Problem with mobile phone contract from Carphone Warehouse

[K301982P]

I will enjoy beating them in Court because it isn't gonna be resolved any other way, can't believe they are stupid enough to risk Court over this.

 

I informed them the 4 things I will use in my claim are:-

 

1.I did not accept the goods.

2.I was told 2 times by store management that I could have an exchange.

3.Their T&C's are misleading.

4.They are breaking Distance Selling Regulations.

[K301982P]

Handset must be unused? Umm.. wrong. Thats why the law/regulations and 7-14 day statutory right laws exist.

 

They obviously think they are not in the wrong.

[K301982P]

I'm going to send this as a last email, any advice as to whether this is ok? or something I have missed or should add?

 

Dear Blah Blah Blah

 

On Monday 6th August 2012 I ordered a Samsung Galaxy S3 mobile phone over the telephone from Carphone Warehouse, It was received on Tuesday 7th August 2012.

 

It is on the Vodafone network and is costing me £36 per month, to be paid via Direct Debit.

 

I have a right to cancel under the Distance Selling Regulations 2000.

 

My wish is to exchange this handset, I first gave you written notice of this on Wednesday 15th August 2012 and that was still under the 7 working day period as under Distance Selling Regulations I am allowed 7 working days from the day after delivery was made.

 

Your basis for not allowing the refund is because of the following as quoted: "I would like to advise that the basis of our decision is that you have used your handset and SIM card.

 

It is part of our returns terms and conditions that the handset must be unused in order to be returned. The handset may be inspected but the SIM card cannot be inserted and used if a return is required. This is specified in the returns policy."

 

After seeking further advice, I have been advised that this information is wrong, that is why the law/regulations and 7-14 days statutory law exist.

[renegadeimp]

I wouldnt quote law or regulation in there unless you can provide them with the exact section and paragraph number. Companies as huge as CW get litigation threats all the time and are prepared to fight. If you can quote the specific regulation/law to them, they will see you arent bluffing and will usually settle out of court.

[K301982P]

I will also cc to Trading Standards but don't know what to quote.

[K301982P]

Maybe quote this from the OFT website?

 

Consumers’ cancellation rights

 

The stage at which you provide your consumers with the

required written information will affect when the cancellation

period ends.

 

Where the DSRs give consumers the right to cancel an order,

this right is unconditional and begins from the moment the

contract is concluded. Unlike when buying from a shop the

first time that a consumer will have an opportunity to examine 7

A short guide for businesses on distance selling

goods purchased by distance means is when they receive

them. When a consumer cancels a contract to which the

cancellation provisions apply they are entitled to a refund of

any money they have paid in relation to the contract even if

the goods are not defective in any way.

 

The time limits for cancellation are as follows,

for goods:

• seven working days (not including weekends or bank

holidays) after the day on which they receive the goods

– provided you give the consumer the required written

information no later than the time the goods are delivered

• seven working days from the day after the day on which the

consumer received the written information and within three

months of the goods being delivered, when the written

information is not provided at the time of delivery, or

• three months and seven days from the day after the day

the consumer receives the goods if you do not give the

required written information at all (or give it after the three

month period mentioned above).

 

for services:

• seven days from the day after the contract was concluded if

you give the consumer the required written information on

or before the day the contract is concluded, or

• seven working days after the information was received but

within three months (beginning the day after the contract

was concluded), if the information was received after the

contract was concluded.

 

 

What must consumers do if they want to cancel?

 

They must tell you in writing or in another durable medium

such as e-mail, if they want to cancel but not by phone

unless your terms say this is acceptable. The effective date

for cancellations under the DSRs is the date on which the

consumer gives notice of cancellation to you. 9

A short guide for businesses on distance selling

For more detail on how consumers can give notice of

cancellation see the full text version of the ‘Guide for businesses

on distance selling’ on the OFT website at: http://www.oft.

gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Unless you have agreed that they can, your consumers cannot

cancel if the order is for:

• services where you have had the consumer’s agreement

to start the service before the end of the usual cancellation

period and you have provided the consumer with the

required written information before you start the service,

including information that the cancellation rights will end

as soon as you start the service

• goods or services where the price depends on

fluctuations in the financial markets which cannot be

controlled by the supplier

• the supply of goods made to the consumer’s own

specification such as custom-made blinds or curtains.

This exception does not apply to upgrade options such as

choosing alloy wheels when buying a car, or a combination

of standard-off-the shelf components when ordering a PC

• goods that by reason of their nature cannot be returned

• perishable goods like fresh foods or fresh cut flowers

• audio or video recordings or computer software that the

customer has unsealed

• newspapers, periodicals or magazines, and

• gaming, betting and lottery services.

Apart from these exceptions the DSRs give consumers an

unconditional right to cancel a contract and legally oblige

you to refund all sums due in relation to the contract, this 10

means the full price of the goods, or deposit or prepayment

made including the cost of the delivery. This must be done

as soon as possible after the consumer cancels, and within a

maximum of 30 days. The DSRs do, however, give suppliers

a right of action against consumers for breach of the statutory

duty to take reasonable care of the goods.

 

Refunds

 

The retailer must refund the full amount including the delivery.

[K301982P]

Got another email but I have rejected this, it was the only contract I was accepted for and the only network I was accepted for and I don't want to cancel the contract, that is not what I have asked for:

 

 

"Thank you for your email.

 

As an alternative solution to your complaint, I have spoken direct with the network to request that should the contract be returned outside of our policy, would they disconnect the account as a gesture of goodwill.

 

The network have now agreed to this. Therefore please return your product to your local Carphone Warehouse branch (boxed with all items included which were supplied to you at point of sale) as soon as possible for a full return.

 

I have placed notes on your account as this is outside of the standard returns policy. Please advise the branch of this when you return the product.

 

Please note that in order to sign up for a new agreement a new credit check will be requested. We cannot guarantee that a new contract, (even if on the same network) will be accepted via the new credit check, this will be dependent on your credit rating.

 

If you have any questions regarding this, please reply to this email and I will be happy to help".

Edited August 23, 2012 by K301982P

[K301982P]

And another email:-

 

"Thank you for your email.

 

I would like to advise that this offer has been made outside of the standard 14 day returns period.

 

As a gesture of goodwill, as you notified us of the request for handset exchange within the 14 day period, I have extended the returns period of this offer to you until 30th August 2012.

 

If you decide you would like to accept a full return of the contract (excluding call charges) please notify as soon as possible and return the handset to the branch before 30th August 2012.

 

After this date, this offer will no longer be available".

[renegadeimp]

Ahh there we go. gesture of goodwill. They know they are wrong but are trying to shift the blame.

[rebel11]

The bit in red is what you want, is that correct?

 

And another email:-

 

"Thank you for your email.

 

I would like to advise that this offer has been made outside of the standard 14 day returns period.

 

As a gesture of goodwill, as you notified us of the request for handset exchange within the 14 day period, I have extended the returns period of this offer to you until 30th August 2012.

 

If you decide you would like to accept a full return of the contract (excluding call charges) please notify as soon as possible and return the handset to the branch before 30th August 2012.

 

After this date, this offer will no longer be available".

[K301982P]

Ahh there we go. gesture of goodwill. They know they are wrong but are trying to shift the blame.

 

Got them now haven't I? I told them again I do not wish to cancel the contract, I would be shooting myself in the foot doing that as I applied for quite a few contracts and theirs was the only one I was accepted for and Vodafone was the only network I was accepted for so I'm not going to cancel the contract and give up the phone I have to be left without anything, I'm very happy with the contract itself and the tariff and I've given my new number out to everyone so don't want to mess around.

 

I said to them if your offering a full return why won't you do an exchange and obviously they say they cannot do it which is rubbish.

[renegadeimp]

I think he wants to keep the contract and just change the phone. Since a new contract would entail a new credit check.

[K301982P]

The bit in red is what you want, is that correct?

 

They aren't offering an exchange, a full return with the contract cancelled and me losing everything is what they are offering.

[K301982P]

I think he wants to keep the contract and just change the phone. Since a new contract would entail a new credit check.

 

Your spot on.

[rebel11]

My reading of the following e-mail is that there are two elements to their offer and is exactly what you want.

Clarify the e-mail with them. These offers are independent of each other.

 

As a gesture of goodwill, as you notified us of the request for handset exchange within the 14 day period, I have extended the returns period of this offer to you until 30th August 2012.

 

If you decide you would like to accept a full return of the contract (excluding call charges) please notify as soon as possible and return the handset to the branch before 30th August 2012.

[K301982P]

They definitely are not offering an exchange, they are saying as I requested an exchange within the 14 day period then they are offering a gesture of goodwill by allowing me to return the phone in full and cancel the contract outside of the 14 days.

[K301982P]

This will clear things up for you, forgot to post the other email I received today when I asked again about the exchange:-

 

"Thank you for your email.

 

As previously discussed, the only way for us to facilitate offering you a different handset would be by completely returning your current contract. We would not be able to perform a handset exchange on the tariff you are currently on.

 

If you would like to change to a different handset, the contract would have to be completely returned. Normally this would carry a charge. However, we have made an agreement with the network to do this free of charge for you.

 

Many thanks"

 

So they are only offering a full return of the phone and contract and to cancel everything leaving me with nothing and if I wanted a new contract I would have to go through a credit check and would probably get refused another contract but I just want an exchange, why is that so hard?

[rebel11]

Hi K301982P

 

There is a Vodafone Rep on this site if that helps in any way.

[K301982P]

Hi K301982P

 

There is a Vodafone Rep on this site if that helps in any way.

 

Thanks rebel but not sure if they can do anything, the deal was done through Carphone Warehouse and as they are the supplier, it's got to go through them, I don't think Vodafone can do much.

[K301982P]

I think my case has strengthened after today's emails, now I am even more confident of a court win.

[renegadeimp]

Never be too confident. At the end of the day, it comes down to who the judge believes. If the other party can convince the judge that they have followed procedure etc, then its anyones guess who will win.

[K301982P]

They have broken Distance Selling Regulations though so don't think that will go down well in Court.

[rebel11]

Hi shopster

 

You've got your own thread. Here:- http://www.consumeractiongroup.co.uk/forum/showthread.php?362978-Problem-with-Carphone-Warehouse%282-Viewing%29-nbsp

[2Grumpy]

I would get your side of the argument in just immediately - in case there are any problems - thanking them for their offer but you must point out that you first contacted them about this within 7 days of receipt but they refused to exchange the item at that time, stating their terms and conditions that are contrary to the regulations governing distance sales and that the phone is only in your possession because they refused to accept it at that time

[K301982P]

I would get your side of the argument in just immediately - in case there are any problems - thanking them for their offer but you must point out that you first contacted them about this within 7 days of receipt but they refused to exchange the item at that time, stating their terms and conditions that are contrary to the regulations governing distance sales and that the phone is only in your possession because they refused to accept it at that time

 

Thank you, I will do.

 

Also the phone was basically brand new when I offered to take it back but now as it is going to court, should I win and they have my phone back it will have been used from now until the court case ends so they will be having back a very used phone but that's not my problem.