Returned three items, company claims I only returned one! £950 out of pocket!

devnull10

Okell said:

But you said in your first post that the credit card company "would not honour the chargeback"?

If that is what they told you they did not process a s75 claim

I'd raised it online via their dispute page in my account, and (wrongly) assumed it was an s75. It was closed within a couple of weeks (which was probably longer than normal due to them sending me a letter which was delayed due to postal issues in our area), and it just said that the other party had contested it and shown proof - I phoned up my CC company and the "proof" turned it to just be a screenshot of their system showing 1 item booked in. But the guy on the phone said that it's literally just because it's a case of it being my word against theirs, and in such cases they never uphold the claim as there needs to be positive evidence to support the claim (i.e. I need to prove I sent 3 items). He acknowledged this was impossible for me to do and suggested ringing citizens advice.

I found out it was just a chargeback though having checked with their online chat tonight (after reading an earlier reply to this thread), so I've now asked them to reopen it as an s75, which they've agreed to do within 5 working days.

devnull10

Okell said:

devnull10 said:

Okell said:

devnull10 said:

Aylesbury_Duck said:

The court works on the balance of probabilities, and with neither party having definitive proof of their position, that's all that can happen.

A letter before action will cost you the price of a stamp, and it just might generate a different response.  If it doesn't, you'll need to decide whether to spend the court fee in the hope that you win, or write off the £950.  Personally, I'd take my chance in court, given the sum at stake.

Yeah, I think it was more a case of whether unless I had definite proof, I'd no chance of winning. I don't want to waste another £150 on going to court if it's completely worthless, especially after losing so much already...

What do you mean by "definite proof"?

You say you sent the items back.  The seller says you didn't.  If you issue a court claim against the seller it becomes a simple question of who the court thinks is more likely to be telling the truth - you or the seller.  All you need to win would be for the court to decide that you are 51% more likely to be telling the truth than the seller. 

How do you think the seller will be able to produce "definite proof" that you never sent the items back?

(NB - The fact that the return was organised and paid for by the seller actually works in your favour.  The returned goods were no longer your responsibility from the time Evri collected them.  If you sent the goods back with Evri but they didn't reach the seller, that's the seller's problem, not yours.  The seller selected Evri, not you.)

Where do you get £150 from?  The fee for issuing a claim for £950 would be £70 I think?  Make a court claim for money: Court fees - GOV.UK

I meant that would a court perhaps just look at it as being a case of unless absolute proof is provided, they don't award it? I.e. the same stance the credit card company took, which was if it's my word against theirs, then in the absence of any other evidence such as photos of the parcel contents before posting (which I said to them would be irrelevant anyway, as that doesn't prove I actually posted those!), it still stands?...

Absolute proof is not required.  As already explained it depends on "the balance of probabilities".  ie would a judge believe you are more likely to be telling the truth than the seller.

I'm not a lawyer so I'm not giving legal advice but I believe all you need to do is to "prove" that you sent the goods back.  You do that in your sworn witness statement that you sent the goods back*.  Because the seller organised and paid for the return you can argue that after you entrusted it to the courier it became the seller's responsibility, not yours.

The seller might be able to "prove" that they never received the goods, but what's important is that they can't prove you didn't send them back.

To find in favour of the seller a judge would have to decide that you were lying, whereas to find for you does not necessarily mean that they think the seller is lying.  Do you see the difference?

If you lose the s75 claim with your credit card provider I'd have thought it was worth it to risk another £70 (or £150) for the chance of recovering £950 (plus your £70 or £150 costs).

But it's up to you.


* That is assuming that you are telling us the truth about sending the goods back.  If not my advice doesn't really apply.  (Somebody will come along with the question "Ah! But what if the OP isn't telling the truth?"  I'm assuming that you are telling the truth)

No, that's a fair comment, and I'm sure there are plenty of people out there who have tried to pull a fast one. I guess all I can say is that yes, what I've put on here is 100% the truth, I'm a respectable person, employed in an executive role which involves detailed background checks. I don't drink, do drugs, or gamble etc. and have no debts other than my mortgage. I certainly wouldn't be risking a fraud conviction for the sake of £950.

Yes, I definitely think it's worth it, and will do it if needed, it was more I wasn't sure whether I would need to prove beyond all reasonable doubt that I did in fact send three items in that box (which is impossible for me to do), or whether the court would work on the assumption of "it's likely I did". If the former, it would be a complete waste of time taking it further, however if the latter then I think I could argue a pretty good case, even if it was just based on what I've said above - why on earth would I risk everything for £950?? I'm going to keep on pressing Evri every day in the hope they finally get the weight information, because providing the contents weren't stolen from the package before weighing, that should leave it pretty clear that the parcel contents were there when I sent it. 

Interesting about making a sworn statement - do I need to do anything specific to do that such as have a solicitor witness it, or can I simply write a statement and sign it with a declaration that it is the truth?

born_again

Okell said:

born_again said:

Okell said:

devnull10 said:

... I've tried contacting Evri to get the weight of the parcel, which is just !!!!!! in the wind - I've had 5 different responses ranging from we don't have it, to it weighed 1 gram, to it weighed exactly 5000 grams. 😡 It's impossible to speak to a human either online or via telephone, and the responses in getting to my case with them are absolutely useless. As I didn't arrange the return, I have very little options it seems. I've asked the company to review CCTV but they've refused. I suspect an employee has received it and only scanned one item (either accidentally ordered on purpose) and they're refusing to help any further.

I've also contacted citizens advice who just reiterated some templated response about notifying a company of intent to return goods within 14 days, and couldn't help any further.

I know I could go to small claims, but I literally can't prove I sent three items back, unless they get the weight from Evri, which they're refusing to do. So I presume I'd have no chance of winning.

Any suggestions???

Do you have their 5 different responses in writing?  (ie email, text, whatsapp etc).

I would suggest that you point out to the retailer that if you take them to court (which you certainly will if they don't refund you £950), that a judge might not look too kindly on their self contradictory responses to you that (1) we don't know what weight it was; (2) it weighed 1g; (3) it weighed 5kg.

Suggest to them that in the light of their nonsensical responses that a judge would probably be more likely to believe you than to believe them.

Apart from a court claim you could go back to your credit card issuer and tell them you are making a s75 claim and not a chargeback claim.  As with the retailer point out the contradictory nature of their responses and ask who a judge might be more likely to believe.  You with a consistent narrative or the seller with an inconsitent narrative?

Regarding the CAB advice and their template response, have you actually tried that with the seller?

I suspect the substance of the CAB advice is that you have a statutory right to cancel a distance order within 14 days of receipt of the goods.  (This is independent of any separate returns policy the seller might have and to exercise your statutory right you have to clearly inform the seller that you are cancelling the contract.  Bear this in mind in future).  You then have a further 14 days in which to retrun the goods and so long as you can provide proof of sending the goods back you are entitled to a refund even if the return "falls off the back of the lorry".

Given a rejected chargeback a S75 would be rejected on the grounds the company gave for the chargeback.

Perhaps I'm being a bit slow tonight, but what's the reasoning behind that view?

As a general proposition - that a failed chargeback means a s75 claim would also fail - I can't see it being correct.  As you've told us before, delivery to the wrong address would defeat a chargeback, but it wouldn't defeat a s75 claim, would it?

In the instant thread the credit card provider has simply rejected the chargeback on the basis that this is a "he said/she said" situation and that presumably the seller would simply challenge a chargeback if granted.  (In fact it sounds a bit like they've put it in the "Too difficult/Too much like hard work" pile).

That might be enough for a chargeback to fail, but wouldn't a s75 claim require a bit further investigation?

Only 1 item received. So company are saying, only breech is by OP (No offence) only sent 1 item back.
As Amex have the on the system from the chargeback. There is only one outcome.

As a rule S75 will require more information (prove breech of contract) etc. & take longer to be looked at. 

But in this case, I can see no way that OP could prove a breech. Amex are not going to pay out when they have proof from company only 1 item received.

OP can give it a go, but I do not hold out any hope.

devnull10

born_again said:

Okell said:

born_again said:

Okell said:

devnull10 said:

... I've tried contacting Evri to get the weight of the parcel, which is just !!!!!! in the wind - I've had 5 different responses ranging from we don't have it, to it weighed 1 gram, to it weighed exactly 5000 grams. 😡 It's impossible to speak to a human either online or via telephone, and the responses in getting to my case with them are absolutely useless. As I didn't arrange the return, I have very little options it seems. I've asked the company to review CCTV but they've refused. I suspect an employee has received it and only scanned one item (either accidentally ordered on purpose) and they're refusing to help any further.

I've also contacted citizens advice who just reiterated some templated response about notifying a company of intent to return goods within 14 days, and couldn't help any further.

I know I could go to small claims, but I literally can't prove I sent three items back, unless they get the weight from Evri, which they're refusing to do. So I presume I'd have no chance of winning.

Any suggestions???

Do you have their 5 different responses in writing?  (ie email, text, whatsapp etc).

I would suggest that you point out to the retailer that if you take them to court (which you certainly will if they don't refund you £950), that a judge might not look too kindly on their self contradictory responses to you that (1) we don't know what weight it was; (2) it weighed 1g; (3) it weighed 5kg.

Suggest to them that in the light of their nonsensical responses that a judge would probably be more likely to believe you than to believe them.

Apart from a court claim you could go back to your credit card issuer and tell them you are making a s75 claim and not a chargeback claim.  As with the retailer point out the contradictory nature of their responses and ask who a judge might be more likely to believe.  You with a consistent narrative or the seller with an inconsitent narrative?

Regarding the CAB advice and their template response, have you actually tried that with the seller?

I suspect the substance of the CAB advice is that you have a statutory right to cancel a distance order within 14 days of receipt of the goods.  (This is independent of any separate returns policy the seller might have and to exercise your statutory right you have to clearly inform the seller that you are cancelling the contract.  Bear this in mind in future).  You then have a further 14 days in which to retrun the goods and so long as you can provide proof of sending the goods back you are entitled to a refund even if the return "falls off the back of the lorry".

Given a rejected chargeback a S75 would be rejected on the grounds the company gave for the chargeback.

Perhaps I'm being a bit slow tonight, but what's the reasoning behind that view?

As a general proposition - that a failed chargeback means a s75 claim would also fail - I can't see it being correct.  As you've told us before, delivery to the wrong address would defeat a chargeback, but it wouldn't defeat a s75 claim, would it?

In the instant thread the credit card provider has simply rejected the chargeback on the basis that this is a "he said/she said" situation and that presumably the seller would simply challenge a chargeback if granted.  (In fact it sounds a bit like they've put it in the "Too difficult/Too much like hard work" pile).

That might be enough for a chargeback to fail, but wouldn't a s75 claim require a bit further investigation?

Only 1 item received. So company are saying, only breech is by OP (No offence) only sent 1 item back.
As Amex have the on the system from the chargeback. There is only one outcome.

As a rule S75 will require more information (prove breech of contract) etc. & take longer to be looked at. 

But in this case, I can see no way that OP could prove a breech. Amex are not going to pay out when they have proof from company only 1 item received.

OP can give it a go, but I do not hold out any hope.

They don't have "proof" that they only received one item - they have a screenshot from their system which shows that only one item was booked in by someone. But that can easily be a mistake - in fact I had it happen to me a couple of years ago with Microsoft actually, because I'd accidentally ordered two things USB-C instead of USB-A - they sent 2 return labels but I put them in the same box. I raised a ticket, they investigated it, and it was sorted in a couple of days. This absolutely isn't what has happened here though - I was sent a single label covering three items which is backed up by an email from Evri who state the value of the parcel to be the total of the 3 items.
If I put my suspicious hat on, I could even say that perhaps an employee in the returns warehouse intentionally only scanned one item in, knowing they'd then be able to take the other two items and get away with it.

In this case, it would seem the *only* situation in which I would actually be liable is if I had intentionally tried to defraud the company? Because any other circumstances means I've sent the parcel, which means it then becomes their responsibility. 

GDB2222

The Op is right that the court fees will total £155, if it goes to trial, but it’s not a simple gambler whether the judge believes the op or the company. That’s because these cases are expensive for the company to defend, and in most cases it is not worthwhile.

For example, the op will fill out the court papers in his spare time. It costs him nothing. The company, at the very minimum have to have someone in-house with some practical experience of defending these claims. In all likelihood, if it goes to court, they’ll need someone to represent them. Possibly a barrister, who may charge more than the amount the op is asking for.   Plus, they’ll need at least a witness statement from the department that receives the returns. It all costs money to do.

In short, this case is not worth the company's while to defend, so there’s a strong possibility that they will simply cave in or at least try to settle the case. The only commercial reason to defend the case vigorously is if they really think they are being defrauded, and they don’t want to be seen as a soft touch.

So, what I expect to happen is that the company will ignore the letter before action, but they will want to settle when they receive the claim papers from the court. Or, they may be so dozy they ignore the claim entirely and will lose by default. Either way, I’d be surprised if this gets to a hearing. 

jnm21

APOLOGIES - either this has changed or I was wrong: https://www.legislation.gov.uk/uksi/2013/3134/part/3

I think all the advice here is missing (albeit narrowly) the key point:

OP you notified the seller within 14 days starting the day after delivery that you wanted to return all of the items?

I believe (you may wish to check) that this is sufficient to equate to notification that you wish to cancel the contract.

KEY POINT: at this point under UK consumer law the retailer is required to issue a refund (without undue delay I suspect would be the requirement) - EVEN IF YOU FAIL TO RETURN THE ITEMS (they can of course subsequently pursue you through the courts for reasonable costs in retrieving/repairing/replacing them if you don't take reasonable care of them & return).

Do you see the beauty of this?  It is no longer OP who has to bring the court case, but the retailer - thus the burden of proof shifts to the retailer!

I am 110% convinced, but do check.  Maybe contact BlackBeltBarrister on YouTube - if he did a video on it, the retailer might realise you are serious (he is in the process of toasting a fridge manufacturer who sent him a fridge that dispenses room temperature water, which they argue is as designed, despite contrary indications on their website). 

born_again

devnull10 said:

Only 1 item received. So company are saying, only breech is by OP (No offence) only sent 1 item back.
As Amex have the on the system from the chargeback. There is only one outcome.

As a rule S75 will require more information (prove breech of contract) etc. & take longer to be looked at. 

But in this case, I can see no way that OP could prove a breech. Amex are not going to pay out when they have proof from company only 1 item received.

OP can give it a go, but I do not hold out any hope.

They don't have "proof" that they only received one item - they have a screenshot from their system which shows that only one item was booked in by someone. But that can easily be a mistake - in fact I had it happen to me a couple of years ago with Microsoft actually, because I'd accidentally ordered two things USB-C instead of USB-A - they sent 2 return labels but I put them in the same box. I raised a ticket, they investigated it, and it was sorted in a couple of days. This absolutely isn't what has happened here though - I was sent a single label covering three items which is backed up by an email from Evri who state the value of the parcel to be the total of the 3 items.
If I put my suspicious hat on, I could even say that perhaps an employee in the returns warehouse intentionally only scanned one item in, knowing they'd then be able to take the other two items and get away with it.

In this case, it would seem the *only* situation in which I would actually be liable is if I had intentionally tried to defraud the company? Because any other circumstances means I've sent the parcel, which means it then becomes their responsibility. 

I get what you are saying & yes it could be a human/system error. But as far as they go that is proof, compared to your photo of a box.

When it comes down to it, company has to/will go by what systems say (might still do a internal investigation to see if there are any unregistered items)
Which is exactly what Amax will go by as well. 

Not saying you are wrong or did only send one item. More likely you did send all.
But look at it from Amex point of view. They are dishing out their own money on a S75 claim, you only have a photo of a box. Company has a system that logs returns into the building.
Who would you take as the most likely to be correct? 

Grumpy_chap

jnm21 said:

APOLOGIES - either this has changed or I was wrong: https://www.legislation.gov.uk/uksi/2013/3134/part/3

I think all the advice here is missing (albeit narrowly) the key point:

OP you notified the seller within 14 days starting the day after delivery that you wanted to return all of the items?

I believe (you may wish to check) that this is sufficient to equate to notification that you wish to cancel the contract.

KEY POINT: at this point under UK consumer law the retailer is required to issue a refund (without undue delay I suspect would be the requirement) - EVEN IF YOU FAIL TO RETURN THE ITEMS (they can of course subsequently pursue you through the courts for reasonable costs in retrieving/repairing/replacing them if you don't take reasonable care of them & return).

Do you see the beauty of this?  It is no longer OP who has to bring the court case, but the retailer - thus the burden of proof shifts to the retailer!

I am 110% convinced, but do check.  Maybe contact BlackBeltBarrister on YouTube - if he did a video on it, the retailer might realise you are serious (he is in the process of toasting a fridge manufacturer who sent him a fridge that dispenses room temperature water, which they argue is as designed, despite contrary indications on their website). 

You have totally ignored paragraph 35 which requires the goods to be returned.

devnull10

born_again said:

I get what you are saying & yes it could be a human/system error. But as far as they go that is proof, compared to your photo of a box.

When it comes down to it, company has to/will go by what systems say (might still do a internal investigation to see if there are any unregistered items)
Which is exactly what Amax will go by as well. 

Not saying you are wrong or did only send one item. More likely you did send all.
But look at it from Amex point of view. They are dishing out their own money on a S75 claim, you only have a photo of a box. Company has a system that logs returns into the building.
Who would you take as the most likely to be correct? 

Yep, understand what you're saying - however in terms of who is likely to be "correct", I'd (personally) say it's far more likely that it's a booking error on their side, or a theft in the courier network (though why not steal all 3?), rather than me mistakenly only sending 1 item. Literally the only way it could be me being wrong is if I tried to deliberately defraud them - in which case, surely they should be reporting me to the police or similar? It's extremely unlikely that I'd be stupid enough to think I'd packed 3, only packed 1, and managed to have the remaining 2 disappear with no trace on my side. 

I've also asked them to check anything they can such as CCTV from their receiving warehouse, weight logs both internal and with the courier if either exist etc. and they just flatly refused to engage with me, saying their system shows 1 and that's the end of the matter as far as they are concerned. Unfortunately all this is "evidence" which would hopefully prove my innocence, but is fully under their control. Any CCTV has probably been wiped now as well as it was well over 30 days ago since the return.

born_again

Your entitled to your opinion.
Sadly working on the other side I can guess witch way Amex will go.