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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46784
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have a consumer rights and sale of goods act question.

Customer Question

Hi,
I have a consumer rights and sale of goods act question.
I ordered a phone from Apple for £700 online using my credit card.
Apple invoiced charged me for the phone on despatch on 02/10 via UKMail on a next day service
On 02/10 UKMail failed to make the delivery - there was "no access to the flats" was given as an excuse when it is actually a house
On 05/10 UKMail again failed to deliver again and apparently left a card
On 06/10 UKMail again failed to deliver and I got notification that it would now be delivered the next day.
On 06/10 I called to cancel the order as I got fed up of waiting for the delivery. They failed to tell me that I couldn't cancel once despatched but allowed me to. They said the refund would be with me in 5-7 days, which has not been done.
When I chased Apple they said the product was delivered to my address and signed for by a "Yusuf" incidentally at the time I was on the phone apple cancelling the order.
I got Apple to investigate and they said UKMail has confirmed they delivered "over the threshold" this means someone opened the door from the inside and the courier handed the parcel through the open door. This is a physical impossibility a) no one named Yusuf lives there b) I saw sat 3 metres from the door on the phone to Apple c) the door would've chimed in the kitchen as I have an elderly uncle with dementia so there is a chime in the door in case he wonders out.
Apple have concluded that the product was delivered to me and will not issue a refund. My reason for cancelling the web order was so I could go into a store and buy one in the evening on 06/10 within a few hours of cancelling with them I had a new phone
Apple asked me to report it to the police which I did however they say it's fraud and told me they will not investigate without further evidence which there is none.
I have started a section 75 refund process with my credit card company however I feel they will probably conclude the same as Apple that it was delivered.
I've been reading the consumer rights act and found that I have a right to cancel an order prior to delivery; also that the risk of the product does not pass to the buyer until "in physical possession" someone else signing for the parcel at my property to me does not seem like physical possession technically.
My home insurance company have said its fraud and will not be able to claim.
Apple had confirmed up until 2 weeks ago that the phone had not been activated - I'm not sure of the current status.
How do I stand with this? I bought the web order for £700 and the in store order which I do have in my physical possession cost me £800 so it's a lot of money now.
Apple will not investigate further. They will not confirm the GPS location of the couriers van at the time of delivery. UKMail will not speak to me about it as I'm not the sender, they did however confirm that they don't always have GPS locations, they did confirm the driver had been interviewed and they did confirm the previous failed deliveries were due to "no access to flats" when quite clearly it's a house they should be delivering to.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. What has happened with the credit card claim?
Customer: replied 1 year ago.
The credit card claim outcome should be this week. What are my alternatives if this fails?
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible.
Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.
Expert:  Ben Jones replied 1 year ago.
Hello, your rights in this case will be against Apple only. You bought the phone from them and they failed to deliver it to you. Whilst they entrusted it for delivery with a courier, the legal relationship with the courier was between them and Apple. So if the courier was deemed negligent and at fault, it is Apple who can claim from them and take it further with them, whereas your claim would still be against Apple, who is the seller here.
It appears that the item may have been delivered to the incorrect address and the courier now claims that it was actually delivered to the correct one. This may end up as being your word against theirs. It would be the driver’s evidence against yours. Without any other evidence, such as CCTV footage or anyone else’s witness evidence it would be something which could go either way to be honest. You will have the right to take this to the small claims court if you wanted to and if that happens, with the evidence at hand, it may come down to a judge making an informed decision based on who they believe more in the circumstances. So there is no guarantee of success without more concrete evidence. But that is your main option should the credit card fail - claim in the small claims court. It is a relatively risk free move as you will not be responsible for Apple’s legal costs should they win and you may find that they just try and settle anyway rather than go to court over this.
This is your basic legal position. I have more detailed advice for you in terms of the exact steps you need to follow to take this further to the small claims court, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46784
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Many thanks for your rating. In relation to the next steps, you can treat the value of the phone as a sort of debt. Whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:
1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.
2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.
3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.
Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

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