Late delivery compensation

[psyduck]

Hello all, just after some opinions if you will.

 

I placed an order with a company for some blinds that were advertised as next day delivery. This ended up being two days later as I placed the order late on the first day.

 

I heard nothing from them on the first day, and on the day of delivery they contacted me at 2pm telling me that the blinds were out of stock and they wouldn't be able to deliver them for another 3 months (!).

 

I was told to order another product, which I did, that was eventually delivered some time after the initial delivery was expected. I told them in my initial complaint (over the phone) that I was very displeased as I would have to take another day off work and they provided no satisfactory explanation as to why they felt it was OK to not bother letting me know they couldn't deliver until the day of delivery, when they would surely have known that they couldn't complete the request the day before.

 

With this in mind I asked them to compensate me for the additional day off I had to take due to their failure to deliver. They refused despite me telling them they were liable for this.

 

As such I have filed with the small claims court for the amount I would have been paid that day. They have filed a defence, citing the following:

 

1) At no point did I refer to time being of the essence (surely ordering Next Day means this was obvious, but I did tell them clearly when I made the first complaint before I ordered an alternative product)

2) I did not inform them of my intention to take a days annual leave (I told them I needed them urgently and time was of the essence, the earliest delivery date was a weekday, and I told them I would have to take another day off and could they assure me they could deliver on this date, which they did)

3) They could have delivered to my place of work (they couldn't, as I work in a secure government building and in any case expecting me to move two very large blinds 45 miles home on a rush hour train to suit them is not reasonable)

4) They state in their terms and conditions that the delivery date is an estimate only and subject to change (is it reasonable that they do this on the afternoon of the day they are expected to deliver? I don't think so)

5) The option to cancel was available to me when they said the order was delayed (I still required the product so I do not view this as relevant, my time had already been wasted).

 

The court have suggested that I attempt to mediate, I could do this but my question is whether or not I am likely to succeed if I take it in front of a judge. I think my chances are good given they didn't bother telling me until the day they were due to deliver that they couldn't satisfy our agreement.

 

Thoughts please, however critical...

 

Thanks!

[ssparks2003]

declining mediation will not do your case any favours. in regard to time being of the essence have you looked at their terms of sale as most companies will not accept this; and by you placing the order you will have accepted their terms.

[Ganymede]

Without wanting to sound negative, I can't see this claim succeeding.

 

You didn't have to re-order the second set of blinds and as the Defence says the delivery date is an estimate.

 

It's a small claim so your exposure to costs is limited so nothing to lose at this point other than the fees you've paid.

[BankFodder]

What is the value of your claim? an you lay out your POC here please.

 

You certainly are in the right. A judge may well want to see evidence that you took the day off. Has it been deducted from your holiday entitlement.

 

I think that you would be right to say that it was reasonably foreseeable that you would make yourself available for the delivery.

 

Their points

1 - Time being of the essence is only relevant when you consider that a breach of contract is so fundamental that it has destroyed the contract and that you are then released from your obligations. In that case, it is normal practice to give a final few days opportunity to your contracting partner by telling them that time is now of the essence. They have not understood this and it is not relevant here

2- This point is ineffective because on the basis of what you say, they promised next day delivery and it was therefore reasonable to suppose that you would take time off to be there for the delivery. They failed to make the delivery as promised – therefore they were in breach of contract and liable for all the direct consequences of their breach

3 - This is not relevant. Whether or not such a delivery could have happened is irrelevant. The fact is that they agreed to make the delivery to a particular address and they failed to do so.

4 - It seems to me to be reasonable that in the event of a change of delivery date, that you be given sufficient notice to make different arrangements. This does not appear to have happened here

5 - You are quite right, your time had already been wasted so even if you had then cancelled, you would still have lost your day of time. In any event, once you have entered into a contract it is no defence first someone to say – well you could have avoided the breach by cancelling the contract. This is nonsense.

 

I am quite sure that a judge would find in your favour. However, I can imagine that this is fairly low value and so therefore it might be a good idea to try mediation so that at least it can be seen that you have attempted to minimise cost and time and trouble to everyone.

 

However, you need to make sure that you can demonstrate that you did take the time off and what the value of that time is to you.

 

What is the value of your claim?

[psyduck]

Thanks for your replies thus far. For those asking, my claim is as follows:

 

£147.50 for the day off I was forced to take, this was calculated by dividing my salary by the number of working days last year – I can prove this was taken off with a signed letter from my employer

£10 for phone calls I had to make to the company to resolve the delivery specifically

£50 of additional costs for my time filing the claim with the court, putting together a defence, correspondance etc and potentially attending court

Plus costs.

The only relevant part of their terms and conditions I can find reads as follows:

 

If we give you a specific date on which we expect to deliver the Goods, whilst we shall use our reasonable endeavours to meet that date it is an estimate only and is subject to change. We do our best to secure delivery within the period quoted but shall not be liable for loss occasioned by delay in delivery or arising out of any cause beyond our control. We advise you do not book or arrange for a fitter to install your blinds or curtains until the order has been delivered and you have checked it is complete with no items missing. We also advise not to not to take specific time off work to wait for a delivery, on occasions and specifically during busy times our couriers can get delayed and not able to make delivery on the designated day. The option to deliver to a work or alternative address is available.

 

While these conditions appear valid I think them emailing on the day saying they can’t meet the agreement we made takes the absolute mickey. The second highlighted line is not relevant given the courier was able to make the delivery, they just didn't bother telling me that the blinds had not been made.

 

I will go through mediation but will the court be able to overrule the above statement?

[psyduck]

Sorry - The particulars of claim state (in short) that as the company had at least 24 hours to notify me that they could not make the delivery on the original day I took off, they are liable for the additional day that I took off to take delivery of the blinds. I did make clear that if they had bothered to tell me that they wouldnt be able to deliver the day before, there wouldnt be a need for the claim. I read that they are only liable for the second day you took off, as you took the original day off anyway, hence the claim for the second day as opposed to the original.

[psyduck]

Another question - if I apply for mediation and the other party rejects it, does the case automatically go to court? I am liable for the fees, correct?