Consumer Credit Regulations and Small Claims Court

[not_the_messiah]

Hi,

 

If anyone can offer me any advice on this, I would be very grateful!

 

I entered into a contract with with 50cycles.com for the sale of a Kalkhoff Endeavor S11 Premium for £3295

and duly paid on 16/03/2015 (£2295 debit card and £1000 cyclescheme voucher).

The sale for the item was finalised over the phone.

 

 

At no point since the sale and now have I received any information in durable format that details what my cooling off period is

or about my right to cancel, which the Consumer Contracts Regulations 2013 requires them to do (as I understand it).

 

 

The bike I received soon developed issues and

about a week later I requested a refund and to return the bike.

This was ignored and the store instead offered my a replacement bike

which I (now wish I had not) accepted (benefit of the doubt etc).

 

 

I experienced different issues with this bike and requested a full refund stood firm.

 

 

It was confirmed in email that the bike would be collected and refund given

and the bike was collected on 10th April.

 

 

It was almost a month later (after chasing multiple times) that I was informed that the store could no issue with the bike and that a refund would not be offered.

 

Fast forward a few weeks (now the end of May) and the store finally offered me a refund, less £350 for restocking and depreciation.

If they had offered me this initially,

 

 

I would most likely have accepted it, but after researching the CCR,

I understood that because they had not provided me details about the right to cancel and cooling off period,

they are not allowed to apply such deductions, so I declined the offer.

 

Fast forward again to this weekend and I received emails demanding that I collect the bike and if not,

I will be charged £50 a week for storage costs, starting tomorrow (13th July).

I consider this to be bully-boy tactics in order to force me into accepting back an item which I consider to be faulty and one which I don't want.

 

Should I accept it back? Will this jeopardise my SCC claim? Can they enforce the charges if I lose the case?

 

Thanks in advance

 

Tim

[fkofilee]

Its not just that but your also have SOGA (Sales Of Goods Act) This was also fall under that.

Honestly though, there must be a better way to deal with this before going to court.

 

But then again, if you are sure then I would say no... You would be the claimant. If you have a valid dispute and you have photos of faults etc, then maybe.

I would ask them if the previous offer is still on the table. Id take that. I think that its a reasonable offer.

[dx100uk]

read this too:

[not_the_messiah]

Thanks for your reply.

 

I did think about SOGA and have used it successfully in the past, but the burden of proof falls on the consumer. Given these clowns are the only authorised dealers in the UK, getting an independent assessment is tricky to say the least. The issues I encountered (it's an electric bike and the motor would completely seize for a few seconds whilst riding - dangerous) happen infrequently, so getting evidence of that would be very difficult indeed.

 

Like I said, I would have accepted their offer if that had been on the table from the outset, as like you say, it is reasonable. The offer is very much not on the table now.

 

From how I understand the CCR, I am well within my rights to ask for a full refund.

[BankFodder]

Its not just that but your also have SOGA (Sales Of Goods Act) This was also fall under that.

Honestly though, there must be a better way to deal with this before going to court.

 

But then again, if you are sure then I would say no... You would be the claimant. If you have a valid dispute and you have photos of faults etc, then maybe.

I would ask them if the previous offer is still on the table. Id take that. I think that its a reasonable offer.

 

Sorry but I disagree with this completely. If the bike was faulty from the beginning that you should be looking for a full refund either from the supplier or from the Credit Card company.

 

Regardless of faults, if they still haven't satisfied the requirements for distance selling then you are still within the cooling off period

[not_the_messiah]

Sorry but I disagree with this completely. If the bike was faulty from the beginning that you should be looking for a full refund either from the supplier or from the Credit Card company.

 

Regardless of faults, if they still haven't satisfied the requirements for distance selling then you are still within the cooling off period

 

Thanks for the reply!

 

That is my conclusion also. They are, however, claiming that no cooling off period exists due to me having ridden the bike (weekly commute of 150 miles) before I decided to return it due to the issues. This is, of course, utter fantasy on their part.

 

Does anyone have any views on the storage costs they are attempting to impose and built me into taking the bike back in the process? Should I inform the court/judge of this?

 

Cheers

 

Tim

[Conniff]

Because you didn't receive paperwork with your rights on doesn't mean they don't exist. You have the same rights as if you had received them.

 

You don't need a dealer in the make of bike to test it and give a report, any qualified bike shop would do this for you. Of course, they will probably charge but this can also be claimed back.

[steampowered]

As the bike was faulty, I personally prefer the SOGA route. I think this is clearer. Under the CSRs you will end up in a bunfight about what the regulations say, whether you cancelled within the proper timeframe and whether you had ridden the bike (as if you had ridden it the trader would be entitled to make a deduction).

 

You could say that you have a right to get your money back under both regulations on a claim form though.

 

I did think about SOGAicon and have used it successfully in the past, but the burden of proof falls on the consumer. Given these clowns are the only authorised dealers in the UK, getting an independent assessment is tricky to say the least. The issues I encountered (it's an electric bike and the motor would completely seize for a few seconds whilst riding - dangerous) happen infrequently, so getting evidence of that would be very difficult indeed.

No, before six months the burden of proof is on the trader to prove that the goods were satisfactory quality and fit for purpose when sold. That burden only passes to the consumer after six months.

 

Of course, if you want to get a report done you would need to collect the bike first. If you would prefer to leave it and you are within the six months, you could proceed with a claim describing the faults and see where you end up.

 

Should I accept it back? Will this jeopardise my SCC claim? Can they enforce the charges if I lose the case?

No, they shouldn't be able to enforce the charges as there is no contract.

[not_the_messiah]

Ok, some new developments...

 

I did eventually agree to take the bike back (I didn't want to be left in a position where I would owe these people yet more money). Today I received an email telling me that they were giving me a refund of £2295, but would not be refunding the money back to cyclescheme as they needed to cover the costs they incurred. These costs came to £900, which by an amazing twist of fate is the exact same amount they received from cyclescheme. The (laughable) breakdown of costs is follows:

 

2 x Used bike deduction 150 miles £400.00

2 x Delivery and Pick up £200.00

2 x Clean and Rebox £300.00

 

I don't see how they can possibly charge me for two of everything when it was their decision to refuse my refund request first time around and offer me a replacement bike instead.

 

Under the terms of the CCRs, they are not entitled to charge for depreciation as they have not supplied information regarding the cooling off period and right to cancel.

 

£150 for a clean?!

 

Anyway, I made it clear that I was not happy with this offer and rejected it completely. I was told I could not reject it. So I now have a partial refund and no bike - could this be considered theft?

 

Does anyone know where this leaves me with regards to my SCC claim as in that I am claiming for the full amount of £3295. Would I have to amend the amount I am claiming, even though this refund is against my wishes?

 

Thanks again

 

Tim

[steampowered]

I don't see how they can possibly charge me for two of everything when it was their decision to refuse my refund request first time around and offer me a replacement bike instead.

Absolutely. If the first bike was faulty you shouldn't have to pay costs for that.

 

Under the terms of the CCRs, they are not entitled to charge for depreciation as they have not supplied information regarding the cooling off period and right to cancel.

 

£150 for a clean?!

Unfortunately this is not correct. If you are cancelling under the consumer contracts regulations, the shop is entitled to deduct an amount for use of the bike. Please refer to http://www.legislation.gov.uk/uksi/2013/3134/regulation/34/made, paragraph 9.

Of course the amount they are claiming might not be reasonable depending on how much you used the bike.

 

This is one of the benefits of going down the SOGA route rather than the distance selling cancellation route - as if the bikes were both faulty you should be getting a full refund under SOGA.

Anyway, I made it clear that I was not happy with this offer and rejected it completely. I was told I could not reject it. So I now have a partial refund and no bike - could this be considered theft?

No, there is no theft because there was no 'appropriation' of the bike within the meaning of the Theft Act. What you have is a small claim you could pursue against the bike company.

Does anyone know where this leaves me with regards to my SCC claim as in that I am claiming for the full amount of £3295. Would I have to amend the amount I am claiming, even though this refund is against my wishes?

Did you already issue your claim and pay the fee? There would be a fee to amend your particulars of claim. I would just inform the court in a letter and tell the judge when you get to a hearing.

[not_the_messiah]

Absolutely. If the first bike was faulty you shouldn't have to pay costs for that. Unfortunately this is not correct. If you are cancelling under the consumer contracts regulations, the shop is entitled to deduct an amount for use of the bike. Please refer to http://www.legislation.gov.uk/uksi/2013/3134/regulation/34/made, paragraph 9.

Of course the amount they are claiming might not be reasonable depending on how much you used the bike.

 

This is one of the benefits of going down the SOGA route rather than the distance selling cancellation route - as if the bikes were both faulty you should be getting a full refund under SOGA. No, there is no theft because there was no 'appropriation' of the bike within the meaning of the Theft Act. What you have is a small claim you could pursue against the bike company. Did you already issue your claim and pay the fee? There would be a fee to amend your particulars of claim. I would just inform the court in a letter and tell the judge when you get to a hearing.

 

Point 11 of Section 34 states however:

 

(11) Paragraph (9) does not apply if the trader has failed to provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

 

Which surely applies if they have not complied with providing me that information?

[steampowered]

Point 11 of Section 34 states however:

 

Which surely applies if they have not complied with providing me that information?

Yes, it seems you are right.