Fitness Superstore - Delivery Dispute

[Intrepid]

If there are no further comments to make then I think it best to reply to FS's latest communication reproduced below.
 

Quote

Order cancelled and refunded.

We assume you have placed this second order in error as we are unable to deliver as noted in numerous areas on the website page.

Regards
Customer service

 

The reply I propose.

 

Quote

The order was not placed in error and I am unsure why you have chosen to rescind the contract between us for a second time without my agreement, and then a third time this afternoon.

As I made clear previously, the courier I have had no choice but to arrange will collect my goods on 14th December, should you obstruct me from taking posession of my goods then the costs of arranging a courier to collect my treadmill will be added to the losses I will be claiming from you.

Sincerely.

 

Edited December 10, 2021 by Intrepid

[Manxman in exile]

My point was that on re-reading your LBA I was surprised that it made no mention of what I would have thought were the two main planks of your argument.  Namely that (1) the treadmill in question was NOT earmarked as "Collection only", and that (2) your order confirmation confirmed that "Standard Delivery" was available, and that this had been specified as "£0.00" (ie free) at checkout.  Neither of those points appear to have been specifically addressed by FS, which makes me wonder if they understand them.  But if you're happy that the basis of your argument is clear, no matter.

 

Regarding the collection by a third party - FS have made this unnecessarily complicated and have muddied the waters by wrongly claiming that they would not allow third party collection because of GDPR grounds.  The real reason they won't is because they want to be 100% sure of whom they are releasing the goods to in order to avoid possible accusations further downline that they released the goods to someone other than you.  In order to satisfy themselves of the identity of a person collecting goods, they want to see proof of identity and the purchasing card.

 

(My wife ordered something from Amazon last week for collection from our local Co-op.  She sometimes orders stuff in her maiden name and sometimes in her maried name.  On this occasion she did not have the appropriately named identification with her and they refused to release the goods to her - even though they were only worth about ten quid.  She had to go back with the correct id.  This actually seems quite a reasonable condition to me and is in the buyer's interests.)

 

Regarding the method of payment, I suspect FS have made a commercial decision that if payment has been by bank transfer, then they are willing to run the (probably slight) risk of the goods ending up with someone other than the purchaser if a third party courier is used.  But they won't allow the risk of third party collection where purchase has been by credit card or debit card because any refund issues (arising from possible third party fraud) are out of their hands.

 

I suspect that on fraud risk grounds, FS may well be justified in stipulating different methods of payment for collection by a third party as opposed to either collection by you or delivery by them.  I think it's a pity FS could not have explained this more clearly to you from the outset, rather than blathering on about "GDPR".

 

Any way, see what happens.  Your couriers may pick it up with no problems and you claim the cost back from FS. 

 

PS - just to add, the ex-demo shop models will be "collection only" because they're not held in a central warehouse and they've been uncrated and unpacked in the shop.  They won't got to the trouble of re-packing and re-crating them from the shop, so they're collection only

 

 

 

 

[Intrepid]

FS know full well what is going on, the reason they won't address certain points is because they can't not because they don't understand them. They will probably become very understanding when all the evidence is presented at a hearing.

I presume another reason they wish to collect a bank transfer is perhaps as some form of insurance incase couriers cause any damage to other equipment during collection. Whatever their motives are I don't really care, they will have to convince a judge not me that their motives are justified.

 

I consider that FS have made their final positon very clear and therefore there is no need to wait the 14 days stipulated in my LBC to bring my claim.

I propose the following particulars to be submitted when they refuse my collection.

 

Quote

1) On xx November 2021 the Claimant purchased xxx from the Defendant's online store for a total sum of £1345.00.
 

2) The item was sold with delivery included. Following the purchase the Defendant wrote to the Claimant stating they could not make good on their contractual obligation to deliver the goods.
 

3) The Claimant made their own arrangements for collection of the goods with the courier AnyVan for a total cost of £2xx.xx

4) On xx the Defendant refused to hand over the goods to the Claimant's courier as arranged.
 

5) The Claimant seeks payment for the losses incurred as a result of the Defendant's breach of contract £2xx.xx

6) The Claimant seeks damages for the unlawful interference of their goods by the Defendant £100.
 

7) The Claimant seeks compensation for the loss of enjoyment of their goods as a result of the Defendant's breach of contract and unlawful interference. £1345.00.
 

8 )Total claim. £17xx.xx

 

While any input is greatly appreciated, as it is likely FS are monitoring this thread I respectfully request discretion from anyone that may inadvertantly assist FS with their defence following their comments.

Edited December 12, 2021 by Intrepid

[Intrepid]

As an attempt to resolve the conflict between us resulting from FS's breach of contract I offered to make the bank transfer despite the fact are yet to refund my credit card.

 

FS informed me they had sold my goods. I proposed a resolution which was declined.

 

If there are no further comments then I will bring my claim as per the particulars above.

[Intrepid]

Amendmant to line 4 is as follows:

4) On 13/12/21 the Defendant stated they could not hand over my goods as arranged by the Claimant because they had sold my goods.

Edited December 13, 2021 by BankFodder
Edits in red

[Intrepid]

Thank you - claim submitted, the particulars do not fit into MCOL so a full copy will be served to the Defendant along with a Certificate of Service to the Court.

[Intrepid]

The certificate of service was rejected by the CCBC stating the address on the certificate of service does not match court records.

There was a typo in the post code which I had not spotted. However there is another issue where the MCOL website does not have sufficient space to include one of the full lines of address of the company and shortens it.

 

They also state that as I did not tick the "Sending Particulars Directly" option that it is now necessary to make an application to a judge to amend the particulars by way of an N244, amended N1SDT and a cheque for £108.

I wonder if it would not be simpler to discontinue and start the claim again for the sake of the additional £7 it will cost to submit the claim as they have outlined.

 

While I believe this is particularly pedantic the Court is of course correct and presumably to ignore their direction, re-submit the certificate of service and hope that a judge realises that the correct action was taken save for ticking a box may risk the entire claim.

 

While it is likely I did not tick the box I did follow what was indicated as the correct procedure by serving the full particulars to the Defendant and the Court.

 

 

Edited December 22, 2021 by Intrepid

[BankFodder]

I'm not sure of the economics of discontinuing and then starting again – you will have to judge for yourself.

However, we almost never recommend sending extended particulars of claim. A very brief resume of the cause of action is quite sufficient.

Anything more extensive gives the other side clues as to how to frame the defence. We would normally recommend giving the defendant minimum information but just enough to start the claim and then normally speaking they give a detailed defence which gives you good clues for the future conduct of the case

[Intrepid]

The particuars are as posted in #78 with the amendmant you kindly provided in post #82.

The particulars as written did not fit into MCOL.

I consider that it is worth simply re-sending the certificate of service with the correct address and see if someone more lenient takes a pragmatic view of the circumstances.

 

If this fails I may risk the wrath of the judge and submit the full particulars in the bundle which should still give the Court the opportunity to be fully versed with the claim.

We are not talking war and peace here but simply 4 additional lines to the particulars which the Defendant has received. The majority of which will be borne out in a witness statement which will still receive the attention of the Court.

 

I appreciate it is hard times on everyone but £108 for not ticking a box is not all that reasonable and more in keeping with PCNs.

 

The claim has been issued according to MCOL so this is sufficient I think to get things moving through the Courts.

Edited December 22, 2021 by Intrepid

[BankFodder]

Yes that is probably the best way forward.

I realise that you posted up a draft particulars claim – and maybe I should have made it clear that it was to fit into the word limit.

I hadn't appreciated that you would then send a further particulars of claim – and certainly if you did then as you now realise, it was necessary to tick the box

[Intrepid]

The particulars as submitted on MCOL are reproduced below. As they stand I think they are actually sufficient to bring the majority of the claim. The parts that are missing can be detailed in the witness statement.
 

Quote

1) On 20th November 2021 the Claimant purchased a Bowflex BXT326 treadmill from the Defendant's online store for a total sum of £1345.00.

 

2) The item was sold with delivery included. Following the purchase, the Defendant wrote to the Claimant stating they could not make good on their contractual obligation to deliver the goods.
 

3) The Claimant made their own arrangements for collection of the goods with the courier AnyVan for a total cost of £261.23
 

4) On 13/12/21 the Defendant stated they could not hand over the goods as arranged by the Claimant because they had sold the goods.

I don't think we should pretend that an experienced Judge will have any particular need or desire to read any of the bundle including particulars until close to any eventual hearing.

There is a small chance the Court may not allocate the claim and may withold a DQ as a result, but it is my understanding things are done somewhat automatically without too much human involvement, the only way to find out is wait and see.

The sad part is I took the action I did after researching the first search return on what to do in the event the particulars do not fit within the limit. Unfortunately the advice was incorrect or rather not sufficiently detailed and certainly underwhelming for the CCBC.

Edited December 22, 2021 by Intrepid

[BankFodder]

Yes it will probably be okay

[Intrepid]

Bodypower Sports Ltd have filed their defence attached below.

 

I think what is so disingenous about the whole thing as written in their defence, is they make out that it was an issue that I could not collect in person. They make no mention of the fact this was not an issue for the them if I chose to pay by bank transfer instead of credit card. So really they had no issue with who collected the item but simply how they were paid.

 

Their disclosure in response to the SAR they received was incompete. I think it might be time to make a complaint to the ICO and perhaps bring a claim regarding their incomplete disclosure.

 

DQ received, to mediate or not to mediate?

FS - Defence Redacted.pdf

[BankFodder]

– See what it produces. Go for mediation at the moment. See what it produces.

We can work out your response to their defence later on

[Intrepid]

DQ filed and served agreeing to mediation.

A final response has been received from Fitness Superstore regarding my query concerning their incomplete disclosure. They maintain their position that a full data disclosure has been made.

 

A complaint has been submitted to the ICO and Fitness Superstore informed as such. Fitness Superstore is registered with the ICO.

Edited January 11, 2022 by Intrepid

[Manxman in exile]

I've just been re-reading this thread.

 

Is there any particular reason for your radical change of mind between 12 December and 13 December?  On 12 December you had made up your mind that FS had made a final (and negative) response to your letter before claim, and that you would therefore issue the claim without further delay:

 

On 12/12/2021 at 04:35, Intrepid said:

...I consider that FS have made their final positon very clear and therefore there is no need to wait the 14 days stipulated in my LBC to bring my claim.
...

 

Then the very next day you say that you have contacted FS and you have done a 180 trying to agree to pay them by bank transfer - as they had requested and you had refused:

 

On 13/12/2021 at 15:48, Intrepid said:

As an attempt to resolve the conflict between us resulting from FS's breach of contract I offered to make the bank transfer despite the fact are yet to refund my credit card.

 

FS informed me they had sold my goods. I proposed a resolution which was declined.

 

 

I'm wondering why at the last minute you changed your mind so drastically and decided to follow the advice BankFodder had given on 26 November in #19 and #21 and which you had specifically rejected?

 

[Intrepid]

The Court appears to have accepted the fact Fitness Superstore were served the full particulars of claim.

This is indicated under "recent transactions" where the date of service is recorded as 21/12/2021 in keeping with the certificate of service that was re-filed to the court with the correct address.

[Manxman in exile]

re #91, why did you change your mind at the last minute?

[dx100uk]

open

 

dx

[Intrepid]

Draft witness statement for review.

FS - WS 1.1 - Redacted.pdf

[Manxman in exile]

On 07/08/2022 at 02:37, Intrepid said:

Draft witness statement for review.

FS - WS 1.1 - Redacted.pdf 637.2 kB · 3 downloads

 

Can I ask what stage your claim is currently at?

[Intrepid]

Claim dismissed.

The judge held that the terms of the contract were to agree terms for delivery post sale.

The nail in the coffin was the correspondence on 8th December in posts #58 and #59.

Following the options presented by Fitness Superstore, none of which were acceptable, the judge held following that exchange the contract was deemed to be at an end as a result of repudiatory breach, therefore no breach of contract occured.