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Pathfinder

I would echo the comments above, but also reiterate that I don't think JL will go to court as it risks opening the floodgates. My money would be on them settling in full at the mediation stage (assuming Scottish Simple Procedure is akin to Small Claims' Fast Track here), or before the hearing if you don't have mediation.

Voyager

So, filling out the court form, I have several main sections to complete. The form emphasises the need to provide brief descriptions!!  Any feedback welcome:

 

What is the background to your claim?

A breach of the Consumer Rights Act 2015, as the goods are not as described. I purchased a Samsung television from John Lewis on 3rd August 2016. The product description said that within 2016, a free Samsung SmartThings Extend USB adapter would be provided to enable the TV to be used to control SmartThings devices from the TV using built-in software on the TV. John Lewis now tell me that they cannot provide me with the free USB adapter as described. They acknowledge in their deadlock letter that this commitment was in their product description, but refuse a refund, instead offering a "reasonable alternative" which doesn't provide the same functionality, in that it doesn't operate via. the TV, and requires the use of a mobile phone.

 

What do you want from the respondent?

I want the court to order the respondent to refund me the sum of £1799, being the purchase price of the television.

 

Why should your claim be successful?

My claim should be successful because the television is not as described. The description included a commitment to supply a Samsung SmartThings Extend USB adapter to enable control of SmartThings devices directly from the TV, and John Lewis will not provide this. Their offer of a "reasonable alternative" is not acceptable.

 

What steps have you taken, if any, to try to settle the dispute with the respondent?

To try and settle the dispute I have:
1. Followed the John Lewis complaints procedure.
2. Asked John Lewis to participate in ADR, but they replied saying "John Lewis deal with complaints internally and do not accept an outcome from any ADR service."
3. Raised a complaint on the EU Online Dispute Resolution service, but John Lewis will not participate in any ADR service.

 

Any documents you might bring to court to support your claim.

1. Deadlock letter from John Lewis.
2. Copy of product description.
3. Copy of a Retail ADR recommendation letter for a similar case against another retailer.

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Voyager

@Moily wrote:

I would echo the comments above, but also reiterate that I don't think JL will go to court as it risks opening the floodgates. My money would be on them settling in full at the mediation stage (assuming Scottish Simple Procedure is akin to Small Claims' Fast Track here), or before the hearing if you don't have mediation.


I actually think John Lewis might want this to go to court. Presumably they, like all retailers, will want to return any of these mis-sold KS TVs back to Samsung for a retailers refund, and maybe they need the strength of a court judgement to convince Samsung to take-back any KS TVs returned because of this mis-selling.

 

I wonder what's happening to all the KS TVs returned to Richer Sounds? I can't imagine they're happy to take the loss without trying to get redress from Samsung, and maybe they're using the Retail ADR ruling in this case.

Helping Hand

@tarbat wrote:

 

I wonder what's happening to all the KS TVs returned to Richer Sounds? I can't imagine they're happy to take the loss without trying to get redress from Samsung, and maybe they're using the Retail ADR ruling in this case.


 

@CharlesCC wrote on page 78:

"Well played RS highly impressed. They said samsung were refunding them."

 

I hope that's actually what is happening . I'll try to find out when they take mine, if they agree (currently in limbo waiting).

 

edit: to @Ramos049 , that's fantastic. I didn't realise they had offered you a 98% refund. Most people might have accepted that; so even more credit to you for having the patience to go through ADR and get the resulting decision which is helping so many people here! 

 

@tarbat  perhaps a stronger pushback on their alternative?

 

'Their offer of a "reasonable alternative" is a vexatious offer. It is unreasonable, unacceptable and against both the letter and spirit of the Consumer Rights Act 2015 which requires them, in cases of goods not being as described, to refund me in full.'

 

(always good to accuse them of being vexatious*. Hehe)

 * "denoting an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant."

Navigator

@edit: to @Ramos049 , that's fantastic. I didn't realise they had offered you a 98% refund. Most people might have accepted that; so even more credit to you for having the patience to go through ADR and get the resulting decision which is helping so many people here! 

It actually made me even more determined to go to Retail ADR. I asked for an LG OLED in direct exchange which at the time cost £140 more than my TV. My TV was discounted by that amount when I purchased it so didn't think it was unreasonable for them to do the same for the LG. Yet they still wasn't willing to do that and asked for £200; just so they didn't have to give me a full refund on mine. This is how they have been with me the whole time. I'm glad I'm getting a full refund; they could have had that money if they agreed to the exchange but now I'll be spending it else where.

Voyager

@mrtickle wrote:

@tarbat  perhaps a stronger pushback on their alternative?


Thanks for the suggestions. Given the space available on the form, I've gone with this for the "Why should your claim be successful" section:

 

The television is not as described. The respondent's description included a commitment to supply a Samsung SmartThings Extend USB adapter to enable control of SmartThings devices directly from the TV, and they will not provide this. Their vexatious offer of a "reasonable alternative" is not acceptable. The Consumer Rights Act 2015 requires them to refund me in full where the goods are not as described.

Explorer

I would add that its only recently that samsung announced the smartthings extend would not be supplied, as they might question why only just raising the issue if it was supposed to be provided in 2016. 

Explorer

Guys and Gals

 

There are a couple of things here you should factor into your decision that could help your claim amount.

 

1.  You are allowed to claim interest at 8% from the date you file the Notice of Intent.

 

https://www.gov.uk/make-court-claim-for-money/work-out-interest

 

2.  You are allowed to make a reasonable claim for your time, however you will need to have kept a diary of the amount of time you have spent on this and every action you took and how long it took.  That includes reading this forum for example.    Time in the courts is measured in 15 minute blocks.  DO NOT LIE OR EXAGGERATE YOUR TIME.  Just keep it factual and clear.

 

1st July 2018 - Reading up to page 107 on Samsung Forum KS Refunds Thread - 8;30am - 15 minutes.

1st July 2018 - Drafting letter before action - 9:00am - 60 minutes

1st July 2018 - Preparing Evidence Bundle - 10:00am - 60 Minutes

 

and so on, quite literally EVERYTHING you do related to this should be logged and timed, if you don't have a time management system the eastier way to do it is setup a word document with titled columns in a table and email it to yourself, each time you add something new email it to yourself again, that way there's a recorded audit trail showing when you filled things in so you can proce you didn't just fabricate it.

 

Then in your Letter before Action you should make a REASONABLE charge for your time say £35 per hour and add up all the time you've spent so far and make it clear in the Letter before Action that all time spent going forward will also be added to the claim as well as the interest to date and interest on new charges.  DO NOT fall into the trap of thinking that £35 per hour is too high, remember judges are used to lawyers charging £80+ per hour.  Also if the judge disagrees with your £35 figure (and they may ask you to justify it to them) they can reduce it or even cancel it, but that's the judges choice.

 

Justification of the hourly amount can take the form of what your normal salary is, the amount of work you had had to do before you started recording your time spent (do not try to think of time you've already spent and record it, only start from today but of course you can record having to review any documents and evidence bundles you have already prepared), the fact that you'd had to not spend time with your children, the general inconvenience of having to go to court when the evidence available meant the retailer should have settled earlier and so on.  It has to be factual and sensible.

 

One thing to take into account is the Judges take a strong view of REASONABLENESS in these situations and do NOT like things getting to court if they should have been settled before and (within the rules of their discretion) will try to 'punish' the bad actor for not resolving sooner.

 

Lastly it's likely some of you could get approached to accept an offer that will have a Non Disclosure Agreement (NDA) attached, it's up to you if you want to accept this but if you do accept it you cannot then tell your story anywhere publicly including these forums.

 

As I've said before....

 

The Law is not about right and wrong, it's about perserverance and boredom.

Black Belt 

@Tell wrote:

Guys and Gals

 

There are a couple of things here you should factor into your decision that could help your claim amount.

 

1.  You are allowed to claim interest at 8% from the date you file the Notice of Intent.

 

https://www.gov.uk/make-court-claim-for-money/work-out-interest

 

2.  You are allowed to make a reasonable claim for your time, however you will need to have kept a diary of the amount of time you have spent on this and every action you took and how long it took.  That includes reading this forum for example.    Time in the courts is measured in 15 minute blocks.  DO NOT LIE OR EXAGGERATE YOUR TIME.  Just keep it factual and clear.

 

1st July 2018 - Reading up to page 107 on Samsung Forum KS Refunds Thread - 8;30am - 15 minutes.

1st July 2018 - Drafting letter before action - 9:00am - 60 minutes

1st July 2018 - Preparing Evidence Bundle - 10:00am - 60 Minutes

 

and so on, quite literally EVERYTHING you do related to this should be logged and timed, if you don't have a time management system the eastier way to do it is setup a word document with titled columns in a table and email it to yourself, each time you add something new email it to yourself again, that way there's a recorded audit trail showing when you filled things in so you can proce you didn't just fabricate it.

 

Then in your Letter before Action you should make a REASONABLE charge for your time say £35 per hour and add up all the time you've spent so far and make it clear in the Letter before Action that all time spent going forward will also be added to the claim as well as the interest to date and interest on new charges.  DO NOT fall into the trap of thinking that £35 per hour is too high, remember judges are used to lawyers charging £80+ per hour.  Also if the judge disagrees with your £35 figure (and they may ask you to justify it to them) they can reduce it or even cancel it, but that's the judges choice.

 

Justification of the hourly amount can take the form of what your normal salary is, the amount of work you had had to do before you started recording your time spent (do not try to think of time you've already spent and record it, only start from today but of course you can record having to review any documents and evidence bundles you have already prepared), the fact that you'd had to not spend time with your children, the general inconvenience of having to go to court when the evidence available meant the retailer should have settled earlier and so on.  It has to be factual and sensible.

 

One thing to take into account is the Judges take a strong view of REASONABLENESS in these situations and do NOT like things getting to court if they should have been settled before and (within the rules of their discretion) will try to 'punish' the bad actor for not resolving sooner.

 

Lastly it's likely some of you could get approached to accept an offer that will have a Non Disclosure Agreement (NDA) attached, it's up to you if you want to accept this but if you do accept it you cannot then tell your story anywhere publicly including these forums.

 

As I've said before....

 

The Law is not about right and wrong, it's about perserverance and boredom.


Thank you again for this information. Would be wrong to assume you are from the legal profession, and if so again I thank you for your time. I would like to ask but I understand if you feel unable to, but I would like your opinion on the issue and how you think court might approach this. Also how difficult is the small claims procedures. I hope to see mega likes for this and please continue. 

Paul

Explorer
I cannot give legal advice, I can give procedural advice.
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