By Joanne Dunham ACIArb
How I approach arbitration awards
When writing an arbitration, it is incumbent upon me to ensure that full consideration is given to all submissions, in order to afford the parties every opportunity to present their case concisely, and to the best of their abilities. Each arbitration is approached in a meticulous fashion, with the starting point determining: i) the crux of the complaint; ii) the desired resolution; iii) the relevant laws (and their application); iv) the burden of proof; v) evidence (or balance of probability, in its absence); and vi) available remedy.
I must also consider that many consumers may not have any knowledge of legal process and, therefore, in order that they are not unfairly prejudiced, within my remit as Arbitrator I am able to pose further questions of both parties, or make recommendations/suggestions for further evidence, where I deem fit. Indeed, the Consumer Rights Act 2015 (the current law protecting the interests of consumers), provides that where there is a lack of clarity, the consumer should be given the ‘benefit of the doubt’.
I should also clarify that the fact that the Arbitrator finds in favour of one party, does not imply that the other party is telling an untruth – it merely means that the evidence and submissions of the successful party are preferred, on the balance of probabilities.
Case study background
The consumer in this particular case purchased laminate flooring from the retailer, which ultimately had to be replaced as the consumer believed it to be faulty. The retailer provided a free replacement but a little over six months later, the replacement started to exhibit the same defect as the original installation, in that the planks were showing signs of delamination along the bevelled edges. The retailer inspected the installation and suggested the failure of the product was as a result of the cleaning materials/methods used in the home.
When the consumer brought his complaint to arbitration, the retailer advised it had only agreed to replace the original installation as a gesture of goodwill, in consideration of a delay in handling the consumer’s complaint. The importance of this point is that Section 24 (5) (a) of the Consumer Rights Act 2015 provides that the consumer has the final right to reject after the retailer has attempted one repair or replacement, when the goods do not conform to the contract.
My analysis of the case
As arbitrator, I was reluctant to accept the retailer’s submission that the flooring was only replaced as a gesture of goodwill, given the high cost involved, and the fact that the consumer had reported the same issue occurring with the replacement. However, the retailer had referred the matter to the manufacturer of the flooring, who concluded the failure was as a result of local causes (i.e. maintenance/water damage). At this point, the evidence was stacked in the retailer’s favour, as the consumer had nothing tangible to assist his claim, save for photographs and his own testimony.
In consideration of the fact it was the consumer who had the burden of proof (i.e. the obligation of proving the case), I invited him to commission his own independent inspection report (the cost of which would be borne by the retailer, were I to find in his favour). The consumer decided he would like to take this course of action and I agreed to temporarily ‘stay’ my decision. It was explained to the consumer that it was essential that the inspection be carried out by an accredited independent inspector (and not simply an alternative flooring company who might have a vested interest in finding fault with the goods).
The independent inspection was very detailed and not only did the inspector assess the laminate flooring as laid, he also inspected spare planks and offcuts which the consumer had retained. The inspector found that the top surface of the planks had a gloss coating, although the chamfered edges of the planks were dull, suggesting that the protective coating had been missed during the manufacturing process.
As a result of the report, and on the balance of probability (despite the retailer maintaining the original flooring had only been replaced as a gesture of goodwill), I determined that the flooring was not fit for purpose/was faulty (in terms of both maintenance and aesthetics) and, as a consequence, found in the consumer’s favour. Accordingly, in accordance with Section 24 (5) (a) of the Consumer Rights Act 2015, the retailer was legally obliged to provide the consumer with a refund, if he so desired.
In finding in favour of the consumer, he was awarded not only a full refund of the goods, but also the fitting charge and reimbursement of the independent inspection report (in order to put him back into the position he would have been had the issue not occurred, as required by the Act).