Thanks for your help. I've drafted a notice before action that hopefully sets things out clearly. I'm going in quite hard on the basis that we're unlikely to get what we want. When we reported the initial fault, it is true we did not reference the Consumer Rights Act. But it was done via email so there is a record.

Quote

Notice Before Action.

 

On the 28/8/18 I purchased a vehicle from Essex Auto Group, part of the Allen Ford Group, for £9800. The transaction was made pursuant to the Consumer Rights Act 2015. In addition to statutory and common law rights, the vehicle was sold with a 12 month warranty.

 

On the 18/09/18, just 22 days from purchase, I reported excessive black smoke from the vehicle exhaust.

 

The vehicle was subsequently presented for repair at Allen Ford Northampton on the 2^nd Oct 2018.

The repair was unsuccessful.

 

The vehicle was again presented for repair on the 26^th October 2018.

The repair was unsuccessful.

 

On the 10/05/19, whilst undergoing an MOT, the vehicles electrics malfunctioned resulting in a localised fire. I understand the issue to have arisen from a fault in the rear wiper motor but the resulting fire was due to the failure of the vehicles safety fuse system to operate correctly. Needless to say, if this fault had occurred whilst the vehicle was in motion the consequences could have been far more serious.

 

The fault was subsequently reported to Allen Ford on the 13/05/19. Remedial work was undertaken by Allen Ford Northampton at the earliest opportunity offered; 28/05/19. I was informed the work had completed on the 14/06/19 - more than a month after it was reported.

 

In the course of rewiring the vehicle, various parts of the vehicle’s interior were unacceptably [and avoidably] damaged which necessitated the vehicle being returned a further time for remedial work and once again to resolve the excessive amounts of black smoke from the exhaust system. The vehicle was duly returned to Allen Ford Northampton on 22/06/19.

On the 12/07/19, a further 3 weeks later, I received the vehicle back, having been assured that the black smoke issue had been resolved. Today, on the 13/07/19, having driven the vehicle for just a few moments it is apparent that the issue is far from resolved, arguably it has gotten significantly worse.

 

The vehicle has now been presented for repair on three occasions. On each occasion Allen Ford Group has failed to resolve the issue. I have been without the benefit of the vehicle for a period of 53 days, thusly undermining and effectively terminating the contract of sale and furthermore causing me significant inconvenience, stress and expense.

I am now left with no option but to reject the vehicle on the grounds that it is not of satisfactory quality and harbours an inherent fault. For legalities sake, I reiterate that this was reported within 22 days of purchase.

 

Please arrange to collect the vehicle and refund the purchase within 10 working days. If I do not hear from you, or you unable to provide acceptable resolution I shall proceed with small claims proceedings against Allen Ford Group.

 

Whilst I hope to avoid this course of action, should it become necessary, all fees and costs incurred, including that of litigant person and (or) the use of legal representation and expert witness testimony will be applicable. I would therefore consider it in Allen Fords interests to settle this promptly, thusly minimising potential liability and simultaneously making good on it’s customer service promise.

Back on the 28/8/18 we purcahsed a Ford Torneo Connect from Allen Ford Group. It was a 14 plate and had done 10k miles. We paid £10,000.

Within 22 days of purcahse we reported thick black smoke bellowing from the exhaust, initially under acceleration but it now seems to do it all the time.

It's been presented for repair on three occasions now, each time the problem is unresolved.

Simple question, is our right to reject deminished by the passage of time? We reported the fault within 30 days, and have had numerous other issues, including it catching fire due to dodgy electrics.

Ok. Three things.

1. The point of this post is to not to establish to law. It's to warn others that if they make the vaguest of enquires with VM they will follow up with aggressive sales tactics and you will have a fight to get rid of an unexpected caller that a lot of people won't want. You would like that. Good for you. IF your elderly or just don't like salesman on your door stop you won't.

2. Even if you assume there is no legal substance behind it that does not make it silly or meaningless. Any human with the ability to read can establish the sentiment and come to the conclusion it's probably not a good idea to knock.

3. The precise wording/design of that particular sign is not a trading standards one - granted. But that wasn't what you said. You said there were NO signs that would be approved by TS when there are and the legislation I mention supports them. Again your wrong. My sign is very similar and contains all the right words. Would you ignore a “height restriction” sign just because it hadn’t been put up by the council?

It doesn't NEED to be endorsed by them to have a meaning!

Such signs are recommended by trading standards.

Here is just one example of a sign provided by Coventry TS.

http://www.coventry.gov.uk/info/30/trading_standards/1410/doorstep_sellerscallers/5

Plenty of other examples out there from councils and alike.

It’s not about the legality. It doesn’t need to be. But if you still want to bark up that tree go and read the Consumer Protection from Unfair Trading as indicated above.

And anyway none of this is the point of this thread, I just wanted to make others aware of what would happen.

You absolutely shouldn't call something silly just because that's your personal opinion. You should be setting an example to others, maybe even the odd constructive post.

Even if there were no legal standing to such a sticker does that make it "silly" or "meaningless"? No, because any decent human being would respect it regardless.

If you see a ‘please keep off the grass’ sign do you think, ‘there is no legal standing behind that or anyone they can complain to ‘? – Therefore I’ll walk all over it?

Trading standards actively recommend such signage and ignoring it is a breach of Consumer Protection from Unfair Trading Regulations 2008 under Schedule 1, paragraph 25.

Citizens Advice website asks people to report traders who ignore these signs to them and Trading Standards are also keeping track of firms that break the rules.

Seems pretty unambiguous to me...

I went on the Virgin Media website to see what I could get.

I put in my address and postcode - nothing else.

I found the information I needed and decided I'd think about it for a while.

Within two days a Virgin media person was on my doorstep.

I have a very clear no cold calling, no sales people sign.

He knocked regardless.

I was pretty agitated already by the arrogance and contempt for my no cold calling sign

not to mention the principle of sending someone out to chase up the loosest of enquires.

I assumed he would get the message as he could see us ignoring him through the living room window.

He buggered off and I hoped that would be the end of it.

I was mistaken, he called AGAIN tonight just as I sat down for dinner. With this I was LIVID.

I opened the door and asked him why he was knocking, to which he said "Did you make an enquiry with us?".

I pointed to my sign and said "Can you read" to which he replied "if you've made an enqury it's not a cold call!"

What!!???

I asked him what my name was and he obviously stumbled and looked blank.

"Have I invited you?"

"Then you're a called caller"

He made his protests and I got really furious

"how dare you read that and disregard it, wilfully choosing to interrupt my evening"

Things escalated and I threw several extremely strong insults his way

and then told him to get off my property in 5 seconds or I would get physical.

At some point I also recall telling him he could shove his fibre optic cable.

I am absolutely shocked at the arrogance of this company.

To come back AFTER you have read the sign and clearly been ignored. What was he expecting.

Now i'm stuck. I don't want to pay BT prices and I don't want a company like Virgin in my life.

Gah.

I think Citizens Advice have a page about this - my recollection is yes, you can. You will likely need to prove your earnings and potentially issue a small claims action as I doubt they will be forthcoming...

Email to AO.com this evening:

Dear Sirs,

 

I would like to make you aware of that I believe my Neff KI7853D30G fridge freezer (order number AOL9485792) to not be fit for purpose.

 

Seemingly, it is incapable of keeping food frozen on warm days. Up to now I have been content to follow the manufacturer’s warranty claim procedure. However, having already taken one day off work to be told “It’s a glitch with the weather” my patience is rapidly running out and I regret it may become necessary to make a claim against yourselves per the Sale of Goods Act.

 

01/07/15. The ambient temperature peaked at 34c. In the evening I noticed fridge/freezer alarm sounding. An inspection revealed the freezer was at -10c (it should be -18c). I attributed it to the hot day (though by this point it was obviously much cooler), put the freezer on to ‘super’ mode and assumed it would be back to normal in the morning.

 

02/07/15. Despite being on “super” all night the freezer is now at -2. I contact Neff who advise me to do a manual defrost (turn it off for 8 hours). Following this the fridge very quickly reached its set temperature of 4c. The freezer remains room temperature for the rest of the day.

I contact Neff who arrange an engineer visit.

 

03/07/15. At some point during the night the freezer miraculously started working and by breakfast time it was at -7c. By evening it was back to -18c.

I am prepared to consider it a one off event and hope that’s the end of the problem. Not wanting to end up paying for an engineer to find “no fault” I cancel the Neff engineer.

 

04/07/15. Ambient temperature peaks at 26c. In the early afternoon the freezer alarm sounds once again, it’s at -7c. I contact Neff to reschedule an engineer. It remains in the alarm state for the rest of the evening.

 

05/07/15. Freezer returns to -18. Frustrated by the inconsistency I deem it wise to proceed with the engineer visit and schedule a day off work.

 

08/07/15. Neff engineer visits and finds no fault. Informs me “It’s a glitch with the weather”.

 

02/08/15. Ambient temperature peaks 24c. Alarm sounds in afternoon, freezer indicates -8. Thermometer within freezer reveals it’s actually -2c.

 

I intend to contact Neff once again tomorrow 03/08/15 and assume this will entail an additional engineer visit.

 

I should like to make you aware of the problem and provide you an opportunity to rectify the problem directly.

 

I believe an inherent difficulty with this problem is that it only occurs on hot days making it virtually impossible to replicate for any engineer or independent inspection. To this end, the engineer that visited on 08/07/15 performed a full diagnostic and confirmed no single part was faulty. However, it is my opinion that the sum total of all parts working correctly is a freezer that cannot cope on warm days. Needless to say a freezer that you cannot rely on to operate on warm days is useless - neither as advertised or fit for purpose.

 

The freezer is rated for ambient conditions up to 38c. To date ambient temperatures have peaked at 34c – well within the freezers supposed environment.

 

To my mind a £1000 Neff fridge freezer should be the best of the best. At this price point it should be more than capable of managing a British summer…

 

Needless to say I am very disappointed in the product, with performance like this I do not consider it befitting of its price tag.

 

Please could you clarify your position on the matter and your procedure for resolving such issues noting inherent difficulty of demonstrating this fault. To reiterate, the appliance may not have a detectable fault, my concern is that in normal operation it is not fit for purpose. I should like to make it clear that I am not prepared to keep taking time from work only to be told there is nothing wrong - evidently there is. Should resolution be less than forthcoming either by way of the manufacturer or yourselves I feel I will have little option but to pursue a claim inclusive of costs.

 

 

Of course, I hope this will not be necessary and that a speedy and convenient resolution can be found.

 

 

 

 

Kind Regards,

So today it was warm again (24c) and it's thown a wobbly. Alarm is going off and it's indicating -8 but a thermometer indicates it's actually -2c in the freezer.

Thanks, I do intend to raise it with the retailer. The only reason I hadn't so far was because I assumed it would be a simple parts replace. I will make them aware of the issue and continue to monitor.

Thanks for the advice. The freezer is usually full of stuff... no kids it only gets opened at meal times.

and in any event it doesn't entirely explain away that it remained room temperature after being on for 5 hours. My view point is a freezer at this point shouldn't require special treatment in order to do it's job. Not when a Beko at 1/3 the price soldiers on regardless.

General consensus on food safety is that freezers should be at -18. I know that ours has hovered around -2 and possibly warmer for extended periods.

As pointed out, it will likely be difficult to get even an independent engineer to witness it misbehaving if it does correlate with hot weather and that's obviously when you need a freezer to be freezing! Hence I'm wondering if non-expert witness evidence is admissible in the form of temperature logs - how much specialist training do you need to conclude that if a freezer doesn't keep things frozen it's not fit for purpose!?

If I were to keep a eletronic temperature logger in the freezer, and another outside monitoring ambient temps could I present this as evidence for the judge to draw their own conclusion or does it HAVE to be derived from an independant source?

Thanks for replies I understand that if I am to pursue under sale of goods I will need to evidence a fault, but that is the problem, the fact that it doesn't perform on hot days is a result of it being under specified for the climate for which use is intended. The sum of all parts working correctly means it doesn't keep food frozen on hot days! How do I substantiate that!?

After a little bit of advice at the moment… I am concerned our integrated Neff Fridge Freezer may not be fit for purpose (as opposed to faulty). I purchased it from AO.com roughly 18 months ago and paid via credit card.

For the moment I have been following the manufactures warranty claim procedure. I am aware my contract is with the retailer but elected to contact the manufacture as I deemed this the path of least resistance and quickest route to a working fridge freezer. To their credit, they have been very quick in despatching engineers and overall I am pleased with their response. Unfortunately however it hasn’t necessarily resolved my concern.

To put it into context, last Wednesday was the hottest day for several years, I believe temperatures peaked around 34c in the hottest parts of the country, and that’s when problems started.

I came downstairs at roughly 10PM and heard the fridge freezer alarm sounding. I went to check and the freezer was at -10 (it should be -18). I attributed it to what had been a hot day (though by this point it was obviously much cooler), put the freezer on to ‘super’ mode and assumed it would be back to normal in the morning.

By the morning it was still alarming, this time at -2! That’s despite being on ‘super’ freezing all night!

I contact Neff who advise me to do a manual defrost (turn it off for 8 hours). Once I had done this (pretty inconvenient) I turned it back on. The fridge very quickly reached its set temperature of 4c. The freezer did absolutely nothing for at least 5 hours until we went to bed.

I contact Neff who arrange an engineer visit.

Annoyingly, at some point during the night the freezer miraculously started working and by breakfast time it was at -7. By evening it was back to -18.

At this point I prepared to put it down to ‘weirdness’ and hope that it’s just a one off. Not wanting to end up paying for an engineer to find “no fault” I cancel the visit.

Saturday comes and it’s also a pretty warm day. Early afternoon the freezer alarm sounds again, its back at -7. I clear the alarm and reside myself to the fact it really is faulty. I did not monitor the temperature beyond this but noted the alarm light was on until my last observation in the evening.

I call Neff once again and schedule an engineer visit. But, once again come the next morning it’s back at -18.

Being quite convinced there is something wrong with it I see through with the engineer visit.

The engineer has today visited and whilst being helpful and thorough, unable to isolate any particular fault putting it down to a “glitch with the weather”.

I attempt to clarify this, but don’t really get anywhere – the freezer is rated for ambient conditions up to 38c – even in the hottest parts of the country it’s only touched 34c.

To my mind a £1000 Neff fridge freezer should be the best of the best, I shouldn’t get nonsense like this just because it gets a bit warm – a freezer should by definition keep food frozen (within its rated environment).

If no individual component is faulty yet the system as a whole does not meet specification surely this renders the device not fit for purpose?

My question is; if I ever wanted to bring a claim against the retailer under the sale of goods act how would I substantiate this? Even an independent engineer may not be able to document a specific fault - It appears to be a result of an under specification in the units design.

As I mentioned earlier, it’s not like this is a cheap and cheerful fridge freezer – it really should be able to cope with the extremes of a British summer, as indeed significantly cheaper models do.

I agree with the principle of your argument, PayPal and eBay are a law to themselves and jointly offer very little in the way of seller protection preferring to always protect the buyer in disputes.

However, I think someone needs to point out that eBay haven't necessarily given you incorrect advice, and neither for that matter have PayPal. Paying for items via PayPal and collecting them in person is a legitimate way to conduct a transaction and there would have been no reason for eBay to suspect a fraud attempt at that time.

At that point you are already contracted with the buyer to proceed with the transaction so they can hardly say to you "No it's fraud, or risky" because this is often the way people like to perform a transaction. However, I do feel they should have highlighted the particular risks rather than broadly saying the PayPal Seller Protection applies. Yes the 'transaction' is covered is covered by PayPal's protection policy but not unless you dig into the terms and conditions of that will you actually realise how exceptionally limited it is and how many there exceptions there are to this.

To my mind it represents nothing more than a marketing gimmick designed to infer the impression of protection. The reality is it just provides PayPal with various 'get outs' and leaves you exposed to fraud in certain situations like this.

Collection/PayPal fraud like this is extremely common and easy to do. All the buyer need to is open a bogus dispute and they get their money back. Fraudsters know this.

To be honest even if you use registered delivery services you can still be had as the buyer will request to return the item and simply send you and empty package - signed for. Buyer wins again.

It's a crap situation but I really don't know on what basis you could mount a claim against eBay. Technically, the advise they gave you was accurate and appropriate at the time. Perhaps they should have expanded on the implications of allowing a collection but they weren't to know fraud was impending...

Personally when ever I have a high value item to sell I insist on collection only with either cash or bank transfer accepted.

Lets not get into silly debates okay. Its pointless and isnt worth it.

I'm afraid I don't agree.

1. I've tried to provide something helpful/constructive in a yet to be resolved thread.

2. Yourself and Labrat rats posts have not been constructive or helpful to anyone and have only served to undermine my willingness to contribute.

3. You allege that by posting I've broken the forum rules.

4. You are unable to state where the forum rule that I have broken is documented.

5. When the above is pointed out you declare the whole thing "silly, pointless and not worth it".

Ironically, the only thing I consider pointless and not worth it are the follow up posts from yourself and labrat. They are punitive and attempt to enforce a non-existent (or at best) undocumented rule. When I’ve only put forward a constructive point your follow-ups seem completely draconian and unnecessary.

If it is a rule I genuinely don't want to break it again, hence request for clarification. As you haven't clarified the rule and I can't find it any mention of it then I don't believe such a rule exists.

I don't want to appear unduly aggressive but no other forum (at least that I'm a member of) would seek to supress a constructive contribution to an open thread. Otherwise you have to ask yourself why have a forum?

Overzealous enforcement of undocumented rules is something that as a forum we should wholeheartedly oppose (PPCs, unfair T&C’s etc)…

Well, I can't see it in the rules - can you show me where exactly? It's certainly not mentioned at http://www.consumeractiongroup.co.uk/forum/showthread.php?9-Forum-rules.-Please-read-these-before-posting

By virtue of the fact it's not a closed thread it has to be live and clearly it is unresolved. If there were such a rule [daft] what would the timescale be for deciding when a thread should be considered dead - just so I'm better informed for next time?

As an aside I don't understand why you would ever seek to discourage constructive discusson on a forum - it exists for that very reason... what harm is being caused? Providing it's constructive the only risk is that you help somone at a later date or provide a different point of view that may be applicable to a similar situation in the future...

please dont resurect old threads

Please don't pretend to be a mod when you're not.

The thread is open and unresolved, furthermore it still appears towards the top of the section of the sub forum and is therefore very visible. My comments are constructive and may assist anyone researching a similar situation or the OP himself should he choose to review his thread.

The fact is both the charger and the tablet worked. The charger now has bent pins and doesn't work. When sold the charger was working and the pins were straight.. Clearly someone has bent the pins - it's not PC World! I would speculate that you would have a very hard time convincing a judge that this is a 'defect'. Your best option might be to pursue a not fit for purpose case, on the grounds that the charger is poorly designed to withstand the stresses/strains of normal use... otherwise PC World are going to say you have damaged/misappropriated it...

Unless the TV is actually faulty PC World don't have to do anything..

. Not liking the picture doesn't mean it's faulty - it's just your perception and therefore subjective.

You can quickly establish if it's faulty by comparing it with the in store model.

Also be aware the default TV settings are usually not optimal and require tweaking to get a decent picture.

Distance selling regulations don't apply because you purchased in store.

If you didn't view the TV prior to purchase and have decided that you just don't like it's picture

then I think PC World are very entitle to charge a restocking fee

- the law doesn't require them to do anything at all.

You need to establish if the TV is performing to specification. really.

LED refers to the back light. and only the back light.

It's still an LCD display... to say it doesn't look up to LED quality really doesn't make sense...

Don't be fobbed off by terms and conditions that they may try and use to limit your compensation. You don't need insurance if they have been negligent - if they try to claim T&C's to the contrary there is a more than good chance it's an unfair contract. For specific details see the thread I made at http://www.consumeractiongroup.co.uk/forum/showthread.php?433696-Courier-Liability-and-unfair-contract-terms

Huh? You can sue anyone you like... whether the action is successful or not is another matter. People can and do sue couriers, most often than not the defendant opts for an out of court settlement at the last hour...

You may find my thread here useful http://www.consumeractiongroup.co.uk/forum/showthread.php?433696-Courier-Liability-and-unfair-contract-terms

Really, you don't need insurance - they have a duty to perform there job with reasonable care and skill. They have not - no amount of small print/terms and conditions can absolve them of this (see my thread) but you will need to fight them all the way and it won't be easy I suspect.

There is one slight sticky point with this if you are admitting that you did not adequately package the items... None the less, they were given an opportunity to inspect and always had the option to refuse to accept them - the fact they did not implies the the goods were adequately packaged.

Good luck with this one...

This is true, though the points should still be valid or at a minimum helpful until equivalent guidance is produced by the CMA or FCA. In the first instance yes contact the trader and escalate as required. Given the high number of posts on here where the supplier is seemingly pre-disposed to reject claims for compensation (or make it as painful and drawn out as possible) I felt something meaty was required to combat their default attitude and reliance on terms & conditions which are for the most part unfair. If people use this information in support of their claims it can't do any harm.

I’ve been researching into ‘typical’ courier terms and conditions, with a particular interest in liability clauses. I’ve long been of the opinion the majority constitute unfair contracts and a shirking of responsibilities at the expense of consumer rights.

What annoys me more than anything is the tendency for couriers to imply consumers require (and should pay for) additional insurance against loss, theft and damage. In my opinion if any of these eventualities occur it is as a result of negligence and (or) failure of the supplier to exercise reasonable care and skill.

It is for the supplier to arrange their own liability insurance for such eventualities and neither fair nor reasonable to expect the consumer to be made responsible for supplier negligence. To this end I am particularly fond of point 18.2.3 in the OFT, which among other things states that “The supplier should not make the consumer his insurer”.

For the purposes of this post I have analysed CityLinks terms and conditions which I assume to be typical of most. I have highlighted each clause which I believe to be at odds or at least questionable according to the OFT Unfair Contract Guidance.

Please note the following are not the FULL terms and conditions provided by Citylink, they are merely the ones I deem relevant or dubious:

 

 

 

11 Indemnities

a. You will be responsible for protecting us from, not holding us responsible for and paying any liabilities, claims, loss, damage, fines, costs or expenses arising from:

 

**See Group 18(b): Transferring inappropriate risks to consumers, 18.2.7 Indemnities against risk**

us following your instructions;

any claim or action brought by any person who has an interest in your goods even if we have been negligent or are in default;

**See Group 18(b): Transferring inappropriate risks to consumers, 18.2.7 Indemnities against risk**

your failure to correctly package any goods;

you breaking any of these conditions (including but not limited to your failure to comply with the conditions of accepting your goods in clause 3);

your negligence; or

 

any and all duties, taxes and so on charged by any authority together with all payments, fines, costs, expenses, loss or damage relating to your goods.

b. You must pay any claim under clause 11a above within seven days of the date of the relevant invoice. After seven days we will treat the claim as a payment due to us under clause 6 of these conditions.

 

 

12 Limits on our liability

a. Our liability for loss of or damage to your goods, or any other failure to keep to these conditions, is limited as set out in the rest of this clause and clause 13, and by the effect of certain other clauses of these conditions. Clause 12l will always apply.

** See Group 2(b): Exclusion of liability for poor service 2.2.1, 2.2.2 and Group 2©: Limitations of liability 2.3.1, 2.3.2, 2.3.3**

b. All the limitations and exclusions set out within these conditions are ‘cumulative’. This means that if more than one limitation or exclusion applies in a particular situation, we will have the benefit of each and every limitation that applies.

c. Unless you and we agree otherwise in writing under clause 1e, or unless you and we have agreed Additional Liability Cover (ALC), (see 12e below), our liability for any damage to or loss of the goods, however it arises, will be limited to whichever is the less of:

 

• £10 for every kilogram of the gross weight (or volumetric weight if we charge by this measure) of your goods (rounded up to the nearest kilogram);

• the value of the goods; or

• the total amount of liability specified in clause 12e below. “Value” means the value of the goods, based on:

 

the cost you bought the goods for, less an amount for depreciation (loss of value) and wear and tear;

 

the cost of any necessary repair;

 

the cost of the goods less any salvage value; or

 

the cost of replacing the goods; whichever is less, as decided by us.

 

** See Group 18(f): Exclusions and reservations of special rights 18.6.1. and Group 2©: Limitations of liability. 2.3.3**

** See Group 2(b): Exclusion of liability for poor service 2.2.1, 2.2.2 and Group 2©: Limitations of liability 2.3.1, 2.3.2, 2.3.3**

 

d. In all other cases, our liability (however it arises, including for a delay in or failing to provide the services) will be limited to an amount equal to the charges you must pay to us (not including VAT or other taxes) in connection with the goods the claim relates to.

** See Group 2(b): Exclusion of liability for poor service 2.2.1, 2.2.2 and Group 2©: Limitations of liability 2.3.1, 2.3.2, 2.3.3**

e Where we have agreed to provide Additional Liability Cover (ALC), we will be liable to compensate you for any damage to or loss of the goods, based on the value of the goods as defined in clause 12 © up to a limit of £15,000 depending on the amount of ALC you have agreed to purchase. For the avoidance of doubt ALC will not apply to Post.

 

 

** See Group 18(b): Transferring inappropriate risks to consumers, 18.2.1, 18.2.2,18.2.3**

f. Our total liability to you for all claims for loss of or damage to any goods, however that loss or damage arises, will not be more than £50,000 in respect of any one incident or occurrence, or series of incidents or occurrences having the same or similar cause: in the case of our Sameday service our liability will be limited to £15,000 in respect of any one incident or occurrence, or series of incidents or occurrences having the same or similar cause.

 

 

g. Our liability shall not exceed £100,000 in aggregate in respect of all claims howsoever arising under this agreement.

 

 

 

h. In no circumstances will we have any liability for:

 

any loss of or damage to profit, turnover, income, goodwill, expected savings, information (or data) or use; or

 

any indirect or consequential loss or damage of any kind such as, but not limited to any interest, costs, extra charges or costs of repackaging and resending your goods and so on.

** See Group 2©: Limitations of liability. 2.3.3 D, 2.3.6, 2.3.7**

 

i. We will not be liable to you for any damage to your goods, any loss of or from your goods, or any other loss you suffer that is caused by, or contributed to by, any or all of the following:

 

you breaking any of these conditions.

 

your goods needing special handling which you had not told us about and we had not agreed to in line with clauses 1a, 1b or 1e.

 

natural loss of bulk or weight, a hidden or built-in fault, or natural wear and tear or loss of value.

 

your failure to correctly package any goods.

 

your or anyone else’s criminal activities.

 

 

 

** See Group 2©: Limitations of liability. 2.3.3 D, 2.3.6, 2.3.7 and Group 2(b): Exclusion of liability for poor service 2.2.7 **

 

circumstances beyond our reasonable control.

 

carrying any goods falling under clause 2.

 

seizure or forfeiture under legal process.

 

In respect of post services ( except International “tracked” post services) any loss of or damage or delay to any post, or for any deviation in delivery, mis-delivery, non-delivery or detention of any post, which is due to any act, omission, error, neglect or default on the part of the relevant Postal Operator

 

j. The loss and damage referred to in this clause 12 includes that from all causes and actions that give rise to liability under the whole agreement between us. The term ‘however it arises’ in these conditions includes all liability from all causes and actions including for negligence, breaking this or any other contract or any other legal cause.

 

 

 

**See Exclusion and limitation clauses in general 1.2, 1.3, 1.5**

k. The limits in this clause 12 apply whether or not the loss or damage could be expected or whether you told us about the possibility of any greater loss or damage.

 

 

 

l. Even if these conditions say otherwise, the limits in this clause 12 will only apply to the extent allowed by law. In particular, nothing in these conditions will limit our liability for death or personal injury caused by our negligence or for fraud.

 

 

 

The corresponding sections from the guidance are:

 

 

 

Exclusion and limitation clauses in general

 

1.1 Terms which serve to exclude or limit liability (also known as disclaimers,

or exemption clauses) take many different forms. Detailed comments on

particular types of disclaimer which may be unfair can be found in

subsections 2(a) to 2(h) below. But some comments can be made which

apply to all of them.

 

1.2 Rights and duties under a contract cannot be considered evenly balanced

unless both parties are equally bound by their obligations under the contract

and the general law. Any term that undermines the value of such

obligations by preventing or hindering the consumer from seeking redress from a supplier who has not complied with them falls under suspicion of unfairness.

 

1.3 A disclaimer will often exclude or limit liability for breach of the 'implied'

terms that the law presumes are included in a contract when nothing is

expressly agreed on the issues involved. These help ensure agreements are

workable, and generally reflect what the law considers a reasonable person

would have agreed. Excluding them can have the effect of allowing one

party to act unreasonably or negligently to the other without consequences.

Any term which can have that effect in a consumer contract is particularly

 

likely to be considered unfair.

 

 

Group 2(b): Exclusion of liability for poor service

2.2.1 A business that supplies services to consumers accepts certain contractual

obligations as a matter of law. In particular, consumers can normally expect

services to be carried out to a reasonable standard. That applies not just to

the main tasks the supplier agrees to perform, but to everything that is

done, or should be done, as part of the transaction.

 

2.2.2 See paragraphs 1.1 to 1.9 for an explanation of the OFT's objections to

disclaimers generally. A term which could – whether or not that is the

intention – serve to relieve a supplier of services of the obligation to take

reasonable care in any of its dealings with consumers is particularly liable to

be considered unfair. Where goods or materials are supplied along with a

service, the same requirements as to description and quality apply as are

described in paragraph 2.1.1.

 

 

Group 2©: Limitations of liability

2.3.1 If a contract is to be fully and equally binding on both seller and buyer,

each party should be entitled to full compensation where the other fails to

honour its obligations. Clauses which limit liability are open to the same

objections as those which exclude it altogether. See Group 1 for the OFT's

objections to disclaimers generally.

 

2.3.2 In a contract for the sale of goods, use of a term either excluding or

restricting consumers' statutory rights is always ineffective in law

regardless of its fairness, and its use may give rise to enforcement action

as a misleading commercial practice (see above, page 10), in the same way

as the use of a term which excludes such rights altogether.

 

2.3.3 Many types of contractual provision – not just terms which simply place an

overall cap on available compensation – can have the effect of limiting a

supplier's liability. They include, for example, terms which:

(a) require consumers to meet costs that in law might be for the supplier

to pay – for example, by making call-out charges non-refundable, or

obliging the consumer to meet the costs of returning faulty goods to

the supplier

(b) say the supplier is liable only to the extent that he can claim against

the manufacturer

© limit the types of redress that are available – for example, allowing

only credit notes, not cash refunds – or which give the supplier the

choice as to what type of redress to give, and

(d) limit the kinds of loss for which redress is given, for example by

excluding 'consequential' loss (see below).

 

2.3.4 The OFT's view of what makes terms of this kind fair and unfair is

illustrated by examples published at Annexe A– see terms in Group 2©.

These show that the OFT has no objection to terms which, for example,

allow the supplier to charge reasonably for dealing with problems which

Unfair contract terms guidance 24

arise owing to the consumer's fault (but see Group 5 on the need to avoid

imposing any unfair penalty).

 

2.3.5 As already explained (paragraph 1.5), the mere addition of wording saying

that the consumer's statutory rights are not affected, without explanation,

cannot on its own make a limitation clause acceptable.

 

2.3.6 Consequential loss exclusions.4 Terms excluding claims for consequential

loss are supposed to protect the supplier from remote or unforeseeable

liability. Such a term effectively disclaims liability for any loss or damage

resulting from any breach of contract by the supplier unless it would have

been generally obvious to anyone that the breach in question would cause

that loss or damage. The OFT considers they can stop the consumer from

seeking redress in certain circumstances when it ought to be available.

 

2.3.7 This can allow a supplier to escape liability for negligently causing a serious

problem for the consumer, even if, for example, the consumer actually told

him about it and asked him to take care to avoid causing it. An example

would be where the supplier of a service has been told that if it is not

performed on time, the consumer will incur a financial penalty or lose an

advantage such as a discount under another contract. The supplier should

not be able to escape liability for that loss, just because the risk of its

happening would not have been obvious to the world at large.

 

2.3.8 Under the ordinary rules of law, compensation is awarded for loss or

damage that the parties themselves could reasonably have been expected

to foresee, at the time of entering the contract, even if no-one else could

have foreseen it. The OFT considers consumers should not be deprived of

the right to claim for damages they may be legitimately able to claim.

 

2.3.9 In any case, the technical meaning of 'consequential loss' is unknown to

most people. Its use in standard contracts can lead to consumers thinking –

and being told – that they have no claim for any loss which is a

consequence of a supplier's breach of contract. This may effectively

 

 

Group 2(g): Exclusion of liability for failure to perform

contractual obligations12

2.7.1 A term which could allow the supplier to refuse to carry out his side of the

contract or any important obligation under it, at his discretion and without

liability, has clear potential to upset the balance of the contract to the

consumer's disadvantage. This applies not only to terms which allow the

supplier to refuse to carry out his side of the bargain altogether, but also to

those which permit him to suspend provision of any significant benefit

under the contract – see paragraph 15.4.

 

2.7.2 These terms may be unobjectionable if – for example, they

• enable the supplier to deal with technical problems or other

circumstances outside his control

• or if they protect the interests of other innocent third parties, and

• or if they act to enhance service to the customer.

But the potential effect, as well as the intention behind, contract terms has

to be considered. If an exclusion clause goes further than is strictly

necessary to achieve a legitimate purpose it could be open to abuse, and is

liable to be seen as unbalancing the contract.

 

2.7.3 Such a term is more likely to be considered fair if:

(a) it is narrowed in effect, so that it cannot be used to distort the

balance of the contract to the disadvantage of the consumer;

(b) it is qualified in such a way – for example, by specifying exactly the

circumstances in which it can be used – that consumers will know

when and how they are likely to be affected;

Unfair contract terms guidance 34

© there is a duty on the supplier to give notice of any proposal to rely

on the term, and a right for the consumer to cancel before being

affected by it, without penalty or otherwise being worse off for

having entered the contract.

 

2.7.4 Sometimes such terms operate in effect as penalties, allowing the supplier

to deny consumers a benefit under the contract on the grounds that they

are in breach of their obligations. In such a case, it is essential that undue

discretion is not reserved to the supplier in making the decision, and that

there is no scope to impose a disproportionate sanction – see Part III,

Group 18©.

2.7.5 See examples of terms considered by the OFT at Annexe A under Group

2(g).

 

 

Group 18(b): Transferring inappropriate risks to consumers

18.2.1 A contract may be considered unbalanced if it contains a term the supplier

is better able to bear. A risk lies more appropriately with the supplier if:

• it is within their control

• it is a risk the consumer cannot be expected to know about, or

• the supplier can insure against it more cheaply than the consumer.

 

18.2.2 Particular suspicion falls on any term which makes the consumer bear a risk

that the supplier could remove or at least reduce by taking reasonable care

– for example, of damage to equipment that he himself operates, or the risk

of encountering foreseeable structural problems in installation work. Such a

term effectively allows him to be negligent with impunity. As such, it is

open to the objections to exclusion clauses which are set out under Groups

1 and 2.

 

18.2.3 Objections are likely even where a risk is outside the supplier's control (for

example, weather damage) if the consumer cannot reasonably be expected

to know about and deal with it. The supplier should not make the consumer

his insurer. The argument that such a term enables prices to be kept down

cannot be accepted unless suitable insurance is easily available to the

consumer at reasonable cost. If it is not, the end result is that the

consumer pays more overall, or goes unprotected against the risk in

question.

 

 

Group 18(f): Exclusions and reservations of special rights

18.6.1 Any contract wording which could have the effect of depriving consumers

of protection normally afforded to them under the law is open to suspicion

of unfairness. The Regulations indicate specifically that terms excluding

rights to redress for breach of contract may be unfair (see Groups 1 and 2).

But consumers also enjoy protection under legislation that operates

separately from contract law.

 

I also felt the following section was useful for when the supplier tries to push toward the subcontractor (perhaps if you used a parcel broker service)

 

1.9 Subcontractors. A disclaimer covering problems caused by a trader's

suppliers or subcontractors is regarded in the same way as one covering

loss or damage caused directly by his own fault. The consumer has no

choice as to whom they are, and has no contractual rights against them.

The business has chosen to enter agreements with them, and therefore

should not seek to disclaim responsibility for their defaults.

 

I hope people find this useful when taking these organisations to task.