John Lewis lost my item, and refuse to refund me

Ergates

Exodi said:

This gets brought up ad nauseam on this forum, and it gets pointed out ad nauseam that the significant majority of deliveries in the UK are not made into the consumer's physical possession (taken literally, as you have, even posting through the door or handing to the spouse would not be compliant). You can then go down the rabbit hole with this in pondering how, even if the courier did ensure they handed the letter/parcel to a physical person, they would need to confirm the recipient is the person named on the order. Perhaps the postman ID's everyone? Who knows, and to be honest, who cares because it ends up being a theoretical debate.

it states:

"(a) the consumer, or
(b)a person identified by the consumer to take possession of the goods."

Most people would consider a spouse (or any other member of a household) to fall into that second category - I don't believe there have been any cases raised on these forums where someone is complaining that a parcel was handed to their spouse instead of themselves.  Nor do I recall any cases where someone is complaining that a parcel was posted through the letterbox instead of the doorbell being rung.

In almost all cases where it is raised, it is in response to a courier that has left a parcel on a door step or some other "safe" location - where it has then either gone missing or been damaged.  Which clearly doesn't fit any definition of "physical possession".  There have also been a smaller number of cases where a parcel was successfully delivered to the wrong address - which wouldn't fit any definition of "possession", physical or otherwise.

the_lunatic_is_in_my_head

businesstime said:

sheramber said:

How much is a broken watch worth?

Value is a watch with 15 months use deducted rather than that of a broken one

So are you saying I can't claim the value of the full cost of the watch, despite being promised a full refund which has been withdrawn because they lost my watch? How much can I claim for? At one point is this just not economically worth me persuing? If they claim that the current value of the watch is say £50, then I'd not get any benefit after court fees?

Hello OP

After 6 months the retailer can reduce the refund to account for usage and JL usually use 6 years (from what I've read on here) so £249/72 x the 57 months of use left in the watch is a refund of £193 (again by what JL would usually calculate). 

Mention of them offering a full refund does perhaps sound as if it falls within a warranty situation. 

Without knowing how JL have viewed the issue, the above is generic advice based on the Consumer Rights Act.

screech_78

When you were dealing with the repair and the initial return of the watch, you would have been dealing with the technical support team. 

When the watch was returned and queried (due to the missing accessories) this would then have been sent to a back office team who only deal with returns & refunds. Any rejected returns are sent back to the main address associated with your account - usually the billing address. Unfortunately these two teams don’t talk directly to each other as they use completely different systems and both are outsourced. 

I do believe you’re entitled to the promised refund though. You need to make sure your address details are up to date on your account and remove ones you no longer live at, but they should have checked before sending it back to you. 

screech_78

A_Geordie said:

Exodi said:

A_Geordie said:

1. Section 29 of the Consumer Rights Act 2015 says that the risk in the goods remains with the trader only until the goods come into the consumer's physical possession. I would argue this extends to collection of goods being repaired and returning of them as this section relates to a sales contract. 

This gets brought up ad naseum on this forum, and it gets pointed out ad naseum that the significant majority of deliveries in the UK are not made into the consumer's physical possession (taken literally, as you have, even posted through the door would not be compliant). You can then go down the rabbit hole with this in pondering how, even if the courier did ensure they handed the letter/parcel to a physical person, they could confirm the recipient is the person named on the order. Perhaps they ID them? Who knows, and to be honest who cares.

As is then pointed out when this circular debate begins, there is no evidence on this forum that anyone has successfully challenged a non-delivery on the grounds of the literal interpretation of s29 of the CRA.

Well here's some evidence for you, I have successfully won on 3 separate occasions at court where deliveries have not physically come into my possession based on s29. In each case, the word 'physical' was taken to have its natural and ordinary meaning as per numerous Supreme Court decisions. Whether you or any other retailer likes it or not, the word was inserted deliberately into the legislation and therefore it must have some meaning attached to it (it could have been omitted and just left the word 'possession' instead). In those claims, each of the judges agreed. Perhaps the reason why there's no evidence on these forums is because it is plainly obvious what physical possession means and legal reps acting for retailers know that. 

Not sure why it is such a difficult concept to grasp and why perhaps certain people push against it, thinking it should have some entirely different meaning. Either you have taken physical possession or you haven't. There will likely be grey areas (your example of posting through a letterbox is definitely not one I would call a grey area) but I don't think there will be many, if any. 

Anyway, the delivery part is a moot point based on my other reasons. 

Just to say, as a retailer, we have also won cases where the delivery has not been made to the physical possession of a customer. 

One particular case where a customer chose a safe place for a courier delivery on the courier’s app. Our solicitors defended on this basis and also gained further information from that courier that the customer had selected that safe place on different occasions for different retailers and no issues had been raised. 

There’s no precedent set in small claims court and I’ve seen (or read) of judges applying discretion and not necessarily using the legislation to the letter of the law, both when siding with either the customer or the retailer.

A_Geordie

screech_78 said:

Just to say, as a retailer, we have also won cases where the delivery has not been made to the physical possession of a customer. 

One particular case where a customer chose a safe place for a courier delivery on the courier’s app. Our solicitors defended on this basis and also gained further information from that courier that the customer had selected that safe place on different occasions for different retailers and no issues had been raised. 

I can see how a court would see that where the consumer has actively chosen to set the delivery to a safe place, rather than the goods being deliver to a safe place at the discretion of the trader/courier, and of course it also depends on the day and how well the consumer or their rep can argue their case and persuade the judge to find in their favour. However, I would point out that the delivery of goods and passing the risk from the retailer to consumer are two entirely separate concepts (s28 CRA deals with delivery and s29 with risk of goods passing), which can happen simultaneously or at different times to each other. Its a common argument I see where people conflate the two as if they were, and should be, the same thing.

The CRA has made it clear that the risk in the goods only passes to the consumer when they have physical possession of it and not when it has been delivered. If the intention was for risk of the goods to transfer at the same time as delivery, then the legislation would have said so. Even the explanatory memorandum explicitly states: under the section, the risk lies with the trader until the consumer has physical possession of the goods, at which point risk is transferred to the consumer. In the case you mentioned, it could be argued that the fact the consumer has specified the place of delivery, the risk still doesn't transfer until the goods come into the consumer's physical possession. For arguments sake, if the safe place is left at the discretion of the courier, it's possible there may be someone who sees the courier put hide the package behind a wheelie bin or similar and then nabs it after the courier leaves the property, I would be of the opinion the risk still stays with the retailer. 

In the EU Consumer Rights Directive which the CRA is modelled on, the recitals give the example of physical possession when the consumer (or a third party if nominated by the consumer) who receives a set of keys. The recitals also state: 

Where the goods are dispatched by the trader to the consumer, disputes may arise, in the event of loss or damage, as to the moment at which the transfer of risk takes place. Therefore this Directive should provide that the consumer be protected against any risk of loss of or damage to the goods occurring before he has acquired the physical possession of the goods. The consumer should be protected during a transport arranged or carried out by the trader, even where the consumer has chosen a particular delivery method from a range of options offered by the trader.

In my opinion, there's just no getting away from the fact the risk in the goods only transfers on physical possession and I don't think there's much to argue. There's plenty of case law in adverse possession or HMRC cases about the meaning of physical possession and the courts have regularly accepted that to mean being in the custody or control of the thing in question, which aligns with all of the above.

savergrant

"The consumer should be protected during a transport arranged or carried out by the trader, even where the consumer has chosen a particular delivery method from a range of options offered by the trader."

I would understand that to mean the consumer can choose between a range of delivery options selected by the trader, but that whichever option the consumer chooses the trader arranges the transport and instructs them and bears responsibility.  The carrier is not 'authorised by the consumer to receive the goods on their behalf'. When completing a mail order purchase I've never seen the option 'leave under hedge'.  That arrangement would be made later between the consumer and the carrier, and does not form part of the contract with the trader.
If a consumer gives such an instruction I would argue they accept responsibility from the moment the carrier carries out the instruction. If no instruction is given then the carrier is still acting as the agent of the trader and the trader bears responsibility until the consumer actually takes possession of the parcel.

the_lunatic_is_in_my_head

savergrant said:

If a consumer gives such an instruction I would argue they accept responsibility from the moment the carrier carries out the instruction. 

The issue is that it is the trader's obligation to deliver the goods, if the trader was doing this themselves (and is aware of passing of risk) they wouldn't leave the parcel in a place that exceeds their personal perception of risk.

Courier drivers on the other hand are pushed to go as quick ad possible and may make decisions that exceed the retailer's level of risk. 

Ideally the retailer's agreement with the courier would stipulate what is safe. If a customer marks a safe place as under their car or in their recycling bi and the retailer feels this exceeds their risk the terms of the agreement between the retailer and courier should prohibit such actions and their drivers should act in accordance with this.

Placing the burden upon the consumer because the retailer is unable to draw up a sufficient contract with the third party is, to my mind, exactly what passing of risk is attempting to prevent

Certainly placing burden upon the consumer because the employees of the third party fail to fulfil the obligations of the retailer/third party contract shouldn't be acceptable as in that instance clearly the third party should suffer the loss for their breach of contract with the retailer. 

Some people feel that the current law is "unfair" but I think it's a case of be careful what you wish for, in recent years couriers have improved in terms of tracking, GPS data, photo upon delivery, etc. The system isn't perfect but without this burden placed upon the retailer there would be no cause for the couriers to increase service levels and finding yourself in a position where a parcel is simply marked as delivered, no idea where and no having recourse under the CRA may find you out of pocket if you are unlucky to have a parcel randomly dumped somewhere. 

savergrant

I think one problem is we now have a grey area. Post used to be 'signed for' or 'unsigned'. If something was of value or proof of delivery were needed it had to be sent 'signed for'. These days technology has given us contactless options like GPS and photo, which can prove delivery.
These also give convenience as many people simply do not want to wait in for a parcel, and collecting an undelivered parcel is a nuisance.
It is now customary for the sender to provide tracking information to the recipient, and using that information the recipient is able to instruct the carrier without reference to the sender. I've certainly received some updates which say 'we're delivering your parcel today. Not going to be in?' Etc
I suppose the answer is for the sender to only offer services which require a signature on delivery, or to prevent the consumer being able to give instructions to the carrier.

businesstime

John Lewis sent me a detailed email detailing how all their mistakes weren't of course their mistakes based on incorrect information, claiming they attempted to contact me three times before they cancelled the refund, which just isn't true. Attempted firstly implies that they didn't get a response from me. All bar one contact with me was responded to. The one I didn't respond to was a response to my email and it was an answer to my email that didn't require a response. There was no mention of any time limit in any of these emails until the email saying the return has been cancelled. This isn't the first time they've made this claim and I've disputed it before because it isn't true, but they're now claiming it as fact and have stated they will no longer reply to my emails when I try to dispute it.

They're covering up their mistakes here to shift blame to me. I have proof of every email, WhatsApp and voicemail left.

I've asked them for two things

1) I've sent a letter to the occupants of the address in an attempt to get in contact with them to try and get the watch back into my possession. If I do, how do I proceed with my refund

2) I've asked them for their legal address.

If they refuse to reply, like they've said they will, surely this helps my case? I could suggest a mediation to them but again they have said they're not going to reply to me. They're literally giving me the silent treatment.

businesstime

Also the time from giving me a QR code to return the additional items and when they cancelled the return was less than two days. The time from when I was first informed that there was even a problem to the time the return was cancelled was less than a week. That's not a reasonable timeframe