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Distance Selling Regulations- tested in court- a toothless tiger? xxx WON ON APPEAL XXX

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Very little point posting anything in the Black Hole area of CAG.

 

In the old days there would be hundreds of Caggers on here every night until the early morning,

doing what they could for others and everyone congratulating successes and encouraging others.

 

Those days are long gone,

the brave,

clever,

self taught legal rottweillers who humbled the biggest banks in Britain,

wiped the floor with slimy DCAs and helped thousands out of debt all now cast to the wind.

 

Makes me so sad to see this place now,

with just a handful of members logged on along with hundreds of guests desperate for the small piece of information which will give a little hope.

Edited by noomill060

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??


Please note:

 

  • I am employed in the IT sector of a high street retail chain but am not posting in any official capacity,so therefore any comments,suggestions or opinions are expressly personal ones and should not be viewed as an endorsement or with agreement of any company.
  • i am not legal trained in any form.
  • I have many experiences in life and do often use these in my posts

if ive been helpful kick my scales, if ive been unhelpful kick the scales of the person more helpful :eek:

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Am I missing something ??


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PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Well I must also be missing something as the Thread Title and the 1st Post don't make any sense?

 

 

If noomill060 could enlighten us that would be great.


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I cannot give any advice by PM - If you provide a link to your Thread then I will be happy to offer advice there.

I advise to the best of my ability, but I am not a qualified professional, benefits lawyer nor Welfare Rights Adviser.

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I have no idea?? :noidea:


Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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i like cookies.


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

:D

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Hi Noomill,

 

Not sure what your point is here but good to see you anyway.

 

Time moves on but CAG is still here trying to give help to those in need.

 

Hope you're well.

 

Slick :-)


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Changed the original post. Problem discussed with solicitor.

 

 

My opinion of DJ is shared by all local legal practitioners...

 

 

 

 

Sorry to be cryptic.

 

 

I hate pickles.

 

 

Hi Slick :-)

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Time to elaborate.

 

Last March I bought an item from an online retailer.

 

Three days later it arrived and was not to my liking. Nothing wrong with the tning, just not suitable for what I had in mind.

 

I send a notice of cancellation as per the DSR to the seller and got a load of nonsense and abuse in return.

 

I was expecting a professional "please return for refund of payment including delivery costs" and that would be it.

 

I got "Return at your expense, unopened, undamaged and resellable, within 10 days.

No postage will be refunded, just the cost of the item and next time decide you actually want something before you order it.

If it doesn't come back as we sent it within days you can take a hike"

 

I helpfully explained that they were obliged to refund the total amount paid and that their 10 day deadline

wasn't enforceable under DSR and that they were obliged to refund within 30 days whatever.

 

They replied if £4.95 was so important I could have it back, as long as it came back within 10 days and resellable as new.

 

It repeated that their conditions had no legal meaning, purported to reduce my consumer rights under DSR

and as a result, I wasn't liable for the cost of the return and thus any return would be at their expense assuming they wanted it back.

 

 

Repeated that I was entitled to a full refund within 30 days under DSR and that this right was unconditional.

Failure to cough would put them in breach of contract and leave them vulnerable to a claim.

 

They said "do as you please, whether you want to return is up to you"

 

No refund was forthcoming and in July I sent a LBA and two weeks later started a small claim.

 

A defence was issued and hearing date set for 10 December (This is N.Ireland so no AQ or any of that malarkey)

 

The great day arrived and no show from the other side. Much to my surprise the judge ignored the DSR

and instead used the provisions of the new version which doesn't come in to force until 14 June!

 

In the new version, the buyer is assumed to be liable for return costs and as the sellers goods have yet to be received back with him,

I was told that I had been unreasonable in bring the case and not shown good faith etc.

 

Somewhat gobsmacked at the current legislation being ignored, I told the judge that OFT guidelines

specifically stated that the DSRs did not require goods to be received back before seller's had to refund.

 

The contractual position was that when the consumer cancelled, the seller had to cough within 30 days whether the goods had been returned or not.

 

Not interested in DSRs, judge seemed to think new version already in force. Asked judge for adjournment

and I'll produce the OFT guidleines and get confirmation from Trading Standards as to their legal position in matter.

 

Judge granted adjournment until beginning of February, but told me I was wasting my time.

 

Wasting my time? The law is clear and unambiguous and the contract was lawfully cancelled.

 

I need to show the court that the DSRs apply until the new version comes in.

 

Any thoughts?

Edited by noomill060

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Surely he cant make a judgment using rules that arent in force yet ?


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Read Here

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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One wouldn't think so, but...

 

The hearing started with me, the judge, the teller and the usher in the court room.

 

The judge asked how I had paid, I told him "Paypal"

 

Well, said the judge, I should have taken action through Paypal.

 

I told him that Paypal didn't recognise DSR right to refunds due to change of mind cancellations.

Paypal only cater for the goods not turning up or turning up not as described.

 

Oh, I didn't know that, said the judge.

 

The other side had not turned up, they are a company from Lincolnshire and clearly not worth the bother of a trip to N.Ireland for £32!

 

They had disputed my claim though, so the judge went straight into defence solicitor mode on their behalf-

 

Well then- have you returned the item?

 

No, says I.

 

Do you seriously expect to get a return without returning it first???? Says the judge.

 

That is what the legislation would imply, says me.

 

Utter rot, says the judge, says nothing of the sort.

 

I recite para 14 of the DSR.

 

The judge then says, quite chillingly "Leave the law to me" and tells me to give him my notes, which included a copy of the DSR.

 

This then left me relying on memory and bumbling like an idiot.

 

Judge then repeats that good MUST be returned to supply before any supplier is required to refund.

 

The sum I'm claiming is "too small to be considered"

 

and in any event, a supplier is only required to arrange return of goods if they are too big or heavy to go by normal post.

 

Tells me I have been unreasonable in bringing this claim, have not brought it in good faith and am the architect of my own downfall etc

 

The judge was in effect the defence solicitor and then agreed with himself as to the defence points,

not allowing me to to put my case properly as he had taken my notes including the legislation I was basing my case on!

 

Spitting feathers is not the word. It seemed like I was in a parallel universe arguing one set of laws when the court was using another.

 

Went home had a drink and started this thread. Though better about what I had written and replaced it with the nonsense now in the top post.

 

When I had some time, I had a look round and found the legislation which is going to replace the DSRs in a few months,

and there is plain sight were the points the judge had raised in his defence of the other side!

 

However, the introduction of the legislations begins-

 

Consumer Protection

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

 

Made 11th December 2013

 

Laid before Parliament 13th December 2013

 

Coming into force 14th June 2014

 

This should bear as much relevance to my claim as the Witchcraft Act 1542 (33 Hen VIII c.8)

 

I stand to be corrected on that point, as the Witchcraft Act was never repealed in N.Ireland and as such, is still in force.

Have to remember not to wear my black cloak and pointy hat in court next time.

 

http://www.legislation.gov.uk/uksi/2013/3134/made

 

http://www.legislation.gov.uk/ukpga/Geo6/14-15/33/introduction

Edited by noomill060

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BTW if you change your mind and the goods are not faulty, the return postage is paid by you as per DSR. If theya re faulty then the retaielr needs to pay the return postage or refund you the cost of returning the item.

I have no issue with that otherwise people would be ordering stuff left, right and centre, changing their mind and sending the stuff back as they don't have to pay return postage.

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Depends on the seller's return policy.

 

 

 

 

 

 

Where does DSR say refund is contingent on the goods being received back by the seller?

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Depends on the seller's return policy.

Where does DSR say refund is contingent on the goods being received back by the seller?

 

If you are referring to my post, I was referring to postage paid and they are under no obligation to refund postage within 30 days however according to DSR, the amount paid for the goods should be refunded within 30 days regardless of whether the goods have been returned or not. The cost of postage and the cost of the goods are two separate entities.

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Recovery of sums paid by or on behalf of the consumer on cancellation, and return of security

 

14. (1) On the cancellation of a contract under regulation 10, the supplier shall reimburse any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge, less any charge made in accordance with paragraph (5).

 

 

 

 

...shall reimburse ANY SUM paid by or on behalf of the consumer under or in relation to the contract...

 

 

 

 

This would seem to lump the price paid for the goods and any postage as one sum to be refunded on cancellation.

 

 

Where do you get the idea that the are treated as "two separate entities"?

Edited by noomill060

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Section 14(5). In certain circumstances the supplier may charge the consumer for the cost of the supplier recovering the goods (e.g. where the consumer fails to return them). To do so, the contract must specify that the consumer is under an obligation to return the goods if he or she cancels the contract and the consumer gets notice of this in advance as part of the written confirmation relating to the right to cancel. The costs cannot be passed on to the consumer where the goods are returned because they are faulty or do not comply with the contract for some other reason.

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Indeed, but the goods are still with me. The supplier has no recovery charge to apply.

 

 

He hasn't asked me to return them and has in fact left the issue of whether the goods are returned entirely up to me.

 

 

He isn't out a penny.

 

 

On reading the DSRs further, it appears that the supplier has only six months from cancellation to recover his goods-

 

 

Restoration of goods by consumer after cancellation

 

17.

 

 

(7) Where, at any time during the period of 21 days beginning with the day notice of cancellation was given, the consumer receives such a request as is mentioned in paragraph (4), and unreasonably refuses or unreasonably fails to comply with it, his duty to retain possession and take reasonable care of the goods shall continue until he delivers or sends the goods as mentioned in paragraph (5), but if within that period he does not receive such a request his duty to take reasonable care of the goods shall cease at the end of that period.

(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.

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Sent this letter to Trading Standards.

 

With a bit of luck, the answers to the questions will carry represent the position of the regulator of the Distance Selling Directive and carry a bit more weight than me.

 

On March 11 2013 I ordered an item (a car amplifier) from an internet trader called: xxxxxxxxxx

 

The item was delivered on 14 March 2013, but on inspection, it wasn't what I was after.

I emailed the trader within hours of receipt, cancelling the contract as described by Consumer Line and DSR S14

and drew the trader's attention to his obligations under DSR.

 

The trader has not refunded my money.

 

I did not return the item.

 

Using OFT guidance on distance selling, I considered his returns T&Cs to be legally without meaning as they contain contractual terms

that deny consumers their rights under the DSR or are inconsistent with them.

 

I told him that any return would be at his expense.

 

"YOUR RIGHT TO CANCEL

You have 7 working days from receipt of your goods to examine them.

If you wish to cancel your order, you must inform us in writing as soon as possible, and within 7 working days of receipt of your goods at the latest.

 

The goods must be returned, at your own expense, within 10 days of their receipt.

 

A refund will be made, usually by the same method as you paid, within 28 days of the goods being returned.

 

Any items returned must be unused and complete with all original packing. If any items are damaged or incomplete they will not be accepted.

 

Your statutory rights are not affected.

 

Terms can be found here-

 

I ask that this trader's T&Cs be looked at and guidance given, if your department considers it to be in the public interest.

 

The trader has told me that he will not refund my money until the item is returned to him, as new and presumably at my expense.

 

As far as he is concerned:

 

1) the consumer MUST, without question, return an item after cancellation before the trader is obliged to refund.

 

Is this correct under current legislation?

 

2)The item is of too trivial value to bring a claim in the courts

 

Is this correct under current legislation?

 

3)The trader is only under an obligation to collect an item after cancellation if it is impossible to send through the normal postal system.

 

Is this correct under current legislation?

 

The seller has not attempted to recover the item himself.

I have done nothing to prevent the item being restored to the trader.

 

Further questions as follows:

 

The Consumer's right to cancel and the trader's Statutory Obligation to refund within 30 days appear unconditional

and independent of their right to have their goods returned/ restored to them.

 

(DSR Section 14 Para1)

 

Is this correct?

 

If the Consumer, whether reasonably or unreasonably, fails to return the goods at their expense,

they are under a Statutory Obligation to safely retain the goods for a maximum of six months after cancellation,

and to allow the trader to recover their goods.

 

(DSR Section 17 Para 7)

 

Is this correct?

 

Does the Consumer have any further obligations to the Trader or the goods, if the trader fails to make arrangements with the

Consumer for the return of the goods within six months of cancellation?

In this event is the Consumer free to dispose of the goods as he sees fit?

 

Would it appear reasonable for the Consumer to seek redress through the courts if the trader fails to refund his money in the above circumstances?

 

I look forward to your response.

 

Adjourned case to be heard on 6 February

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If you think the judge has made an error of law you may appeal. In the first instance tell the judge that you wish to appeal his decision and that may be granted to be heard at a local levl. If he refuses then it will be decided at a higher court and may cost you a good few quid just to get a hearing allocated. the argument against all of this is that it is "de minimis", ie such a trifiling matter the courts time shouldnt be wasted upon it. If that was the case the judge should have said so and summarily struck down your claim so there is hope for the 6th.

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Well, returned the item. Packed it up well with bubble wrap in a large shoebox as the original box was damaged in transit and fell apart on opening and wasn't up to another trip through the postal system

 

 

Seller wrote to the court stating that the it wasn't resellable as new due to original packaging being missing he didn't have to refund.

 

 

Judge agreed with him and threw my case out so hard that it damaged the back wall of the courtroom!

 

 

Never mind, this verdict is so perverse I will appeal.

 

 

I wasn't allowed to make my case by referring to legislation or the OFT guidelines, the judge decided the case on her own personal whim.

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Well, returned the item. Packed it up well with bubble wrap in a large shoebox as the original box was damaged in transit and fell apart on opening and wasn't up to another trip through the postal system

 

 

Seller wrote to the court stating that the it wasn't resellable as new due to original packaging being missing he didn't have to refund.

 

 

Judge agreed with him and threw my case out so hard that it damaged the back wall of the courtroom!

 

 

Never mind, this verdict is so perverse I will appeal.

 

 

I wasn't allowed to make my case by referring to legislation or the OFT guidelines, the judge decided the case on her own personal whim.

Judge probably acted correctly as you should have repackaged it in its original packaging even though the packaging was damaged and then sent it back. This will be stated in the T & Cs.

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Judges eh! a Law unto themselves; no wonder there are so many appeals.

 

The whole purpose of getting stuff on line and the DSR is so you can get the goods and examine them closely, as you would in a shop, and if not suitable to return them,

 

 

but with the original packaging, even if the item has been taken out for examination!

I have done this a few times and had no problem so far.

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DSR says nothing about returning original packaging, damaged or otherwise.

Says nothing about the seller being able to resell goods as new

and does not link these concerns with the consumer's right to cancel under section 10 and get a refund.

 

DSR simply states that goods are to be stored with "reasonable care" during the cancelation period and packed with "reasonable care" to avoid damage on their return to the seller.

 

The OFT guidelines on distance selling state-

28

 

A guide for businesses on distance selling

 

Can I insist that consumers who cancel an order within the cancellation period return the goods as new or in their original packaging?

 

3.58 No. Consumers are under a duty to take reasonable care of the goods while in their possession as discussed in paragraph 3.44.

 

 

The DSRs allow consumers to examine goods they have ordered as they would in a shop.

If that requires opening the packaging and trying out the goods then they have not breached their duty to take reasonable care of the goods.

In these circumstances you cannot insist that consumers return the goods as new or in their original packaging.

 

You may ask consumers to return goods with the original packaging, but you cannot insist on this. In the case of goods such as earrings that have hygiene seals

, you may require consumers to exercise reasonable care by not removing the seals when examining them.

 

How can I resell the goods as new if they have been opened and tested by the customer?

 

3.59 The DSRs do not provide any general exception to the right to cance on this point. Unless one of the specific exceptions referred to above at paragraph 3.38 applies

, consumers can exercise their right to cancel a contract and return the goods to you.

The DSRs do not link cancellation rights with a supplier’s ability to resell items as new.

 

Whose responsibility is it to look after the goods if an order is cancelled?

 

3.60 Consumers have a statutory duty to take reasonable care of the goods while in their possession.

Where a consumer cancels an order under the DSRs they have a duty to return the goods to you or make them available for collection.

 

 

The DSRs do not require the consumer to return the goods but if the contract says the consumer must return them and they do not,

you can charge them for the direct cost of recovery.

 

T&Cs stated that any returns were to be "resellable as new"

 

This does not appear to me to be supported by the DSRs and it appears to me that such a term is unfair as it gives the seller discretion

to decide what is resaleable and reject a refund on his say so only.

 

...and that the term is not complaint with the Distance Selling Directive/ Consumer Protection (Distance Selling) Regulations

because this term seems to be in breach of the Unfair Terms in Consumer Contracts Regulations,

 

 

in particular reg. 5. In Director General of Fair Trading v First National Bank Plc Lord Bingham

stated that an unfair term is one which causes "a significant imbalance in the parties’ rights and obligations

under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith.

 

 

The requirement of significant imbalance is met if a term is so weighted in favour of the supplier

as to tilt the parties’ rights and obligations under the contract significantly in his favour.

 

 

This may be by the granting to the supplier of a beneficial option or discretion or power

, or by the imposing on the consumer of a disadvantageous burden or risk or duty."

 

we never got as far as examining what Lord Bingham thinks or the legislation or the OFT's position was.

Judge wasnt interested and refused to let me make my case using the above case law.

She just went along with the trader's incorrect assertion that:

 

For a refund under the distance selling regulations the amplifier has to be returned in the same condition as supplied, complete with all packing and accessories.

 

Unfortunately since this has not been returned in a re-saleable condition we can not offer a refund on it.

 

Please let me know what you would like us to do with your amplifier.

 

This was in Small Claims of course, where judges have great discretion and can essentially make things up as they go along if it seems to themselves that justice is being served. They don't have to accept anything in the notes you bring with you and can disregard any evidence.

 

 

Such is the informal nature of Small Claims.

 

 

It will be interesting to see how this is dealt with on appeal.

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The DSR state that the all goods need to be returned and that would include the original packaging. You handed them a "get out" on a plate when you did not return the packaging.

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We'll see.

 

 

Doesn't effect my cancellation under section 10. Right to a refund is unconditional- the OFT say so.

 

 

The seller of course is at liberty to bring a claim against a consumer if they can show that the consumer has breached their duty to retain the goods with reasonable care, but this doesn't absolve them of their own statutory duty to refund all sums paid.

 

 

It would seem that the correct way to defend a claim such as mine would be to issue a counterclaim, which the seller hasn't done.

 

 

If I have misunderstood or misquoted the legislation - please, please show me!

 

 

If the term "goods" includes the cardboard packaging as well as the thing you actually ordered, please provide anything which supports this.

 

If the term "goods" does include the cardboard packaging as well as the widget you actually wanted this would mean that an order arriving with damaged packaging (but perfect contents, as mine was) could be rejected under SOGA1979, simply because of the damaged packaging!

 

 

No, packaging is simply intended to ensure your distance purchased widget gets to you in acceptable condition, as it is the widget you paid for.

 

 

The packaging goes in the bin, unless you actually want to accumulate packaging for its own sake. In which case your home will rapidly fill up with boxes, bubble wrap and bits of polystyrene. No doubt your garden will also eventually fill up with an accumulation of rusty, moss covered decomposing cars that you cant bear to part with either...I speak from experience!

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