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 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.
The following case study highlights issues with mis-selling.
The consumer in this particular case purchased a sofa from the retailer’s store. The purchase was made subsequent to 30th September 2015, meaning the relevant law was the Consumer Rights Act 2015.
Shortly after delivery, the consumer had an accident and spilt a drink on one of the base cushions and the fixed arm of the sofa. She took the cushion off to read the cleaning instructions but was shocked to see that she could not use a wet cloth to remove the stain. The care advice provided that spills should be removed with a dry cloth, however this did not remove the soiling and, once the cushion had dried, it was left stained.
The consumer contacted the retailer and an appointment was made for the sofa to be inspected. The technician advised that as the sofa had been damaged as the result of an accident, and that the sofa was not faulty, she was not entitled to a refund. After lodging a formal complaint with the retailer, the cushion was replaced, however this solution did not resolve the staining on the fixed arm of the sofa, and did not fully address her concerns.
The consumer advised at no point prior to sale was she made aware that the sofa could only be professionally cleaned. In addition, prior to visiting the retailer’s store to place the order, she had requested a fabric swatch. Very often, a sticker is attached to the reverse of a swatch, providing maintenance care and instructions, although this was not the case here. Had the consumer been made aware of this important information, her position was that she would most certainly not have purchased the sofa.
In my opinion, the fact that the sofa could only be professionally cleaned was a salient point, and one which most certainly should have been made clear to the consumer prior to purchase.
Mis-selling is the deliberate, reckless, or negligent sale of products or services in circumstances where the contract is either misrepresented, or the product or service is unsuitable for the customer’s needs. Whilst the evidence did not point towards the fact that the sofa was intentionally mis-sold, the retailer’s failure to make the consumer aware of this information, rendered the goods unsuitable for her requirements.
As the retailer was unable to provide any evidence contrary to the Claimant’s submissions, I found in her favour and she received a full refund.
