Should I accept or fight this restocking fee?

Bobla

Arunmor said:

Did you receive instructions to pay Duty and VAT from the shipping company?

I tried contacting the shipping company about it, giving them all sorts of reference numbers. But they told me there were no outstanding taxes on my order. I think it was something that needed to be worked out between them and the vendor, Stock4Less. Stock4Less were adamant that I would be charged, but I couldn't get any details or instructions from the shipping company themselves.

Hoenir

Bobla said:

born_again said:

Early on in the process they said there were issues regarding UK import taxes, so were unable to deliver my item successfully. 

Seems odd given they ship internationally all the time from their site.
Import duties would be for you to pay. All they need to do is list the value of the item on the customs forms.

To facilitate shipping cost for our buyers in Europe, we have a warehouse in Portugal and France that can dispatch the products from Europe; for items ordered through the US website. 

Which would still attract duty.

A 15% processing/restocking fee is charged for items returned by the customer that does not have any issues whatsoever.

Given you never received the item & it is still with them, seems a bit odd. But I guess as you have now cancelled a custom build.
Which rules out a S75 claim.

I actually told them to work out all the additional costs on their side, calculate everything, and give me some solid numbers. I was willing to pay. But whoever I was communicating with kept saying they would talk to their supervisor, and try to get me a better discount on this tax.

Asking an American to understand / calculate UK import duties and VAT was never going to work. In the end they probably decided too much trouble. If you failed to pay the importation charges and the item was sent back. 

Bobla

SiliconChip said:

If you want to establish what your consumer rights are then you can ask the California Better Business Bureau

I suspect you'll be disappointed in their response, and threatening legal action against the supplier seems pretty pointless when they'll know there's zero chance of you following through in it.

Thank you for this! I will look into it. For now I guess it's all a bit of a headache, I wouldn't mind just paying the restocking fee that they say has been brought down to 5% instead of 15% originally. But according to them, they should have received the payment by yesterday at the latest. I already asked earlier when I myself would receive the refund, and I sent a follow up message again today asking the same thing. But nada. They are still dragging their responses.

Bobla

Hoenir said:

Bobla said:

born_again said:

Early on in the process they said there were issues regarding UK import taxes, so were unable to deliver my item successfully. 

Seems odd given they ship internationally all the time from their site.
Import duties would be for you to pay. All they need to do is list the value of the item on the customs forms.

To facilitate shipping cost for our buyers in Europe, we have a warehouse in Portugal and France that can dispatch the products from Europe; for items ordered through the US website. 

Which would still attract duty.

A 15% processing/restocking fee is charged for items returned by the customer that does not have any issues whatsoever.

Given you never received the item & it is still with them, seems a bit odd. But I guess as you have now cancelled a custom build.
Which rules out a S75 claim.

I actually told them to work out all the additional costs on their side, calculate everything, and give me some solid numbers. I was willing to pay. But whoever I was communicating with kept saying they would talk to their supervisor, and try to get me a better discount on this tax.

Asking an American to understand / calculate UK import duties and VAT was never going to work. In the end they probably decided too much trouble. If you failed to pay the importation charges and the item was sent back. 

They weren't calculating the UK specifics per se, they already had all the numbers on their end and gave me a flat percentage of how much it would additionally cost. When I asked them to calculate, it was with their supposed discount in mind. But I never did get a clear cut answer from them. It was just endless deliberation.

A_Geordie

user1977 said:

UK consumer rights are unlikely to be relevant here - your rights are going to be those of whichever US state you were importing from. Who is the retailer?

Okell said:

As above - if you purchased online from a US company the purchase is almost certainly governed by the consumer protection laws (if any) of the state where the company is resident.

Look at the T&Cs of the company.  They should tell you what national and state laws are applicable to the contract.  Might also say that re-stocking fees can be applied in your situation.

UK consumer protection law (where restocking fees are not permitted) is irrelevant here.

This is risk in buying from abroad.

(If you paid by credit card you might possibly have a s75 claim.  But if the retailer has not breached their home state's laws then you probably don't)

May I ask both of you why you think the OP cannot rely on English law and has to rely on the US state law that the supplier is domiciled? Any case law or legislation to back it up? 

Hoenir

A_Geordie said:

user1977 said:

UK consumer rights are unlikely to be relevant here - your rights are going to be those of whichever US state you were importing from. Who is the retailer?

Okell said:

As above - if you purchased online from a US company the purchase is almost certainly governed by the consumer protection laws (if any) of the state where the company is resident.

Look at the T&Cs of the company.  They should tell you what national and state laws are applicable to the contract.  Might also say that re-stocking fees can be applied in your situation.

UK consumer protection law (where restocking fees are not permitted) is irrelevant here.

This is risk in buying from abroad.

(If you paid by credit card you might possibly have a s75 claim.  But if the retailer has not breached their home state's laws then you probably don't)

May I ask both of you why you think the OP cannot rely on English law and has to rely on the US state law that the supplier is domiciled? Any case law or legislation to back it up? 

Any case would have to be pursued in the US courts. The business has no UK physical presence. 

Okell

A_Geordie said:

user1977 said:

UK consumer rights are unlikely to be relevant here - your rights are going to be those of whichever US state you were importing from. Who is the retailer?

Okell said:

As above - if you purchased online from a US company the purchase is almost certainly governed by the consumer protection laws (if any) of the state where the company is resident.

Look at the T&Cs of the company.  They should tell you what national and state laws are applicable to the contract.  Might also say that re-stocking fees can be applied in your situation.

UK consumer protection law (where restocking fees are not permitted) is irrelevant here.

This is risk in buying from abroad.

(If you paid by credit card you might possibly have a s75 claim.  But if the retailer has not breached their home state's laws then you probably don't)

May I ask both of you why you think the OP cannot rely on English law and has to rely on the US state law that the supplier is domiciled? Any case law or legislation to back it up? 

Actually I think that's an interesting question...

What English law do you think the OP could rely on, given that the received wisdom here is that cross-border consumer contracts are governed by the laws of the country where the seller, not the consumer, is located?

Apart from the previous answer that the seller (probably) has no legal presence in England or Wales, the T&Cs of the sales contrcat almost certainly contain a provision saying that the contract is subject to the laws of the state of California, and that any disputes must be settled by California courts.

I suppose you could try to argue that such a term was trying to exclude or restrict liability of the seller and was therefore prohibited by the Consumer Rights Act 2015 (legislation.gov.uk), but I doubt that a UK court would hold that the CRA applied to a contract concluded over the internet where the seller is based in another jurisdiction.

But I might be wrong.

Even if the CRA did apply you'd have the practical problem of enforcing the decision in a foreign jurisdiction.

There's also the other practical consideration that sellers operating across international boundaries would be subject to the varying consumer protection laws of the many countries that they sold goods to.  It simply wouldn't be practical and would be an unreasonable imposition, and I suspect the law - somewhere - recognises this.

But I might be wrong.

(Put simply - I'm not directly aware what the legislation or case law is that supports the proposition put forward by user1977 and me, but it's the stock answer on this board.  Hopefully somebody else knows as I'd like to know too)

A_Geordie

To be clear, I'm not suggesting in any way the OP pursue this any further than what has already been said by members because it may be throwing good money after bad, and ultimately it's a question for the OP as to whether they think it is worth pursuing to recover what might be an insignificant sum of money.

@Hoenir, the fact that the business has no physical presence in the UK is not a bar to English law applying. 

@Okell, the legislation that may be applicable and springs to mind are:

Sections 15A, 15B and 15E of the Civil Jurisdiction and Judgments Act 1982. This effectively mirrors EU equvialent legislation prior to Brexit. Section 15B is the most relevant part of the CJJA but it should be noted that if you look at the definition of a consumer contract in 15E, it doesn't capture every type of consumer contract, though it may capture quite a good number.

I suppose an argument could be made that, per the definition of a consumer contract, the contract has been concluded with the company who has either pursued commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled or by any means, directs such activities to that part or to other parts of the United Kingdom

To Hoenir's point, the key question is whether the company has pursued activities or directed those activities to the UK. A physical presence is not indicative of whether they have pursued or directed activities but neither is the presence of an online website. 

On the question of what is mean by directing activities,Bitar v Banque Libano-Française SAL [2021] EWHC 2787 (QB) is worth a read if you have time on your hands. The court references a European case Pammer v. Karl Schlütter GmbH & Co. KG C-585/08 and discusses what the CJEU said from paragraph 15 onwards, which is also worth a read to understand in the approach should be made i.e. there's a non-exhaustive list and it's down to who has the better argument essentially. 

If you look at the company website, things that you could argue in favour of them directing or pursuing activities towards the UK are: 

1. There is an option to change the currency of the pricing, which includes the UK.
2. There is an email address for European customers to contact the company, separate to their general enquiries email. 
3. The shipping policy says We can ship to virtually any address in the world. 
4. Finally, the OP is domiciled in the UK and placed an order to be delivered to the UK which the company agreed to ship. 

Section 32 of the CRA 2015. This is similar to the CJJA but slightly different in that Section 32(1) requires there to be a 'close connection' to the UK. Inevitably, if someone who resides in the UK and places and order with an international company to deliver goods to the UK, I think it's going to be difficult to argue otherwise that the contract does not have a close connection to the UK, couple with the points I referenced above about the website.

An example discussion of the 'close connection' test in a recent case this year can be found in Eternity Sky v Zhang [2024] EWCA Civ 630. 

Note however, that some sections are not protected under Section 32, such as Section 28 (Delivery of Goods) and Section 29 (Passing of Risk). 

Hoenir

A_Geordie said:

@Hoenir, the fact that the business has no physical presence in the UK is not a bar to English law applying. 

Don't you think that this fact makes taking legal action rather challenging. Nothing you've written makes one iota of difference. 

Bradden

Hoenir said:

A_Geordie said:

@Hoenir, the fact that the business has no physical presence in the UK is not a bar to English law applying. 

Don't you think that this fact makes taking legal action rather challenging. Nothing you've written makes one iota of difference. 

That was my thought too....how do you take them to court?