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

PHK

The OP also needs to understand that these cases are less formal. In my experience, the judge will not be shy of asking awkward questions. For example, As the purchase was urgent why did you not collect or arrange collection of the headset on the 12th?

The judge will also test whether the retailer acted as a reasonable person would in arranging delivery. Personally, I think delivery to a neighbour (Unless instructed otherwise) would be seen as a well established and frequent occurrence. 

Exodi

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...

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]

This issue comes up time and time again, all of the points you make are valid (though biased):

"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."

Don't forget to add consumers to that. If couriers and retailers did decide to abide by the law and only start delivering parcels that had to be physically received by the person named on the order following an ID check, I'm sure a lot of consumers wouldn't be happy either. Anyone working a 9-5 would be forced to pay for weekend deliveries and spend their weekends sat on the sofa peering out the curtain.

I'm personally a big fan of the fact that couriers leave the parcels round the side of my house, or hand them to my wife, or deliver them to my neighbour. As I said at the start, the legislation hasn't kept pace with modern fulfillment. Obviously, we can all read what the current legislation says, your point of 'but that's what it says!' is not lost on me, even if most of the deliveries in the UK are non-compliant.

The OP also has the separate issue in which while they can prove the goods were delivered to their neighbour on the 16th October, I'm not sure if they can prove they took physical possession of the goods on the 4th November. I'm not sure when the neighbours departed on holiday, but it's over the typical 7-14 days so it would be suprising if they left the 16th and didn't return till the 4th.

Personally, I always pop round and collect parcels from my neighbours (I don't think it's fair they should be inconvenienced delivering it to me, since it's my delivery) but if we read the OP it says "They did not give it to me until the 4th Nov as they went away on Holiday". Now this may be a misinterpretation, but I think a court would take a dim view if the OP had just been waiting for the neighbours to deliver it. If the OP was proactively knocking on their door everyday, and they genuinely were vacant from the 16th/17th onwards, then the next challenge would be asking the neighbours to provide something the OP can use as evidence - they may not want to get involved.

You're perhaps more litigious than me, but personally if it was me at most I might consider an LBA but I wouldn't take it further, especially given the circumstances (non-fault, change of mind), and would hope to recoup some of the money by reselling the item (which presumably is still boxed and new).

It's not hard to see the position of the retailer as it sounds like OP has offered no proof of when they received it, and they may find it too convenient that someone a week outside the cancellation window is alleging they did not retrieve the parcel from their neighbours for several weeks.

DullGreyGuy

Exodi said:

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.

Yeah, I have seen so many cases where the High Court and Court of Appeal quote MSE as the source of legal doctrine. Unfortunately in attempting to simply things for the masses, and generate advertising revenue, the site contains many half truths and sort of correct info but not strictly accurate/complete 

Ultimately the judge has a high level of discretion when there has been an abuse of process or the litigation is deemed to be vexatious and can award not only expenses but legal fees against you even if you win the case. So yes you "could" end up paying it but it's the exception not the rule. Reed v Boswell is a classic example where the case was dismissed and Reed was made to pay Boswell £17,500 in costs which clearly exceeds the law set by MSE

the_lunatic_is_in_my_head

@celesp

Can you advise where you purchased from please? 

The cancellation period depends upon the required info being given and many places fail to get that right.

Exodi said:

Don't forget to add consumers to that. If couriers and retailers did decide to abide by the law and only start delivering parcels that had to be physically received by the person named on the order following an ID check, I'm sure a lot of consumers wouldn't be happy either. Anyone working a 9-5 would be forced to pay for weekend deliveries and spend their weekends sat on the sofa peering out the curtain.

I'm personally a big fan of the fact that couriers leave the parcels round the side of my house, or hand them to my wife, or deliver them to my neighbour. As I said at the start, the legislation hasn't kept pace with modern fulfillment. Obviously, we can all read what the current legislation says, your point of 'but that's what it says!' is not lost on me, even if most of the deliveries in the UK are non-compliant.

I do agree it's convenient for consumer's as well but the current system is pretty poor, the use of apps or online tracking to allow the customer to specifically state a safe place is a positive advancement but there should also be some judgement on the part of the retailer (via their agent) not to agree to leave a parcel say on a doorstep in a busy street even if the customer has requested such. 

I think the term "safe place" needs to be measured against the Consumer Protection from Unfair Trading Regulations as it could be argued the retailer (via their agent) accepting a place described as "safe" makes it so. The EUCJ has ruled that basically businesses are the expert in their field and consumer rights seek to create balance so both are on an even footing, an argument could be presented that it is not for the consumer to deem what is safe but rather the business (or their agent) as it is they who are the experts. 

If it were to be deemed risked passed upon delivery to a safe place nominated by the consumer a balance could be to only offer specific types of places rather than allowing the customer to enter any random place of their choice, that may give consumers a nudge to invest is things such a parcel delivery boxes and remove this concept that it's ok for the consumer to request a parcel be left in, for example, a recycling bin. 

You would also hope in turn that would stop parcels being left in a safe place that hasn't been expressly agreed by the consumer. 

If this were to be tested I wonder if an argument of legitimate interest would be put forward and I agree it does make sense but as above it should be balanced rather than a get-out clause for retailers (via their agent) to dump parcels anywhere and say job done. 

Okell

SiliconChip said:

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?...

Personally I wouldn't take the risk of buying a £180 pair of headphones from a private buyer - particularly if the seller claims they are unused and unopened.  If you think that that would be a reasonable course of action for the OP to take - fair enough - you advise the OP how best to proceed.

SiliconChip said:

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.

Errr...

That makes no sense at all - for at least three reasons:

First, the OP can return the headset within the cancellation window for any reason, or for no reason at all.  The fact her ear infection has cleared up is irrelevant to the right to cancel.

Second, are you one of those posters who would like to choose to ignore the actual wording of the regulations?  The regulations state that the 14 day cancellation window runs from the date that the goods are delivered into the physical possession of the consumer.  The fact that the seller (via their agent the courier) decided wrongly to deliver the goods into the physical possession of somebody other than the consumer is not the consumer's problem - it's the seller's problem.  Therefore the 14 days runs from when the neighbour delivered the goods to the OP, not from when the seller's agent delivered the goods to the OP's neighbour.

Third, I have no idea what you are talking about regarding the headset being "used".   Where has the OP said they have used the headset?

In addition, as @DullGreyGuy pointed out some time ago, if the seller hasn't supplied the required information to the consumer about their right to cancel etc. then:  (1) the cancellation window is extended by up to 12 months and (2) the seller can't make a reduction from any refund for "excessive handling"

[Edit:  I don't know if the seller did or not - it's simply something you have not taken into account]