Item returned, parcelforce proof, retailer says not received

[Flirble]

Hi,

So on the 26th July I made a purchase online, paid via PayPal as retailer requested and my item arrived, after opening it I discovered the manufacturers quality is not what it used to be and they have cheaper out on components and materials so I arranged a return, notified the seller (they weren't happy about it but didn't have a choice) I duly arranged for parcelforce to collect, took photos of contents of box and they collected on 28th July, on 31st July I got notification the parcel had been delivered, I logged on to track and tracking as indeed complete.

I left it 24hours expecting retailer to email me to confirm receipt, they didn't, I emailed with a nudge saying I see the return was delivered on Monday morning and wondering when they would be processing my refund, on the Wednesday they emailed me saying nothing had been delivered andy parcel was nowhere to be found at their warehouse.

I asked them to check as parcelforce had confirmed delivery.

They said nope nothing had been delivered that day at all, I contacted parcelforce, after a couple of days they got back to me and provided the same tracking info, GPS proof of delivery, information on where the parcel had been left and testimonial from the driver which all seemed perfectly plausible, in fact the driver noted that he had been instructed to leave it where he did and that for the address leaving parcels at that locations was normal.

I went back to retailer with this and he said that the parcel should not have been left without a signature and I would have to claim on couriers insurance as obviously they were at fault, I'm not so sure.

I'm not sure where I stand here, courier has good proof of delivery, no actual signature but that's not unusual nowadays, they have photo and GPS location, retailer is challenging, it's £1500 so not insignificant...

I'm considering a chargeback as I do believe the retailer has received the item and my bank seem confident enough of the proofs to raise a dispute for me, but where is the fault here exactly? Parcelforce seem confident they have delivered it where is should have been delivered, but I am out of pocket!

PayPal can't help, but because seals were open when I received the new item I'm wondering if I could wangle not as described PayPal protection?

[PallasAthena]

You have plenty of evidence to start a small claims court action if a dispute through the bank doesn't work.

[Flirble]

Thanks, quick question though is whom am I claiming against? I'm guessing the retailer concerned?

[echat11]

Providing you didn't have a positive balance (money) on your Paypal account, carry out a 'Chargeback', let your bank do the investigating, provide them with a summary and evidence.

[R0b]

Yes, your primary claim would be against the retailer. You could add ParcelForce as a second defendant as a backup on the basis that the retailer is claiming that they never received the parcel and then if it went to court, the court will have to find one of them liable. If you do think of adding PF as a second defendant then you will need to put them on notice and also send a letter before action, despite them providing evidence and proof of delivery.

I would presume the retailer has CCTV in or around the premises so it shouldn't be that difficult for them to review the CCTV and confirm whether delivery had taken place or not?

[Flirble]

So far no evidence has been provided to prove it wasn't delivered only emails saying as such, I don't think there is meaningful CCTV but don't know for sure, as the site is no public access otherwise I would have taken the item back personally.

All feels a bit odd to me never had this kind of issue before after a courier has produced their evidence.

[R0b]

It does sound odd, but I guess it could be possible they are telling the truth. I've had some deliveries whereby the courier has photographic and GPS evidence only to find that the courier sent it to the wrong address on the estate. On the flip side, it could be that an employee did take delivery of the parcel and it's been misplaced but no one is fessing up, or there could be some other reason such as they do have it but are acting fraudulently by denying receipt.

Regardless, now that you have supplied evidence showing delivery took place, the onus now falls on the retailer to rebut that evidence and that is exactly what a court would do if you got as far as that. You only need to persuade the court that on balance, there was a 51% or more chance that the parcel was delivered. In the absence of any plausible explanation the retailer can offer, a court would likely find that the parcel was in fact delivered.

I think if you go down the chargeback process, that's probably going to be a swifter resolution than if you go to court as you could be waiting as long as 6-12 months not to mention how time consuming and demanding it can be to keep up with deadlines to file and submit documents and other paperwork. Also, just as a cautionary note, if you are successful on a chargeback request, that doesn't prevent the retailer from pursuing a court claim against you - it would be highly unlikely but I have seen it happen before and they would need to instigate proceedings at their own cost and expense.

[DE DOGS]

Hi,

So on the 26th July I made a purchase online, paid via PayPal as retailer requested and my item arrived, after opening it I discovered the manufacturers quality is not what it used to be and they have cheaper out on components and materials so I arranged a return, notified the seller (they weren't happy about it but didn't have a choice) I duly arranged for parcelforce to collect, took photos of contents of box and they collected on 28th July, on 31st July I got notification the parcel had been delivered, I logged on to track and tracking as indeed complete.

I left it 24hours expecting retailer to email me to confirm receipt, they didn't, I emailed with a nudge saying I see the return was delivered on Monday morning and wondering when they would be processing my refund, on the Wednesday they emailed me saying nothing had been delivered andy parcel was nowhere to be found at their warehouse.

I asked them to check as parcelforce had confirmed delivery.

They said nope nothing had been delivered that day at all, I contacted parcelforce, after a couple of days they got back to me and provided the same tracking info, GPS proof of delivery, information on where the parcel had been left and testimonial from the driver which all seemed perfectly plausible, in fact the driver noted that he had been instructed to leave it where he did and that for the address leaving parcels at that locations was normal.

I went back to retailer with this and he said that the parcel should not have been left without a signature and I would have to claim on couriers insurance as obviously they were at fault, I'm not so sure.

I'm not sure where I stand here, courier has good proof of delivery, no actual signature but that's not unusual nowadays, they have photo and GPS location, retailer is challenging, it's £1500 so not insignificant...

I'm considering a chargeback as I do believe the retailer has received the item and my bank seem confident enough of the proofs to raise a dispute for me, but where is the fault here exactly? Parcelforce seem confident they have delivered it where is should have been delivered, but I am out of pocket!

PayPal can't help, but because seals were open when I received the new item I'm wondering if I could wangle not as described PayPal protection?

Lesson for the future PayPal will find every excuse to dodge any help, been there NEVER AGAIN.

[Manxman]

Flirble - Assuming you made it clear to the retailer that you were cancelling the contract for a full refund, you should draw their attention to reg 34(5)(b) of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk):

"34.—(1) The trader must reimburse all payments, other than payments for delivery, received from the consumer...

...(5) If the contract is a sales contract and the trader has not offered to collect the goods, the time is the end of 14 days after—

(a) the day on which the trader receives the goods back, or

(b) if earlier, the day on which the consumer supplies evidence of having sent the goods back" [my bold]

The legislation says nothing about the retailer actually having to receive the goods back*. If you can provide evidence of sending the goods back that should be enough to get a refund. The retailer needs to pay you the refund within 14 days of you providing them with the evidence.


* in other words the regulations specifically envisage the sort of situation where the returned goods get lost or otherwise go astray, and they provide that the risk of that is on the seller and not the consumer returning the goods. Like the right to cancel a distance sale within 14 days, it's one of the costs that the legislature has decided to impose on businesses that have decided to trade at a distance. The only problem might be that your seller might argue that you did not cancel the sale under the cancellation regulations (see reg 32 which explains how to exercise the right to cancel) and that regulation 34 therefore does not apply.

When returning goods bought at a distance always cancel under the cancellation regs if applicable unless a seller's own returns policy gives you a better deal than the regs do

[Flirble]

indeed I was very clear I was cancelling, why and that the item had only been inspected as per the the regulations, and it was being returned for full refund - they have tried to assert a restocking fee which is garbage as the item wasn't sealed when it arrived with me either so they can't charge me to reseal an item that wasn't sealed when I received it (has manufacturer seal stickers that were not sealed when I received it) but yes I was clear on my return intention and expectation from them.

You have to email them as their return address is not publicised and you have to email to 'obtain the most appropriate return address' so I had to do that.

but it is interesting the regulations actually don't require them to receive the return to issue the refund, may come in handy given the situation, the parcelforce invoice and tracking will prove it was sent, this gives me extra ground to stand on - thanks Manxman very useful stuff.

[Manxman]

Ah. Sounds like you know what you are doing then.

Bear in mind the retailer will argue along the lines of "Well it's obvious that we have to get the goods back before making a refund, isn't it?" but if that were the case (1) why do the regulations specifically not say that, and (2) why didn't Parliament just add the words "... provided always that the trader does finally receive the goods" at the end of regulation 34(5)(b)?

The whole point of the Cancellation regs is to give the consumer enhanced protection in respect of distance sales, and this is part of that enhanced protection. Parliament has recognised that the trader is in a stronger position than the consumer when returned items go missing, and this attempts to redress this.

Regarding re-stocking fees see reg 34(8): " The trader must not impose any fee on the consumer in respect of the reimbursement."

Sounds like your seller doesn't know the law or is trying to persuade you not to exercise your statutory rights. I'd quote the regulations to them and also be prepared to quote them to your card provider and in court if it gets that far

[Flirble]

Short update, still no meaningful progress - PayPal are considering a not as described claim, but I'm not hopeful.... Bank are still dilly dallying with the chargeback, decided to ask me for more info on the 15th august which I have provded all correspondence with the retailer and courier concerned, I've also provided the bank the context of the 14days after proof of shipment being the 'finish line' for a refund to be issued - they are maintaining their stony silence and asking me to be 'patient' whilst they process the chargeback.... hopefully something moves there sooner rather than later.

I'm guessing my final recourse will be small claims court when I take retailer, parcelforce and the owner of the business by name to money claims service.... am I cheeky if I go that far asking for or expecting some form of additional compensation for all my time I've spent chasing this when regs are clear that the retailer should have just 'refunded' me already?

[Flirble]

So.... PayPal have 'decided' in the sellers favour as the item, although the seals not affixed and the seals stating to refuse an item without seals affixed, because the item is not 'significantly not as described' (bought as new arrived unsealed) and the 'value or functionality is not significantly affected' so no refund from their buyer protection policy apparently - I'm going to appeal because to me it's black and white - new item, box says do not accept if seals broken, returned in good faith - I don't see how paypal can't uphold that...

[Flirble]

and so the saga continues.... PayPal have taken my appeal and it's now being considered - 5 to 7 business days, also the bank have now submitted the chargeback, finally, but I'm guessing they must think there is sufficient evidence and proof that I am entitled to my money back or they wouldn't bother.

[Flirble]

Hi all, sorry for ongoing saga... so today the bank have responded that my chargeback has failed as the retailer says the goods were not delivered - I'm dumbfounded - courier says its delivered, with driver specific testimonials, GPS proof, I've stated the noted regulations about requirement to prove the goods were despatched which I've done but no apparently this isn't enough for the bank either because the retailer has defended the chargeback.

I tempted to refer this to the financial ombudsman as I believe the bank is not acting in the customer interest.

I really don't want to take this to court but it really is feeling like we will end up there because for some reason, with all the evidence I have and all the reasonable actions I have taken the push back of 'I never got it' seems to be being taken as absolute truth :-(

I am the one out of pocket, this feels very wrong.