that the OP sells the headset that they have now taken posession of but is presumably in an unused and unopened state for, say, 50% of the original price, resulting in a loss of £90. What would your percentages be if you include that option?

I'd also like to add that the OP's decision that the headset is no longer required as the ear infection has cleared up seems somewhat irrelevant, if the headset had been delivered to them rather than the neighbour then there would never have been any intention to return and they would now be in posssession of a used item that wouldn't be returned.