Grade Mobile Return - Royal Mail Lost My Device - Lower Compensation - What Are My Rights?

Bettencourt37

Hi folks,

So I submitted a simple procedure claim at my local Scottish court and have received the below rejection from the court. 

“Your Simple Procedure Claim has been rejected for the following reasons: The Summary Sheriff having reviewed your Simple Procedure Claim, rejects the Simple Procedure Claim and advises this does not appear to relate to the Consumers Rights Act. The Court refers you to s. 3 of said act which states which types of good contracts the act applies to. Therefore there is no valid claim at law and jurisdiction has not been established.”

Looking at the section on legislation.gov would I not be applicable with paragraph 2, section a?

“3

Contracts covered by this Chapter

(1)This Chapter applies to a contract for a trader to supply goods to a consumer.

(2)It applies only if the contract is one of these (defined for the purposes of this Part in sections 5 to 8)—

(a)a sales contract;

(b)a contract for the hire of goods;

(c)a hire-purchase agreement;

(d)a contract for transfer of goods.

(3)It does not apply—

(a)to a contract for a trader to supply coins or notes to a consumer for use as currency;

(b)to a contract for goods to be sold by way of execution or otherwise by authority of law;

(c)to a contract intended to operate as a mortgage, pledge, charge or other security;

(d)in relation to England and Wales or Northern Ireland, to a contract made by deed and for which the only consideration is the presumed consideration imported by the deed;

(e)in relation to Scotland, to a gratuitous contract.

(4)A contract to which this Chapter applies is referred to in this Part as a “contract to supply goods”.

(5)Contracts to supply goods include—

(a)contracts entered into between one part owner and another;

(b)contracts for the transfer of an undivided share in goods;

(c)contracts that are absolute and contracts that are conditional.

(6)Subsection (1) is subject to any provision of this Chapter that applies a section or part of a section to only some of the kinds of contracts listed in subsection (2).

(7)A mixed contract (see section 1(4)) may be a contract of any of those kinds.”

I’m not quite sure where to go from here now. 

Okell

@Bettencourt37 -  I don't think you previously mentioned that you were in Scotland?

I think the Sheriff is right and that the Consumer Rights Act does not apply here and that that is not the basis of your claim - there is no contract here for the sale or supply of goods

I would have thought that the basis of your claim would have been something like negligence (or possibly interference with goods?) in that Grade or whoever had a duty of care to ensure that your 'phone was adequately covered for loss when they chose whatever method to return the 'phone to you.  They didn't ensure it was adequately covered, it was lost, therefore they are responsible to pay you it's value.

Scotland has its own small claims process different from that in England and Wales.  I'd have thought you need to issue a new claim but I know nothing about the Scottish simple procedure and I have no idea if it would be worth your while to do so.

Are both you and Grade situated in Scotland or just one of you?

You previously asked if it would be worth contacting CAB (or their Scottish equivalent I presume?).  I would suggest it might be a good idea to do so to get specific advice on the scottish Simple Procedure.  Note that CAB won't do anything for you except advise you how to proceed.

You also might want to post a thread on Legal Beagles where several of the posters are lawyers.   Bringing a Court Claim? - LegalBeagles Forum

You could also try Consumer Action Group:  Postal and Delivery Services - National Consumer Service

Make sure you explain that you and/or Grade are in Scotland.

I've struck this post through on re-reading the thread.

But I'm still not sure that the OP has any cause of action under the Consumer Rights Act rather than in negligence.

I'd still advise the OP to approach CAB in Scotland for advice and to post a thread on Legal Beagles and Consumer Action Group

A_Geordie

CRA wouldn't apply here because there was no contract and the Scottish court was right to point that out. The offer by Grade was rejected, so no contract existed.

Not a Scottish lawyer so I couldn't say what recourse the OP might have under that jurisdiction, but Grade Mobile seems to be a trading name of OG Exclusives Limited who are a company registered in England and Wales. The OP could issue a claim in England and then rely on the Torts (Interference with Goods) Act 1977 for wrongful interference with goods by way of negligence and depriving you of your interest in the phone having been declared lost. 

Sadly, This Act doesn't apply to Scotland so unless there is another simple claim that could be brought via Scottish proceedings, England may be the better option.