Retailer Disposed of Misdelivered Goods – What Are My Rights?

HopeAndDriftWood

That response from A would worry me - it seems they are still expecting the goods back. I'd try and get it in writing from them that they are not expecting them to be returned and have acknowledged that B has disposed of them, or they could chase that refund back in the future.

My understanding was that Torts (Interference with Goods) Act 1977 meant they needed to give you "reasonable" time to claim the goods, at your own cost, but realistically that'd be a nightmare with big retailers. You can't exactly send DPD to pick up from an Amazon warehouse or whatever. 

h2oh2o

HopeAndDriftWood said:

My understanding was that Torts (Interference with Goods) Act 1977 meant they needed to give you "reasonable" time to claim the goods, at your own cost, but realistically that'd be a nightmare with big retailers. 

this is what I was really hoping to explore....appreciate it might be a nightmare/inconvenience for them. But I was liaising with them throughout the process. Retailer B knew the context of the parcel (i.e. they named retailer A goods) and therefore, in my view, made zero effort to allow me to claim the goods and arrange for them to be returned to me. 

A_Geordie

Okell said:

It is relevant isn't it, if A will want the refund back if you can't recover their goods from B?

You may have a refund in your pocket at the moment, but you may not for much longer

The OP can simply sue for the money back. The OP has made clear to Retailer A the mix up and they refunded the money anyway. It's not up to the OP to do Retailer A's job and it's not like there could have been some accidental mistake given the material information provided to Retailer A. I would argue Retailer A are prevented from recovering the refund based on the principle of estoppel. 

Tat aside, as it stands, the OP is in a bit of a novel position because the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 only stipulates that the consumer has to send the goods back to the trader but the CCRs are silent on who bears the risk if goods have been lost or damaged during the return journey. The published CCR guidance also stays silent on this point too and I am not aware of any reported case law that has addressed this problem (it is possible there are unreported county court cases). The situation is further complicated because the CCRs state that the 14 day period to issue a refund only starts from the date the trader receives the goods back (I sort of address this below in #2). 

At the risk of overcomplicating the OP's legal position, I've described a few ways the OP could go about pursuing legal proceedings and against who and I give no views as to which option has the best prospect of success. There are advantages and disadvantages to each of these options which I won't go into at this stage since my post is already quite long.

What I will say is that if you don't sue all of the potential defendants, the risk is that if you lose your claim, you won't be able to sue the other defendants at a later date because you cannot re-litigate the same claim that has already been decided by the court. 

1. Sue either Retailer A alone. 

Retailer A: Breach of duty under the Torts (Interference with Goods) Act 1977 for (i) negligence (ii) wrongful interference with goods and/or (iii) conversion in relation to Retailer B's goods. 'Conversion' means taking or retaining goods that is contrary to the owner's/possessory owner's rights to the goods and treating them as if the goods were their own. Conversion is a strict liability such that it is irrelevant whether or not they knew they were being negligent or knew the goods were owned by someone else. The mere act of conversion is sufficient to trigger damages. 

The argument to make would be along the lines of: 

Retailer A took delivery of the goods belonging to Retailer A and it would have been clear to them on the label affixed to the package that they were not the intended recipient. Retailer A has confirmed they are unable to locate the package and the OP has suffered loss as a result of Retailer A's interference. This is because the OP is unable to obtain a refund from Retailer B under the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 since the CCRs requires Retailer B to have physically received the goods before it is legally obligated to issue the refund. Retailer B is refusing to issue a refund because it has not received the returned goods. 

2. Sue Retailer B alone.

Retailer B: Breach of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 for failing to refund within the 14 day window after being notified that the goods have been lost in transit using Retailer B's nominated courier. The argument would be more or less something like:

The CCRs describe the process for Retailer to issue a refund within 14 days of receiving the goods back, but there is an anomaly in the law in that the CCRs is silent as to who bears the risk where goods have been lost, stolen or damaged on the return journey back to Retailer B. It therefore falls to the court to determine where the risk lies.

The sensible and pragmatic argument to make would be that the party who has the contractual relationship with the courier should bear the risk since that party is in the immediate position as the contracting party to pursue the courier for loss or damage under the contract. The courier used in for the return was Retailer B's nominated courier, which was Royal Mail and so it should be Retailer B who should bear the risk and puruse Royal Mail as to their negligence for failing to take reasonable care and skill in delivering the returned goods. It should also be noted that the legislation in question is related to consumer rights and taking that into account, there should be a strong preference for the court to lean on the side of the consumer in the absence of anything to the contrary.

3. Sue Retailer A and Retailer B.

Retailer A: As #1.

Retailer B: As #2.

4. Sue Retailer A and S75 Provider.

Retailer A: As #1.

S75 Provider: You would make the same claims that you would against Retailers B as the S75 Provider will be jointly liable for breach of contract in the same way as Retailer B. 

5. Sue Retailer B and S75 Provider.

Retailer B: As #2.

S75 Provider: You would make the same claims that you would against Retailers B as the S75 Provider will be jointly liable for breach of contract in the same way as Retailer B. 

6. Sue Retailer A, Retailer B and S75 Provider.

Retailer A: As #1.

Retailer B: As #2.


S75 Provider: #4.

7. Sue Retailer A, Retailer B, S75 Provider and Royal Mail.

Retailer A: As #1.

Retailer B: As #2.

S75 Provider: As #4.

Royal Mail: Any claim against Royal Mail would be under the Torts (Interference with Goods) Act 1977 for negligence only in that they caused the mix up (through the PO acting as their agent) which has set of the chain reaction leading to the situation you are in today. The result has prevented you from obtaining a refund in accordance with the CCRs because the goods were not delivered back to Retailer B. 

born_again

RE above OP has not confirmed that any S75 cover would be a option.

All they have said is " Both returns were due to change of mind and value of each order was above £100."

Which given we do not know how many items or P&P. It is just a guessing game.

h2oh2o

born_again said:

RE above OP has not confirmed that any S75 cover would be a option.

All they have said is " Both returns were due to change of mind and value of each order was above £100."

Which given we do not know how many items or P&P. It is just a guessing game.

Sorry if I wasn’t clear earlier. P&P was free, and the retailer also covered the return postage. Both orders were paid directly by credit card, so Section 75 should in theory apply.

Each order was a single transaction worth several hundred pounds. Both orders contained multiple items, and every individual item was over £100.

A_Geordie said:

Okell said:

It is relevant isn't it, if A will want the refund back if you can't recover their goods from B?

You may have a refund in your pocket at the moment, but you may not for much longer

The OP can simply sue for the money back. 

Thank you for this very detailed post. Will need some time to read and absorb! When you say sue I assume you mean small claims?

A_Geordie

h2oh2o said:

When you say sue I assume you mean small claims?

Yes, though for full disclosure there's no such thing as small claims court, it's just a phrase used to reference claims allocated to the small claims track in the county court. Each claim is allocated to a track based on a set of factors outlined in the civil procedure rules.

If the claim is up to £10k and can be heard in less than a day, doesn't involve complex areas of law such as fraud or requires multiple expert witnesses, then a dispute is almost always allocated to the small claims track which means legal costs are not recoverable. 

noitsnotme

h2oh2o said:

Okell said:
Ignoring retailer B for the moment, are you saying that retailer A was quite happy to refund you >£100 even though you hadn't returned retailer A's goods?

Has retailer A made the refund conditional on you being able to retrieve their goods from B, and then return them to A?

As soon as I realised the error (informed by Retailer , I told Retailer A about the mix up and that I needed the goods back. They just responded "sorry your return hasn't been made yet, I can see your return has been delivered. i've initiated your refund". I would describe them as totally incompetent rather than "happy". They have since said along the lines of "please let us know when you get the goods back from retailer B and we will organise a return label for you” 

Is retailer A referring to Amazon by any chance?  There is the possibility they will charge your card again for the goods once they catch up to the fact they haven’t had the correct items returned.

h2oh2o

noitsnotme said:

h2oh2o said:

Okell said:
Ignoring retailer B for the moment, are you saying that retailer A was quite happy to refund you >£100 even though you hadn't returned retailer A's goods?

Has retailer A made the refund conditional on you being able to retrieve their goods from B, and then return them to A?

As soon as I realised the error (informed by Retailer , I told Retailer A about the mix up and that I needed the goods back. They just responded "sorry your return hasn't been made yet, I can see your return has been delivered. i've initiated your refund". I would describe them as totally incompetent rather than "happy". They have since said along the lines of "please let us know when you get the goods back from retailer B and we will organise a return label for you” 

Is retailer A referring to Amazon by any chance?  There is the possibility they will charge your card again for the goods once they catch up to the fact they haven’t had the correct items returned.

No not Amazon. Thanks for that though!