Faulty/damaged new laptop, won't repair.

[perplexity]

The fact remains that the Regulations intend to complete the powers of a consumer and the enforcement agencies, not to empty the threat, to thus ensure against any lack of a cancellation right, so there is nothing to doubt.

 

The right to cancel exists regardless of the seller's deception and Section 5 (k) specifically defines "the consumer’s rights or the risks he may face." as a matter to cause or be likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

Furthermore (2)(b) Section 6, "Misleading omissions" refers specifically to "any information requirement which applies in relation to a commercial communication as a result of a Community obligation", e.g. the requirement to inform that the right to cancel exists, and extends to at least seven working days.

 

Ergo, far from being an empty threat, it would be all but impossible to defend the charge, which is a strict liability offence, which is to say that the very fact of the omission is sufficient to secure a conviction. It is simply not a valid excuse, to fail to be aware of a statutory duty.

 

[dx100uk]

as a side issue to if or if not you damaged the item

there are utils you can run to prove when it was first used which might well indicate a time long before you had it thus pointing to previous use.

 

as already pointed out, it could well be a previous return and you are getting palmed off with it or it could be an employee that has done it on a weekend borrow without the manager knowing or even warehouse staff at any place in the chain to it getting from acer to you.

 

i can be raised via pm if required.

 

dx

[Kraken1]

Ergo, far from being an empty threat, it would be all but impossible to defend the charge, which is a strict liability offence, which is to say that the very fact of the omission is sufficient to secure a conviction. It is simply not a valid excuse, to fail to be aware of a statutory duty.

 

It is, because the OP isn't going to prosecute them. they know this. they'll also defend on the basis that they are denying his rights under the dsrs because he damaged it and any other inference was a misunderstanding.

When companies get letters with these sorts of threats they get 'filed' as it is a good indication the complainer doesn't really under his consumer rights. It is the difference between academic law and practice.

 

Further, for the regs you have cited there is no offence unless the omission etc caused the consumer to make a transactional decision he might not have made otherwise. This doesn't apply here. And it is not a strict liability offence.

[perplexity]

Yes it is a strict liability offence. This is from the OFT's own guidance document:

 

12.3 The offences above are all strict liability offences, apart from

contravention of the general prohibition, which requires proof

of mens rea.

http://www.oft.gov.uk/shared_oft/business_leaflets/cpregs/oft1008.pdf

 

and No, they will certainly not defend on the basis that they are denying his rights under the dsrs because there is no such defence. The only defence allowed is the Due diligence defence defined by section 17, which would not negate a statutory duty in any case.

 

When a seller reclaims the goods because a buyer cancels he may then pursue a claim against the buyer because of a damage , but if he refuses to refund in the mean time and the buyer sues, he would lose. There is no contracting out of the Distance Selling Regulations. A buyer is not so much as allowed to deprive himself of the right to cancel should he wish to, let alone the expectation of a seller or the opinion of a judge, because a statutory duty is a matter of judicial notice, a matter of fact, not opinion.

 

Furthermore, it is immaterial, whether or not the consumer was caused to make a transactional decision he might not have made otherwise. As with the Fraud Act 2006, the offence is not the effect on any particular victim, the offence is the commercial practice, the act or omission itself because it "materially distorts or is likely to materially distort the economic behaviour of the average consumer".

 

Which part of "is likely to" and "the average consumer" is so hard to get?

 

Edited April 2, 2010 by perplexity
OFT Quote added

[Conniff]

I'm not sure if the mention of DSR is correct here. If I recall correctly, the DSR gives you 7 working days the day after delivery, but must be invoked in writing and I see no mention that a return under DSR within the time specified and in writing was done.

[Dewyan]

Thankyou for all your interesting contributions.

 

I haven't made empty threats, it is my intention to prosecute them over this but I need to dissect your information in order to make some sort of case, I think that between you, you have given me enough to throw at them, it certainly hasn't put me off.

 

It is now more than 7 days since I wrote to them giving them 7 days to reply and thus meeting my obligations under DSR, I have not had the courtesy of such a reply. I will give them a few more days after the hols and then tell them it is going to have to go further.

Edited April 2, 2010 by Dewyan

[perplexity]

I'm not sure if the mention of DSR is correct here. If I recall correctly, the DSR gives you 7 working days the day after delivery, but must be invoked in writing and I see no mention that a return under DSR within the time specified and in writing was done.

 

(4)(d) of section 10 of the Regulations provides that it is sufficient to send by "electronic mail, to the business electronic mail address last known to the consumer".

 

(3) of Section 11 of the Regulations provides that when a supplier fails to inform that the right to cancel exists, the cancellation period extends to three months, or "seven working days beginning with the day after the day on which the consumer receives the information".

 

 

Statutory Instrument 2000 No. 2334

 

[Conniff]

That's what I said

[Kraken1]

Yes it is a strict liability offence. This is from the OFT's own guidance document:

 

http://www.oft.gov.uk/shared_oft/business_leaflets/cpregs/oft1008.pdf

 

I'm sorry. Perpx, but I think you are mistaking academic law with law in practice, and misreading stuff. You are also looking at little sections of law and guidance and reading this across everything. It isn't a strict liability offence, and the guidance doesn't say it is. The blacklisted practices in schedule one of the regs are strict liability offences, the general prohibitions you are citing are not. the very fact that there are defences given shows this to be the case. If you are in doubt read up on what a strict liability act is, i.e. an act that is illegal or has a penalty irrespective of the circumstances.

 

You even confirmed this when you stated that:

The only defence allowed is the Due diligence defence defined by section 17[/url], which would not negate a statutory duty in any case.

 

If it is a strict liability act, then there is no defence. As for negating a statutory duty you are mixing different bits of legislation, you are talking about the cputrs and not another act, which is likely to have its own penalty built in. Don't conflate different law.

 

I think your heart is in the right place, but I'm not sure you have the full picture here. It is often a good idea, in my view, to not be so definite when giving advice - many posters think the law is certain as it is (which it often isn't) and statements that are given as unarguable fact can be taken as such. this can result in posters relying on uncertain advice or law to their detriment.

 

You cannot return goods under the dsrs if you have damaged them, you can only return them if they are in the same condition as that in which they were delivered. You break it, you keep it. Just look at the general principles of contract law, you cannot rescind if it is not possible and the dsrs only give this right.

 

When a seller reclaims the goods because a buyer cancels he may then pursue a claim against the buyer because of a damage , but if he refuses to refund in the mean time and the buyer sues, he would lose.

 

I doubt it. It would be huge. Maybe in a textbook or theory, but I very much doubt it would work in real life. If you have experience or authority to show otherwise I'd be very interested. I've never seen it myself. Always open to new stuff, though.

 

There is no contracting out of the Distance Selling Regulations. A buyer is not so much as allowed to deprive himself of the right to cancel should he wish to, let alone the expectation of a seller or the opinion of a judge, because a statutory duty is a matter of judicial notice, a matter of fact, not opinion.

 

Agreed, a buyer can't contract out of the dsrs, but he can act in such a way as to lose the right to return goods, for example by trashing the goods.

 

Furthermore, it is immaterial, whether or not the consumer was caused to make a transactional decision he might not have made otherwise.

 

Sweeping back to the cputrs then... It's not. Look at the regs. If it is one of the general prohibitions (as opposed to schedule one stuff) then the act has to make the consumer make a transactional decision that he wouldn't have done, save for the act in question. It is a two part test.

 

Which part of "is likely to" and "the average consumer" is so hard to get?

 

None. and that is the point here. it is a two part test - you need both parts. the cancellation rights were absent or reneged upon and so could not have influenced a transactional decision, this issue came after the contract was agreed and not as part of an incentive to enter into it.

 

 

it is my intention to prosecute them over this

 

You are not going to though, intention or not. Unless you have perhaps tens of thousands to throw at it. Private prosecutions are possible, but very rare and very expensive.

 

 

As ever however, all the above is my opinion and might be wrong.

[perplexity]

The inference of strict liability is that there is no need for a proof of mens rea. The inference is not that there is no defence regardless of the circumstance, or would you rather convict a person of drunk driving, albeit that he was unaware that another person maliciously laced his drink with alcohol?

 

The OFT is correct to advise that "The offences above are all strict liability offences, apart from contravention of the general prohibition", which an offence under section 6(3) is not, this being covered by section 10:

 

10. A trader is guilty of an offence if he engages in a commercial practice which is a misleading omission under regulation 6.

 

An online supplier's failure to inform a consumer that the right to cancel exists falls full square under 6(3), if that is the fact of the matter, that there was no such announcement.

 

The Due Diligence Defence applies to 9, 10, 11 or 12. Section 3 is the general prohibition, where the seller's awareness would have to be considered, via section 10.

 

It is not then me who conflates different law. The right to cancel a distance contract is simply not a right to return goods. To the contrary:

 

(4) The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing, or in another durable medium available and accessible to the consumer, from the supplier and given to the consumer either before, or at the time when, the goods are collected from those premises.

There was a member who posted to the eBay Community forum not so long ago, to report that on more than one occasion he had sued a seller who refused to refund before an item was returned, refusing to cover the cost of the postage to return the goods.

 

According to the member's account of it the case got to the Country Court and it was all over in a few minutes; the Judge informed the seller that there is no defence to refusing to refund and that was that.

 

The response of fellow members to this was incredulous, overtly hostile, but it's as credible to me as the law is clear about it. As the judge of a case, nor would I be bothered to entertain an argument that the law relieves me of the duty to hear.

 

By the way, Section 36 of the SOGA also relieves a buyer who rejects goods of a duty to return. If a buyer intends to make out a case against a seller it stands to reason that the buyer is entitled to retain the evidence, to prove the case!

 

Private prosecutions are not so expensive because the usual outcome is that the CPS immediately hijack the case, if it's a criminal prosecution, which is not to suppose that it is necessary to prosecute privately. "It shall be the duty of every enforcement authority to enforce these Regulations" [section 19] so I would rather fancy the chance of persuading an officer to do his duty, rather than have to respond to a Judicial Review for failing to. For the same reason that it's a sctrict liability offence, the responsibilty to enforce should be equally strict.

 

Edited April 2, 2010 by perplexity
Clarified.

[Kraken1]

Perpy my chap, your logic is quite circular. And wrong. You even cite the reg (10) that gives the defence and so means, in part, that it is not a strict liability offence. To clarify:

 

Reg 3 - the general prohibition - Unfair commercial practices are prohibited.

 

Commercial practices are defined as:

 

(a) a misleading action under the provisions of regulation 5;

(b) a misleading omission under the provisions of regulation 6;

© [something] aggressive under the provisions of regulation 7; or

(d) [something] listed in Schedule 1.

 

regs 5, 6 and 7 then define further what these commercial practices are, whether something is misleading or aggressive etc.

 

Regs 8 - 10 are then the actual offences. Any conviction is based on regs 8-10, not regs 5, 6 or 7, and therefore the due diligence defence applies, in addition to the transactional decision stuff. Therefore - it is not strict liability; you need act, cause and effect.

 

The reason that there is a difference between regs 5-7 and the schedule 1 stuff is that there is no requirement for sched 1 for the practice to make the 'consumer to take a transactional decision he would not have taken otherwise'. This is the bit missing here. the failure to honour the cancellation rights came too late to effect his decision to buy (although there might be a ropey argument that the decision to return/sue was a transactional decision but I wouldn't bet on it) and more importantly they are not denying the right per se, just that he has lost it because he trashed it.

 

There is no defence against a strict liability offence, there is only mitigation against a sentence. That is the point of them.

 

I'm not sure I ever said that the cancellation of a contract obligated the consumer to return the goods. It probably will in practice, if the commercial lawyers drafted the t's and c's properly.

 

With regard to your ebay examples, I don't follow the relevance - here the matter relates to damaged goods and so the DSRs are unlikely to apply, not just a standard return.

 

S36 of SoGA, actually says 'unless otherwise agreed' or words to that effect, as you brought it up. Again, not sure of the relevance here?

 

Private prosecutions are not so expensive because the usual outcome is that the CPS immediately hijack the case, if it's a criminal prosecution, which is not to suppose that it is necessary to prosecute privately. "It shall be the duty of every enforcement authority to enforce these Regulations" [section 19] so I would rather fancy the chance of persuading an officer to do his duty, rather than have to respond to a Judicial Review for failing to. For the same reason that it's a sctrict liability offence, the responsibilty to enforce should be equally strict.

 

Again, nice in theory, but in practice, no. The CPS is not going to take over something like this at it would fail the public interest test, and the fact that there is no case to answer. As for getting an enforcement authority to go for it, good luck. Spend a bit more time reading these boards to see what sort of cases they like taking. This wouldn't be one of them. I can't see the local authority signing off on it when there will be other priorities. Rightly or wrongly, this is life. There is only so much pie to go around.

 

I dare say that JR would vindicate them, on these facts anyway. You also need to factor in the cost of bringing a JR.

 

As for hoping that you are not going to waste loads of cash and that the CPS take it over... what if they don't? When they assume a case it will have to have been issued at the least, and even getting that far won't be cheap. A good dozen laptops at least I'd say, minimum. Even if it gets taken over, this cash isn't coming back.

 

To suggest it as being viable really just isn't cricket. Fine in theory, expensive in practice, and ironically, still might not get the laptop refunded. Courts don't need to make compensation orders.

 

In summary therefore:

 

There is no evidence of an offence under the cputrs, or one that could be proven or brought

the dsrs will only apply if the OP can show that the goods were damaged at the time he received them, and he might struggle to do so.

SoGA rights will only apply if the OP can show that the goods were damaged at the time he received them, and he might struggle to do so.

 

So - back to Buz's point. The OP needs to look at the damage and show, on the balance of probabilities, that he didn't cause it.

 

 

All in all Perx, I welcome you to the forum, and I think you are showing promise as an advisor (and I mean that genuinely), but I sense a lack of practical experience (maybe final year LLB or similar?), or at least in this field. the theory often doesn't pan out in practice.

 

Stick with it, and get some reading and posting done and you'll flesh out your knowledge and experience.

[perplexity]

Are you kidding?

 

 

How is it possible for a conviction to depend on Regulation 10 but not on Regulation 6 when the specific terms of Regulation 10 are that

 

10. A trader is guilty of an offence if he engages in a commercial practice which is a misleading omission under regulation 6.

 

The seller's obligation is

 

In good time prior to the conclusion of any distance contract, the consumer shall be provided with the following information:

......

(f) the existence of a right of withdrawal, except in the cases referred to in Article 6 (3);

EUR-Lex - 31997L0007 - EN

 

That's an "information requirement which applies in relation to a commercial communication as a result of a Community obligation", so an offence if the fact of the matter is that the commercial practice omits the material information.

 

From there on the problem for the defence is to explain why the supplier requires a 72 hour period, instead of the full week to be allowed to cancel, if the intention was not to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

"It probably will in practice, if the commercial lawyers drafted the t's and c's properly."

 

is a non starter because the properly drafted terms would thus purport to contract out, which is forbidden by section 25. Statutory duties are not negotiable. The Regulations inevitably prevail as they stand, whatever the t's and c's of a seller.

 

This is also unfortunate:

 

"The CPS is not going to take over something like this at it would fail the public interest test, and the fact that there is no case to answer."

 

Were the CPS of the opinion that there is no case to answer they would take over the case precisely because of the intention drop it when they do, and if this is expensive in practice, so much the better so long as a case is won because it's the loser who would then have to cover the cost.

 

If you rather expect to lose, so would I, expect you lose, in view of assertions that fail to stand up to examination. For my own part I would rather not be so lame about it.

 

The DSRs would apply because the goods are damaged. Usually the matter of damaged goods is a contractual issue, but as soon as a buyer cancels there is no contract to invoke because

 

(2) Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made.

Rather than deny the Regulations, in order to pursue a claim about the damage to the goods a supplier would thus be obliged to invoke the Regulations, because of section 17:

 

(2) The consumer shall be treated as having been under a duty throughout the period prior to cancellation -

 

(a) to retain possession of the goods, and

 

(b) to take reasonable care of them.

 

(3) On cancellation, the consumer shall be under a duty to restore the goods to the supplier in accordance with this regulation, and in the meanwhile to retain possession of the goods and take reasonable care of them.

This would therefore happen after the seller reclaims the goods, with the evidence in hand and the refund granted, so as not to conflate the issues of the refund which is the statutory duty of the supplier, and the care of the goods which is the statutory duty of the consumer.

 

If you pause to think about, a seller is actually better off with that because the duty of care is thus a statutory duty, there to quote in black and white, not just a matter of tort or the implied terms a contract.

 

[Kraken1]

I'm sorry, I disagree.

 

The offences under the cputr's are under reg 10 etc, reg 6 is a definition clause, essentially. If not, perhaps you could direct me to the part of reg 6 that says it is an offence? If you prosecute for breach of the cputr you prosecute under reg 10 (for eg), citing reg 5 or 6 etc. Reg 10 is the offence. Take this away and there is no offence.

 

For a comparison look at the theft act - s1 gives the offence, and subsequent sections define what this means.

 

If you are unsure give your local trading standards authority a call and ask them for a copy of a summons for a cputr case. Claim it is for a dissertation or similar and they might oblige.

 

for the rest of your post, I'm having trouble following it as you are bouncing from regulation to regulation interchangeably, and bringing in strange points. I think I can follow your argument but apologies if I have got it wrong.

 

In the first instance you said that a buyer would not have to return goods under the dsrs. I said that if the seller had properly drafted his t's and c's then he could place an obligation on the buyer to return the goods and pay for this, if the return was being made under the dsrs

 

You seem to think that I am arguing that the dsrs can be contracted out of, I'm not. Quite the contrary, it is using an option in the dsrs.

 

As for the supplier explaining the 72 hour thing, this is fairly common and would be explained as an additional right on top of the statutory rights, a no quibble refund applied to store and distance contracts. Alternatively they may just argue that it is what they deem a reasonable time under SoGA and that it is nothing to do with the dsrs because, in this instance, the dsrs do not apply because the goods are damaged. Again, in practice not a problem.

 

"The CPS is not going to take over something like this at it would fail the public interest test, and the fact that there is no case to answer."

 

Were the CPS of the opinion that there is no case to answer they would take over the case precisely because of the intention drop it when they do, and if this is expensive in practice, so much the better so long as a case is won because it's the loser who would then have to cover the cost.

 

So let me get this straight: The OP launches a private prosecution and pays for the initial warrant, investigation, etc. Not cheap. Then the cps takes it over to prosecute and the OP loses the cash he's spent. Or the cps take it over to stop it, again the OP loses his investment. How is any of this to the benefit of the OP?

 

As for whether the cps would take it over just to stop it, I doubt it. This is generally done where the prosecution would jeopardise other action, or if a caution had been accepted. Otherwise I doubt they'd bother and would just leave the seller (in this case) to pay the bill.

 

as for the DSRs, 'the effect of a notice of cancellation is that the contract shall be treated as if it had not been made' The contract is rescinded. If this is not possible, because the goods have been damaged, then the right is lost. Even if it isn't, it doesn't help the OP here as he'll end up paying for the damage, which as he's noted is almost the cost of the laptop. It seems to be lose-lose under the DSRs unless the OP can prove he didn't cause the damage.

 

You might say I'm being lame, personally I think I'm being realistic.

[perplexity]

 

Which part of 25(3) & 25(4) is so hard to get? It's as specific about the issue of returning goods as could possibly be:

 

(3) This paragraph applies to a term which requires the consumer to return any goods supplied to him under the contract if he cancels it under regulation 10.

 

(4) A term to which paragraph (3) applies shall, in the event of cancellation by the consumer under regulation 10, have effect only for the purposes of regulation 14{5} and 17{8}.

According to 14(5)

 

(5) Subject to paragraphs (6) and (7), the supplier may make a charge, not exceeding the direct costs of recovering any goods supplied under the contract, where a term of the contract provides that the consumer must return any goods supplied if he cancels the contract under regulation 10 but the consumer does not comply with this provision or returns the goods at the expense of the supplier.

and according to 17{8}

 

Where -

 

(a) a term of the contract provides that if the consumer cancels the contract, he must return the goods to the supplier, and

 

• (b) the consumer is not otherwise entitled to reject the goods under the terms of the contract or by virtue of any enactment,
  

paragraph (7) shall apply as if for the period of 21 days there were substituted the period of 6 months.

 

Otherwise,

 

(2) Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made.

Ergo, a seller may require that a buyer returns goods, and the buyer may agree to return goods, but there is no way for a supplier to oblige the buyer to return the goods if the buyer would rather not, no matter how carefully drafted his terms and confitions, because the carefully drafted t's and c's are to be treated as if they were never made, as soon as the contract is cancelled, except that the specified paragraphs appropriately refer, in which case the best that he could possibly get out of it is the extension of the period allowed to reclaim the goods, and the cost of recovering the goods, if the buyer fails to prosecute the supplier in the mean time.

 

A buyer may thus be better off to return the goods, but there is no way to force him to send them back if he insists that a suppler collects.

 

 

This

 

"the dsrs do not apply because the goods are damaged."

 

appears to be nothing more than a figment of a deluded imagination. The assertion fails to makes sense. If the Regulations did not apply in any case to damaged goods, the Regulations would not have needed to establish a duty of care as if to provide for such an event.

 

The Regulations apply, subject to regulation 6, to distance contracts other than excepted contracts and the Regulations do not except a contract because it alludes to the issue of damaged goods.

 

The supposed reactions of Trading Standrads and the CPS would also appear to be imagined.

 

The casual reader should rather prefer to be steered by the OFT Guidance document, for instance, which already explains the situation with regard to strict liability, for those with the skill to comprehend ordinary English, so I shall not be obliged to defend the OFT's advice, which I see no reason to impugn in such a fashion.

 

While the term itself is not strictly defined by statutory law, not far as far as I know, if you'd googled for "strict liabilty" + "due dilgence" you should soon enough have found this for instance:

 

The defence of "due diligence" in strict liability consumer protection law is available, provided the accused took "all reasonable steps" and exercised "all due diligence" to avoid an offence being committed. It is also available for Health and Safety offences.

Principles - strict liability

 

 

Edited April 3, 2010 by perplexity

[Kraken1]

Ok. I think we disagree, such is life. For my own clarity, as I'm not certain I follow all of your arguments and authorities as you are jumping around a bit. Is it your position that:

 

- A buyer can damage goods, and still return them under the dsrs

- A seller cannot obligate a buyer to pay for the return of goods

- If a buyer cancels under the dsrs, but refuses to return the goods, despite an obligation to do so, then he can still sue for the contract price and he will be successful?

- All offences under the cputr are strict liability offences, because the BERR document linked to says so?

- trading standards would jump on this sort of thing and would prosecute in a heartbeat

- it is a valid strategy for the OP to mount a private prosecution

[perplexity]

Ok. I think we disagree, such is life. For my own clarity, as I'm not certain I follow all of your arguments and authorities as you are jumping around a bit. Is it your position that:

 

- A buyer can damage goods, and still return them under the dsrs

- A seller cannot obligate a buyer to pay for the return of goods

- If a buyer cancels under the dsrs, but refuses to return the goods, despite an obligation to do so, then he can still sue for the contract price and he will be successful?

- All offences under the cputr are strict liability offences, because the BERR document linked to says so?

- trading standards would jump on this sort of thing and would prosecute in a heartbeat

- it is a valid strategy for the OP to mount a private prosecution

 

There is nothing to prevent a buyer who wants to return goods. The point is that the consumer shall not be under any duty to deliver the goods except at his own premises.

 

It therefore follows logically that the problem of who pays to cover the cost of returning the goods need not arise, except that a buyer would be that much more inclined to return the goods when a supplier offers to pay.

 

The BERR document linked to does not say that all the offences are strict liability offences. This is not so with the general prohibition, further to Regulation 3, which would apply to some sort of behaviour that the explanatory sections fail to specify, a cumstance which is not so easy to envisage anyway, in view of the extent of the foresight.

 

Nor did I say that Trading Standards would jump at anything, nor did I suggest to prosecute privately. That, Kraken1, was your own suggestion, so you'd better respond to yourself about it.

 

I proposed to threaten. If your intention is then to encourage ignorant suppliers to avoid their legal liabilities, by pretending that the threat is empty, I am hoping that it fails, because the threat is not nearly so empty as an ignorance of the law.

 

[Kraken1]

Ok, in summary therefore we have:

 

Not all the offences under the cputr are strict liability offences, the general prohibition is not under reg 3 is not.

 

Reg 3(4) states that a commercial practice is unfair if:

 

(a)it is a misleading action under the provisions of regulation 5;

(b)it is a misleading omission under the provisions of regulation 6;

©it is aggressive under the provisions of regulation 7; or

(d)it is listed in Schedule 1.

 

 

Turning to the DSRs:

 

What does reg 14(5) mean?

 

What would happen if a consumer sued for a refund under the dsrs but refused to return the goods?

 

To be very clear - as I'm not sure from your above post - can a buyer who has damaged goods, for example dropped a laptop down the stairs, return it successfully under the dsrs for a refund?

 

Also I'm a tad confused on other points. You said:

 

Nor did I say that Trading Standards would jump at anything, nor did I suggest to prosecute privately.

Earlier, you said.

it shall be the duty of every enforcement authority to enforce these Regulations" [section 19] so I would rather fancy the chance of persuading an officer to do his duty, rather than have to respond to a Judicial Review for failing to.

To which I responding saying, essentially, I doubt they'd bother with this type of case.

You said

The supposed reactions of Trading Standrads and the CPS would also appear to be imagined.

 

It also appears from your posts that you were suggesting that a private prosecution would be viable and inexpensive.

 

So, to be clear:

are you saying that you think that it would be unlikely that trading standards would get involved?

would a private prosecution be an advisable thing to do?

 

If it is very unlikely that a consumer will prosecute privately, is it wise to make a threat that a seller will know (being on the receiving end of prosecutions I don't doubt) is empty? Will it not just devalue any other assertions made?

[perplexity]

My previous postings already answer those questions, and refute the straw man argument.

 

I suggest to read the thread again.

 

 

The Regulations threaten the prosecution. If you want to try it on a seller some time, I suggest a form of words such as this:

 

"Are you not aware that the statutory duty of a supplier is to inform a buyer that he owns the right to cancel a distance contract, and your failure to inform could be prosecuted as a criminal offence? If in any doubt about that, I suggest to refer yourself to Trading Standards, for further advice."

 

 

Edited April 4, 2010 by perplexity
extended

[Kraken1]

I'm sorry, I have re-read and your previous posts are not clear. For eg at one point you appear to infer that all the prohibitions under the cputrs are strict liability offences, and then you say that they are not.

 

Also, I can't see where you have addressed those questions. Please do me a favour and be a little more explicit. If I am in doubt, it is possible that other readers might also be. clarity is king. I think they are fairly simple yes/no answers or need a very brief answer of only a few words.

[perplexity]

Kraken1, I had already substantiated my original mention of strict liability by quoting the OFT guidance which is clear enough to me, as it stands.

 

If it is insufficiently clear to you, I suggest to complain to the OFT, or invite them to clarify.

 

The practical inference is that as soon as the fact is mentioned to a seller (and there's a record to show the fact) that he was told that his omission may be prosecuted as a criminal offence, this would eliminate the chance of defending on the grounds of due diligence, if he continues regardless.

 

[Kraken1]

So, let me get this clear, you are not going to answer my questions? I thought they were simple questions. Why not? If your aim is to advise rather than confuse I would have thought you would have been willing to give some clear advice.

 

I see you've addressed one of the points, sort of, regarding strict liability, but I'm still in the dark. Frankly, I'm even more puzzled by your stance now.

 

Just to be 100% clear, if you will indulge me, the general prohibitions contained in reg 3 are or are not strict liability offences? I ask because you have said they are, that they are not, and that you have made your position clear by quoting the oft guidance. Which, by the way, I think says that they are not strict liability offences. In case 'casual readers' pop in on this thread, could you make your position clear? It might also help the OP in deciding what to do.

 

Also, how does being told he'd committed an offence, if this is the case (which I don't think we can be sure of based on the information given) then how does this excuse the offence? Surely it has been committed and that is it? You can't have due diligence after the fact, can you? If he has already committed the offence (failing to give the right cancellation info) then how can he continue? Does the seller write to the buyer every week saying 'ha ha I'm still not telling nananananana?' But ultimately this nrings me back to one of my questions you've refused to answer, which is essentially do the DSRs even apply? If you recall I asked specifically:

 

What would happen if a consumer sued for a refund under the dsrs but refused to return the goods? Can a buyer who has damaged goods, for example dropped a laptop down the stairs, return it successfully under the dsrs for a refund?

 

Awaiting your enlightenment. Good luck with finals by the way. I think you'll be ok but keep an eye on referencing and structure.

[perplexity]

Please, learn to read, then read the thread, and the Regulations.

 

I did not say that the general prohibitions contained in reg 3 are strict liability offences.

 

I did not say that being told he'd committed an offence excuses anything.

 

I had already told you what the distance selling Regulations apply to.

 

I had already told you what has happened when a buyer sued.

 

The eBay member I had previously mentioned posted to the eBay Community Forum as

 

"great_offers_2008great_offers_2008great_offers_2008"

 

For further advice I suggest to contact the member, who should be happy to confirm, if you ask nicely, that on 8th January 2010 he posted this, for instance, to a thread called "Distance selling regultions - postage refund":

 

When i took my seller to court it was over the return post as they wanted me to pay it and would not refund until i did.

 

It cost me £25 then £50 for a listing fee both of which i was able to claim back.

I was also able to claim back traveling costs and a days lost of earnings.

 

At court it was over in 3 min,s, the judge asked why i was not refunded to which the seller said they were waiting for the return of the item, clearly the judge had read all the notes as they informed the seller i did not have to return the item.

 

The seller was given 14 days to pay £250 for a £80 item and the cheque is sitting in my account right now and i still have the item so i guess that makes me "terminally anal" as put by "the one"

Edited April 5, 2010 by perplexity
added Quote

[Kraken1]

You are getting a bit defensive perpy my fellow? Why the hostility? Surely you can't be stressed by my queries? After all I am only seeking clarification?

 

I did not say that the general prohibitions contained in reg 3 are strict liability offences

 

In any event, thanks for resolving one thing then, if only by inference: that reg 3 is not a strict liability offence. I'm glad about that as it seemed to me that you were saying that it was earlier. I appreciate it if you didn't mean to imply that it was, it is just that in response to my assertions that they were not, I received responses like:

 

"Ergo, far from being an empty threat, it would be all but impossible to defend the charge, which is a strict liability offence, which is to say that the very fact of the omission is sufficient to secure a conviction..."

 

"Yes it is a strict liability offence..."

 

"The casual reader should rather prefer to be steered by the OFT Guidance document, for instance, which already explains the situation with regard to strict liability, for those with the skill to comprehend ordinary English, so I shall not be obliged to defend the OFT's advice, which I see no reason to impugn in such a fashion."

 

Why post like this if you agreed with me?

 

With regard to the other points, I'm guessing you didn't want to answer some fairly simple queries as it would involve a further reversal of your previous stance; I'm guessing that one revelation on strict liability is enough huh?

 

Anyway, as you've not actually answered my queries so would you mind if I do?

 

 

- A buyer can damage goods, and still return them under the dsrs

 

No, he can't. If rescission is an option (as it is under the dsrs) it is removed if it is not possible. See Erlanger v New Sombrero Phosphate Co for eg.

 

 

- A seller cannot obligate a buyer to pay for the return of goods

 

He can, if the contract is drafted properly. See s reg 14(5) - "the supplier may make a charge, not exceeding the direct costs of recovering any goods supplied under the contract, where a term of the contract provides that the consumer must return any goods supplied if he cancels the contract under regulation 10 but the consumer does not comply with this provision or returns the goods at the expense of the supplier." If the contract is silent then he can't. I'm guessing this is where your ebay chap came a cropper. Either that or the return was based on something else. DSRs don't apply to all ebay sellers. That said I can't find the thread you referred to, all I got was a 'this has been removed'.

 

 

- If a buyer cancels under the dsrs, but refuses to return the goods, despite an obligation to do so, then he can still sue for the contract price and he will be successful?

 

No, providing that the seller is switched on and makes an appropriate pt 20 counter-claim.

 

 

- All offences under the cputr are strict liability offences, because the BERR document linked to says so?

 

We've now agreed they are not, and the the BERR doc doesn't say they are.

 

 

- trading standards would jump on this sort of thing and would prosecute in a heartbeat

 

It is unlikely, especially on the facts here.

 

 

- it is a valid strategy for the OP to mount a private prosecution

 

It isn't, and the seller will know this. Hence it is a poor idea to threaten such as the seller knows it ain't gonna happen. Drawing the seller's attention to the offence will result in a 'so what' as they know that this something they'll deal with their trading standards dept or home authority. It will also make the seller think 'the guy knows nothing and is a bit desperate, ignore'.

 

 

So, after all that, we are now back at the conclusion, first mooted above that the dsrs and SoGA might not apply because of the state of the goods, and the OP needs to focus on showing that he did not damage the laptop. If he can do this then he has lots of juicy rights to pick and choose from.

[perplexity]

Why not just be honest enough to admit that you were wrong about the strict liability while the OFT is right?

 

The offences above are all strict liability offences, apart from contravention of the general prohibition [section3; chapter 10 of OFT Guidance], which requires proof of mens rea.

 

There was no need to rely on nothing but Regulation 3 anyway. It was long since pointed out that 5(4)(k) or 6(3)(b) relate [chapter 7 of OFT Guidance]

 

I had already objected that the proposition to prosecute privately was your own not mine, Kraken1.

 

With regard to DSRs not applying, fiction is of no use or interest to me. There is no such exception.

 

Nor do I see that the need exists for the OP to focus on showing that he did not damage the laptop. A consumer is entitled to be refunded in any case, except that a supplier who wishes to complain about a buyer's duty of care would then have to prove the claim. It is not for the buyer to prove his innocence.

 

(22) Whereas in the use of new technologies the consumer is not in control of the means of communication used; whereas it is therefore necessary to provide that the burden of proof may be on the supplier;

EUR-Lex - 31997L0007 - EN

 

If somebody else happens to have a question to put or a doubt to express about it I am happy to deal with that, but shall not intend to indulge a red herring or straw man argument.

 

Edited April 5, 2010 by perplexity

[Kraken1]

So reversing your reversal now? My position on strict liability has remained the same throughout, and it is the same as the OFTs. I just don't think you understand the regs myself. With the twists in your position I can see how you might have become confused.

 

As for the dsrs applying, how is this fiction when your entire advice is based on the fact that they do? Of have I misread your advice? If so, could you spell out your advice to this poster for me? What should he do?

 

Nor do I see that the need exists for the OP to focus on showing that he did not damage the laptop. A consumer is entitled to be refunded in any case, except that a supplier who wishes to complain about a buyer's duty of care would then have to prove the claim. It is not for the buyer to prove his innocence

 

You might want to let the local DJs know. I suspect that when faced with a pt 20 counter claim they might have a different view.