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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have a consumer law query. I bought a fancy-dress costume

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I have a consumer law query. I bought a fancy-dress costume of a company via Amazon.co.uk, the costume was for my daughter for world book day. It arrived in good time but she had changed her mind about the costume (the character Matilda from Roald Dahl), so we didn't even open the packet and I requested a return and refund the very next day. As stated it was a girls age 7-9yrs Matlida costume made by Smiffys and sold by a company called Cheeky-nights-in. I received an email saying that the item was made-to-measure and seasonal, therefore a branded item for World Book Day, though there is nothing on the packaging saying it is for made specifically for world book day and the item is still available to buy online.and therefore under the long distance selling regulations they are not obliged to issue a refund as the item was sold for world book day. As it happens I had ordered it for world book day but the item is not a specifically traditional seasonal item in the manner that a Christmas or Halloween item might be. World Book Day is not necessarily recognised in the same manner,I believe. Anyway the item has not been open or even worn, that I can swear by. The company are implying that I have bought the item for world book day and now that that day has passed I am returning it. Implying that I am returning a used item and somehow being fraudulent. I am not. I am keen to know my rights in this matter, thank you.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. When they say it was made to measure, was it a bespoke item made specifically for her size?
Customer: replied 1 year ago.
no I am not sure wha they mean by that. It is standard off the peg, mass-produced dress age 7-9yrs, made by Smiffys but sold via various other companies such as this one.
Customer: replied 1 year ago.
please see their email replies to me
Customer: replied 1 year ago.
can i get a further reply?
Expert:  Ben Jones replied 1 year ago.
It does not appear that they have the right to refuse a refund here. As this as an item purchased online it would be subject to Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. These Regulations apply to contracts for sales conducted on the trader’s business premises, off the trader’s premises (e.g. at the consumer’s home) and at a distance (e.g. online). They replaced the Distance Selling Regulations they have quoted. In terms of cancellation rights, these only apply to off-premises and distance contracts, subject to some limited exceptions (such as personalised goods). The statutory cancellation periods are as follows:· Services – 14 days after the day the contract was entered into· Goods – 14 days after the day the goods came into the physical possession of the consumer If the consumer decides to exercise their right to cancel the contract, then each party will have separate liabilities:· Consumer – must return the goods no later than 14 days from the date of notification of cancellation, unless the trader has agreed to collect them; pay the delivery costs unless the trader did not advise them that they would be liable for this at the time the contract was concluded.· Trader – must reimburse all payments (except delivery charges in excess of the minimum/cheapest delivery costs) within 14 days The rights to a refund will not apply to personalised or bespoke items. For example, if the costume was personally made for her, based on her size or had specific designs and requirements which were made specifically for her. However, this was a standard and mass-produced item so nothing bespoke. It may have been sold for World Book Day but who says that you did not buy it for next year’s event and changed your mind. In any event that makes absolutely no difference – your rights to a refund are unaffected even if it was sold for a specific event which has now passed. As long as it was not used or worn then it makes zero difference. The exclusions to the ordinary cancellation rights can be found here: http://www.legislation.gov.uk/uksi/2013/3134/regulation/28/made There is no mention of seasonal goods and unless they can argue that these were personalised goods, which they clearly were not, they cannot really reject the cancellation. This is your basic legal position. I have more detailed advice for you in terms of the rights you have in the event they refuse to refund you, 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
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Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 1 year ago.
how can I phrase my reply. I did write an email stating the above in a tongue-in-cheek manner but they seem to be sticking to their guns. Also rather menacingly accusing me of trying to pull a fast one and have said "amazon are monitoring the situation". Will attach my email to them for you to see.
Customer: replied 1 year ago.
it won't let me attach it so have copy and pasted it for you:
Sent on the 4th March (world book day), having received the goods on 3rd March.
Dear Seller,
I am writing the express my extreme disappointment at your response to my returns request. You have "closed" my request for a return for the following reasons as I understand them:
The first reason you have given is that the "This item is a seasonal product which is classed as non returnable under the long distance selling regulations". It is a child's Roald Dahl Matilda costume. As far as I am aware, there is no "Roald Dahl" season. I am pretty sure you can dress as a Roald Dahl character any day of the year.T herefore I am baffled by this as the reason to decline my return. Furthermore the Distance Selling Regulations no longer apply in UK law. The Consumer Contracts Regulations - which came into force in the UK in June 2014 now apply when making online purchases.
A second reason stated on a different email was "The reason for the closure of your request is: Made-to-measure items cannot be returned". I was unaware that someone from your company came to my house and to measure my daughter for her costume? If you did then you were pretty quick and also must have taken the measurements in the dark, as the item is ill-fitting and far too big for her.
I would ask that you revise your decision. The item was delivered on Wednesday 3rd March and I emailed you back on the 4th March to ask for a return, well within the statutory 14 days.
Lastly I would refer you to the following paragraph on the government website about UK consumer law, www.gov.uk, to quote directly from the site:
"Online, mail and phone order sales:
Online, mail and telephone order customers have the right to cancel their order for a limited time even if the goods aren’t faulty. Sales of this kind are known as ‘distance selling’.
You must offer a refund to customers if they’ve told you within 14 days of receiving their goods that they want to cancel. They have another 14 days to return the goods once they’ve told you.
You must refund the customer within 14 days of receiving the goods back. They don’t have to provide a reason."
I eagerly anticipate your speedy response and hope we can quickly resolve the matter to my satisfaction.
Yours sincerely, *****
Customer: replied 1 year ago.
The advert for the item states:
Items Ordered Price
1 of: Official Roald Dahl Character Fancy Dress Costume MATILDA, MEDIUM 7-9 YEARS
Sold by: cheeky-nights-in (seller profile)Condition: NewNo mention of world book day or seasonal
Expert:  Ben Jones replied 1 year ago.
I see no grounds for rejection at all here. You may consider taking the next steps to pile more pressure. 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.
Customer: replied 1 year ago.
thank you, ***** ***** not really bothered by the money here, it's really their attitude!
I will write a letter formally reminding them for a refund as you suggest. Followed by a final warning letter. Can these be via email or do they need to be headed paper?
Can I say
Dear sir/amadam
Formal letter requesting refund, then state the reasons as you have laid them out?
Customer: replied 1 year ago.
I am in meetings now, can I pick this back up later today at 3pm? Thanks for your help again.
Expert:  Ben Jones replied 1 year ago.
You are free to send these by email and with the proposed wording. Fell free to come back to me any time
Customer: replied 1 year ago.
many thanks, ***** ***** write a letter and if ok will ask you to check it to make sure I haven't said anything misleading or legally incorrect. did you read my email to them? I know it was a bit cheeky but was it correct in what I said?
Expert:  Ben Jones replied 1 year ago.
My reply would have been as cheeky, don't worry...all you said was correct, also happy to look at anything you have written before it goes out
Customer: replied 1 year ago.
many thanks, ***** ***** in touch later today once out of meetings! Thanks
Expert:  Ben Jones replied 1 year ago.
No worries, will continue later
Customer: replied 1 year ago.
Ok Hi Ben,
Just want to clarify about the distance contracts which they keep quoting as the reason they are not subject to the same returns policy. Are they correct??
This is the draft letter:
Dear Seller,
Re: refund request Order #(###) ###-####5434724
I am formally writing to request a refund on order number(###) ###-####5434724, described as the official Roald Dahl character fancy dress costume, Matilda, medium, age 7-9 years, purchased via Amazon on 28th February 2016. There is no mention on the advert that the item was made for especially for World Book Day or was a made-to-measure item or licensed costume. The costume is a mass-produced item made by another company Smiffys. I note that you are still presently selling other Smiffys Roald Dahl character costumes from your website via Amazon.
I received the item on the 2nd March and sent an email on the 4th March requesting a refund.
As this as an item purchased online it would be subject to Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. They replaced the Distance Selling Regulations that you have quoted.
In terms of cancellation rights, these only apply to off-premises and distance contracts, subject to some limited exceptions (such as personalised goods). The statutory cancellation periods are as follows:
· Services – 14 days after the day the contract was entered into
· Goods – 14 days after the day the goods came into the physical possession of the consumer.
The item has not been worn and is still in its packaging. The reason the item is being returned is that the outfit was no longer required as an alternative outfit had been found.
I look forward to receiving your response.
Yours sincerely,
Natasha Maskell
Expert:  Ben Jones replied 1 year ago.
Hi, please find amended response below: Dear Seller, Re: refund request Order #(###) ###-####5434724 I am formally writing to request a refund on order number(###) ###-####5434724, described as the official Roald Dahl character fancy dress costume, Matilda, medium, age 7-9 years, purchased via Amazon on 28th February 2016. I am making this request under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which govern distance contracts, such as this one. Please note that the Distance Selling Regulations you rely on no longer exist and have been replaced by the Consumer Contracts Regulations. According to the Consumer Contracts Regulations I have the right to ask for a return within 14 days after the day the goods came into my physical possession. I received the item on the 2nd March and sent an email on the 4th March requesting a refund. The right to cancel is unconditional, subject to some very limited exceptions, none of which apply here. There is no mention on the advert that the item was made or sold especially for World Book Day or was a made-to-measure item. The costume is a mass-produced item made by another company, Smiffys. There is also no exception to ‘seasonal items’ as you have previously mentioned and in any event this is not a seasonal item – it is sold all year round and in fact it is still sold by you, even though World Book Day has passed. The item has not been worn and is still in its original packaging. The reason the item is being returned is that the outfit was no longer required as an alternative outfit had already been found. As such I still have the legal right to return the item for a full refund. I would therefore like to request a full refund as per my statutory rights. If no refund is forthcoming, I will have no option but to pursue the matter further, up to and including taking the matter to the small claims court. I look forward to receiving your response. Yours sincerely,Natasha Maskell
Customer: replied 1 year ago.
thank you very much. I will have to email them through the amazon returns site as that has been my route of contact so far. If I need to take the matter further I will write to them at their business address. I will keep you posted if you like?
How much does it cost to file a claim do you think?
Expert:  Ben Jones replied 1 year ago.
How much is the item?
Customer: replied 1 year ago.
a paltry £26.50. This really isn't about the money. I just don't like their attitude about the return policy and way they have dealt with it.
Expert:  Ben Jones replied 1 year ago.
It will be £25 to issue the claim and then a £25 hearing fee, so £50 in total, which you get back if you win
Customer: replied 1 year ago.
thanks I will send the email as you worded and wait and see! Thanks again for your help. Can I come back to you for further advice as need? If so how do I do that?
Expert:  Ben Jones replied 1 year ago.
yes of course, I will be happy to help in the future if needed. Just post your question as you did initially today and start it with 'for Ben Jones. Thanks
Customer: replied 1 year ago.
Hi Ben,
This is the reply I received today to my email yesterday.
I can absolutely guarantee thatbthe item has not been wore nor the pachage it came in even opened.Reply:
Order ID(###) ###-####5434724:
1 of Official Roald Dahl Character Fancy Dress Costume MATILDA, MEDIUM 7-9 YEARS [ASIN: B01A5T4C9K]------------- Begin message -------------Hi Natasha,Thank you for your message.Please do not make threats as this is in breach of market place policy as we are communicating with you.Please explain why a seasonal item delivered on time exactly as described is being returned immediately after the event.Seasonal goods are also classed as non returnable and this is covered by the long distance selling regulations which is designed to protect sellers during seasonal events such as World Book Week.All returns are tested prior to any refund and we advise that we work very closely with Amazon to keep the market place safe for buyers and sellers. We have flagged this matter to them and they are monitoring the situation. We have not formally reported this matter as we trust you not to abuse our good nature or the market place now or in the future.We find it incredible how many people attempt to send goods back after World Book Week as passed.If you wish to return the item subject to product testing you may do so but please note that if the item has been used this will become a criminal matter and the item will be used as evidence.Customer Service is very important to us and our contact numbers are 01257 261466 or 07956 467994 if you wish to discuss the matter further.Thank you for your understanding with this matter.SCx
Expert:  Ben Jones replied 1 year ago.
What nonsense...a criminal matter?! I would likemto be there when the police simply laugh it off. They keep going back to the distance selling regs which do not exist and quoting non-existent rules about seasonal items. There as an exception about Goods where where the price is subject to market fluctuations (e.g. seasonal fruit and vegetable, currency exchange services) but even then the buyer and seller must agree in advance that the regulations do not apply. So you have every right to pursue this further. If you send the it back, take detailed photos before you do so in the event they try and say it was opened or worn
Customer: replied 1 year ago.
thank you. I will write to them asking them to send me their return postage labels through their amazon site so I am following the correct amazon process.
I feel I should mention their bullish and rather threatening manner to amazon. They have told me to not make threats then they threaten me and worse they are basically accusing me of lying and trying to return a used item! I am only pursuing this to mae a point as they are being bullying now and I don't think they are being fair.
I will take photos as you suggest and return the item through amazon and then once I have resolved the matter I will report them to Amazon.
Expert:  Ben Jones replied 1 year ago.
You are not being threatening in any way, you are simply pursuing your legal rights and it is your right to say that you will take the matter further if things are unresolved. It is called reserving your rights
Customer: replied 1 year ago.
my reply to be sent:
Thank you for your email dated 8th March. Thank you for agreeing to my returning the item. Could you kindly process and send me the return labels that you use though Amazon so that I can follow the Amazon procedure,as we have been doing thus far. Then I can return the unused, unworn item,in it's original packaging. I am sure that once you have made your inspection you will agree that the item has not been worn or used and you will be able to precess the refund.
I am sorry that you seem to think that your customers are dishonest and try to return used items to your company, I can assure you that this is not the case in this matter. It is a shame that you cannot trust people at their word.
Hopefully this will restore your faith i your customer base.
Thank you for your ongoing cooperation.
Many thanks
Natasha Maskell.
Customer: replied 1 year ago.
I also added the paragraph you write about why the distance selling regs and why I think I am within my right to return the item as they asked for an explanation why I feel I should be able to return a seasonal item.
Expert:  Ben Jones replied 1 year ago.
yes all looks fine
Customer: replied 1 year ago.
should I also at this stage contact Amazon and file a claim through their A-Z Guarantee Claim system or wait for a reply?
Expert:  Ben Jones replied 1 year ago.
You can wait for a reply - I presume the guarantee program has time limits for making a claim so just ensure you do not miss these, otherwise you can submit it whenever you want
Customer: replied 1 year ago.
I have until 3rd June 2016 so plenty of time.. Will await their reply.
Something tells me they aren't going to just give in though! I am expecting a curt reply, with a threat of criminal action. I really would love to see them presenting a child's Matilda dressing up costume to the police saying that I insisted on returning this "seasonal" item. I have a feeling the CPS would tell them to push off.
The only good thing is that they do respond quickly! Thank you again for your help. My husband thinks Im mad pursuing this but it's made me really cross that they can just be so rude, threatening and aggressive in their manner with customers and I don't think they should be allowed to get away with it.
Expert:  Ben Jones replied 1 year ago.
I would push them as far as I can, but that's me...I work on principles as well and in this case I know I have the legal right to return this and push for a refund

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