Letter before action by email

[zzzzzzzz]

Is there any reason why I shouldn't send letters before action by email ? (Distance Selling claim)

I don't want to be accused of not attempting to resolve the matter before issuing the summons and thus not being awarded my costs eg the court fee

The defendant has replied to the emails but they are ignorant of the law (refusing to refund the delivery charge)

The Distance Selling Regulations mention email eg I can cancel an order by emailing the mail order company

also serving documents "by other electronic means" (does that include email ?) is mentioned on County Court form N215

[me01273]

You can send it by email, but if it gets to court, you will have no record of LBA being sent, and even though they have replied, they could deny it, leaving you in sh** street.

[zzzzzzzz]

OK - Thanks I won't risk it and will buy some stamps then

It eats into the £3.95 delivery charge that I am paying £30 to recover - although they have no defence, winning a case and being refused the fee will mean I am out of pocket

Since most mail order companies do not comply with The Distance Selling Regulations I am considering sending the "Letter before action" with the goods being returned to save paying for another stamp

 

From DWELL ( link removed )

"We do not offer a free returns service, we do not refund the return postage cost or the original delivery charge, we do not offer a free collection service, and we do not accept responsibility for items lost or damaged in transit back to us. Damaged items will be replaced. We do not refund damaged or faulty items. Please contact our Customer Service department to arrange a replacement. We may require you to return the item to us so that it can be checked or returned to the manufacturer before issuing a replacement. Any item(s) collected from a store or our warehouse must be inspected thoroughly. We do not accept returns of any damaged items once they have been collected."

 

This does not affect your statutory rights. LOL

 

From Hamleys ( link removed )

"Under the Consumer Protection Regulations, you have the right to cancel your order with us at any time within 7 days of receiving your goods.

In the event we are unable to deliver your order within our standard delivery timescales you are entitled to cancel your order with no penalty.

As we do not take payment for online purchases from your credit/debit card until your order is dispatched, you will not have been charged for the order.

This also applies to individual items within a larger order, where some products have been delivered but others are not available. In this instance, you will not have been charged for the non-delivered items.

Should you cancel the contract we will then refund you the price you have paid for the goods, THIS WILL NOT INCLUDE THE DELIVERY CHARGE if you have cancelled after your order has been dispatched, also not a service provided by us, such as a special delivery service. You are under a duty to take reasonable care of the goods, which means the goods must be unused. Please contact our Customer Service Team should you wish to cancel your order."

 

Even websites that do claim to refund the delivery have not done so

 

my experience =

2 companies refunded the delivery charge without question

3 companies refunded the delivery charge after threat of legal action

3 companies have refused to refund after threat of legal action

2 companies have not bothered to refund the goods or delivery charge - I refused delivery from Royal Mail for one and returned the other one - neither of the companies had provided a return address on the outside of the parcels

 

So thats only 2 out of 10 complying with the Distance Selling Regulations - what an utter sham !

 

Do you think I can proceed with the one where I stated that I would take legal action if the delivery fee was not returned and enclosed the letter with the returned goods (I had already cancelled the order by email)?

 

I think I may chargeback the two which have not refunded the goods or delivery , but I don't like the fact that it costs the credit card companies money to deal with these claims

 

No doubt I will get the nutty judge who thinks that the refund is conditional on the goods being returned when the regulations state the contary - I am talking about the refused delivery item without the return address on the outside sent using Royal Mail Flat Rate Packetpost and it seems that business customers are required to put their address on the outside under Royal Mail's terms & conditions

Edited April 6, 2017 by dx100uk

[Janet-M]

you could try asking others if when you email them do you get an automatic reply to say they have recieved emails ( or just try it and see ) . If they do then you are fine doing it by email as long as you keep a dated hard copy of what you send and the automatic reply so you can prove they recieved it. .

 

Also you don't say you have sent a prelim first , have you ? as you say you are expected to try and resolve it first and issuing a claim should be your last resort . 28 days will be deemed reasonable ( 14 days prelim + 14 days LBA )

[OrangePrimate]

i'm confused! if the terms and conditions clearly state that the delivery charge will not be refunded on return of the goods, and i assume you would have had to agree to those terms before proceeding with the order,

why are you now trying to get those charges back and threatening with court action?

Surely a judge will just look at those t&c's and case closed.

 

I dont think the Selling Regulations say anything about the delivery charges having to be refunded? why should the companies shoulder the full costs of delivery if they wouldnt normally anyway?

[zzzzzzzz]

Thanks - I don't get an auto reply to all emails and adopt the attitude that if they don't reply I will send a letter instead

If they do reply then I would consider the reply proof that they have received it

I received replies to my emails from some of the companies and they refuse to refund the delivery fe

ME01273 has said they can deny receipt even if they have replied to it

as far as preliminary letters are concerned , I wasn't aware of any requirement for this , having read bank charge threads on MSE , the amount of letters and things like including all previous case law with the particulars of claim seems excessive for the more simple claims such as distance selling

I doubt that these were used widely in small claims before bank charges claims became popular and I appreciate that you would rather provide to much info than too little for these cases

Is the preliminary letter mentioned anywhere outside this forum & MSE ? obviously I don't want the claim to be struck out and will have to check the consequences of not sending a preliminary letter - 2 letters of claim would be the same as prelim + letter of claim I suppose ?

I have seen people being advised to write giving 7 days notice of legal action , I am aware that courts consider 14 days reasonable

I don't like asking "newbie" type questions - is there a thread on this forum detailing the consequences of not sending a prelim letter and just sending a 14 days letter before claim ? I have read threads on inadequate particulars of claim for example

If I don't send a prelim letter and just send the letter before action I will lose my fee ? - I have only read that this will happen if I issue the summons without giving the defendant the opportunity to resolve the matter and pre-action protocol does not apply to this case

3.48 on this PDF "A Guide for businesses on Distance Selling

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

States that the delivery charge must be refunded

Thats the law - so anything in the terms and conditions to the contrary can be ignored

With 8 out of 10 mail order companies ignorant of the requirements of the Distance Selling Regulations this legislation is a joke

If fact my local trading standards office had the same view as you until they checked the OFT guidance above - so who knows about the judge ?.

[OrangePrimate]

Read through the leaflet from your link, thank you, very informative and quite a bit there i was not aware of! But it leads me to the section below directly from that info. And going by that and the relevant delivery info in your post from dwell and hamleys they are both making it clear in the contract as part of the required written information.[/font]

Sorry, dont mean to be arguementative, but may find myself in this situation one day and want to know what can/cant claim back![/font]

 

"Who pays for returning the goods if the consumer cancels

an order?

 

3.55

If you want the consumer to return the goods and to pay for that

 

return, you must make it clear in the contract and as part of the

required written information – see paragraph 3.10. If the consumer

then fails to return the goods, or sends them at your expense, you

can charge them the direct cost to you of the return, even if you

have already refunded the consumer’s money. You are not allowed

to make any further charges, such as a restocking charge or an

administration charge.

3.56

 

 

 

If you did not include these details in the required written information

 

then you cannot charge anything. See paragraph 3.10. You can never

require consumers to pay the cost of returning substitute goods –

see paragraph 3.1 for more information."

 

 

 

[zzzzzzzz]

I'm happy to see the arguments picked over with a fine tooth comb - I didn't write the legislation after all

the terms and conditions on mail order websites often state;

"we do not refund the return postage cost or the original delivery charge"

"Should you cancel the contract we will then refund you the price you have paid for the goods, THIS WILL NOT INCLUDE THE DELIVERY CHARGE if you have cancelled after your order has been dispatched"

If I order a pair of socks - the socks may cost £10 with £5 postage & packing making a total bill of £15 ,

if I return the socks it will cost me 60p second class postage for slightly over 100g large letter

The mail order company only wants to refund £10 and keep the £5 original postage & packing fee which is not allowed under the legislation

3.48 ; "The DSRs require you to refund any money paid by or on behalf of

the consumer in relation to the contract to the person who made the

payment. This means the full price of the goods, or deposit or prepayment

made, including the cost of delivery. The essence of

distance selling is that consumers buy from home and receive goods

at home. In these circumstances, almost every case of home

shopping will involve delivery of the goods ordered and so delivery

forms an essential part of the contract."

3.10 "for goods – whether you require goods to be returned by the

consumer and if so who will pay for their return. For more

information on this see paragraph 3.55"

The cost of returning the goods can be made the responsibility of the customer but nothing in the legislation permits the mail order company to retain the initial delivery charge

Distance Selling Regulations statutory instrument here Statutory Instrument 2000 No. 2334

Do you remember the Two Ronnies sketch where Barker walks into a DIY shop and asks for "four candles" and Corbett gives him the candles. What Barker wanted, however, was "fork handles - 'andles for forks" (as in pitchforks).

http://en.wikipedia.org/wiki/Four_candles

"In this sketch a Hardwareshopkeeper (Corbett) is confronted by a customer (Barker) clutching a shopping list. The customer appears to ask for four candles. The shopkeeper complies but customer merely repeats his request leaving shopkeeper confused. The customer rephrases his request to reveal he in fact wanted fork handles.

He then asks for plugs. To try and avoid a similar mistake the shopkeeper asks what kind and is told "a rubber one, bathroom". Believing that he is asking for bath plugs the shopkeeper gets out a box of them and asks for the size. By asking for "13 amp" it is revealed he in fact wants an insulated electric plug.

He next asks for saw tips. Confused the shopkeeper asks if he wants ointment. After a better explanation the shopkeeper explains they don't have any. This causes little to no frustration.

He then asks for Os for a garden gate. This item causes the most frustration with the shopkeeper bringing a hoe, a hose and pantyhose to the counter before before working out what he wanted. The box of garden gate letters is noticeably difficult to get to and put back, requiring a ladder.

When he asks for tins of peas the shopkeeper, believing him to be asking for Ps for a garden gate, is understandably annoyed as they are in the box he has just put back. The customer waits for him to get the box down before better explaining what he wants. At this point the shopkeeper first suspects it may be a joke.

He then asks for Plimsoll shoes, referring to them as "pumps" the shopkeeper asks him to elaborate. The customer complies by asking for "foot pumps". The shopkeeper brings a pneumatic pump to the counter. The customer then reveals he wants "brown pumps size 9". At this point the shopkeeper becomes convinced that the customer is playing a practical joke on him.

After he asks for washers the shopkeeper, out of desperation and annoyance recites a long list as to what this could mean. The customer then explains he want tap washers.

At this point the shopkeeper, having had enough, snatches the list, reads it himself and seems to take offence at something there. He decides he cannot tolerate the customer any longer and calls his assistant from the back to complete the order. The audience later infers that the shopkeeper misread Bill Hooks believing it said [/url][naughty word]."

http://www.youtube.com/watch?v=Cz2-ukrd2VQ

Imagine this transaction being carried out by mail order with the Distance Selling Regulations being in force

The Office of Fair Trading: Amazon and BOL agree to refund delivery charges 

'The Distance Selling Regulations give consumers the security to buy from home, confident that they can change their mind once they have received and seen their goods. Consumers are entitled to a refund of normal delivery charges when goods are returned.'

The OFT is currently in negotiation with a number of other companies under the Distance Selling Regulations regarding the refunding of delivery charges."