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

GDB2222

devnull10 said:

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.

It seems to me that you asked the company all the right questions. Now, what you need to do is send an LBA, then issue proceedings. That's what the courts are for.

devnull10

born_again said:

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

I fully expect Amex will go that way, it more of when I will inevitably end up having to raise this with MCOL that I'm thinking. I don't expect anything to come from the s75.

Okell

Grumpy_chap said:

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.

But does it say the goods have to be received?

If you think they do have to be received, what then is the purpose of para 34(5)(b) which clearly envisages a situation where they aren't received?

Okell

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...

Eh?

Obviously simply notifying the retailer within 14 days of receipt that you want to return the goods can't be sufficient for the seller to be obliged to pay you a refund.

In the first place it's debateable whether just telling the trader you want to return the goods satisfies the requirements in para 32(3)(a) and (b).  It may or it may not.  (I think I covered this previously in the thread?  See last para of my post at 2:05pm on 01 June where I asked OP if he had put this argument to the trader))

In the second place, as @Grumpy_chap has pointed out, you do need to return the goods.

However (and this might be the point you are trying to make but not very well) the regs are not clear as to whether the trader must actually receive the returned goods.  The regs appear to provide for a situation where a refund is still payable even if the trader does not receive the goods back.  See para 34(5)(b).

I doubt Mr ShenSmith will be interested on his You Tube channel...

Okell

devnull10 said:

born_again said:

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

I fully expect Amex will go that way, it more of when I will inevitably end up having to raise this with MCOL that I'm thinking. I don't expect anything to come from the s75.

There is nothing that requires you to ask your credit card provider for a s75 refund before you sue the trader.

FWIW I think there's a lot to be said for @GDB2222's view that if you get as far as issuing a claim, the trader might not even defend it.  (Although £950 + £70 costs might be reaching a point where they might consider it worthwhile to defend).

What you do know for certain is that if you don't make the effort to get this money back (whether by claiming back from your card company or by suing the trader) you will be £950 down that you will never get back.

If it gets to court there is never any guarantee that you will win, but if you don't raise a claim you will definitely lose out on the £950.

Seems to me a no-brainer but I suppose it depends how far you want to risk losing another £70 issue fee plus £80 hearing fee.

If you do decide to sue you will need to send them a Letter Before Claim/Letter Before Action before actually issuing the claim.  Google LBC/LBA for details.  It's possible (but unlikely) that the trader may cough up on receipt of a LBC/LBA so you don't need to go so far as to issue a claim.

devnull10 said:

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)

... 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?

If you reach the stage of getting to court you will have to provide a Statement of Truth.  So far as I know it doesn't need to be sworn in front of anyone but it's basically what it says - you are decalring that what is in your statement is true and that you aren't fibbing.

Okell

Okell said:

... 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".

@devnull10 - sorry if I've missed it, but did you answer this question from my post at 2:05pm yesterday?

It's regarding the point @jnm21 was, I think, trying to raise.  I don't think it's a strong point in your case, but if you could somehow argue that you had informed the seller that you were cancelling the contract, it might help further strengthen your case...

devnull10

Okell said:

@devnull10 - sorry if I've missed it, but did you answer this question from my post at 2:05pm yesterday?

It's regarding the point @jnm21 was, I think, trying to raise.  I don't think it's a strong point in your case, but if you could somehow argue that you had informed the seller that you were cancelling the contract, it might help further strengthen your case...

I haven't, simply because it had been far more than 14 days since the return, so I didn't think it was applicable? The order was received 17/04 and I processed the return via their portal the same day. Since then I've been back and forth with their customer support, my credit card company etc. and so the 14 days has obviously passed.

This was the page the CAB directed me to: 

https://www.citizensadvice.org.uk/consumer/template-letters/letters/cancelling-goods-or-services/letter-to-cancel-or-return-goods-bought-online-over-the-phone-or-by-mail-order/

I'd presumed that me submitting the return via their portal within 14 days would constitute a cancellation anyway? 

devnull10

Okell said:

There is nothing that requires you to ask your credit card provider for a s75 refund before you sue the trader.

Yeah, I was simply trying to avoid the situation where I pay £80 to lodge the case with MCOL, the s75 found in my favour and returned the £950, but then I'd lost the £80 (or had to continue to sue them for just that).

But it seems from the responses here that it's pretty likely that the s75 will go the same way as the chargeback, so I'm guessing I may as well go with it.
I just need to make sure my argument is firm before raising with the court. I once got stung with that on a airline compensation case I raised, the judge rejected it because even though I had a valid argument, I'd not put that in when raising the case, so they said I'd not given the other party the opportunity to defend it.
Hence I want to make sure I don't put something in there about returns not needing to be actually received, if that legally isn't the case. And vice versa, I don't want to miss that out. I'm also looking to wait a few more days to see if I can press Evri into releasing the weight if they have it.

devnull10

Quick update, the s75 was rejected on the grounds that that it apparently requires a "breach of contract" and I couldn't provide enough evidence to support that. Despite trying since I originally posted this, I still have not been able to get the weight from Evri. 

So I've now filed it with MCOL. I'll update as and when I get any further.