Carphone Warehouse 14 day waiver

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Winemaker93
Winemaker93 Posts: 6 Forumite
in Mobiles
Loitered for a couple of years but stumped by Carphone Warehouse and now need further help. Contract with CPW coming to an end so following their telephone call to me I chose a new phone and contract on 18/1/19. Wrong phone arrived on 19th, after many calls and 30 mile journey to exchange phone as advised, shop wouldn't exchange, I telephoned to cancel under 14 day cooling off period, phone and contract. I offered to pay my old contract until its expiry date and return the phone via a tracking service. I hadn't used the phone or new sim card at all. I even offered to pay for 3 days of the new contract (additional data included). I was informed that as the new phone was an early upgrade I waived my rights to the 14 day cooling off period. They refuse to send me a return label. Citizens Advice say the waiver is not uphold-able, I've made a complaint both to CPW and via Resolver. CPW will listen to the initial phone call they made to me and depending on the outcome 'hope to move forward'. This will take 10-14 days, leaving me outside the 14 day period. I cannot find any post on here from anyone who has challenged PW 'policy'. I didn't think company policy could override law. Any advice etc...
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  • mobilejunkie
    mobilejunkie Posts: 8,460 Forumite
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    Usually so-called "updgrades" aren't treated as having any cooling-off period. You could challenge that in the courts if you like - but I doubt I would (though I have taken CPW down that route a few times for other reasons - when I had little doubt of losing - and always succeeded).
  • Winemaker93
    Winemaker93 Posts: 6 Forumite
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    Thank you, considering taking it to that step, would like to find a precedent for it first though
  • mobilejunkie
    mobilejunkie Posts: 8,460 Forumite
    edited 22 January 2019 at 8:00PM
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    It would be the small claims court. Precedents don't apply anyway. Best bet might be their failure to provide the contract specified (i.e. the correct phone) rather than any non-existent cooling off period. Hard to get the contract cancelled in the court - especially because a (third party) network will have the airtime contract and the phone is usually classed as "free" anyway.

    Perhaps send a LBA and demand replacement (at their expense) for the phone agreed to, plus incidental costs of visiting the shop on their instructions, telephone calls etc. - with the usual indication that you will immediately instigate legal enforcement if they don't comply within 7 days, at that time adding court fees, statutory interest and any additional incidental costs (which will be negligable). They usually respond when forced, BUT you have to be on VERY firm ground and make it sound like you know what you're doing.
  • macman
    macman Posts: 53,098 Forumite
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    If they sent the wrong phone, then you don't need to use the 14 day cooling off period anyway (which does not apply to upgrades). Just reject it because you ordered x and they sent y.
    Since you ordered by phone, not online, can you prove that they sent the wrong phone though?
    No free lunch, and no free laptop ;)
  • Winemaker93
    Winemaker93 Posts: 6 Forumite
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    They won't issue a returns label and the shop wont accept it as a return. CPW have a recorded call where I assume the specification of the phone I ordered is stated, but listening to this will take 10-12 days taking me over the 14 day period before I hear from them.
  • d123
    d123 Posts: 8,622 Forumite
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    Winemaker93 wrote: »
    They won't issue a returns label and the shop wont accept it as a return. CPW have a recorded call where I assume the specification of the phone I ordered is stated, but listening to this will take 10-12 days taking me over the 14 day period before I hear from them.

    What make/model did you order and what was actually delivered?
    ====
  • grumbler
    grumbler Posts: 58,629 Forumite
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    14 days are for cancelling, not for returning.

    For returning you have 14 days extra after cancelling.
  • Winemaker93
    Winemaker93 Posts: 6 Forumite
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    A samsung galaxy s8+ ordered grey received pink
  • Winemaker93
    Winemaker93 Posts: 6 Forumite
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    Thank you but there seems to be some confusion as to whether upgrades are cancellable or not under this rule
  • grumbler
    grumbler Posts: 58,629 Forumite
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    edited 24 January 2019 at 12:54PM
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    Indeed, there is some confusion. The former DSR were pretty clear about this, but the CRA that replaced them seems to be less clear. I don't think that it explicitly excludes upgrades, and, IIRC, for new contracts it allows cancellation even if you started using services. If so, I don't see why upgrades are any special.
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