Section75 Chargeback

[Manxman]

Hi auroops - I don't think you need to send the watch back tomorrow, and here's why.

Forget the jeweller's goodwill guarantee and look at your legal right to cancel

Under your legal right you can cancel the contract up to 14 days after you took delivery of the goods. After you've cancelled the contract you have a further 14 days in which to return the goods.

One of two scenarios applies in your case:

Either (1) you cancelled the contract when you arranged return of the watch the day after you received it, in which case you returned it to the jewellers well within the prescribed timescale. I think the fact that they then - wrongly - returned it to you is their problem and one of their own making. You will still need to return it to them again some time, but I don't think you need to do so just yet. (And the NAJ would seem to agree - yes?)

Or(2) you only cancelled the contrcat when you notified them of that in the email which I suggested you send today (Wednesday) or tomorrow. In that case you have a further 14 days after that email in which to return the watch. Do you follow?

So you've either (1) already returned the watch in time (but will have to do so again if you get refunded) or (2) you've still got 14 days to do so (assuming you sent the email I suggested)

You need to wait for the jeweller's response to your email. If they agree to pay up you can arrange the return of the watch with them. But remember to get adequate insurance cover - and you should reclaim those second (unnecessary) return costs form the jeweller.

If they don't agree to refund you, you will have to go down the s75 route with Barclays. If that happens you will have to seek Barclays advice as to what to do with the watch. If the second scenario above applies, I think you have 14 days after sending the cancellation email in which to return the watch. But that is something that I'm completely unsure about. You will need to ask Barclays what they want you to do.

In the event that Barclays processed a chargeback and the chargeback fails, you need to demand they do a s75 claim. If they refuse you'll have to go down the FOS route, and if that fails you will have to sue them.

Hope that clarifies things a bit?

As I said before, remember I'm not giving you legal advice - I'm just giving a layman's view. If you want professional legal advice you can rely on, you need to pay a professional for it.

Good luck and keep the thread updated.

[auroops]

I have written an email to CW Sellors mentioning about my statutory rights on distance selling and have given them a deadline till 18 Mar. Also, I have formally written to NAJ with evidence of purchase and correspondence. Now, let’s see what happens from here. The transaction dispute form which I filed online requires a pen signature along with some forms to be filled by the 20 March.

[Pezza54]

Thanks for updating the forum. I am sure readers will be interested in the outcome

[auroops]

Seriously, I didn’t think it will this fast. But no good. Copy paste below

Good Morning

In line with our terms and conditions goods must be returned back to us in new and unused condition. As explained in previous emails with photographs provided your watch was not returned to us in a condition that met this criteria, photographs of the condition the watch before it was dispatched and after it had been returned have been provided to you.

We consider this matter closed and the watch has been returned back to you.

Kind regards

[Pezza54]

Now you can proceed with your S75 claim
The question on the form about who is currently in possession of the item, you should state you returned the watch the following day after trying it on for only a few minutes but the trader has sent it back to you and has now closed the case and will not accept re-return

[auroops]

Thanks, I will call the bank and specifically request if they could process it as sec75 rather than a chargeback.

[Manxman]

Seriously, I didn’t think it will this fast. But no good. Copy paste below

Good Morning

In line with our terms and conditions goods must be returned back to us in new and unused condition. As explained in previous emails with photographs provided your watch was not returned to us in a condition that met this criteria, photographs of the condition the watch before it was dispatched and after it had been returned have been provided to you.

We consider this matter closed and the watch has been returned back to you.

Kind regards

Hmmm. These are people that you obviously don't want to buy anything from.

auroops - re the bit I've put in bold, can I take it that you made it clear to them that you were exercising your statutory right to cancel a distance contract under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk) and that you were not relying on their own terms and conditions?

Also - because we obviously haven't seen the watch - are you 100% confident that apart from some fingerprints the watch is undamaged and indistinguishable from being brand new?

If yes to both then you have no alternative but to do as Pezza54 says and pursue the s75 claim or chargeback with Barclays. It might seem as if you're no further forward than when you started the thread, but now you have further evidence of the jeweller being both uncooperative and unreasonable.


Remember the basis of your claim against Barclays is that the jeweller has prevented you from exercising your legal right to cancel a distance sale under the Regulations linked to above, and they have unlawfully denied you a full refund. The Regulations do not permit them to refuse your cancellation so long as you cancelled within 14 days of delivery. The Regulations also only allow them to reduce your refund if the watch has been reduced in value by you handling it in a way that would not reasonably be allowed in a shop. Obviously in a shop you would be allowed to try the watch on for fit and to see how it looks. A few fingerprints that can be wiped off cannot conceivably reduce the value of a watch from £3000 to zero, which is what the jeweller is claiming. Such a claim is obviously ridiculous.

Alternatively, even if you didn't cancel the contract correctly, you complied with the T&Cs of the jeweller's own returns policy - their inappropriately named "goodwill guarantee" - and they have failed to honour it.


I'd suggest you take clear photos of the watch showing its "good as new" condition to support the claim with Barclays. Closeups if possible.

It was mentioned upthread that in a similar situation someone got another jeweller's opinion whether a watch was in new condition. You might want to consider doing that - £3000 is a lot of money. Although I wouldn't say it's essential.

Good luck

[auroops]

Reply from NAJ, Can the NAJ and the section 75 run in parallel?

We are sorry to read that you are in dispute with C W Sellors.

In the first instance we would always recommend that a fair attempt is made in directly resolving your dispute with a Member Company. However, when it has not been possible to resolve your dispute directly, we are able to provide Alternative Dispute Resolution ( ADR) in the form of an impartial Mediation Service in order to assist both parties in finding a way forward.

The service is only possible with the full co-operation from the Member Company (which is certainly expected – but is not legally enforceable). All correspondence must be available to be read by both parties concerned and we expect all cases to reach an outcome within 90 days.

You are able to withdraw from the ADR at any stage, but it is a condition of membership that the member participates and does not withdraw from the process.

There is no obligation to retain a lawyer or legal advisor, but you may seek independent advice or be represented or assisted by a third party at any stage of the procedure.




The Association reserves the right to apply a charge if any additional costs are incurred during the mediation service (i.e. in obtaining independent reports). Prior notification will be given in the event of any charge being applied.




The NAJ does not deal in the matter of compensation.


This service is provided at the sole discretion of the Association and is also subject to the following conditions:




The complaint must:

1. Be a subject that can be reviewed
2. Have exhausted the members' complaints process
3. Be received by NAJ within 12 months of when the issue in your complaint happened
4. Have enough detail and information for the service to process the dispute

Therefore the NAJ is unable to progress disputes that are:

1. Concerning issues that happened more than a year ago
2. concerning employment, personnel or contractual matters
3. The subject of a court case or tribunal
4. With a business that is not a member of the Association

The service is strictly based on written correspondence only, and no verbal communication will be entered into once the service is in progress other than in exceptional circumstances. We reserve the right to close a case if communication has ceased for more than 14 days.



Thank you for all of the photos and information that you have provided, I will now contact C W Sellors and await a response.

[Manxman]

Thanks, I will call the bank and specifically request if they could process it as sec75 rather than a chargeback.

I'm going to try to give you a couple of links to a s75 guide and a chargeback guide on the Martin Lewis Money Saving Expert website. It lists the pros and cons of the two types of claim. you should read them.

Interestingly, he suggests that where you are in a situation where you can make both claims, it's usuall better to do a chargeback first because it has a 120 day time limit from purchase, and you don't want that to expire while a s75 is being processed. Then if the chargeback fails for any reason, you can still do a s75 claim as well.

However, he also says that if the trader is likely to be uncooperative (and I think we can safely say that the jeweller will be uncooperative on the basis of their behaviour so far) then you might as well go straight ahead with a s75 claim and not waste time.

He also points out that if Barclays refuse both you can still go to the FOS.

I'm going to put the links in a separate post in case this site treats them as spam and blocks all of this reply. OK?

[Pezza54]

Yes, S75 is not the same as a court claim

[Manxman]

These are the two links:

s75 Section 75 refunds: credit card protection’ - MSE (moneysavingexpert.com)

chargeback Debit & credit card chargeback: protection on faulty goods - MSE (moneysavingexpert.com)

[Manxman]

Yes, S75 is not the same as a court claim

I agree, it isn't the same - but I think if I were going to ask NAJ to mediate than I'd let them know that I was processing a s75 or chargeback with my bank, and I'd ask them if they could still proceed to mediate

I presume they want to make sue that their member isn't exposed to some kind of "double jeopardy".and they've only mentioned court case or tribunal. I think a s75 claim would have the same effect.

Personally I'm not sure if I'd go down the NAJ mediation route. I'd still want to register a formal complaint about C W Sellors with them, but I'd prefer to leave it in Barclays hands I think.

It's up to the OP. I really don't know.

(I certainly know to avoid C W Sellors! )

[auroops]

This was my email to CW Sellors

Dear Sir/Madam,
I would like to bring your attention in relation to the order no 9064 for which I requested a refund on the item as it was not a proper fit. I only tried the watch for a couple of minutes and was packed up for return. I contacted your customer service team on 2 March 2024, to exercise my statutory legal right to cancel a distance selling contract within the 14 day period (Received item on 1 March 2024 and returned on 2 March 2024)
I returned the watch at my own expense on Royal Mail guaranteed delivery before 1.00 PM next business day, for which you have denied a refund.
Moreover, you decided to post the watch back to my address.
As per the statutory regulations I am entitled to a full refund. I had to try it on to see how it fits and it does bring some fingerprints on the stainless steel body which could have been easily wiped off using a watch cleaning cloth that you could be regularly using it in your showroom. I have acted in accordance to the government's online and distance selling rule where a customer can cancel the order up to 14 days after the order is delivered.
Please reply to this email with your intention to return the full amount to the original payment method by the 18th March 2024, along with postage to send the watch back to your office/showroom.

Thanking you

[auroops]

This is the reply NAJ received from CW Sellors. However, I have not yet received any communication or refund from CW Sellors.

Good afternoon,



Having reviewed this in detail, I am in agreement with the customer and NAJ and sorry this had to be escalated so far.



The team here took an overly literal interpretation of ‘wear’ and should not have refused a return.



We are reaching out to the customer today to resolve this and offer an apology. This has also been addressed internally with the returns team.



Kind regards

[Manxman]

This was my email to CW Sellors

Dear Sir/Madam,
I would like to bring your attention in relation to the order no 9064 for which I requested a refund on the item as it was not a proper fit. I only tried the watch for a couple of minutes and was packed up for return. I contacted your customer service team on 2 March 2024, to exercise my statutory legal right to cancel a distance selling contract within the 14 day period (Received item on 1 March 2024 and returned on 2 March 2024)
I returned the watch at my own expense on Royal Mail guaranteed delivery before 1.00 PM next business day, for which you have denied a refund.
Moreover, you decided to post the watch back to my address.
As per the statutory regulations I am entitled to a full refund. I had to try it on to see how it fits and it does bring some fingerprints on the stainless steel body which could have been easily wiped off using a watch cleaning cloth that you could be regularly using it in your showroom. I have acted in accordance to the government's online and distance selling rule where a customer can cancel the order up to 14 days after the order is delivered.
Please reply to this email with your intention to return the full amount to the original payment method by the 18th March 2024, along with postage to send the watch back to your office/showroom.

Thanking you

I think that email is good and I understand what you are saying. But I don't think the jewellers understand. Either that or they're being deliberately obstructive or obtuse.

Personally I would just send one more email before midnight on Friday 15th to make it perfectly clear what you are doing...



"Dear CW Sellors

Further to our earlier correspondence regarding order no 9064 I'm concerned that you seem to misunderstand my position.

To clarify for you - and for the avoidance of any doubt - when I originally contacted you to arrange return of the watch I was exercising my legal right to cancel a distance contract under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. If that intention was not clear to you at the time, I am now clarifying that I am indeed exercising my legal right to cancel a distance contract within 14 days after delivery under those Regulations.

Under the Regulations you cannot refuse to accept my cancellation and you are required to pay me a full refund. You can only make a deduction from that refund to take account of any reduction in value of the watch resulting from my handling of it in a way that would not be allowed in a shop. My trying it on to judge its size and fit will not have reduced its value and would have been allowed in a shop.

Please confirm by return email whether (a) you agree to a full refund (plus full postal costs of the second return of the watch to you) or (b) you continue to deny me a full refund.

Yours etc..."



I know this may seem like excessive overkill but i think it's important that you clarify what you are doing so that Sellors can't come back to Barclays and say "Oh well. He never made it clear he was cancelling the contract under the regulations. If he'd simply explained that from the outset we'd have paid up straightaway"

I fully expect Sellors to tell you to **** off again, but you're giving them a chance to dig themselves into a deeper hole and you are collecting more evidence for Barclays.

And as you have £3000 at stake I'd say it's worth one more email. You can just copy and paste the above

(However, if for whatever reason you can't send off another email don't worry. I think you've done enough already but I like a belt and braces approach)