Fitness Superstore - Delivery Dispute

[Intrepid]

Are you Fitness Superstore? Clearly you have not read any of the information contained within this thread.

[Intrepid]

Yesterday Fitness Superstore Manager - Layla left a message on my answer machine wishing to discuss my "letter" (my letter of claim) sent to their Director Mr Paul Walker.

 

I'd say whatever GDPR concerns Fitness Superstore claim to have, they will struggle to substantiate them in Court as they are in receipt of a courier contract for delivery to the same address on the Letter of Claim they received, and are content to leave messages containing personal information on my answer machine.

 

In additional despite purporting to have extensive knowledge of GDPR legislation, I have not received acknowledgement of the SAR they received so I expect that will come as a bit of a shock in approximately one months time.

Edited December 7, 2021 by Intrepid

[Intrepid]

Fitness Superstore Department Manager - Layla has just left a message stating if I do not call them back they will cancel the order.

I note despite being desperate to contact me and presumably being the beneficiary of two working hands, a computer and a connection to the internet Layla is unwilling to write to me or provide an e-mail address in order to correspond directly.

[Intrepid]

The following e-mail has now been received from Leila.
 

"I have tried to speak with you again today and have left a 2^nd voicemail on your phone (xxxxxxxxxxx).

Please can you return my call to discuss your order requirements – please call me on 01604 673000.

If I do not hear back from you by this time tomorrow, I will assume you no longer wish to proceed with your order and your order will be cancelled and refunded.

Kind regards,

Leila   -  Admin Team Manager"

In my haste I responded to their delivery team with the e-mail below before I recieved the above e-mail. Admittedly it probably would have been better to wait for the option you proposed above.

 

Quote

Thank you for your personal message you have left on my answer machine.

Is there a reason you will not write to me despite stating that you wish to contact me urgently?

You requested that I contact you to confirm I still wish to take possession of my goods.

You can be under no illusion that this is notice in writing that I intend to hold Fitness Superstore to our contract and should it be rescinded by you without my agreement the recorded message you left will be presented in Court.

Sincerely,

 

Edited December 7, 2021 by Intrepid

[Intrepid]

I was almost flattered there for a moment until the typo was edited.

Anyway duly noted. I believe I understand your reasons, sometimes it is best to travel East or West rather than North and South.

Any further correspondence will be posted up for review prior to sending.

[Intrepid]

The following reply was received from Fitness Superstore:

My comments are in red

I am happy to prospose a reply but I understand that it may be more straight forward to await your suggestion.

 

Quote

When customers make the mistake of ordering an item they are unable to collect, we offer the following: No mistake was made, I made the order after checking carefully that delivery was available as indicated at checout.

 

1. A full refund

2. An option to pay the difference between the ex-display item and a new product which we can deliver

We understand that since becoming aware that this item is a collection-only, you have asked a third-party service to collect this item for you. Fitness Superstore are in agreement that I have arranged for collection so do not see how they can then claim to prevent this collection based on the idea the courier is not collecting on my behalf.We typically ask the customer to collect the item themselves as we ask to see ID and the payment card on collection, which would not be possible for a third party (my colleague broadly referred to this as a GDPR concern, though it is largely to ensure the item is given the to the correct customer and cardholder). As you had already arranged a third-party collection, my colleague advised that we could avoid the cardholder and ID check should you be able to pay via bank transfer. The Bank Transfer is nothing to do with GDPR and is simply an attempt by them to get me to give up protections afforded to me by purchasing the goods on a credit card. This is disingenuous.

 

To summarise, we can offer you the flowing options:

 

1. A full refund

2. An option to pay the difference between the ex-display item and a new product which we can deliver to you

3. Collect the item yourself on the basis of the card payment you have already paid

4. To pay via bank transfer and have a third-party collect the item on your behalf
   I prefer option 5. The courier I have contracted to collect the goods retreives them from the store on my behalf and delivers them to me.

Please let us know which of the above options you would like to proceed with.

 

Kind regards,

Leila   -  Admin Team Manager

 

[Intrepid]

Another reply from Fitness Superstore.

My comments are in red.

 

Quote

Once again, we are sorry you thought the item could be delivered. Because I purchased it using standard delivery - price on application and received an order confirmation for standard delivery. As stated in our delivery terms and in the product description, the treadmill is to be collected from our Gloucester showroom.

 

Here is a link to the terms and conditions that are agreed to via a checkbox on purchase: https://www.fitness-superstore.co.uk/terms-and-conditions

 

Here is a link to the delivery terms that are linked to from the terms and conditions: https://www.fitness-superstore.co.uk/delivery The link to their delivery page simply substantiates my position - "standard delivery orders will be delivered within 5 working days"

Both of these pages can be found in our website footer.

 

You will see the delivery page states: “Please note that Ex-display products are currently for customer collection only”. This is misleading - What it actually says is "In most cases delivery will not be availble and where delivery is available it will be chargeable based on location and product value". I.e. I had a reasonabe expectation that delivery was availalbe when the contract was formed under the chargeable condition or more accurately that I was making the purchase using standard delivery as is indicated in my order confirmation.

 

As we have mentioned previously, the product page of the item you bought (https://www.fitness-superstore.co.uk/bowflex-results-series-bxt326-folding-treadmill-gloucester-ex-display-model.html) states the following as the first line of content: “Ex-Display Model. Customer to collect from our Gloucester Showroom (By Pre-Arranged Appointment Only). Their advertisement is not a condition of sale and not in keeping with how the contract was actually formed at checkout.

 

 

Further down the page, it also states: “Non-Northampton Store Ex-Display. All Ex-Display items from non-Northampton stores must be collected from the applicable store. We will arrange this with you post-purchase.” This is misleading - the are several descriptions for various forms of delivery. In any case I think the point to focus on is the bank transfer payment forms no part of the contract for collection nor is it mentioned on their website.

 

To clarify, new treadmills are sent boxed from our distribution centre in Northampton. This ex-display item is pre-built in Gloucester and must be collected, as we made clear in the above links.

 

We can offer the following options:

 

1.            A full refund

2.            An option to pay the difference between the ex-display item and a new product which we can deliver to you

3.            Collect the item yourself on the basis of the card payment you have already paid

4.            To pay via bank transfer and have a third-party collect the item on your behalf Their terms and conditions nor their delivery page make any reference to the requirement to make payments via bank transfer.

Option 5 my courier collect the goods on my behalf and deliver them to me.

 

Again, we cannot deliver this item as has been laid out in our terms. Please let us know which option you would like to go ahead with.

 

 

Kind regards,

 

Leila

 

Edited December 8, 2021 by Intrepid

[Intrepid]

Fitness Superstore cancelled the order without my agreement.

 

Quote

In light of your last email we think it best we cancel your order. The refund to your credit card has already been processed.

Best regards
Customer Service

 

Please accept this email as confirmation that the order has been partially or fully refunded.

SagePay Refunds (How long does it take?)

After a retailer has issued a refund, and confirmed this back through to you, funds can take a further 3-5 days

to clear into your account.

It is important to remember that once a refund has been issued and the funds settled back in to your own

account that your bank have a clearing process that must be followed.

If the funds have not cleared 5 working days after the refund has been issued, contact the business again to

ensure this has been carried out.

We are very sorry for any inconvenience caused.

Kind regards

Fitness Superstore

13 Gate Lodge Close

Round Spinney

Northampton

NN3 8RJ

01604 673000

 

[Intrepid]

I repurchased it from FS, it was still available for sale with Standard Delivery. This time I screenshot the entire process.

 

It is not available for sale else where.

 

When I selected standard delivery at checkout the price was £0.00

Edited December 9, 2021 by Intrepid

[Intrepid]

Correct, at exactly the same price, they relisted the item after cancelling my order.

 

I cannot answer as to whether they will deliver it. I suspect they will e-mail me again claiming they cannot deliver but once again the ball is in their court.

 

Please see the attached screen shots of the checkout process. I have also received another order confirmation confirming delivery.

 

When the PDFs were combined it struggled to display both pages correctly so for ease I have uploaded the documents separately.

 

 

FS - Shopping Cart.pdf FS - Checkout - Redacted.pdf

Edited December 9, 2021 by Intrepid

[Intrepid]

"Owner of treadmill forced to repurchase their own goods twice from Fitness Superstore"

Of course I will keep you updated.

[Intrepid]

FS cancelled the order again with the following e-mail:

My comments are in red:

 

At this point I could make the bank transfer under protest as you suggested earlier to ensure I receive the goods.

 

Quote

Order cancelled and refunded.

We assume you have placed this second order in error as we are unable to deliver as noted in numerous areas on the website page. I repurchased the item because they cancelled the contract without my agreement and in order to mitigate the losses they will incur if they deliberately sell my treadmill to someone else.

Regards
Customer service

 

Edited December 10, 2021 by Intrepid

[Intrepid]

FS have made partial disclosure of data following the SAR they received.

 

Upon review it is incomplete, they have included our e-mail correspondence but have failed to disclose a copy of the order confirmation indicating the item will be delivered.

 

As usual I am happy to prepare a response but will await your suggestion.

 

Ordinarily I would make an immediate complaint to the ICO but on this rare occassion there is time left regarding the one month deadline. In my experience companies normally disclose their data a day or two prior to the one month deadline.

Edited December 10, 2021 by Intrepid

[Intrepid]

I realise importantly I may have been incorrect in saying there is no other treadmill available. They have two more available at other stores, both ex-display but listed as not for delivery. However I expect the point is they do have a way of providing me with the actual goods we contracted for instead of something similar for replacement.

[Intrepid]

FS re-listed the item stating collection only. At checkout standard delivery was available.

As my couriers are due to collect the item I have re-purchased the treadmill for a third time.

[Intrepid]

I sent FS a copy of the courier contract for collection so they should be no confusion for them as to how I intend to collect my goods.

 

FS have rescinded the contract between us for a third time without my agreement by way of indicating they have refunded my third purchase of the treadmill.

 

As of yet they have not re-listed the item.

 

I think they understand perfectly well what is going on. They don't actually have any issue with what I have done by way of arranging a courier to collect my goods.

They ultimately want to insist on a form of payment which results in their customers giving up their consumer protections for a method of payment they accepted without question.

 

While I don't believe I should have to pay in the way they insist (it appears they have withdrawn the offer anyway) they would prefer to rescind the contract without my agreement and I have to say I really will be feeling the loss of enjoyment of my goods quite strongly in a few days time.

Edited December 10, 2021 by Intrepid

[Intrepid]

I had even more faith than what you are suggesting. I expected them to quote me a price for delivery using their couriers seeing as they deliver nationwide.

The fact they then went on to refuse to even make such a simple arrangement is even more baffling and is the point I began to feel very strongly that I should be re-imbursed for the losses I have incurred as a result of their breach of contract.

[Intrepid]

If there are no further comments to make then I think it best to reply to FS's latest communication reproduced below.
 

Quote

Order cancelled and refunded.

We assume you have placed this second order in error as we are unable to deliver as noted in numerous areas on the website page.

Regards
Customer service

 

The reply I propose.

 

Quote

The order was not placed in error and I am unsure why you have chosen to rescind the contract between us for a second time without my agreement, and then a third time this afternoon.

As I made clear previously, the courier I have had no choice but to arrange will collect my goods on 14th December, should you obstruct me from taking posession of my goods then the costs of arranging a courier to collect my treadmill will be added to the losses I will be claiming from you.

Sincerely.

 

Edited December 10, 2021 by Intrepid

[Intrepid]

FS know full well what is going on, the reason they won't address certain points is because they can't not because they don't understand them. They will probably become very understanding when all the evidence is presented at a hearing.

I presume another reason they wish to collect a bank transfer is perhaps as some form of insurance incase couriers cause any damage to other equipment during collection. Whatever their motives are I don't really care, they will have to convince a judge not me that their motives are justified.

 

I consider that FS have made their final positon very clear and therefore there is no need to wait the 14 days stipulated in my LBC to bring my claim.

I propose the following particulars to be submitted when they refuse my collection.

 

Quote

1) On xx November 2021 the Claimant purchased xxx from the Defendant's online store for a total sum of £1345.00.
 

2) The item was sold with delivery included. Following the purchase the Defendant wrote to the Claimant stating they could not make good on their contractual obligation to deliver the goods.
 

3) The Claimant made their own arrangements for collection of the goods with the courier AnyVan for a total cost of £2xx.xx

4) On xx the Defendant refused to hand over the goods to the Claimant's courier as arranged.
 

5) The Claimant seeks payment for the losses incurred as a result of the Defendant's breach of contract £2xx.xx

6) The Claimant seeks damages for the unlawful interference of their goods by the Defendant £100.
 

7) The Claimant seeks compensation for the loss of enjoyment of their goods as a result of the Defendant's breach of contract and unlawful interference. £1345.00.
 

8 )Total claim. £17xx.xx

 

While any input is greatly appreciated, as it is likely FS are monitoring this thread I respectfully request discretion from anyone that may inadvertantly assist FS with their defence following their comments.

Edited December 12, 2021 by Intrepid

[Intrepid]

As an attempt to resolve the conflict between us resulting from FS's breach of contract I offered to make the bank transfer despite the fact are yet to refund my credit card.

 

FS informed me they had sold my goods. I proposed a resolution which was declined.

 

If there are no further comments then I will bring my claim as per the particulars above.

[Intrepid]

Amendmant to line 4 is as follows:

4) On 13/12/21 the Defendant stated they could not hand over my goods as arranged by the Claimant because they had sold my goods.

Edited December 13, 2021 by BankFodder
Edits in red

[Intrepid]

Thank you - claim submitted, the particulars do not fit into MCOL so a full copy will be served to the Defendant along with a Certificate of Service to the Court.

[Intrepid]

The certificate of service was rejected by the CCBC stating the address on the certificate of service does not match court records.

There was a typo in the post code which I had not spotted. However there is another issue where the MCOL website does not have sufficient space to include one of the full lines of address of the company and shortens it.

 

They also state that as I did not tick the "Sending Particulars Directly" option that it is now necessary to make an application to a judge to amend the particulars by way of an N244, amended N1SDT and a cheque for £108.

I wonder if it would not be simpler to discontinue and start the claim again for the sake of the additional £7 it will cost to submit the claim as they have outlined.

 

While I believe this is particularly pedantic the Court is of course correct and presumably to ignore their direction, re-submit the certificate of service and hope that a judge realises that the correct action was taken save for ticking a box may risk the entire claim.

 

While it is likely I did not tick the box I did follow what was indicated as the correct procedure by serving the full particulars to the Defendant and the Court.

 

 

Edited December 22, 2021 by Intrepid

[Intrepid]

The particuars are as posted in #78 with the amendmant you kindly provided in post #82.

The particulars as written did not fit into MCOL.

I consider that it is worth simply re-sending the certificate of service with the correct address and see if someone more lenient takes a pragmatic view of the circumstances.

 

If this fails I may risk the wrath of the judge and submit the full particulars in the bundle which should still give the Court the opportunity to be fully versed with the claim.

We are not talking war and peace here but simply 4 additional lines to the particulars which the Defendant has received. The majority of which will be borne out in a witness statement which will still receive the attention of the Court.

 

I appreciate it is hard times on everyone but £108 for not ticking a box is not all that reasonable and more in keeping with PCNs.

 

The claim has been issued according to MCOL so this is sufficient I think to get things moving through the Courts.

Edited December 22, 2021 by Intrepid

[Intrepid]

The particulars as submitted on MCOL are reproduced below. As they stand I think they are actually sufficient to bring the majority of the claim. The parts that are missing can be detailed in the witness statement.
 

Quote

1) On 20th November 2021 the Claimant purchased a Bowflex BXT326 treadmill from the Defendant's online store for a total sum of £1345.00.

 

2) The item was sold with delivery included. Following the purchase, the Defendant wrote to the Claimant stating they could not make good on their contractual obligation to deliver the goods.
 

3) The Claimant made their own arrangements for collection of the goods with the courier AnyVan for a total cost of £261.23
 

4) On 13/12/21 the Defendant stated they could not hand over the goods as arranged by the Claimant because they had sold the goods.

I don't think we should pretend that an experienced Judge will have any particular need or desire to read any of the bundle including particulars until close to any eventual hearing.

There is a small chance the Court may not allocate the claim and may withold a DQ as a result, but it is my understanding things are done somewhat automatically without too much human involvement, the only way to find out is wait and see.

The sad part is I took the action I did after researching the first search return on what to do in the event the particulars do not fit within the limit. Unfortunately the advice was incorrect or rather not sufficiently detailed and certainly underwhelming for the CCBC.

Edited December 22, 2021 by Intrepid