Customer refusing to return the goods, until he gets a refund.

[Tracy Fretwell]

Oh what a mess!
So we created a stunning resting dining table for a customer. Totally bespoke. Like nothing we have ever created.
He has had it over 5 months and contacted us on good Friday at 7pm to say there was a crack in it.
The crack is like nothing we have experienced in the hundreds of resin tables we have made. It goes through the resin, wood and resin at the bottom. It is easily repairable. However our gut instinct was he had damaged the table for a refund.

we offered to collect the table, repair it and have it returned to him within 10 days. He refused and demanded a full refund. We informed him our shop policies clearly state no refunds or returns on customised orders. He started quoting laws and regulations, however after six years of trading, we are confident in our policies.

we refused the refund. He instantly said he would contact trading standards and start a small claim against us.

on Tuesday morning, after the Easter weekend we contacted trading standards, who confirmed our legal responsibility was a repair or exchange. We messaged him letting him know this and he replied that he had already opened a case. I didn’t believe him as it had been bank holiday.

as it is, today we found a buyer for the table. Happy days. We messaged him to let him know we would arrange the collection and once we had received the table, had a chance to examine it and check to make sure there was no further damage other than the crack we would issue a full refund.
He has rejected this. He now wants his court fees paid and will not return the item till we have refunded him.

I mean seriously?
So what’s the legality here? Having never come across this before. Do we have a legal right to receive the goods back before a refund?

 

[Mr D]

Based on multiple peoples experience if you give a refund you will not see the item again. No incentive for owner to engage with you.

 

[Tracy Fretwell]

Based on multiple peoples experience if you give a refund you will not see the item again. No incentive for owner to engage with you.

But what does the law require? hes taking me to the small claims so I need to dot my i’s with this one x

 

[eteb3]

we contacted trading standards, who confirmed our legal responsibility was a repair or exchange. We messaged him letting him know this

To let him know what? That you'd been in touch with Trading Standards? And what are the timescales here - how long had you been saying "no refunds policy" before he went to court?

The basic position is that if a contract is part performed (eg, you've given him - or choose to be treated as having given him - only a half-good table), then the wronged party is entitled to damages for the non-performance. So if you were to repair the table, you'd have to refund some of the price so that he'd paid only what was fair for the table as repaired. (Good luck agreeing the quantum...)

However, if the problem is so serious that it "goes to the root of the contract", the wronged party can cancel the contract altogether. eg, to have one train cancelled might give you a claim in damages; a strike that means you can't travel on your chosen day at all would give you a right to cancel.

The difficult bit is determining which breaches go to the root of a contract and which don't, and it's a question of construction in every case for the overworked judge in their leaking courtroom. There is also consumer protection law which may come into play, and you'll have to wait for others to comment on that. But my hunch is that even in pure contract terms, a bespoke table will have to be tip-top or nothing - I'd guess he's probably within his rights to demand a refund.

In any case, if you've accepted wrongdoing (even for the sake of a quiet life), then you're liable for it - this is why people often give a refund "as a gesture of goodwill", since this doesn't incur legal liability.

If he wants to cancel the contract, he will have to part with the table. You could try telling him that if he refuses to do so, you will take him to have accepted the table damage and all, and will consider yourself quit of his claim. You could point out that if he gives the table back and you fail to refund him, then if he has a right to a refund (don't miss that bit out if you haven't already conceded it!), he can sue you for the price anyway, and would be in a stronger position at that point. Reassure him that your courier will give him a receipt for it.

By the by, long before the court hearing you will presumably be put through the mediation bit. Many claimants settle half way, and if they should and don't that can count against them if it goes to the judge - so you may want to just sit it out.

 

[japancool]

Here's the Consumer Rights Act 2015:
https://www.legislation.gov.uk/ukpga/2015/15/pdfs/ukpga_20150015_en.pdf

 

[Tracy Fretwell]

He messaged me Friday night at 7, we contacted citizens advice on Tuesday morning. She actually pretty much dictated my reply to him. According to citizen advice he has had the table 5 months, and we do go to great lengths in our descriptions to explain that wood is a natural product and can split and move. This is beyond our control, however we will repair or replace if needed. (He even acknowledged he was aware of this in our messages)
trading standards said, I could offer him an exchange (not possible as it’s a one off) or we had to be given one chance to repair the table, at no cost to the customer. If the repair fails he is entitled to a full refund.
I messaged him straight away, writing what trading standards had told us to, and offered him a full repair. The split is small, and had it been there before would have been a lovely feature as his wood has multiple knots and splits in it.
He rejected my offer. And informed me on Saturday he had launched the small claims! So he has not spoken with trading standards or anyone else before he filed as it was Easter weekend.
Today, one day later we offered him a full refund. We found a customer who wants the table as is. He has now turned down the full refund. He wants his court costs on top and is refusing us a chance to see the table, asses the damage and make certain there is no more damage. I suspect because there is!
So my question is simple. Do we have to issue a refund by law, before we have received the table back and examined the table to make sure there is no further damage, before issuing the refund?

 

[eteb3]

Do we have to issue a refund by law, before we have received the table back and examined the table to make sure there is no further damage, before issuing the refund?

Unless someone can come with an authoritative answer, I suggest you read the Consumer Rights Act as linked by japancool (or there's an HTML version here). It's a fiddle to cross-reference everything, but it is pretty clear once you manage to do that.

There's lots of caveats about which section applies, etc, but on a quick skim it would seem the important one is section 24.

The only thing to be wary of is whether anything you've said (especially the offer of a full refund) could be taken to be an admission that he can have one as of right. I would guess not, bc it sounds like your offer was conditional on inspecting the table, but maybe read over your emails carefully - and remember the law can imply things into what you've said and done even if it's not said explicitly. See 23(15) (which also applies by cross-reference from 24):

A refund under this section must be given without undue delay, and in any event within 14 days beginning with the day on which the trader agrees that the consumer is entitled to a refund.

There's no mention of receiving the goods back first: presumably once 23(15) applies (ie, you've agreed he's entitled to a refund) you'd have to sue him for the return of the goods having refunded him? Seems odd, but I guess law often is.

 

[Deleted member 335660]

Oh what a mess!
So we created a stunning resting dining table for a customer. Totally bespoke. Like nothing we have ever created.
He has had it over 5 months and contacted us on good Friday at 7pm to say there was a crack in it.
The crack is like nothing we have experienced in the hundreds of resin tables we have made. It goes through the resin, wood and resin at the bottom. It is easily repairable. However our gut instinct was he had damaged the table for a refund.

we offered to collect the table, repair it and have it returned to him within 10 days. He refused and demanded a full refund. We informed him our shop policies clearly state no refunds or returns on customised orders. He started quoting laws and regulations, however after six years of trading, we are confident in our policies.

we refused the refund. He instantly said he would contact trading standards and start a small claim against us.

on Tuesday morning, after the Easter weekend we contacted trading standards, who confirmed our legal responsibility was a repair or exchange. We messaged him letting him know this and he replied that he had already opened a case. I didn’t believe him as it had been bank holiday.

as it is, today we found a buyer for the table. Happy days. We messaged him to let him know we would arrange the collection and once we had received the table, had a chance to examine it and check to make sure there was no further damage other than the crack we would issue a full refund.
He has rejected this. He now wants his court fees paid and will not return the item till we have refunded him.

I mean seriously?
So what’s the legality here? Having never come across this before. Do we have a legal right to receive the goods back before a refund?

It is possible to open a small claim online so he may have done this.

However, in my several cases in small claims courts, it is about evidence and due process. The claimant is told they must show that they have done everything they can to settle with the defendant, he has no evidence other than phone calls over a bank holiday period.

My advice is to stop talking to him.

Write a letter to him and send it recorded delivery.

Reiterate your terms of sale (enclose copy ideally if it has his sale signature on it) and your offer to repair, refer to your conversations, but make it clear you are still willing to repair it.

I would offer him a second option that you have a buyer for his table and would give full refund on collection but put a date limit on it. I am sure your new customer will not want to wait too long.

I would also say that as he has issued court paper all communications must now be in writing.

Then see what he does.

 

[Frank the Insurance guy]

I'm no lawyer but I'm pretty sure that whilst they have the access and use of the table you are not obliged to provide a refund. Hold firm and tell them that you cannot arrange a refund until after you have the item back.

Like someone said above - once you have provided a refund, you are likely never to see the table again!

With regards to the small claims court, keep accurate notes of all your communications with them - only accept written contact from them (If they call, tell them that you will only communicate in writing moving forward and they must therefore contact you by email and you will no longer accept any telephone calls). The courts take a dim view on claimants that are not being reasonable - from what you have said you have taken all reasonable steps to help with repair/refund etc.

 

[MBE2017]

My understanding OP is your customer can obtain a refund on their fees if the cancel within 28 days of any case coming to court. It might also be worth mentioning that if they decide to proceed to court you will be requesting your legal fees paid, plus the cost of any supporting expert testimonials/reports, which are allowed to be claimed up to £750.

I would also recommend you get your solicitor to draft the letter, worth the £50/100 to help concentrate their minds on their poor case.

 

[The Byre]

1. The customer must give the vendor opportunity to remedy the situation.

2. A legal claim against the vendor should only be made when all reasonable opportunities to remedy have been exhausted.

3. The goods should be returned before a refund must be made.

4. The small claims court will only allow the plaintiff or the defendant to recover limited costs such as court fees and witness expenses (but not additional costs such as lawyers) once they have won the case and have received judgment.

5. Once trust has broken down between parties, it is inadvisable to communicate by telephone or email. As suggested above - registered letter!

 

[WaveJumper]

How much is this item actually worth

 

[eteb3]

3. The goods should be returned before a refund must be made.

Absolutely not disputing this, but for my edification do you have chapter and verse?

 

[MBE2017]

I stand corrected, you cannot claim legal fees in the small claims court. OP, I would send a one line email stating your solicitors name and address, requiring everything to be done in writing from now on. Forget refunds etc, let your solicitor draft an official letter, they will clarify everything for you, you are in the 100% strong position in this case based on what you say.

If this client has proceeded so quickly to legal means then they intend to be awkward from the start, until the end. Leave it to your solicitor, once they clients checks the letters details they will soon see they have no power in this case.