Ebuyer small claims action

[leedslad83]

Hi,

 

I hope someone can offer some advice since direct communication and court mediation have failed to resolve the small claim I have initiated against ebuyer and so the next/final step is court with an additional £170 in fees I would be required to pay, which i am hesitant to do without some clarity on my position.

 

Sorry if it’s long winded but hopefully it’s all relevant.

 

I bought a 3TB external hard drive from them a couple of years ago. This was my complete archive of everything, every sentimental photo and video I owned, all of my purchased music mp3's used for my DJing career/hobby, my archive of mixes and rare promo tracks which can't be bought/got again. The data on this drive was priceless basically. In April 2014 it developed a fault, so I rang Ebuyer to see what to do and they advised I needed to speak to the manufacturer, which I later found out was a lie - I then rang Consumer Direct for guidance who advised it is in fact the supplier not the manufacturer, and that under the Sales of Goods Act, the supplier is liable for any costs incurred as a result of the device, which in this case would be the recovery of the data.

 

So, knowing nothing about data recovery/which companies to use, I then spent a long time navigating the minefield of data recovery companies to try and find a reputable one I could entrust my drive to and settled on a company in Sheffield who have been immensely helpful throughout this whole ordeal. I sent them the drive and they provided a report which concluded they could see no evidence of mishandling or mistreatment and there is no evidence of damage within the drive that would be indicative of an impact event and the electronics of the drive were not found to have been subject to an over-voltage or other event that may have led to the drive failing. They also said that while they couldn’t guarantee they could restore the data, their diagnostics indicated the data should still be retrievable.

 

They provided a quote and I then wrote to Ebuyer asking them, as per their obligations under the Sales of Goods Act, to fund the cost of the recovery, provide a replacement drive, and provide a drive with equivalent parts of the defective one, at the request of the recovery company so the recovery could be performed.

 

Ebuyer then wrote back requesting the report from the recovery company which they accepted, and I thought that was the end of it (and they would pay up). Ebuyer then requested I send the drive to them. Instinctively I was weary, not wanting my drive to be posted from one place to another but I spoke with the recovery company about my concerns and they suggested that Ebuyer perhaps wanted to try attempt the recovery in-house (to avoid paying out for the recovery). They also said that there was no way Ebuyer would have the capability to do it. Regardless, I felt obliged to send it to them if I wanted them to pay out for the recovery so I could get my data back. So I sent it to them and after chasing for updates, was advised that after ‘extensive testing’, the drive was found to be at fault and that a partial refund of £73 (the drive cost £99.99) had been applied to my account. Then, assuming they were still procrastinating about funding the data recovery, I asked them to return the drive in the meantime so that at least the contents were safe with me. They then dropped the bombshell that the drive had been wiped. It’s hard to articulate how I felt at that moment, but to compound it, I was in Asia at the time on what should have been the holiday of a lifetime, which, needless to say, was tarnished somewhat.

 

I spoke with the recovery company upon my return who advised it seems like Ebuyer had treated this as a standard return/replacement when this was clearly never the case. I had been perfectly clear right from the start and in pretty much every email to Ebuyer before and since, how important this data was and that my wish was to have it restored.

 

TRC Data Recovery suggested I ask Ebuyer for their report on the drive, which Ebuyer refused to provide then and since.

 

A clear hole in Ebuyers story is that they stated 'Following extensive tests by our Returns staff, this item was found to be faulty.’ When previously they had said ‘when a hard drive is returned to us any data is automatically wiped from the drive for data protection reasons. This is something that is done for all hard drives so the data on yours would have been removed when it arrived here before it was tested.’.

 

The recovery company advised that it would not be possible for them to have tested the drive after the data has been destroyed, as the 2 physical methods that could be employed for the task of removing the data, degaussing and physical destruction, would render the drive destroyed and so it couldn’t be tested afterwards, and the other way of removing data, via software, wasn’t possible in this case as the drive had a fault. This contradiction as yet remains unanswered by Ebuyer. Presumably because it can’t be explained and is why they are unwilling to provide their report.

 

They seem to have something to hide?

 

What they were hoping to test for is also a mystery, as the recovery company had already established that the drive had a fault, and Ebuyer had accepted their report to that effect, prior to requesting the drive back, so that the drive had a fault so that is not in any question.

 

Ebuyer have recently said

 

‘As per the TRC fault report they have stated that they cannot guarantee that your data could be recovered, therefore we do not feel this claim is justifiable. In any case our defence remains the same, that it is common for electrical goods to fail due to the complexity of their nature, therefore any data that is of significant importance should be backed up and stored in more than one place.’

 

As mentioned earlier, the recovery company didn’t say they could guarantee the recovery, but most people would infer from the language TRC used, that it was highly probable and, given the importance of the data, pursuing the route of recovery was the only appropriate course of action (as per the legal guidance I have received thus far from a free drop-in clinic).

 

I had court mediation today and Ebuyer’s defence is basically that drives should be backed up prior to it been sent to them (how) they the recovery company didn’t explicitly say they can guarantee the recovery would be a success and that I have no case and the data should have been backed up elsewhere if it was important (they asked me where the original copy of the data was if the drive was used as a backup to which I had to explain, to a technical team leader no less, that internal drives on a laptop are unlikely to be comparable in size to a 3TB external hard drive).

 

They haven’t answered any of the questions regarding the report they refuse to provide, how they intended to test the drive after the data had been wiped or what they hoped to test for since a fault with the drive had already been established. They lied initially by saying I need to speak to the manufacturer and when requesting the drive back they initially were adamant that they needed the outer casing for the drive but suddenly did a u turn and accepted it without.

 

Just lots of things which don’t add up really, and I've never got my head around how they can think they have acted appropriately.

 

I know I can’t really claim for the huge sentimental loss incurred due to their actions but I’ve managed to find receipts for £417 worth of music purchased, which is only a fraction of what there was but it’s all I can prove. I asked for £700 to settle today (£417 plus £70 court fees plus bit extra) but Ebuyer offered £50.

 

So I just need some advice on whether their defence holds any water so I know if I should pay the £170 fee to take it to court? There is obviously something fishy about their conduct, but whether I can prove that in a court of law is the bit I need help clarifying.

 

It is crazy to me that I am in this position after simply asking Ebuyer to fulfil their duty under the Sales of Goods Act and pay for the recovery of the data. If they had just said they weren’t willing to pay it I’d have done it myself and then put a claim in against them retrospectively. Clearly in hindsight I was naïve to send it to them, but as mentioned I felt obliged to at the time to do as they said if I had any hope of getting some money out of them for the recovery and it never crossed my mind that it was a possibility they would destroy the data after I had made it clear at every stage how important it was and that my intention was to have it restored.

 

Thanks in advance.

Edited January 6, 2015 by leedslad83

[king12345]

As the data was so important and TRC had your drive, why didn't you let them recover the files before sending the drive to ebuyer?

In this case I don't feel like any judge would award you more then the cost of drive and report from TRC.

All companies have in their t&c a note advising to back up the data before sending any storage drive back to them, so I don't think they'll be found to be at fault, albeit they didn't listen to your request and just partly refund the drive.

Sorry story really, now that all your files are lost, no money will repay for them.

[leedslad83]

Thanks for your reply.At the time I didn't have the money and it seemed clear cut that Ebuyer would be liable to cover the cost under the Sales of Goods Act so I assumed, obviously naively in hindsight, that they were just procrastinating about paying out and wanted to either get a second opinion of TCR data's report or attempt the recovery in-house, which I knew they wouldn't be able to do, and therefore would then pay out once they had confirmed as such.I just don't see how, on the face of it, they can escape paying anything in compensation when they have clearly acted improperly, but whether these improprieties translate to a court of law is of course another matter..

Obviously in hindsight I should have saved the money to pay for the recovery myself and then claimed it back retrospectively from ebuyer, but at the time I was out of work and also just on principal thought that I shouldn't be paying anything since they were obliged to fund it under the Sales of Goods Act.

Edited January 7, 2015 by leedslad83

[leedslad83]

Also they have mentioned the disclaimer about all data been backed up before returning to them but again, at the time, obviously naively in hindsight, it never in a million years would have occurred to me that this would be the outcome of sending it to them, after IA could not have made it clearer that my intention was to have the data restored, and that this was highly probably.They have also said that they felt justified in what they did because TRC Data's report didn't categorically guarantee the data could be restored, which again, from a common sense perspective doesn't seem to hold any water for me, but whether it would to a judge I don't know.

Edited January 7, 2015 by leedslad83

[leedslad83]

They just don't seem to stick to one story. At first they said they had to wipe the data for data protection reasons, which the Data Commissioners office confirmed shouldn't have been relevant in this case as the clear intention was to have the data restored. Then they said they wipe data before the drive was tested, and that the drive was tested and was found to have a fault, even though testing the drive would have been impossible if they had wiped the data.Then they said is this is a backup then you should have the original copy which isn't possible due to the aforementioned internal hard drive size.Then they said their defence is that data of significant important should be stored in one than one place, trying to make it seem like I am in the minority of people who only save their data in one place when that isn't the case.Then they said that TRC Data didn't categorically guarantee the data could be recovered so they were right to wipe in, even though anyone apart from them would have seen that at least attempting the recovery was the only appropriate course of action.They initially tried fobbing me off to speak to the manufacturer.They said they needed the outer casing before they could accept it for testing, after they had received the drive, I said I couldn't send it to them as I was away on holiday then all of a sudden they could accept it as it is.Surely this stuff should count against them?

[andydd]

Have you started the court claim ? What stage is it at ?

 

I agree with the above comments doubt that a judge would award you any damages, for starters it is upto you to make sure you have backups of important documents, ALL hard drives WILL fail at some point in their lives (although clearly you wouldn't expect it to be straight away), this is something that people don't accept, but if you were in a business you would prob have some sort of RAID server setup consisting of multiple drives, when one fails, it is simply replaced with another and no loss of data. It is not reasonable IMO to have a single hard drive and use that as your ONLY source of important docs and expect it to last forever especially as there is all sorts of FREE online storage available these days.

 

I would of thought that if anything Ebuyer would only be liable for the cost of the drive alone, IMO you cant really put a price of hundreds of pounds on photos, even if they were from a holiday of a lifetime and I doubt a judge would agree that they were 'priceless', MP3's may have a value but for many legitimally purchased ones such of iTunes they can be simply downloaded again for free.

 

I don't hold much hope for your case I'm afraid and IMO a half decent solicitor could provide an ample defence against your claim, If I were you I'd try and find a way out of this before spending any more money of fees/costs, perhaps write to them asking for a settlement of £100 and see if they agree.

[leedslad83]

Hi, I had the mediation yesterday so now I'm at the stage where I need to decide whether to take it to court and pay the £170 fees this would entail, hence I'm just trying to get clarity on my position.Sorry I should have mentioned that while I accept that it is not possible to put a price on/claim for sentimental loss, I have managed to find £417 worth of receipts for purchased mp3's which were lost and were purchased from stores that now don't exist, primarily AudioJelly.It's just a bitter pill to swallow, on top of the obvious loss, that they seem to be able to just get away with lying (e.g. testing the drive) and blatantly refusing to provide any kind of report on what they did with the drive. It seems clear now they performed no such tests and probably farmed the drive to a third party to just be destroyed.Can their conduct not be brought in to question?

[leedslad83]

Well, I'm sure it could (be brought in to question) but I guess it's probably not worth an additional £170 just to hope for some kind of moral victory, when I already know they have acted improperly.

[leedslad83]

I understand hard drives fail, but the kicker for me is knowing (for almost certain) that I would have the data now if ebuyer had simply either said no to funding the recovery, in which case I would have saved up, done it myself and attempted to claim it back retrospectively, or they had just fulfilled their obligations under the Sales of Goods Act.

[leedslad83]

Apologies if I have come across as defensive at all, it's just hard for me to get my head around them not been at fault or liable for some kind of damages/compensation in light of their blatant disregard for my wishes and shady tactics (not providing report, lying about testing the drive etc.), and that I can prove monetary loss to the value of £417, but of course I'm not approaching it from a law based perspective, hence why I'm posting it here for guidance from those that are

Edited January 7, 2015 by leedslad83

[andydd]

Its easy to start a court claim and feel angry and betrayed by a company/service, BUT the Judge knows nothing about this, he/she will come into it with a clear mind, its upto you to prove that Ebuyer lied, were negligent, etc..and also that the loss of data had a monetary value that you claim, I feel you will have a very hard task to prove any of this, simply claiming 'they lied' will not be good enough.

 

Its upto an individual to try and mitigate losses and it doesn't really appear that you have, for example there is plenty of free hard drive recovery software around (I used some myself the other day), it was you who choose to use the HD recover company and then it was your decision to return it to Ebuyer.

 

This may not be what you want to hear, but I have a bit of experience with county court claims and I am just putting forward my views.

[leedslad83]

No that's fine, I'd rather get the facts/constructive feedback good or bad so I can make an objective decision about whether to cut my losses or invest further time and money.So in your experience, do you think it is worth pursuing, in principal based on: their refusal to provide their diagnostic report, their claim that they tested the drive after wiping the data which would have been impossible, their disregard for my wishes to have the data recovered (given that this was probable), their stance that they were right to destroy it because recovery wasn't explicitly guaranteed (though it was clearly implied it was likely) and seemingly their main defence that data should be backed up in more than one place when I'm quite sure I could prove that that isn't something which is generally done by the majority of people?And also just the general lack of consistency in their counter arguments/statements which, along with their refusal to provide basic information (e.g. the report or how they could test the drive after the data was wiped) potentially paints them as clutching at straws rather than having a strong central argument?

[leedslad83]

Sorry about the block of text, the computer at work does it like that for some reason, whereas the original post was done at home and was formatted ok..

[honeybee13]

Sorry about the block of text, the computer at work does it like that for some reason, whereas the original post was done at home and was formatted ok..

 

Hi. It happens sometimes. You could try hitting the return key twice at the end of your paragraphs and see if that helps. You can also edit your posts afterwards by clicking on Edit Post at the bottom right of the relevant one.

 

HB

[king12345]

I think it wouldn't be wise to invest further £170 into this.

I would ask for the drive back to see if it's possible to recover anything from it; strange as it sounds, most times it is possible and TRC could help you with that.

Unless they've permanently erased the data using a reliable software.

Don't hold your breath though.

In my experience once they decide to refund an item, they dispose of it.

[leedslad83]

Hi, Yes I asked for it back in the meantime towards the start of this saga while I thought they were still umming and arring about paying out and they confirmed that they no longer have the drive. Perhaps they had it and could have sent it back if they so desired, but I think they probably sent the drive to a third party to be destroyed immediately without wiping/testing as they claimed, hence their inability to provide their mysterious diagnostic report. They did say initially when I asked for the report that they couldn't provide it as the RMA was closed, which doesn't make much sense really unless they have something to hide, so that's yet another inconsistency. Regardless of the outcome their conduct certainly does stink.

[leedslad83]

Ebuyer did say in my last direct emails to them on 18th Dec that they would check with their technician to see what testing was done. I just emailed them to ask if they have been able to ascertain what was done. I'm not holding my breath as we (me & ebuyer) all know by now that no testing was done, but this is what is annoying, how they can just refuse to answer questions which in my mind clearly paints them as been guilty of incompetence at best and malice at worst and therefore I should, in principal if not in law, be entitled to claim the £417 in music plus the £70 I paid to initiate the claim (and £170 if taken further).

[leedslad83]

As suspected - 'We have looked into this for you but unfortunately we are unable to provide you with a fault report, this is not something we do as standard on any return. However, we do know that the drive was found to be faulty, if the drive was not found to be faulty it would have been returned to you. As you can appreciate, especially been the Christmas period, our technicians get many returns a week. Due to the time that has passed the technician who processed your return is unable to remember exactly what tests were carried out and how exactly this was processed.'

[leedslad83]

But Ebuyer were aware the drive had a fault before they requested it back as they had previously accepted TRC Data's report which indicated as such.

[leedslad83]

So is this 'if the drive was not found to be faulty it would have been returned to you.' yet another inconsistency or symbol of their ineptitude that they still asked for the drive back despite agreeing there was a fault with it prior to requesting it back?They also said previously that they have a report but were unable/unwilling to provide it as the RMA was closed. This was only about 8 months ago so presumably a company would keep such things electronically for some time and therefore they should still have it, rather than having to rely on the technicians memory?

[andydd]

If you've initiated a court claim you really should of been quite clear of the details, to be honest I cant really follow whats going on and I'm not sure a Judge would either.

 

I think the advice you've been given has been quite clear, try and find a way out of this before spending any more money, should you lose you would of spent £70+£170, plus your time for a day in court plus you would be liable for the other sides costs, these are capped in small claim BUT they could claim for day off work (£90) plus expenses including possibly travel costs.

 

You could amend your claim to cover just the cost of the HD, but be aware there would be a cost for this and you may possibly have to cover the other sides costs for this amendment.

 

Andy

[JoeyJoeC]

You stored all of your data on a single hard drive??? The slightest knock while the drive is on could render the drive useless....

 

Wow... LiveDrive is £3 a month for unlimited backup...

 

I have the CEO's mobile number for eBuyer. He is a genuine guy and helped me out personally with an issue I had previously. Even gave me a £200 camera for £1. He will take your call and listen to the issue you're having with them. Be polite and he will do his best. Would this be of use or unadvised as there is a court case?

[renegadeimp]

It's be a good idea not to give the CEO's mobile number out. It is a better idea to write to the CEO and get him to deal with it.

[JoeyJoeC]

It's be a good idea not to give the CEO's mobile number out. It is a better idea to write to the CEO and get him to deal with it.

 

I know it's best to keep things in writing, but from dealing with him personally he does listen, and likely to help out informally. The worst thing that would happen is he can say no. Nothing to lose.

[king12345]

I don't know what happened.

My previous post was meant to be for another thread and now I can't delete or edit it.

Sorry.