Malfunctioning Electronic device

[Sam170582]

I received a device Xmas Day. I took photos and videos on Christmas Day with it. Three months later it just imploded and stopped working. I asked the producer to fix it but they said they will take it and reset the memory. Which I didn't want to happen.

　

I am currently locked in battle with the producer they are arguing that it states in the warranty card that they are not responsible for the loss of data. I am arguing that it was unforeseeable and unreasonable that a top of the range product would just stop working and therefore they are responsible. Can I argue that the term in the warranty card is unfair?

　

They have offered to try and fix my tablet, pay me MCOL fee and a really small amount as a sign of goodwill.

　

I have asked for money for the loss of the family videos and photos and for the value of the tablet.

　

They have told me if I proceed they will seek to claim their legal costs from me. How likely is it I will have to pay their legal costs if I lose and have I got a case I can win?

　

It doesn't sit right with me that a company can produce a product then if it just breaks 3 moths later cannot be held accountable for any data loss. Does anyone know of any similar cases?

[R0b]

Obviously we have no idea the contents of correspondence from you or the other side but from reading your post, its not actually clear what it is you are claiming. If someone said to me that a tablet device imploded then I would probably think that the implosion has rendered the device inoperable/irreparable.

Also, when you refer to the producer, do you mean the manufacturer or if not the manufacturer, the seller i.e. a retailer? Also from the sound so of things you have issued a claim already? If so, it might actually be helpful to see your particulars of claim (any personal info redacted) so we can see the basis of your claim - it may be the case that you are barking up the wrong tree.

I am currently locked in battle with the producer they are arguing that it states in the warranty card that they are not responsible for the loss of data.

This is perhaps a crucial point to understand. Was the warranty card inside the box of the tablet device meaning you were only able to see this after purchasing the tablet or was it given as part of your sales invoice / order / receipt?

The general rule of law is that contract terms can be incorporated either by signing a document, by giving notice or through previous course of dealings. Assuming the exclusion of liability for data loss was not part of the sales receipt or equivalent, then they must have brought it to your attention before the sale was concluded. If the warranty card was in the box which was sealed and nothing was brought to your attention, then there is an argument that the exclusion of liability for data loss is not enforceable and it is highly likely they courts would not enforce that exclusion clause.

I received a device Xmas Day. I took photos and videos on Christmas Day with it. Three months later it just imploded and stopped working. I asked the producer to fix it but they said they will take it and reset the memory. Which I didn't want to happen.

Assuming the tablet device was purchased last Christmas in the capacity of a consumer rather than a business, then the Consumer Rights Act 2015 would apply. If there is a problem after 30 days but less than 6 months then it is deemed that the fault existed from the beginning and your remedy is to request a repair or replacement. You've said they would reset the memory which sounds reasonable if that's the actual issue, so I'm curious why you did not agree to this? If indeed you have issued a claim then it's arguable that your claim is premature because sellers have the right to have one go at remedying the fault so your conduct may be considered unreasonable and unnecessary.

They have told me if I proceed they will seek to claim their legal costs from me.

This sounds like scare tactics and I am making the assumption that the claim would end up on the small claims track. If it were me I'd be questioning their grounds for claiming legal costs if the claim is likely to end up on the small claims track which, as everyone knows, legal costs are not recoverable. If they are trying to argue that you have been unreasonable in rejecting their offer then that would be a fatal mistake because Civil Procedure Rule 27.14(2)(g) creates the presumption that costs should not be awarded. CPR 27.14(3) further goes on to say that the rejection of an offer will not, in itself, amount to unreasonable conduct so there would have to be something in addition to the rejection of the offer to warrant unreasonable behaviour. This was essentially confirmed in the recent Court of Appeal case Dammerman v Landyon Bowler LLP.

In short, there's lots of gaps missing in your post which I see as crucial information in order to work out whether or not you are along the correct lines. But if a claim has been issued and you've refused the seller in attempting to repair the tablet device, there may be a risk that you could be held liable for costs for unreasonable behaviour. This is based on the limited information you've supplied and we've not seen any defence or particulars of claim from you either.

Where a claim has been issued an alternative option might be to enter into a Tomlin Order which basically stays the claim subject to the parties' compliance with the agreed terms and conditions. As part of those conditions you could agree for the seller to have one attempt at repairing the tablet and failing that, they should refund you the price paid (or give you a new replacement). This is in addition to the offer already made to you in relation to other fees and compensation.

One thing I should say is how do you put a value on the loss photos and videos? You've not mentioned how small the amount is they have offered as a gesture of goodwill but that small amount might in fact be a reasonable one.

I've also tagged des8 for any further input

[ostell]

They could also say that it is your responsibility to ensure that all data that is critical should have been backed up elsewhere. I don't think that claiming for lost data has wings.

Is your data on a removable memory card that you can insert in another device and so be able to recover it?

[Sam170582]

Obviously we have no idea the contents of correspondence from you or the other side but from reading your post, its not actually clear what it is you are claiming. If someone said to me that a tablet device imploded then I would probably think that the implosion has rendered the device inoperable/irreparable.

Also, when you refer to the producer, do you mean the manufacturer or if not the manufacturer, the seller i.e. a retailer? Also from the sound so of things you have issued a claim already? If so, it might actually be helpful to see your particulars of claim (any personal info redacted) so we can see the basis of your claim - it may be the case that you are barking up the wrong tree.


This is perhaps a crucial point to understand. Was the warranty card inside the box of the tablet device meaning you were only able to see this after purchasing the tablet or was it given as part of your sales invoice / order / receipt?

The general rule of law is that contract terms can be incorporated either by signing a document, by giving notice or through previous course of dealings. Assuming the exclusion of liability for data loss was not part of the sales receipt or equivalent, then they must have brought it to your attention before the sale was concluded. If the warranty card was in the box which was sealed and nothing was brought to your attention, then there is an argument that the exclusion of liability for data loss is not enforceable and it is highly likely they courts would not enforce that exclusion clause.


Assuming the tablet device was purchased last Christmas in the capacity of a consumer rather than a business, then the Consumer Rights Act 2015 would apply. If there is a problem after 30 days but less than 6 months then it is deemed that the fault existed from the beginning and your remedy is to request a repair or replacement. You've said they would reset the memory which sounds reasonable if that's the actual issue, so I'm curious why you did not agree to this? If indeed you have issued a claim then it's arguable that your claim is premature because sellers have the right to have one go at remedying the fault so your conduct may be considered unreasonable and unnecessary.


This sounds like scare tactics and I am making the assumption that the claim would end up on the small claims track. If it were me I'd be questioning their grounds for claiming legal costs if the claim is likely to end up on the small claims track which, as everyone knows, legal costs are not recoverable. If they are trying to argue that you have been unreasonable in rejecting their offer then that would be a fatal mistake because Civil Procedure Rule 27.14(2)(g) creates the presumption that costs should not be awarded. CPR 27.14(3) further goes on to say that the rejection of an offer will not, in itself, amount to unreasonable conduct so there would have to be something in addition to the rejection of the offer to warrant unreasonable behaviour. This was essentially confirmed in the recent Court of Appeal case Dammerman v Landyon Bowler LLP.

In short, there's lots of gaps missing in your post which I see as crucial information in order to work out whether or not you are along the correct lines. But if a claim has been issued and you've refused the seller in attempting to repair the tablet device, there may be a risk that you could be held liable for costs for unreasonable behaviour. This is based on the limited information you've supplied and we've not seen any defence or particulars of claim from you either.

Where a claim has been issued an alternative option might be to enter into a Tomlin Order which basically stays the claim subject to the parties' compliance with the agreed terms and conditions. As part of those conditions you could agree for the seller to have one attempt at repairing the tablet and failing that, they should refund you the price paid (or give you a new replacement). This is in addition to the offer already made to you in relation to other fees and compensation.

One thing I should say is how do you put a value on the loss photos and videos? You've not mentioned how small the amount is they have offered as a gesture of goodwill but that small amount might in fact be a reasonable one.

I've also tagged des8 for any further input

When I mean producer I mean manufacturer.

I asked for them to fix my tablet but try and save the photos and videos. They told me to bring it into one of their shops leave it for a few days and they would see what they could do.

I asked them if I could send it to them and pay the postage back. They said 'no' and that I had to drop it off leave it for a few days and then pick it up. We are talking about a total journey of 220 miles.

I then wrote 2 letters to their head office asking them to try and fix and save my tablet. I got no response and that is what led me to court.

They offered me £100 as a sign of goodwill and I asked for £2,800 for the loss of photos and videos.

[R0b]

So have you issued legal proceedings yet? It's still unclear as to what stage you are currently at so it would be helpful if you could clarify that position.

Also to clarify, you purchased the tablet directly from the manufacturer?

How did you come up with the amount £2,800? Something such as loss of data is difficult to quantify so you should really have some kind of basis want wanting £2,800 rather than plucking it out of thin air. My first thoughts are that £2,800 seems to be a pretty steep amount you are claiming for.

If the tablet is faulty then its up to the seller to collect the goods or pay your costs of delivering it - the onus is not on you so that is wrong from their part.

Alos tagged des8 Amethyst ostell jaguarsuk for further thoughts

[jaguarsuk]

Going off the distance you're saying you have to travel to access their store this is Apple isn't it?

[ostell]

There was a section in rip off britain this morning about someone who also claimed to have lost data on an Apple device and the BBC team managed to persuade Apple to recover the data. It wasn't you by any chance?

[des8]

I doubt I can add anything worthwhile to this thread except repeat that we need to know if you have actually initiated court action, and if so what was in your particulars of claim

[Sam170582]

So have you issued legal proceedings yet? It's still unclear as to what stage you are currently at so it would be helpful if you could clarify that position.

Also to clarify, you purchased the tablet directly from the manufacturer?

How did you come up with the amount £2,800? Something such as loss of data is difficult to quantify so you should really have some kind of basis want wanting £2,800 rather than plucking it out of thin air. My first thoughts are that £2,800 seems to be a pretty steep amount you are claiming for.

If the tablet is faulty then its up to the seller to collect the goods or pay your costs of delivering it - the onus is not on you so that is wrong from their part.

Alos tagged des8 Amethyst ostell jaguarsuk for further thoughts

I have started a claim against them via MCOL and this is what I put in my claim:-

I received a brand new top of the range
Tablet for Xmas from my partner.
Just over 3 months later the battery went
down to zero and refused to charge back up
leaving me with a black screen. I have been
in contact with the manufacturer help center and they
have said they will take it but will wipe the
memory clean. I do not want this to happen as
I have all the photos of my sons first Xmas
so they put me in contact with my local
branch. They told me I cant send it to them
by post and they cant send it back to me even
though I offered to pay the postage back.
Considering its 60 miles away and I would
have to drop it off then go back in a couple
of days to pick it up, this is totally
unacceptable. I have written to Samsung head
office twice via the Royal Mail recorded
delivery service asking for them to do there
upmost to try and save the memory on my
tablet. This has left me no choice as they
refuse to answer any of my letters. They have
totally abandoned there duty of care to me.

You are correct about the value but it had the videos of my son 1st Christmas and of my other son opening
his presents. To me their priceless I did not know how to quantify it. If a judge made a decision may he say you are asking for too much and just order them to pay less? Or is that not how it works. (No it wasn't me on Watchdog Lol). They first argued they had no liability as I bought it on Amazon from someone called 'sscoms'. Will it go to a small claims court?

[jaguarsuk]

I have started a claim against them via MCOL and this is what I put in my claim:-

I received a brand new top of the range
Tablet for Xmas from my partner.
Just over 3 months later the battery went
down to zero and refused to charge back up
leaving me with a black screen. I have been
in contact with the manufacturer help center and they
have said they will take it but will wipe the
memory clean. I do not want this to happen as
I have all the photos of my sons first Xmas
so they put me in contact with my local
branch. They told me I cant send it to them
by post and they cant send it back to me even
though I offered to pay the postage back.
Considering its 60 miles away and I would
have to drop it off then go back in a couple
of days to pick it up, this is totally
unacceptable. I have written to Samsung head
office twice via the Royal Mail recorded
delivery service asking for them to do there
upmost to try and save the memory on my
tablet. This has left me no choice as they
refuse to answer any of my letters. They have
totally abandoned there duty of care to me.

You are correct about the value but it had the videos of my son 1st Christmas and of my other son opening
his presents. To me their priceless I did not know how to quantify it. If a judge made a decision may he say you are asking for too much and just order them to pay less? Or is that not how it works. (No it wasn't me on Watchdog Lol). They first argued they had no liability as I bought it on Amazon from someone called 'sscoms'. Will it go to a small claims court?

The problem you have is convincing a judge that what is priceless to you is worth £2,800 of Samsung's money when in actuality at this moment in time nothing has been lost.

If it was me I'd have found a company able to recover the data and asked for quote on the cost of it, then sued for that cost along with the value of replacing the device.

The reason they will have to wipe the device is that once they replace the battery they need to test it before giving it back to you. Doing that will require them resetting it to factory settings as they don't have your pass code and can't take it for security reasons.

You can probably get a third party to replace a battery, hell before Apple made their phones water proof I replaced a few batteries in our phones for £10 off eBay.

I think filing a claim was very premature in this situation. Did you send a PDPAC compliant Letter Before Action prior to filing the claim?

[ostell]

Samsung not powering up is a known problem. Have you searched the internet for answers to the problem? And tried the suggestions. I've had it myself on one of my tablets. If it's not the battery or the charger then all it will probably need is a few non obvious key presses to bring it back to life. You need to ensure that the battery is fully charged before you attempt the fixes. One of the methods is hold down the volume button and then the power on button and hold both for at least 20 seconds.

Lithium batteries do not like being taken too low.


If you have an SD card in then when you fix it change the setting st that all photos go on to the SD card.

Use a search of "samsung tablet not powering on"

[Sam170582]

Samsung not powering up is a known problem. Have you searched the internet for answers to the problem? And tried the suggestions. I've had it myself on one of my tablets. If it's not the battery or the charger then all it will probably need is a few non obvious key presses to bring it back to life. You need to ensure that the battery is fully charged before you attempt the fixes. One of the methods is hold down the volume button and then the power on button and hold both for at least 20 seconds.

Lithium batteries do not like being taken too low.


If you have an SD card in then when you fix it change the setting st that all photos go on to the SD card.

Use a search of "samsung tablet not powering on"

Yeah I have tried everything like that

[des8]

OOps duplicate deleted

[des8]

Who was the seller of the tablet?
Were they made aware the tablet was to be gifted to someone else?
Does the contract of sale contain an exclusion on third party rights

I think you are pursuing the wrong target, which should be the seller.
As you weren't the purchaser you would need to invoke the Consumer (Rights of Third Parties) Act 1999 if your rights hadn't been limited

[Sam170582]

The problem you have is convincing a judge that what is priceless to you is worth £2,800 of Samsung's money when in actuality at this moment in time nothing has been lost.

If it was me I'd have found a company able to recover the data and asked for quote on the cost of it, then sued for that cost along with the value of replacing the device.

The reason they will have to wipe the device is that once they replace the battery they need to test it before giving it back to you. Doing that will require them resetting it to factory settings as they don't have your pass code and can't take it for security reasons.

You can probably get a third party to replace a battery, hell before Apple made their phones water proof I replaced a few batteries in our phones for £10 off eBay.

I think filing a claim was very premature in this situation. Did you send a PDPAC compliant Letter Before Action prior to filing the claim?

We do have insurance, but they say we are not covered because of the way the damage was caused and because it has only been 3 months, They tell us the manufacturer is at fault. Its not as if we did not try and cover ourselves. I don't know what a PDPAC is? I did send two letters via Royal Mail Signing serive.