By Joanne Dunham ACIArb
How I approach arbitration awards
When writing an arbitration, it is incumbent on 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 an element 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.
Case study background
The following case study highlights issues with the reliability of GPS, and risk in goods.
The consumer in this particular case purchased expensive jewellery from the retailer’s online store. As the purchase was made online, the purchase was covered by both the Consumer Rights Act 2015 (as the purchase was made after 1st October 2015), and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The Consumer Contracts Regulations (as they are known in short), provide that the consumer may return goods which are purchased off site (i.e. not in store), within a period of 14 days from the date of delivery. Had the purchase been made in store, and the consumer wished to return the goods because of a change of mind, there would have been no automatic right to request a refund.
The consumer decided the jewellery was not to her liking and chose to return the item to the retailer. Rather than use the retailer’s recommended method of return (to arrange a free courier collection from her property), she elected to organise her own return, and paid a fee for the goods to be returned by recorded delivery.
Having not received a refund from the retailer, the consumer chased the matter up, only to be told that the jewellery had not been received at its warehouse. As she had arranged her own return, she was advised by the retailer to pursue the matter with the courier.
My analysis of the case
As part of her evidence in the arbitration, the consumer presented proof of return, together with a print out of GPS co-ordinates which she had been provided with. However, the retailer maintained that no such delivery had occurred at its warehouse at the specified time, and that the signatory to the supposed delivery was not a recognised staff member. Further, deliveries which had been received at its warehouse that day occurred at a different time, and were signed for by someone other than the signatory provided in her evidence.
The consumer had the burden of proof in this matter which meant that it was for her to prove her case, and not for the retailer to disprove it.
In addition to the retailer’s testimony in the arbitration, CCTV evidence was also presented which did indeed show a delivery in the vicinity, and at the specified time as quoted by the consumer. However, the courier did not visit the retailer’s warehouse, but a warehouse directly opposite.
In accordance with Section 29 (2), (3) and (4) of the Consumer Rights Act, in relation to the Passing of Risk, the goods were the responsibility of the consumer up until such time as they were safely delivered into the hands of the retailer.
There was absolutely no doubt in my mind that the consumer had indeed made a return (as was evidenced by the submissions concerning the proof of return and GPS co-ordinates), however, what could not be proven was that the goods had been received into the hands of the retailer.
Whilst GPS co-ordinates may be useful in certain circumstances, in this case they did not assist the consumer in proving her case conclusively and, as a consequence, I was only able to find against her.