Consumer Rights Act 2015? Not worth the paper it written on.

born_again

Ron1e said:

Ok, fair enough, but even if I had been present at the hearing I would have only said what I said in my written statements.  Having said that, from what I am reading here it seems like I would have lost the case anyway. There is no way I could prove I had not  tampered with the goods, so if the onus is the consumer, the retailer's can say anything they want. They could smash it to bits with a hammer, take a picture of it and say it was like this when they opened the box.  If the consumer can't prove otherwise where does that leave him?

What upsets me about this are the lies that were told and the fact that the retailer did not provide a shred of evidence to support any of the claims he made.

I have asked the court what was the reason, and basically it's what’s been said on here. If you don't turn up you lose the case, more or less by default.
Personally I don't think that’s right, but if that’s the way it is so be it.

I still think if the onus is on the consumer  to prove something, that from the consumers point of view is not possible then the CRA is fundamentally flawed in favour of retailer. 

And bear in mind, I am a retailer and I thought was the other way round.

If you are dealing with a reputable retailers it would never be a problem, but when your not. Well you just don't deal with them again.

I'm not bothered about the money, maybe he got lucky when the link went into my junk folder and maybe the way  CRA works he would have won anyway because I couldn’t disprove any of the claims he made.
I would like to know which of defendants excuses was the deciding factor though.
Thats what the court won't tell me and that’s frustrating.

Had you turned up in court & the retailer had not, then you would have won by default. That's the way it is. Or the wait to get your case heard would be longer than now, if they had to reschedule because one party did not turn up.

CRA, does not fall into it, when one party fails to turn up. It's a default win.

Judges do not take kindly to people wasting their time, by not turning up.

MattMattMattUK

At this point I would just chalk it up to experience and stop flogging a dead horse, spending more money on court transcripts is not going to get you anywhere, what was said was irrelevant, you lost because you did not attend (via video link). You could try for a set aside but your case is weak, you knew the date yet did not check junk or contact the court to say you did not have the link, it is going to cost you more money and the set aside cost is not recoverable, no point throwing more time and money down the drain.

Ron1e

I did contact the court regarding the link. I thought they might be running behind. Anyway it was too late the case had already been heard. I agree with you though, chalk it up to experience and move on. Nothing to be gained by spending  more money.

Like I said, even if I had attended I may not have won because I couldn't disprove the claims the defendant made and the were totally false, why I think the CRA is flawed. 

lincroft1710

Ron1e said:

lincroft1710 said:

The fact you lost has nothing to do with CRA. You failed to attend the hearing and as with many courts and tribunals when there is non attendance by the appellant, you lost your case.

Yes, you say that, but if the onus is on the claimant to prove or disprove something that he can't do, where does that leave them?  

Then the claimant has a weak case. The vast majority of court and tribunal cases are decided on the evidence presented before them from either or both sides. If the appellant cannot prove their case, they are very likely going to lose.


I have a great deal of experience of tribunals (but from the other side), if an  appellant did not attend and had not asked for their case to be heard in absentia nor asked for an adjournment, their appeal would be dismissed.

RefluentBeans

OP - I do feel for you. I feel you probably would’ve had a decent argument in court, but because you weren’t able to make your case you were ruled against. 

Generally, the courts ask for written declarations for 2 reasons: i) lying on them is more intentional than a slip of tongue in court (having to write something down is more intensive than just accidentally saying something in court) and ii) to expedite the process of one party is completely unengaged.

After that, you’ll go to court (either in person or increasingly online - makes sense online - means you don’t lose a whole day in court), where you present your facts as you see it. Whilst this is largely based on what you wrote, it is not just based on what you wrote and you can explain why you did (or why the retailer did) what you did.

Unfortunately, if the judge did hear anything (they may well have just judged against you for failing to attend) the only arguments they heard would’ve been against you. Pretty easy to win a case when no one’s arguing the other side! 

In honesty, lucky the company wasn’t looking to get out of paying you at all. The fact the £3500 is still to be paid to you is good in my book. 

Like you have correctly identified, you have three options:
1. Accept the £3500 and use it as a learning experience. 

2. Pay more money to try and get the case retried - courts generally aren’t keen on this unless it’s the courts error they’re correcting - costs judges time, and puts the defendant and more stress (in the eyes of the court, both parties are innocent - so don’t want to put undue stress on either party, right?) 
3. Go back to the retailer and get a better deal. 

The learning experiences here should be that the courts have guidelines that must be followed and when they’re not, they tend to not give many second chances (unless there’s mitigating circumstances- like a family death, etc.) 

Ron1e

lincroft1710 said:

Ron1e said:

lincroft1710 said:

The fact you lost has nothing to do with CRA. You failed to attend the hearing and as with many courts and tribunals when there is non attendance by the appellant, you lost your case.

Yes, you say that, but if the onus is on the claimant to prove or disprove something that he can't do, where does that leave them?  

Then the claimant has a weak case. The vast majority of court and tribunal cases are decided on the evidence presented before them from either or both sides. If the appellant cannot prove their case, they are very likely going to lose.


I have a great deal of experience of tribunals (but from the other side), if an  appellant did not attend and had not asked for their case to be heard in absentia nor asked for an adjournment, their appeal would be dismissed.

Ok, you say it the claiment has a week case and cannot prove their case, they are very likely going lose.

Thank you to everybody who has responded, you have been very helpful.
Cleary, even though  I have spent more than 50 years in the retail industry, I admit I have got this wrong.
It was my understanding the onus was on the retailer, not the consumer. Fair enough, I got this wrong..
However, when we are dealing with unscrupulous retailers, which is what CRA in there to protect us from, it leaves the consumer at a disadvantage and speaking as retailer myself. I don't think that’s right.

Let’s say you bought a TV, you see them advertised online with a Rock Solid 60 day no quibble  money back guarantee. You go to the store, pick to up your  TV,  but the salesperson tells you, we don't have any electricity, so we can't give you a demonstration, that’s why we offer a 60 day no quibble money back guarantee so you can try them at home and buy with confidence.. You think, great, what could possibly go wrong.

However, when you try the tv at home, for whatever reason, it doesn't meet your expectation's. You contact the retailer  and ask for a refund. He point blank refuses, saying. I admit you made the wrong decision, we are not giving you are refund. You are understandably not happy about this and you leave the TV with them while you consider your options.  After a few short email exchanges, the retailer then claims the TV you bought was made to your precise wishes and you are still not getting a refund. You know the retailer is telling lies, you had no input in this TV whatsoever. You can prove this by showing them a picture of the exact model you bought you online.

This dispute as been ongoing for three weeks, but he now says, he has examined the TV and makes totally false accusations saying the you have tampered with it, and is  charging you £500 to make it good again and offers you £500 less than what you paid for it.
I think most people knowing full well that they have not  tampered with it, why would you, and are  by now getting a bit tired of the retailers false accusations and excuses, so he takes the retailer to court, fully expecting the court to find in his favour, but for some reason it doesn't. Ok, in this case it may have been because the claiment didn't attend the hearing. Ok, I get that.

However, if I had attended  the hearing, from what has been said on here, I would have still lost the case because the onus is on me to prove that that I didn't tamper with it, and I can't do that, it's just not possible.
So my question is this. In this situation what protection does the CRA give consumers from unscrupulous retailers who behave in this manner?
The short answer as far as I can see is non.
I'm 70 years old, so there is a fair chance I am missing something here. 

 

user1977

Ron1e said:

lincroft1710 said:

Ron1e said:

lincroft1710 said:

The fact you lost has nothing to do with CRA. You failed to attend the hearing and as with many courts and tribunals when there is non attendance by the appellant, you lost your case.

Yes, you say that, but if the onus is on the claimant to prove or disprove something that he can't do, where does that leave them?  

Then the claimant has a weak case. The vast majority of court and tribunal cases are decided on the evidence presented before them from either or both sides. If the appellant cannot prove their case, they are very likely going to lose.


I have a great deal of experience of tribunals (but from the other side), if an  appellant did not attend and had not asked for their case to be heard in absentia nor asked for an adjournment, their appeal would be dismissed.

However, if I had attended  the hearing, from what has been said on here, I would have still lost the case because the onus is on me to prove that that I didn't tamper with it, and I can't do that, it's just not possible.

How have you come to that view? Is that advice you've received from somebody?

(Civil) court cases are decided on the balance of probability, it's not as if you need to prove beyond reasonable doubt that you didn't tamper with it, just that your version of events is more plausible. Simply being a more believable witness can be sufficient.

Ron1e

RefluentBeans said:

OP - I do feel for you. I feel you probably would’ve had a decent argument in court, but because you weren’t able to make your case you were ruled against. 

Generally, the courts ask for written declarations for 2 reasons: i) lying on them is more intentional than a slip of tongue in court (having to write something down is more intensive than just accidentally saying something in court) and ii) to expedite the process of one party is completely unengaged.

After that, you’ll go to court (either in person or increasingly online - makes sense online - means you don’t lose a whole day in court), where you present your facts as you see it. Whilst this is largely based on what you wrote, it is not just based on what you wrote and you can explain why you did (or why the retailer did) what you did.

Unfortunately, if the judge did hear anything (they may well have just judged against you for failing to attend) the only arguments they heard would’ve been against you. Pretty easy to win a case when no one’s arguing the other side! 

In honesty, lucky the company wasn’t looking to get out of paying you at all. The fact the £3500 is still to be paid to you is good in my book. 

Like you have correctly identified, you have three options:
1. Accept the £3500 and use it as a learning experience. 

2. Pay more money to try and get the case retried - courts generally aren’t keen on this unless it’s the courts error they’re correcting - costs judges time, and puts the defendant and more stress (in the eyes of the court, both parties are innocent - so don’t want to put undue stress on either party, right?) 
3. Go back to the retailer and get a better deal. 

The learning experiences here should be that the courts have guidelines that must be followed and when they’re not, they tend to not give many second chances (unless there’s mitigating circumstances- like a family death, etc.) 

RefluentBeans said:

OP - I do feel for you. I feel you probably would’ve had a decent argument in court, but because you weren’t able to make your case you were ruled against. 

Generally, the courts ask for written declarations for 2 reasons: i) lying on them is more intentional than a slip of tongue in court (having to write something down is more intensive than just accidentally saying something in court) and ii) to expedite the process of one party is completely unengaged.

After that, you’ll go to court (either in person or increasingly online - makes sense online - means you don’t lose a whole day in court), where you present your facts as you see it. Whilst this is largely based on what you wrote, it is not just based on what you wrote and you can explain why you did (or why the retailer did) what you did.

Unfortunately, if the judge did hear anything (they may well have just judged against you for failing to attend) the only arguments they heard would’ve been against you. Pretty easy to win a case when no one’s arguing the other side! 

In honesty, lucky the company wasn’t looking to get out of paying you at all. The fact the £3500 is still to be paid to you is good in my book. 

Like you have correctly identified, you have three options:
1. Accept the £3500 and use it as a learning experience. 

2. Pay more money to try and get the case retried - courts generally aren’t keen on this unless it’s the courts error they’re correcting - costs judges time, and puts the defendant and more stress (in the eyes of the court, both parties are innocent - so don’t want to put undue stress on either party, right?) 
3. Go back to the retailer and get a better deal. 

The learning experiences here should be that the courts have guidelines that must be followed and when they’re not, they tend to not give many second chances (unless there’s mitigating circumstances- like a family death, etc.) 

Thank you for your input Mr Beans, you have been very helpful, I wish I had contacted you from the start.

Look, I'm moving on from this, but  what I don't understand, I made it
perfectly clear in the papers I sent to the court that there was not a shred of evidence to support any of the claim he made and he won.
And I maintain my stance on the CRA, if the onus is on the consumer to prove his case then he/she is at a disadvantage.

Ok, I work in retail in the motor trade. If someone buys an air filter from me and they bring it back with the old filter in the box. They say they have had to buy one elsewhere because we were closed and would like their money back. 

I would give them their money back, because these don't come sealed and the contents were not shown to the customer. I can't prove that a used air filter wasn't in the box when they bought it, but it seems  I don't need to.
 People do return old parts in new boxes sometimes and this one may have slipped through.
Ok in this example it's only a few quid and you need to keep your customers happy.
However, in this case, the CRA makes no provision for the consumer to be entitled to a replacement or refund.  If the retailer says a new one was in the box, even though he didn't check and the consumer can't prover otherwise, he/she has no consumer rights. Is that correct? 

PHK

the_lunatic_is_in_my_head said:

Hello OP

Sorry to hear it turned out this way, sadly with missing the hearing it's likely they only considered the defendants side which was their £3500 offer.

I don't know enough about the court process to say whether you can appeal, I would assume not attending the hearing would unfortunately count against you. 

For background the previous thread was here:

https://forums.moneysavingexpert.com/discussion/6512375/consumer-police-see-if-you-can-get-your-heads-around-this

IIRC OP was relying on a contractual term that permitted 60 days change of mind rather that the CRA or CCRs. 

PHK said:

If good are returned under the CRA, the seller is entitled to reduce the amount paid by the cost of any damage or fault caused by the buyer. It would he for the claimant to prove otherwise. 

If the seller was maintaining the good were made to order or bespoke  then they would need to prove that and if so could deduct reasonable losses. 

That would relate to the CCRs Bespoke, etc has no bearing on seeking a reedy under the CRA. 

I was listing two separate cases.

There's no appeal process. The OP could apply to the court to have the order set aside. But not looking in one's junk folder for an expected email might not be grounds. 

PHK

Ron1e said:

RefluentBeans said:

OP - I do feel for you. I feel you probably would’ve had a decent argument in court, but because you weren’t able to make your case you were ruled against. 

Generally, the courts ask for written declarations for 2 reasons: i) lying on them is more intentional than a slip of tongue in court (having to write something down is more intensive than just accidentally saying something in court) and ii) to expedite the process of one party is completely unengaged.

After that, you’ll go to court (either in person or increasingly online - makes sense online - means you don’t lose a whole day in court), where you present your facts as you see it. Whilst this is largely based on what you wrote, it is not just based on what you wrote and you can explain why you did (or why the retailer did) what you did.

Unfortunately, if the judge did hear anything (they may well have just judged against you for failing to attend) the only arguments they heard would’ve been against you. Pretty easy to win a case when no one’s arguing the other side! 

In honesty, lucky the company wasn’t looking to get out of paying you at all. The fact the £3500 is still to be paid to you is good in my book. 

Like you have correctly identified, you have three options:
1. Accept the £3500 and use it as a learning experience. 

2. Pay more money to try and get the case retried - courts generally aren’t keen on this unless it’s the courts error they’re correcting - costs judges time, and puts the defendant and more stress (in the eyes of the court, both parties are innocent - so don’t want to put undue stress on either party, right?) 
3. Go back to the retailer and get a better deal. 

The learning experiences here should be that the courts have guidelines that must be followed and when they’re not, they tend to not give many second chances (unless there’s mitigating circumstances- like a family death, etc.) 

RefluentBeans said:

OP - I do feel for you. I feel you probably would’ve had a decent argument in court, but because you weren’t able to make your case you were ruled against. 

Generally, the courts ask for written declarations for 2 reasons: i) lying on them is more intentional than a slip of tongue in court (having to write something down is more intensive than just accidentally saying something in court) and ii) to expedite the process of one party is completely unengaged.

After that, you’ll go to court (either in person or increasingly online - makes sense online - means you don’t lose a whole day in court), where you present your facts as you see it. Whilst this is largely based on what you wrote, it is not just based on what you wrote and you can explain why you did (or why the retailer did) what you did.

Unfortunately, if the judge did hear anything (they may well have just judged against you for failing to attend) the only arguments they heard would’ve been against you. Pretty easy to win a case when no one’s arguing the other side! 

In honesty, lucky the company wasn’t looking to get out of paying you at all. The fact the £3500 is still to be paid to you is good in my book. 

Like you have correctly identified, you have three options:
1. Accept the £3500 and use it as a learning experience. 

2. Pay more money to try and get the case retried - courts generally aren’t keen on this unless it’s the courts error they’re correcting - costs judges time, and puts the defendant and more stress (in the eyes of the court, both parties are innocent - so don’t want to put undue stress on either party, right?) 
3. Go back to the retailer and get a better deal. 

The learning experiences here should be that the courts have guidelines that must be followed and when they’re not, they tend to not give many second chances (unless there’s mitigating circumstances- like a family death, etc.) 

Thank you for your input Mr Beans, you have been very helpful, I wish I had contacted you from the start.

Look, I'm moving on from this, but  what I don't understand, I made it
perfectly clear in the papers I sent to the court that there was not a shred of evidence to support any of the claim he made and he won.
And I maintain my stance on the CRA, if the onus is on the consumer to prove his case then he/she is at a disadvantage.

Ok, I work in retail in the motor trade. If someone buys an air filter from me and they bring it back with the old filter in the box. They say they have had to buy one elsewhere because we were closed and would like their money back. 

I would give them their money back, because these don't come sealed and the contents were not shown to the customer. I can't prove that a used air filter wasn't in the box when they bought it, but it seems  I don't need to.
 People do return old parts in new boxes sometimes and this one may have slipped through.
Ok in this example it's only a few quid and you need to keep your customers happy.
However, in this case, the CRA makes no provision for the consumer to be entitled to a replacement or refund.  If the retailer says a new one was in the box, even though he didn't check and the consumer can't prover otherwise, he/she has no consumer rights. Is that correct? 

In any case, the onus is on both parties to convince the judge (or jury if it's a jury trial). 

Attempting to disprove the other side's case is a different thing than proving your own case. In my experience it's a mistake claimants make.

Your case would be:

I bought a X with a 60 day money back guarantee.
Here's proof of the guarantee, section Y says I'll have full refund if I return within 60days.
I returned the item after three days, here's proof of the item being returned and proof of delivery. 
Here's proof that the item was in perfect condition.*
I have not been given a full refund and am suing for the difference. 

*Depending on the item this could be photographs or an expert report (the cost of which you include in your case)