Lawgistics has always recommended you err on the side of caution when it comes to distance selling.
If you advertise a delivery service or if a large proportion of your business is conducted by remote contact without customers visiting your premises, it is likely a court would consider you are operating an organised distance sales scheme, defined by s5 of the Consumer Contracts Regulations 2013 as follows:-
“……distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;”
If you are selling vehicles at a distance, as during the lockdown, you are required to provide notice of the right to cancel the contract in 14 days.
One of our members was recently successful in a long-running case on the single issue of whether they operated an organised distance sales scheme or not. Our member, a boutique trader of sports cars, was asked to deliver a vehicle to a customer some distance away. Our member explained they do not offer a delivery service and do not engage in distance selling. The customer insisted that they worked in the industry, were fully aware of the rules, and had no intention of trying to argue this was a distance sale at any point in the future. It was explicitly agreed between our member and the customer that this was not a distance sale, but that the customer was a consumer and the CRA2015 would apply if the vehicle was faulty. Our member was clear and fair from the outset.
In an incredible about-face show, the customer emailed a week or so later to say they wished to return the vehicle and had a right to do so as it was a distance contract. They did not claim any fault with the car, they stated, and I quote: “I do not have to give a reason, by law I have 14 days from the date of delivery to reject this car.”
The customer even engaged the services of a so-called “heavyweight” London lawyer who wrote, amongst other arrogances: “..we recommend you acquaint yourselves with the Regulations properly, as you clearly have no idea of your obligations at present” and stated that our member’s responses were: “frankly quite bemusing”.
Our member even made very reasonable offers to settle which the claimant refused as they wanted reimbursement of their considerable, yet it turns out completely wasted legal costs – a decision which, no doubt, they now bitterly regret.
The court agreed our member had shown they do not operate an organised distance sales scheme and ruled that the claimant had to keep the vehicle, pay our member’s costs, and of course their own costs. This was an unsuccessful, time-consuming, and expensive frolic for the claimant and our member showed immense fortitude in sticking by their conviction throughout, despite the condescending and intimidatory communications from the customer’s lawyers about rising legal costs and eye-watering hourly rates.
We are, of course, delighted that justice has prevailed, but our advice remains the same. It is better to err on the side of caution when it comes to deliveries – unless the contract has been agreed on your premises.
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