Section75 Chargeback

[Manxman]

I don't think I've ever read such bad reviews
Several customers have suffered the same experience as OP
One customer took his returned watch to a jewelers who inspected it and said there were no signs that the watch had been worn

Good idea. OP might want to consider doing that...

@auproops - out of interest, a couple of questions:

1. Did you take any photos of the watch's condition before sending it back?

2. When you raised the payment dispute with your bank, why did you say you wanted a refund? Did you say you were cancelling a distance sale or just that you had returned? How did you explian you were entitled to a refund?

3, did you pay for the original recorded delivery return, or did they?

[Manxman]

First thing – I’m not a lawyer and I’m not giving you legal advice. I’m simply giving you my understanding of the law as a layman, not as a legal expert. It’s up to you what you make of it.

You have two things to consider: your argument with regard to the jeweller, and then your card claim/payment dispute with the bank. Let’s look at the jeweller first.

You have a legal right to cancel a distance contract under para 29 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk). You can exercise that right within 14 days of delivery of the goods by clearly telling the jeweller that you have decided to cancel. See para 32.

You must then return the goods within 14 days of telling the jeweller that you have decided to cancel.

So long as you have not diminished the value of the goods by handling them more than would reasonably be allowed in a shop, you are entitled to a full refund. The jeweller could deduct an amount from your refund to reflect any loss in value you caused by unreasonable handling of the watch, but I don’t see how just trying it for size could be unreasonable. Fingerprints aren’t unreasonable either and don’t suddenly reduce a £3000 watch to zero value. So I’d argue you are legally entitled to a full refund.

You should be paid your refund without undue delay, and in any case no more than 14 days after either (a) the jeweller receives the goods back or (b) you provide evidence of having sent the goods back.

Who pays for the return depends on whether your watch was sold with “free returns” when you bought it. See para 8 of the jeweller’s T&Cs.

That’s an outline of your legal position as I see it.

A complicating factor is that (like many online retailers) the jeweller also offers their own “goodwill guarantee” alongside your legal rights. They claim their guarantee is more generous than your legal rights, but it isn’t really.

The complication is about whether you were exercising your legal right to cancel when you sent the watch back, or whether you were just sending it back under their own guarantee.

If you received the goods on 01 March you still have up until midnight on Friday 15 March in which to exercise your right to cancel a distance sale.

What I’d do if I were you is contact the jeweller again (before Friday) and tell them “for the avoidance of any doubt” that when you contacted them initially to return the watch you were obviously exercising your statutory legal right to cancel a distance contract within 14 days of receiving the watch, and that you also returned the watch to them within the prescribed statutory period.

Also tell them that if for any reason they refuse to accept that you were cancelling a distance contract when you initially contacted them, that you are now informing them - still within 14 days of taking delivery of the watch - that you are exercising your legal right to cancel a distance contract.

Point out to them that under the statutory regulations you are entitled to a full refund unless the watch has been diminished in value by you handling it in a way that would not reasonably be allowed in a shop. Obviously trying it on for fit and to see how it looks – including leaving fingerprints on it that can be wiped off – does not justify the jeweller deducting any amount from a full refund. See para 34(9) and (12) of the regulations.

Put all the above in an email to the jewellers and get it sent off before Friday to be on the safe side. Phone them as well if you want to, but send the email to have it in writing.

See what they come back with.

What I’m unsure about is whether you should just send the watch back again now – obviously it will have to go back sometime. I would say that if you did effectively exercise your legal right to cancel when you first contacted them to return it, then you have already returned it within the prescribed timeframe. The fact that they decided to send it back to you, and that you need to return it again, is a complication of their own making.

But if you did not make it clear that you were cancelling the contract when you first contacted them, and you are only exercising your right to cancel now, I suspect you will have to return it to them – again – within 14 days. But I’m really not sure. See what others think. (In any case take photos of it before sending it back)

Hopefully the jewellers will see sense and they will give you a full refund, but it sounds as if they have form for not recognising consumer rights, so you may have to fall back on your credit card and the disputed payment.

Of the two a s75 claim is preferable to a chargeback. A s75 claim is based on legislation and when a consumer pays for something worth over £100 by credit card it gives the consumer the same legal rights against their card provider as against the trader (ie the jeweller in your case). I’ve outlined what I think is the legal case against your jeweller above, so you have the same legal case against your card provider under s75. I would think you would win a s75 claim quite straightforwardly.

A chargeback gives you no legal rights. It has no statutory basis and is simply an agreement between the two card providers Mastercard and Visa. The only advantage it has over s75 is that it has no minimum spend associated with it. The major problem with a chargeback is that the trader can always challenge one within a certain timeframe, and the card provider will usually just accept the challenge without question.

If your card provider is actually processing a chargeback for you and it is unsuccessful, I’m pretty certain you can still make a s75 claim even though the chargeback failed. If your card provider won’t process a s75 claim for you, you’ll have to consider suing. You can sue either the jeweller or the card provider separately, or you can sue them both jointly. Not a good idea to sue only the jeweller. Make sure the card provider is included as jointly liable.

What you have to be careful about is getting two separate refunds. One from the jeweller (in the perhaps unlikely event that they accept your argument) and a second one from your card provider. Obviously if that happens you will have to repay one of the refunds.

If the jeweller should cough up before the s75/chargeback claim has been paid out, contact your card provider to cancel the claim. But make sure the jeweller has paid into your bank account before doing so!

Good luck…

(Apologies for very long reply)

[Pezza54]

Interesting reading at Companies House
On the first page of the Strategic Report for year ended 30.4. 2023 under "Future Developments" it states
"The group continues to focus on providing a high-quality customer experience........."
Someone senior at the company should read customer reviews on trustpilot uk and make improvements to their customer service fast

[Manxman]

Just to add to #17, the point of drawing a distinction between whether the OP exercised their legal right to cancel the contract or they simply returned the watch under the jeweller's good will guarantee is that legal cancellation gives the OP more watertight and more enforceable legal rights. But in order to cancel the contract legally, the OP must make a clear statement to the trader that that is what they are doing. See para 32(2) and (3) of the Regulations.

Some people think that simply returning an online purchase within 14 days ought to be enough to signal that you are exercising your legal right to cancel - but that isn't what paras 32(2) and (3) say...

Top tip: when returning an online purchase within 14 days always clearly say you are exercising your statutory right to cancel unless the trader's own returns policy gives you a better deal (eg a longer returns window)

[Pezza54]

In the unlikely event that the credit card company refuses a S75 claim in OP's case, OP should consider raising a complaint with the FOS
The FOS is not quick but a decision will probably be made faster than a court which are currently suffering long delays due to underfunding
When your claim is allocated to a FOS case investigator you will have the opportunity to provide further evidence, emails, photos and even phone conversations with the investigator
The ombudsman's final decision is legally binding on the financial organisation. The consumer can reject the decision if they do not agree and can start a court claim

[Manxman]

In the unlikely event that the credit card company refuses a S75 claim in OP's case, OP should consider raising a complaint with the FOS
The FOS is not quick but a decision will probably be made faster than a court which are currently suffering long delays due to underfunding
When your claim is allocated to a FOS case investigator you will have the opportunity to provide further evidence, emails, photos and even phone conversations with the investigator
The ombudsman's final decision is legally binding on the financial organisation. The consumer can reject the decision if they do not agree and can start a court claim

Those are very good points.

If the OP's card provider rejects the chargeback and/or s75 claim they might be better off going to the FOS rather than suing straightaway. As you say the OP can always sue as a last resort.

(But I must say that if the jeweller won't cough up - and I suspect they won't from the reviews you've mentioned - I'd have thought this was a straightforward case for the card provider to pay out without any need to go further)

[auroops]

I paid myself to return the watch. They said they will not pay for postage.
Also I filled a transaction dispute form with Barclays. It does not state explicitly whether it is going the chargeback route or section 75.
As I mentioned before they have returned the watch back to me, should I now return it back to them or wait for Barclays decision?
I have not opened the parcel. I guess the 14 delivery should not really matter here as the watch was returned within two days of purchase but was send pack as the store rejected the refund.
Thanks very much for helping me out. Much appreciated

[auroops]

I did not take any photographs of the watch as I never encountered such an issue before. But they have emailed me the before and after photos which I think they aren’t difference apart from the finger print marks.

[Pezza54]

Be v careful about sending a £3k watch by royal mail You are taking a risk
Royal Mail Special Delivery includes up to £750 compensation for contents with additional cover up to £2500 available

[echat11]

Look at no.2, they are members of the NAJ.

https://www.naj.co.uk/making-a-complaint

[auroops]

I have received a form from Barclays in the post. Not sure why they need to information to be submitted again by post when we have already submitted the form online.
It says form created to be used with 3A09
It has sections like
- Tell us about the goods or services you thought you were getting

- Tell us what goods/services you actually received, together with a full description of the damaged/defect, or reasons why the goods/services weren’t as described

- Did the merchant provide written instructions
if Yes what were the instructions

- Details of the attempt to return

- Did the merchant refuse to provide return authorisation/inform you not to return goods

- Confirm the current location of the goods
- Date goods Received
- Date goods returned
- Date goods received by retailer
- Method of return of goods
- Name of company used
- Invoice Tracking No
SERVICES CANCELLED
- Did you cancel the service
- Date of cancellation
- Reason for Cancellation
- Was there a cancellation policy
- If yes what was the policy
- Name of the contact at Retailer
- Communication method used
GOODS YOU TRIED TO RETURN
- Date attempted return/cancellation
- Name of contact at retailer
- Communication method used
- I confirm that I’ve contacted or tried to contact the supplier/liquidator to attempt to resolve the dispute

[Manxman]

auroops - I suggest you read my post #17 again (sorry it's so long but I tried to cover everything I could think of) and then tomorrow, and definitely no later than Thursday 14 March, email them along the following lines:




"What I’d do if I were you is contact the jeweller again (before Friday) and tell them “for the avoidance of any doubt” that when you contacted them initially to return the watch you were obviously exercising your statutory legal right to cancel a distance contract within 14 days under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk), and that you also returned the watch to them within the prescribed statutory period.

Also tell them that if for any reason they refuse to accept that you were cancelling a distance contract when you initially contacted them, that you are now informing them - still within 14 days of taking delivery of the watch - that you are now exercising your legal right to cancel a distance contract.

Point out to them that under the statutory regulations you are entitled to a full refund unless the watch has been diminished in value by you handling it in a way that would not reasonably be allowed in a shop. Obviously trying it on for fit and to see how it looks – including leaving fingerprints on it that can be wiped off – would be allowed in a shop and does not justify the jeweller deducting any amount from a full refund. See para 34(9) and (12) of the regulations.

Put all the above in an email to the jewellers and get it sent off before Friday to be on the safe side. Phone them as well if you want to, but send the email so you have it in writing.

See what they come back with"




You can also add to the email that if they haven't confirmed to you in writing by noon on Monday 18 March that they will pay you a full refund, you will take further steps to recover your payment.

If they agree - in writing - to cough up that should be the end of the matter and no need to worry about filling out the Barclay's form. If they don't agree you can proceed with the Barclays claim and worry about the form then. Come back here to update us on the jeweller's response.

You can decide when to send the watch back after you've had a response from the jeweller. If they agree to refund you then you need to send it back promptly. As Pezza54 said, make sure you return it with sufficient insurance cover for a £3000 watch in case it gets lost or damaged. I would also tell the jeweller that you want to be refunded for this second return too, as if they hadn;t wrongly sent it back to you in the first place, you wouldn't have needed to return it a second time. That was their fault and they should bear the cost.

As per the earlier discussion (see #10 and #13) you need to take photos of the unopened package they returned to you, and then take photos of the watch to check it before sending it back.

If the jewellers persist in denying your refund I really don't know when you should send the watch back. You will then be following up your claim with Barclays so I suggest you ask them when you need to return the watch. They might not pay you a chargeback or a s75 claim if you haven't returned the watch. So ask Barclays how to handle it.

But hopefully the jeweller will have agreed to refund you before then.

[auroops]

Thanks Manxman, I will do as you suggested. Should I email them and/or print out a letter and send the watch back tomorrow. I am worried that 14 day return policy will be over by Friday, though it has been returned well within the timeframe initially

[Pezza54]

Try phoning the National Association of Jewellers. Tell them what has happened and ask if you should return the watch again
If they say yes, write in your email that you are following the advice you received from NAJ and returning the watch for a second time

[auroops]

Hi. I called the NAJ today and spoke with an officer who sounded really helpful. She said I make a formal complain with NAJ. However, she could not suggest whether I should return the watch to the seller, but she did mention that whether you return it or not, the 14 day return policy will not apply as the watch was returned once within the time frame with their return authorisation. Today, I will write an email to the seller and also to NAJ.