Refund on a made to order item (bought online)?

InsertWittyUserName

I know I can't get a refund on a custom made item unless faulty. However, can I get a refund on a made to order item if I've changed my mind?

The item is a fancy dress item. It is NOT customised. The website shows the item available and you buy it like normal. She says give  her12 days to make but you cannot personalise or change it. The item in the picture is what you get. I think that instead of keeping the final items in stock, she buys the materials when she gets an order.

The exact same item (from the same seller) is also available from a larger online independent clothing company. They keep them in stock and will provide refunds.

The event I wanted it for has been cancelled and I can't imagine when I'll ever wear this thing again.

I contacted the seller 2 days after ordering to ask to cancel the item. She said she'd already started making it so no.

Am I able to cancel the item? As I say, it is not a customised order. If it wasn't so expensive, I'd have just sucked it up but it was £80.

Thanks

DullGreyGuy

Its debatable, the general view of people on here is that if you are choosing from a drop down menu then no matter the number of possible combinations its not customised and so is refundable. 

A person I know however paid a substantial sum on legal advice for their website and their lawyers were willing to say that MTO was "personalised" and therefore excluded from the CCR cancellation rights. 

Irrespective of the two differing opinions, you always have the right to ask

the_lunatic_is_in_my_head

DullGreyGuy said:

Its debatable, the general view of people on here is that if you are choosing from a drop down menu then no matter the number of possible combinations its not customised and so is refundable. 

A person I know however paid a substantial sum on legal advice for their website and their lawyers were willing to say that MTO was "personalised" and therefore excluded from the CCR cancellation rights. 

Irrespective of the two differing opinions, you always have the right to ask

I wonder if those giving legal advice considered the EU guidance 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021XC1229%2804%29&qid=1640961745514

5:11:2, most notably that it is to be interpreted narrowly. 

OP made to order is not personalised, it also isn’t made to your specification, right to cancel exists. 

Emmia

the_lunatic_is_in_my_head said:

DullGreyGuy said:

Its debatable, the general view of people on here is that if you are choosing from a drop down menu then no matter the number of possible combinations its not customised and so is refundable. 

A person I know however paid a substantial sum on legal advice for their website and their lawyers were willing to say that MTO was "personalised" and therefore excluded from the CCR cancellation rights. 

Irrespective of the two differing opinions, you always have the right to ask

I wonder if those giving legal advice considered the EU guidance 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021XC1229%2804%29&qid=1640961745514

5:11:2, most notably that it is to be interpreted narrowly. 

OP made to order is not personalised, it also isn’t made to your specification, right to cancel exists. 

Given the UK is not member of the EU, is that EU guidance still in effect in the UK? 

the_lunatic_is_in_my_head

Emmia said:

Given the UK is not member of the EU, is that EU guidance still in effect in the UK? 

I believe our courts are free to make their own decisions but until a higher court rules on the matter it's all opinion and that of the people who wrote the legislation is a good opinion to rely upon to articulate a position  

DullGreyGuy

the_lunatic_is_in_my_head said:

DullGreyGuy said:

Its debatable, the general view of people on here is that if you are choosing from a drop down menu then no matter the number of possible combinations its not customised and so is refundable. 

A person I know however paid a substantial sum on legal advice for their website and their lawyers were willing to say that MTO was "personalised" and therefore excluded from the CCR cancellation rights. 

Irrespective of the two differing opinions, you always have the right to ask

I wonder if those giving legal advice considered the EU guidance 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021XC1229%2804%29&qid=1640961745514

5:11:2, most notably that it is to be interpreted narrowly. 

OP made to order is not personalised, it also isn’t made to your specification, right to cancel exists. 

I've no idea and given the £1-4k price tag on their MTO items I'm not willing to take a punt on if they will fit nor buy one with the intent of returning it and testing their legal advice. 

In principle could report them to Trading Standards for falsely telling consumers what their statutory rights are but a niche website selling luxury clothing  isnt going to be high on their lists of companies to investigate even if you do manage to get the matter to them 

InsertWittyUserName

So maybe then? 😂

user1977

Emmia said:

the_lunatic_is_in_my_head said:

DullGreyGuy said:

Its debatable, the general view of people on here is that if you are choosing from a drop down menu then no matter the number of possible combinations its not customised and so is refundable. 

A person I know however paid a substantial sum on legal advice for their website and their lawyers were willing to say that MTO was "personalised" and therefore excluded from the CCR cancellation rights. 

Irrespective of the two differing opinions, you always have the right to ask

I wonder if those giving legal advice considered the EU guidance 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021XC1229%2804%29&qid=1640961745514

5:11:2, most notably that it is to be interpreted narrowly. 

OP made to order is not personalised, it also isn’t made to your specification, right to cancel exists. 

Given the UK is not member of the EU, is that EU guidance still in effect in the UK? 

In the absence of any replacement advice (or new legislation) then yes. It is of course merely guidance.

A_Geordie

user1977 said:

Emmia said:

Given the UK is not member of the EU, is that EU guidance still in effect in the UK? 

In the absence of any replacement advice (or new legislation) then yes. It is of course merely guidance.

It's a bit more nuanced than that but to summarise, all EU law and case law prior to Brexit is classed as retained law and the courts are typically bound by it. Only the Court of Appeal and the Supreme Court can deviate from retained law which will then be binding on the lower courts unless parliament decides to change the law.

Any post-brexit EU case law is not binding on any of the courts but the general starting point is that where the decision is based on EU retained law, any case law or guidance will be persuasive and quite often relied upon in deciding cases. I can only see the courts taking a different stance from the EU stated position if that EU position restricts or prohibits the development of English law or is somehow in conflict with English law decisions.

Government has already provided domestic guidance here: https://assets.publishing.service.gov.uk/media/5a817b92ed915d74e33fe73a/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf 

An example of bespoke goods is provided on page 20 which discusses whether or not a football shirt with your own name printed on the back is classed as bespoke and out of scope for cancellation rights. It also goes on to say that just because goods are put together or made up, doesn't mean it is bespoke.

My interpretation of whether something is considered bespoke goods is to answer the following question: Are the goods customised or personalised in such a way that they are so unique to the consumer that the goods don't have a market value or if they did, it would fall outside the seller's usual target of consumers and it would be difficult to resell. 

In the OP's case, I don't think making something to order is consider bespoke which is often misunderstood by sellers. If the measurements were specific to the OP's size with the OP having to input those specific measurements then I think that is likely to be considered bespoke and unique to the OP. However, if the seller is simply creating goods made to order and the size choice is based on the sizes or measurements chosen by the seller rather than the OP who is simply selecting the available size (e.g. small, medium, large etc.), that doesn't make it bespoke and the cancellation rights still exist. 

the_lunatic_is_in_my_head

Does the Retained EU Law (Revocation and Reform) Bill 2023 make retained EU law “assimilated law” which doesn't have to be interpreted in line with EU principles of interpretation?

Or perhaps that relates to this?

A_Geordie said:Only the Court of Appeal and the Supreme Court can deviate from retained law which will then be binding on the lower courts unless parliament decides to change the law.

Of course the cancellation regs do have their own UK legislation (that was required to be derived from the EU Directive) so I don't think they are EU law as such?  

A_Geordie

the_lunatic_is_in_my_head said:

Does the Retained EU Law (Revocation and Reform) Bill 2023 make retained EU law “assimilated law” which doesn't have to be interpreted in line with EU principles of interpretation?

Or perhaps that relates to this?

A_Geordie said:Only the Court of Appeal and the Supreme Court can deviate from retained law which will then be binding on the lower courts unless parliament decides to change the law.

Correct. Section 6 of that Act determines how the courts disapply EU law is not yet in force as there is secondary legislation needed. The Act effectively downgrades the EU law in terms of supremacy if there is a conflict with domestic law such that it does not take precedence anymore.

However, the nuance is that there are exceptions and my interpretation is that the supremacy of assimilated law applies only to direct retained EU law, being EU Regulations which is law that automatically applied to the UK as opposed to EU Directives which required the UK to implement domestic legislation in order to apply the EU law. So the courts could theoretically apply EU law based on Directives over domestic law in that case. As you mentioned, the CCRs are derived from an EU Directive and therefore currently out of scope of the Act in terms of which law to apply upon a conflict. 

Obviously this is where it gets much more complex and probably beyond the realms of discussion for most people on here, which is what I was trying to avoid and to keep it simple