By Joanne Dunham ACIArb
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 the right to reject more than one item (goods), on the basis that one item is faulty, and it is considered the items together constitute a ‘set’.
The consumer purchased a bed (and headboard) from the retailer’s store. The relevant law in this case was the Consumer Rights Act 2015.
Upon delivery, the consumer discovered the headboard was faulty. He also did not consider that the bed was the same as the one which he had seen in store, in as much as the sample in store appeared to be much ‘softer’.
He raised a formal complaint in relation to the bed and an inspection was carried out. The outcome of that inspection concluded that the bed was indeed the same specification as that he had inspected in store.
A replacement headboard was ordered for the consumer but, as there was a manufacturing delay in providing the replacement, the consumer decided he did not wish to wait any longer and therefore requested that the whole order (bed and headboard) be refunded. The basis of his request was that the retailer had failed to deliver a replacement headboard within a reasonable timescale.
The retailer rejected the consumer’s request for a full refund but did however agree to provide a refund for the faulty headboard, upon its collection. The retailer also offered a gesture of goodwill to the consumer in recognition of the delay in providing a replacement.
The retailer accepted that it had breached the Consumer Rights Act 2015 (albeit unintentionally), in not providing the replacement within a reasonable timescale, and the consumer therefore believed that in addition to receiving a refund for the headboard, he was also entitled to reject and receive a refund for the bed.
The retailer rejected the consumer’s claim for a full refund on the basis that the goods did not form part of a set and the headboard was purchased as an entirely separate item. Indeed, the evidence submitted (invoice), provided a breakdown of the order, with the goods being separately itemised and chargeable.
In accordance with the Consumer Rights Act, where more than one item is purchased, and the items together form a ‘commercial unit’, all items should be rejected together if one of the items turns out to be faulty. The Act defines a ‘commercial unit’ as follows:
“A unit is a ‘commercial unit’ if division of the unit would materially impair the value of the goods or the character of the unit”
In the context of this particular matter, this means the headboard would have had to have been part of a set and that the bed (divan/mattress), could not be sold without it. However, this was not the case here as the consumer was at liberty to select an alternative headboard, without detriment to the aesthetics/performance of the bed.
As a consequence, I considered that the consumer was not entitled to reject the whole of the order simply because the headboard was faulty.