Football shirt refund

d0nnyoz

the_lunatic_is_in_my_head said:

Only guidance but: 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021XC1229(04)&qid=1640961745514

Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

In contrast, where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision. Thus, the exception would not apply in the following examples:

I assume this is a EU directive, or EU guidance?

If so, is it relevant to the UK (Brexit and all that!)?

Okell

@d0nnyoz -  were you to issue a court claim against UKSoccerShop no-one can guarantee that you would win - you might lose.

However, I have tried to show you (1) the UK's own government guidance on how to interpret the cancellation regs; (2) the Chartered Trading Standards Institute's interpretation of the regs from their own "Business Companion"; and (3) the EU guidance on interpreting the directive on which our law is based.

All three seem to suggest that choosing a player name from a drop down menu is NOT personalisation.  In particular, the UK governement guidance uses the specific example of choosing "a team player name" on a football shirt as something that is NOT personalisation.

The other two refer to "fixed menu items" and "standard (pre-set) options" as further examples that are NOT personalisation, and I would argue that that is what happens when you select a player name.

Yes, all three of the above are guidance and not the letter of the law, but I would expect a judge to have heed of that guidance bearing in mind where it comes from - even the EU guidance.

At the moment you are about £70 down on a shirt that doesn't fit.  The only thing that is certain is that if you don't challenge UKSoccerShop you won't get that money back ever.  If you decide to sue them and you win, you will get that money back and you won't lose out.  If you sue them and lose (which you might) you are still down £70 but you will also lose whatever fee you paid to issue the claim.

That's the choice you will have to face if UKSoccerShop won't cough up before you issue a claim.

Have you done what I've alread suggested you do which was to go back to them one last time and explain to them what the law is as you see it?  If you haven't done that, do it now.  If you have and they haven't responded then you need to decide whether to send a Letter Before Claim.

A Letter Before Claim does not necessarily commit you to taking court action.  It's possible that UKSoccerShop might cough up after receipt of a LBC and you don't need to do any more.  But if they don't cough up you will need to decide if you want to sue.  A LBC costs you nothing to write but the cost of a postage stamp.  (Get proof of posting from a post office counter)

NB - what I've written above applies to the small claims procedure in England and Wales.  You'll have to do your own research for Scotland.

Also -  did you try to speak to Trading Standards Scotland as I suggested?

Alderbank

d0nnyoz said:

the_lunatic_is_in_my_head said:

Only guidance but: 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021XC1229(04)&qid=1640961745514

Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

In contrast, where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision. Thus, the exception would not apply in the following examples:

I assume this is a EU directive, or EU guidance?

If so, is it relevant to the UK (Brexit and all that!)?

it's nothing to do with EU directives.

Each EU state has its own unique legal system; UK's is based on common law, Spain and Italy are derived from Roman coded law, France has its Napoleonic Code, etc.
When the EU passes a new law it issues a directive which is binding on each member state (not on individuals) to come up with appropriate laws in their own parliament to implement the new law. That's a directive.

The above document is, as the Lunatic says, guidance.
If you open and read it, the first word of the document's title is 'Guidance'.

It was issued while the UK was in the EU. The deal at Brexit was broadly that things would stay as they were until or unless the UK Government changed them. The UK Government has not (yet) changed the above.

the_lunatic_is_in_my_head

d0nnyoz said:

the_lunatic_is_in_my_head said:

Only guidance but: 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021XC1229(04)&qid=1640961745514

Specification/personalisation in this context should be taken to mean that the goods are, in principle, unique and produced according to the individual wishes and requirements stated by the consumer and agreed with the trader.

In contrast, where the consumer simply makes up the goods by picking from the standard (pre-set) options provided by the trader, it should not be possible to speak of either ‘specification’ or ‘personalisation’ in the narrow sense of this provision. Thus, the exception would not apply in the following examples:

I assume this is a EU directive, or EU guidance?

If so, is it relevant to the UK (Brexit and all that!)?

It’s an interesting question and was discussed here a while back.

IIRC lower courts are still bound by EU case law (case law being a decision by a higher court which sets a precedent) on legislation stemming from the EU Directives (which the cancellation regs are).

However as what I posted is guidance (rather than case law) it is basically an opinion, as is what anyone says really in the absence of case law, but obviously the opinion of some holds greater credibility than that of others (the person who wrote that is more credible than Dave down the pub).

This is where lawyers earn their money arguing the toss but in small claims with a case like this there aren’t any lawyers (such costs can’t be claimed so who would pay for a lawyer for a case about a t-shirt). 

Whilst the court has to abide by whatever the law is where there is ambiguity the side that can articulate themselves best has the greater change of winning so using a credible source of guidance directly related to the legislation to support your position can only be positive. 

The cancellation regs in general are designed to inspire confidence in consumers and allow them the opportunity to become familiar with the goods and cancel if they are not to their liking.

Obviously in some cases this is too much of a burden upon the retailer however in this instance the retailer had the choice to simply let you decide what is printed by have a text box for any input which would then void cancellation rights.

They have options to assist you in purchasing which ultimately benefits their sales and with that is the downside of cancellation.

If the option was so obscure as to create a unique item it would beg the question of why that option existed in the first place as too much choice confuses consumers and reduces sales.

A logical conclusion can only be that the pre-set options are those likely to be chosen by various customers and thus the shirt is not unique and you have the right to cancel the contract.

The difficulty is enforcing this right, LBA is only a stamp which is cheap for a bluff. 

Small claims is a headache but there was an example posted on here in the past where someone went to small claims for a tenner and the other party eventually paid them the £200 odd that was due by the time the process had played out.

Just to add, as a consumer making a claim against a trader I believe you can apply for the case to be heard at your local court and one would hope a trader selling shirts would rather spend time find more customers than foolishly travelling across the country to fight a case they have no certain prospect of winning (although not sure about the whole Scottish law thing which is a bit of a bump in the road but hopefully not a major one). 

pinkshoes

I agree with Okell.

You need to go back one more time and say that unfortunately, they are mistaken, and that when selecting something from a drop down menu from options that they have given you, this does NOT count as personalisation, and therefore you are entitled to return the tshirt for a full refund as it was not personalised.

I'd then request they send you return pre-paid postage for the item, and that if they're not willing to refund, then you are happy to take the matter to court.

Okell

pinkshoes said:

I agree with Okell.

You need to go back one more time and say that unfortunately, they are mistaken, and that when selecting something from a drop down menu from options that they have given you, this does NOT count as personalisation, and therefore you are entitled to return the tshirt for a full refund as it was not personalised.

I'd then request they send you return pre-paid postage for the item, and that if they're not willing to refund, then you are happy to take the matter to court.

Thanks @pinkshoes

@d0nnyoz -  the reason I suggest going back to UKSoccerShop one final time (even though they will still probably refuse to refund you) is that the more times you have tried to resolve the situation and the more times you have explained the correct interpretation of the law to them, the more reasonable your behaviour will appear to a judge when it gets to court, and the more likely a judge will find in your favour.

The more reasonable you appear now, the more likely you are to win in the long term

When you go back to them this last time, make sure you reference the guidance I've already given you - in particular the UK government's own guidance on the cancellation regs which gives the specific example of a team player's name on a shirt as something that is NOT personalised.  If you can show that you have put that to them and that they still wrongly claim it is personalised, the more unreasonable their behaviour will appear to the court.

If they still won't cough up you then need to decide if you want to pursue it further.

Bear in mind that before you either send them a Letter Before Claim and issue a claim against them, of course they are going to try to call your bluff because they don't want to refund you.  The reason they aren't refunding you isn't because they think the law is on their side, it's simply because they don't want to pay you and that want to see how far you are willing to push it.  They are hoping to fob you off and that you will simply give up and not take it further.

And if I were you I would try contacting Trading Standards in Scotland on the number I gave previously.  In England & Wales it's almost impossible to speak directly to TS but TS Scotland have a contact number on their website.  You have nothing to lose by trying to speak to them.  Perhaps they can help you.

Also I'm no expert but I believe in Scotland you will have to use the "Simple Procedure" rather than small claims as in England in Wales.  I know absolutely nothing about the Simple Procedure but the Scottish Govt have this guide: Simple Procedure | Scottish Courts and Tribunals Service

d0nnyoz

Just been reading about making a claim from England against a Scottish company.
They call it a Simple Procedure in Scotland and costs £20. To me it's a no-brainer. The only issue is if there is a court case, where it might be held?
I suspect this would be done via written evidence for some court to make a judgement??

But I intend to take this on.
I have sent them one last email as detailed above from @pinkshoes. I suspect they'll flatly refuse that and my next step is a Letter Before Claim.

sheramber

d0nnyoz said:

Just been reading about making a claim from England against a Scottish company.
They call it a Simple Procedure in Scotland and costs £20. To me it's a no-brainer. The only issue is if there is a court case, where it might be held?
I suspect this would be done via written evidence for some court to make a judgement??

But I intend to take this on.
I have sent them one last email as detailed above from @pinkshoes. I suspect they'll flatly refuse that and my next step is a Letter Before Claim.

You could contact Coinsumer Advice Scotland  https://consumeradvice.scot/contact/

Okell

sheramber said:

d0nnyoz said:

Just been reading about making a claim from England against a Scottish company.
They call it a Simple Procedure in Scotland and costs £20. To me it's a no-brainer. The only issue is if there is a court case, where it might be held?
I suspect this would be done via written evidence for some court to make a judgement??

But I intend to take this on.
I have sent them one last email as detailed above from @pinkshoes. I suspect they'll flatly refuse that and my next step is a Letter Before Claim.

You could contact Coinsumer Advice Scotland  https://consumeradvice.scot/contact/

Yes I would do that as well.

UKSoccerShop have turned up on this forum several times in the past and I wouldn't be surprised if both Consumer Advice Scotland and Trading Standards Scotland are used to dealing with consumers from England.

If I were @d0nnyoz I would also take the opportunity to confirm with them whether I can sue them in England or whether I would have to use the Scottish Simple Procedure.

I think we all - including myself - have assumed he needs to sue them in Scotland because they are based in Scotland, but I don't know if that is actually true or not.  I'm sure Consumer Advice Scotland and/or Trading Standards Scotland could confirm

the_lunatic_is_in_my_head

One thing to note here is that the regs require the consumer to return the goods within 14 days of notifying of their intent to cancel. 

If OP intends to follow through with small claims they should return the shirt (address is in T&Cs, Royal Mail Tracked 48 is cheap and generally reliable).

I don't know what would take more weight, the retailer denying the right of cancellation or the consumer failing in their obligation to return.

Of course the consumer has the right to unwind the contract for being misled about their rights but if that is the angle taken that should be the argument put to the court. 

Okell said:

If I were @d0nnyoz I would also take the opportunity to confirm with them whether I can sue them in England or whether I would have to use the Scottish Simple Procedure.

I think we all - including myself - have assumed he needs to sue them in Scotland because they are based in Scotland, but I don't know if that is actually true or not.  I'm sure Consumer Advice Scotland and/or Trading Standards Scotland could confirm

Terms say

These Terms and Conditions and any contracts made under them are governed by and shall be governed and construed in accordance with the laws of Scotland whose courts shall be courts of exclusive competent jurisdiction.

I don't know if that's true but it does seem to be a standard clause in terms to state where action can be taken.