Football shirt refund

d0nnyoz

Okell said:

@d0nnyoz -  ok, if you think you have got as far as you can with them and you've tried all you can to explain to them why they are wrong, then - as @screech78 has said - you either go ahead with a Letter Before Claim or you write off the £70.

I'm not a lawyer so what follows is not "legal advice"

Some people will tell you that before you send a LBC you need to be committed to issuing a court claim if the trader doesn't cough up.  But the point of sending a LBC is that it doesn't commit you to carrying out the threat to sue, and the benefit of sending a LBC is that some traders might simply pay up once they receive one.

If you send a LBC and UKSoccerShop don't comply, you need to make your own mind up if you want to sue.  Again, if you issue a claim UKSoccerShop might just pay up if they realise you are being serious.  But if they don't and it gets as far as court, then as I've said before, there is no guarantee that you will win and you might be risking losing the issue fee as well.  Suing is never risk free.  Understood?

It's up to you.

You've seen all the repsonses on here and I think the clear consensus is that what UKSoccerShop is telling you is wrong, and that you have a valid argument for cancelling the contract for a full refund.  

The problems I think I can see in your argument and which you need to think about are as follows:

1.  It's not clear to me what you originally told the trader.  Did you ask for an exchange for a larger size, or for a refund or what?

2.  Sounds to me like you only clearly told the trader that you wanted to cancel the contract outside 14 days.  You received the shirt on 31 May but you only mentioned the word "cancel" on 16 June?

3.  Technically you should have returned the shirt within 14 days of telling them you were cancelling.  No later than 28 days after receiving the shirt...

In answer to 1. and 2. I don't know exactly what discussions you had with the trader, but depending on what you told them you could try arguing that it should have been obvious to the trader that you were cancelling the contract - even though you only used the phrase cancel after 14 days had expired.  I think you could also argue that the trader's T&Cs had misled you into wrongly thinking that you could not cancel the contract, and it was only when you realised you had been misled that you tried to cancel.  None of this is ideal from your point of view, but you are where you are and need to try everything.

Regarding 3. yes, not sending the shirt back might be a problem.  I understand why you want to hold on to it and I understand that you don't want the trader to charge you extra to send it back to you again.  If you don't send it back then I think your best bet is again to argue that you haven't done so because (a) the trader's T&Cs had misled you into thinking that you could not cancel the contract and return the item, and (b) the trader has explicitly told you that if you do return the shirt then they will simply send it back to you again and charge you the additional postage.  So you haven't returned the shirt because the trader has misled you into thinking you can't.  Again this is not ideal from your point of view but you are where you are.

Regarding 2. and 3. there is one more important thing that helps you and which might overcome any difficulties as to whether you cancelled in time and as to whather you should have returned the goods.

The Cancellation Regulations require the trader to supply you with information telling you about your statutory right to cancel.  While their T&Cs do tell you that you have 14 days in which to cancel a distance contract, they don't tell you that you have a further 14 days in which to return the shirt.  They also wrongly tell you that if you don't return the goods in their original packaging then you cannot cancel the contract.  That is wrong.  They can't stop you from exercising your right to cancel - all they can do is reduce any refund due to you to reflect any loss of value in the goods.  So they are not fully informing you of your right to cancel.  Do you follow?

If the trader does not fully inform you of your stautory right to cancel, then the 14 day cancellation window (and subsequent 14 days to return) is extended by up to a year.  Do you see?  If this applies here the fact you might have missed the 14 days to cancel is no longer important.

Just two other things to note: first, I have no idea how the Scottish Simple Procedure works.  I assume you have to send something like a Letter Before Claim as you would in England, but I really don't know.  Unless somebody else here can help you, you'll need to do your own research.

Second, when you do a LBC (or whatever it is in Scotland) you don't need to go into a great deal of detail about what your claim is.  Just sufficient detail for them to understand what your legal case is based on.  Do a Google search and look for examples.

As I've said several times, if this gets as far as court there is no guarantee you will win, but good luck!


[NB  -  I'm really in two minds as to whether you should just send the shirt back ASAP.  I think it puts you in a stronger position regarding the letter of the law if you do, but I don't know.  If you do send it back, make sure you keep evidence that you have sent it back]

Thanks for the advice and I do understand the steps involved. I have sent a letter outlining my greivance and laying out what has happen thus far and that I think I have a right to cancel. Initially it was a request to exchange the size but it became clear they wanted no part in any return at all, either exchange or refund. It was after that I decided oon focusing on a return. Plus, my grandson being a little impatient then found another shirt that he wanted as he just want to leave me to sort out the return (we have not purchased another shirt from anywhere as yet!)

CAB were of the same view as you, that an initial letter with any sort of hidden threat that I would take it further might get them to think "just give him his money back!". So that is what I have done. And I know that if they respond quoting their T&C's again then I need to make a decision on whether to go forward with some sort of claim or just thinking of dropping it and I'm £70 down (although I could try and sell it on eBay or something and recoup some money!).

But my view is that I have stong case based on all of your comments and advice, and even CAB agreed.
I think I would be prepared to go all the way based on this rogue outfit! The fact that have changed their product pages after this episode could be just coincidence but I think its in response to some of the law and guidance I have written to them about. And some of their responses I have taken as being "we are right and you are wrong, now go away!" sort of thing. They have been quite short and curt!

I think I've going to get all the order paperwork together and include it with the shirt and send it back recorded delivery, taking photos of everything before sending. Then see what they do.
And wait for the response to my letter.

Okell

@d0nnyoz -  OK.  On further reflection I agree with the lunatic that you are probably best to send the shirt back, emphasising that you are cancelling.

If at any point the issue is raised that you didn't return it within the time limits your argument will be that you had been misled by the trader's T&Cs - and by what they told you - into believing that you could not cancel the purchase and could not return the shirt. That was their wrongdoing, not yours, and the trader was misrepresenting your right to cancel.

Make sure you don't lose evidence of retruning the shirt - you may need it later.

Remember the main planks of your argument are that (1) a shirt printed with a team player's name selected from a drop down menu pre-set by the trader is NOT personalised and can be cancelled, and (2) the trader is misleading people into believing that such shirts are personalised and can't be cancelled.  (NB - I see you can still select a D NUNEZ 11 shirt from the drop down menu)

In any case you may also have an argument that the cancellation/returns window is extended by up to a year because the trader has not provided you with the information required under para 31 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which I'll address now.

@the_lunatic_is_in_my_head -  I'm inclined to believe that the mere fact that UKSoccerShop are wrongly claiming that printed shirts are personalised and can't be cancelled is enough on its own to put the trader in breach of their obligation to provide the information "required by paragraph (l) of Schedule 2, in accordance with Part 2."

What do you think? 

If you go to their T&Cs you'll find three relevant sub-headings, Cancellation, Personalised Items, and Returns.  Uksoccershop FAQs: Terms and Conditions

Cancellation doesn't mention the additional 14 days in which to return cancelled items; says printed shirts can't be cancelled; and says you have to return in the original packaging or they will reject.

Both Personalised and Returns say you can't return shirts with printed names, although Returns does say you have 28 days in which to return.  (Which as it isn't under Cancellation I take to refer to their own returns policy and not the consumer's cancellation rights)

Confusingly there is also a separate and differently worded Return and Exchange Policy which - although it refers to a 28 day return period - also tries to exclude printed shirts   FAQs: Your Guide to Uksoccershop

All in all I think it can be argued that UKSoccerShop have not provided all the information they are required to, and have misrepresented the consumer's right to cancel