Is my LBA letter ok? (trader not providing refund for sending me alternative goods)

[kp278]

hi, does anyone fancy picking holes in my letter before i send it off? thanks a bunch, kris

 

---------------------------

 

ME

ADDRESS

 

 

Tools4Trade

165A Boston Road

Hanwell

London

W7 3QJ

 

8th October 2010

 

LETTER BEFORE ACTION

 

Dear Sir/Madam,

 

Order Ref # 22869

 

On 6th September 2010 I bought a Sealey S0500 Socket Set and a Sealey Adaptor S38F-12M from you for the sum of £18.85.

 

The Socket Set is not as described.

 

I advised you of this in my emails dated 14th September 2010 and 21st September 2010 and despite requesting the items are collected and a refund issued I have heard nothing since.

 

You will be aware that when making a purchase online the consumer is covered by the Consumer Protection (Distance Selling) Regulations 2000 (DSR's) and compliance with the DSR's is a legal requirement. I bring to your attention the Office of Fair Trading's 'A guide for businesses on distance selling', specifically regulation 14 ('Refunds') and section 3.46 ('When do I have to refund a consumer's money if they cancel an order?') which states:

'As soon as possible after the consumer cancels, and in any case within 30 days at the latest. You must refund the consumer's money even if you have not yet collected the goods or had them returned to you by the consumer. You cannot insist on the goods being received by you before you make a refund.'

 

I require a refund of this money in full within 14 days. If you do not comply then I shall begin a claim against you for the full amount plus interest plus my costs without further notice.

 

The items are available for your collection at a mutually convenient time.

 

Yours faithfully,

 

Mr K Matthews

[MrShed]

Did you inform them of cancellation prior to the 14th? Was the 6th the delivery date?

[kp278]

6th was the order date

[kp278]

can anyone help?

[buzby]

What was different from what was described and what you got?

[kp278]

Hi, I received a budget brand socket set made by a company called Siegen. Now as I understand, the Siegen brand is owned by Sealey, probably even made in the same factory, but its a budget product nonetheless. Had I known it was the Siegen brand, I wouldn't have bought it.

 

I've had a response since sending them my LBA and I've exchanged emails with them, but they are either being ignorant, or missing the point. Here are the emails:

 

From Tools4Trade on 15/10/10:

Dear Customer,

Ref: 22869

Please send your items back to us at following address and in return we will give you full refund.

Thanks

 

From me on 15/10/10:

hi, please can you arrange for the items to be collected at no cost to

myself. thanks, Kristian

 

From Tools4Trade on 18/10/10:

Dear Customer,

 

You have sent these items back to with your order details.

In return we will give you full refund (£18.85).

From me on 18/10/10:

Hi,

I will not pay for return postage as you have provided an alternative item. The options for return are:

1. You collect the item;

2. You send a pre-paid jiffy envelope;

3. You refund an additional amount to include return postage, and I will return the items.

 

Regarding the refund, the distance selling regulations are quite clear that you cannot demand return of an item before issuing a refund, and they advise a 30 day deadline for a refund. This deadline passed on 14th October.

 

The 14 day deadline for a refund in my initial letter still stands.

 

Regards, Kristian

 

From Tools4Trade on 18/10/10:

Dear Customer,

We are very clear on our previous emails that we will refund your order.

As longer you sent us items back.

Thanks Tools4trade.com

 

So as you can see, they are not really listening to my request.

At the moment I'm treating the return of the items and the refund as two separate issues. I'm planning to stick to my guns with regards to the refund by the date in my letter. I don't know what to do about the returns though. Looking at the DSRs, I guess I can keep hold of them for as long as I want as it's not linked to the refund, but should this go the distance I need to appear to be acting reasonably. Plus I'm probably mixing my DSRs and SOGA, so please correct me.

 

Thanks

[perplexity]

I don't know what to do about the returns though. Looking at the DSRs, I guess I can keep hold of them for as long as I want as it's not linked to the refund, but should this go the distance I need to appear to be acting reasonably. Plus I'm probably mixing my DSRs and SOGA, so please correct me.

 

 

Section 17(4) of the DSRs does indeed provide that "The consumer shall not be under any duty to deliver the goods except at his own premises ...etcetera"

 

.. notwithstanding a lot of bad advice that floats about to the effect that it is possible for a seller's terms of sale to force you to return the goods.

 

The supplier may however draft terms to the effect that he could charge to collect the goods, so if the goods are bad, so to speak, you may well be better off to invoke the Sale of Goods Act, which also excepts a buyer from returning the goods, when the buyer is rather entitled to reject them.

 

It is also correct to be wary of mixing the DSRs with the SOGA. When a contract is cancelled, there is then no contract for the Sale of Goods Act to apply to, so the seller is let off the hook with regard to the condition of the goods and so forth.

 

8-)

 

P.S.

 

The way you deal with this is exemplary, simple, clear and straightforward, well done, but you are probably also correct to guess that the seller is ignorant of the Regulations, so it could be a good idea to contact informally, perhaps by telephone, to politely suggest that the seller completes his education before rather than after you send a letter before action.

 

I have heard of cases like this before, where a seller mistakenly thought it possible to force a buyer to return the goods before a refund is granted. It is easy work for a judge when it gets to the County Court. So long as there's a proof of the cancellation that's it, over and done with.

 

Edited October 19, 2010 by perplexity

[kp278]

thanks for your feedback, and for that legislation link, don't know if that was you or the website but its a great help. section 14 of the dsrs seem to cover both of my issues- section (7) relates to the supply of substitute goods, and section (3) relates to the 30 day refund. time to do some more quoting of the dsrs

[perplexity]

I am always telling buyers to read the statutes to see for themselves what they're entitled to, instead of believing the myths that continue to float about. It is wonderfully refreshing to see that this does occasionally happen.

 

The bit that the sellers miss is (3) and (4) of section 25 of the DSRs. If they would but follow it through, it is perfeclty clear that there is no way to force a buyer to return the goods when a contract is cancelled:

 

(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].

While the impossibility of legislating against ignorance is always unfortunate, if you especially point this out to an obstinate seller it may just do the trick.

 

[kp278]

here is the mail i sent them earlier:

 

Hi,

 

Unfortunately you are not responding to a key question in my previous emails regarding the return of the items. In addition your refusal to issue a refund until I return the items is a direct violation of government legislation. May I politely suggest you visit www.legislation.gov.uk and read up on the Distance Selling Regulations.

 

The Consumer Protection (Distance Selling Regulations) 2000 section 14 (3) states:

The supplier shall make the reimbursement referred to in paragraph (1) as soon as possible and in any case within a period not exceeding 30 days beginning with the day on which the notice of cancellation was given.

 

As previously advised the 30 days to issue a refund have passed and yet you continue to insist on the return of the items before a refund is issued.

 

The Consumer Protection (Distance Selling Regulations) 2000 section 14 (7) states:

Paragraph (5) shall not apply to the cost of recovering any goods which were supplied as substitutes for the goods ordered by the consumer.

 

As previously advised I will not pay to return the goods. You may collect the goods, or you can send me a pre-paid jiffy envelope and I will make the trip to the post office to return the goods.

You cannot request that I return the goods at my own expense as you have provided substitute goods.

You cannot request that I return the goods before you issue a refund.

 

I trust I have made my position clear.

 

Kind regards, Kristian

[perplexity]

...

 

Exemplary again, except that they can request.

 

In this sort of situation the legal implication of the word "request" would be that the person who requests attempts to negotiate, to reach an agreement, which is fair enough in so far as it may be fair. The cancellation of a previous contract need not prevent another.

 

Your point would rather be that there is no way to force a buyer to concede, no duty to comply.

 

8)

[kp278]

Hi, I haven't received any further communication from them. I sent them one last email a week ago requesting a refund but nothing so far. So it looks like I need to do a claim. I know there is a template paragraph for requesting interest. Do I need any such paragraph for the rest of it or just fill in the fields as I go through the claim on the website?

[buzby]

(1) Ensure your LAST communication with them advising of a formal claim is a LETTER not an email. This needs to give them a deadline to resolve of (say, 21 days) or you will proceed.

 

(2) For your claim, your last paragraph needs to include the section on interest due at the specified rate from judgement until paid. (This means you can only claim FROM judgement, not for any imagined loss from the date of purchase.)