Retailer refusing refund of goods bought online due to signs of wear

GDB2222

Those shoes are now pretty second hand. I have no idea who is responsible for that, but I don't think they can be sold as new shoes. 

Amazon have a 'resale' department, where items like that might be sold with a 20-30% discount. NAP may simply have to scrap them or send them to charity. 

the_lunatic_is_in_my_head

sirpod67 said:

Photos supplied by Net a Porter or the 'damage'

It really doesn't matter OP, see previous post and advise them by way of a clear statement you are exercising your right to cancel the contract under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and either see what they say and come back for more advice or send the email I drafted earlier in the thread. 

Looking at their site the T&Cs page makes reference to the right to cancel within 14 days and says see above but there is nothing above apart from the link to the returns page.

Returns page makes reference to "the ICACRs" with a link back to their T&Cs page, I can't find anything on their site actually detailing your right to cancel so the condition of the shoes is academic  

As an after thought, perhaps worth checking your order emails and any paperwork with the goods to see if they have given the info there? 

Arunmor

I think it matters!

sheramber

I believe the 'damage' is no more than would be expected if the shoes were simply tried on in a store. It is certainly not of a level had they been worn outside.

The OP seems to accept the damage on the shoes and does not claim they were delivered like that.  Just that she considers the damage as reasonable for just having tried the shoes on 

She puts it back on the retailer and states the retailer cannot prove they were not delivered like that.

eskbanker

sheramber said:

I believe the 'damage' is no more than would be expected if the shoes were simply tried on in a store. It is certainly not of a level had they been worn outside.

The OP seems to accept the damage on the shoes and does not claim they were delivered like that.  Just that she considers the damage as reasonable for just having tried the shoes on 

She puts it back on the retailer and states the retailer cannot prove they were not delivered like that.

OP says that they might have been:

sirpod67 said:

They may have been delivered in this condition, I did not check.

and makes the simple point that neither party can prove it either way now:

sirpod67 said:

The retailer cannot prove (or I) that they were not delivered in that condition.

GDB2222

eskbanker said:

sheramber said:

I believe the 'damage' is no more than would be expected if the shoes were simply tried on in a store. It is certainly not of a level had they been worn outside.

The OP seems to accept the damage on the shoes and does not claim they were delivered like that.  Just that she considers the damage as reasonable for just having tried the shoes on 

She puts it back on the retailer and states the retailer cannot prove they were not delivered like that.

OP says that they might have been:

sirpod67 said:

They may have been delivered in this condition, I did not check.

and makes the simple point that neither party can prove it either way now:

sirpod67 said:

The retailer cannot prove (or I) that they were not delivered in that condition.

If it ever came to court, and that's a big IF, the retailer might produce a witness statement (and if necessary the witness) who might say something like: 

"My job is to send shoes out to customers. I was on duty the day the OP's shoes were despatched, and I sent out all the parcels. I always take the shoes out of the box and inspect them prior to despatch. That's part of the service customers expect from us. I would NEVER send out shoes in that condition.  It's wasteful, but we would throw them away. I would look for another pair in stock, and if there weren't any I would cancel the order. "

So, evidence may be available, and if you were a judge, deciding on the balance of probabilities, that might sway you to decide in favour of the retailer.  

A_Geordie

GDB2222 said:

If it ever came to court, and that's a big IF, the retailer might produce a witness statement (and if necessary the witness) who might say something like: 

"My job is to send shoes out to customers. I was on duty the day the OP's shoes were despatched, and I sent out all the parcels. I always take the shoes out of the box and inspect them prior to despatch. That's part of the service customers expect from us. I would NEVER send out shoes in that condition.  It's wasteful, but we would throw them away. I would look for another pair in stock, and if there weren't any I would cancel the order. "

So, evidence may be available, and if you were a judge, deciding on the balance of probabilities, that might sway you to decide in favour of the retailer.  

Personally, I don't think that is a particularly great witness statement example. I would counter-argue (and if witness is present, then cross-examine them) to say that this witness comes across as if they have made it through life without making a mistake, suggesting that they are so meticulous that they ensure every single order is checked before they are boxed up and sent out for delivery.

In reality, everyone makes a mistake or error at some point in their life and it is highly likely this individual has also made mistakes before. Of course the individual is going to say they never make a mistake because they are defending their reputation as a worker and also their employer, so any weight given to that statement should be minimal at best.

It's possible that a mistake or some error could have been made, whether the individual forgot to check the condition of the shoes due to time pressures, got distracted by getting into a conversation with a colleague or that they were ordered to do something else and then thought they already checked the condition of the shoes but actually didn't. Maybe the shelves of new shoes were sitting next to the shelves of returns and they got mixed up. Maybe they were returned shoes and someone else put them in the wrong pile. If the individual verifies every single pair of shoes before they go out to customers, why don't they photograph them instead of visual inspection which would add mere seconds to their time and therefore avoid any doubt? Who knows, but these are all plausible reasons why the shoes could have already seen some wear already and ended up in the OP's hands.

Although not on all fours with the OP's situation, there is a Court of Appeal case (Brady v St Margaret's Trust 1963) which was a hire purchase agreement where there was a issue of damage to the car when it was returned and there was a duty to pay for costs of any damage. The court held that: 

There ought to be evidence as to what its general condition and value were at the inception of the contract and, similarly, evidence as to what its general condition and value were at the termination of the contract.

If I were the OP, depending on how much the claim is worth, I would probably take a chance and sue Net a Porter. 8/10 times companies will fold at some point during legal proceeds for low value claims and are likely to make an offer to settle, usually because it is not commercially viable to defend a claim. This is especially so if they need attend court with staff as witnesses and having time off and during busy periods. There are some companies who do relish taking it all the way either by sending one of their employees to court or hiring a lawyer to defend them, whatever the cost. 

As an aside, the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 prohibits the retailer from refusing the a refund, unless the returned goods are in such a state they can no longer be resold - in that case a deduction for use would be 100% but the onus is on Net a Porter to prove that. Based on photos I doubt very much there is a justification for 100% deduction. 

Still, whilst there is an allowance for deduction of use, the right to deduct is disapplied where the retailer has failed to provide the necessary information around cancellation rights under the CCRs which, as a minimum would be the conditions, time limits and how to exercise the right to cancel (example in the CCRS, Part A of Schedule 3). I've only scanned their T&Cs but I can't see full compliance other than Net a Porter stating that there is a right of 14 days to return the goods. If I am right about that, Net a Porter loses the right to deduct altogether and the OP is entitled to a full refund. 

PHK

FlorayG said:

Alderbank said:

You say the shoes are 'too large'.

Do you mean 

1. they are uncomfortably loose for you when you tried them on
2. they sent you the wrong item (for example you ordered UK size 5 but the goods received are marked UK size 6)
3. the shoes are marked eg UK size 5 but you have measured them and they do not seem to conform with a size chart you have found

I have no idea how this is relevant

It's very relevant as the rights would be different in each case. 

PHK

Ergates said:

the_lunatic_is_in_my_head said:

Ergates said:

You *might* be right, but it's an argument based on a particular semantic interpretation of specific wording - not exactly black and white.   

Either that's their return policy and there's no mention of the right to cancel (unless I'm missing it, always happy to be correct) or it's a mash of the two, either way it doesn't comply with the right to cancel in my view.

"in my view" is the operative term here - that's *your* interpretation of it.  Are you absolutely 100% certain this would win a case in court if it came to that?

If not, then maybe we should suggest attempting some alternative methods to get this issue resolved first.  It's a lot easier to start small and escalate if necessary than the other way around.

I agree, the interpretation is rather wooden, in my view. 

the_lunatic_is_in_my_head

PHK said:

I agree, the interpretation is rather wooden, in my view. 

When the CCRs replaced the DRS regs the concept of diminished value was added to create a fairer balance for retailers, in turn retailers where expected to provide certain information to, in part, ensure the consumer is aware of their right to cancel to create fairness for consumers.

The information requirements are very generic to the point the legislation includes a template:

https://www.legislation.gov.uk/uksi/2013/3134/schedule/3 

Whoever wrote the legislation decided that in order for the trader to be able to reduce the refund for diminished value they must supply certain information, specifically:

where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;

Without this a deduction isn't permitted, that is clear and directly stated, I understand some think we should simply ignore the legislation and things should be how they feel is "right" but that doesn't particularly help people on a consumer rights forum.

Had OP returned the shoes with a hole burnt in them, or a cut from a knife or scissors from opening the box, or whatever, perhaps (I don't know personally) someone could make a argument that under some other law or tort the retailer has cause to claim damages but it's clear the wear on the shoes is from usual use of a pair of shoes.

I've looked through the website and can't see where it's explained what the right to cancel is in accordance with regulations 27 to 38 so can only take the view a full refund is due.

If there is a different view that may assist the OP (whether in making a claim or not wasting their time) that would be beneficial, but it would only be beneficial if it were explained why (and contained some bearing to consumer rights or other legislation).