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 differences in a carpet sample which the consumer had inspected in store, and also samples which he had received in the post, not matching the carpet which was ultimately fitted at his property.
The consumer purchased carpet from the retailer’s store. The relevant law in this case was the Consumer Rights Act 2015.
During installation of the carpet, the consumer noted the carpet did not provide a match (in colour) to the samples he had previously received in the post, and those he had inspected in the retailer’s store. The third party fitter also agreed that that the carpet for installation did not correspond to the samples.
It was arranged that the fitter would complete the installation and then return to the retailer’s store with the samples the consumer had received in the post (and which provided a match to the sample examined in store), together with an offcut of the installation.
The manager from the retailer’s store contacted the consumer and indeed confirmed that the colours did not correspond and therefore a replacement would be ordered and provided to the consumer, for installation at a later date.
When the replacement arrived in store, the consumer was invited to visit the examine the goods prior to their installation. However, the replacement likewise did not provide a match to that which was ordered and the retailer concluded that the manufacturer must have changed the specification of the carpet.
As the consumer had ordered a range of furniture and soft furnishings in consideration of the shade of carpet he had initially ordered, he did not wish to accept the installation, nor the replacement, and requested a refund; The retailer denied the consumer’s request as it considered that whilst there was a difference in colour, the colour was within ‘tolerance’.
My consideration in this matter was whether the carpet installed at the consumer’s property was ‘as described’ and therefore whether the samples provided by the retailer pre-sale complied with section 13 of the Consumer Rights Act 2015 and, if I considered the samples received and examined in store were different to the carpet installed, what remedy the consumer was entitled to.
In accordance with Section 13 of the Consumer Rights Act 2015:
13 Goods to match a sample
(1)This section applies to a contract to supply goods by reference to a sample of the goods that is seen or examined by the consumer before the contract is made.
(2)Every contract to which this section applies is to be treated as including a term that—
(a)the goods will match the sample except to the extent that any differences between the sample and the goods are brought to the consumer’s attention before the contract is made, and
(b)the goods will be free from any defect that makes their quality unsatisfactory and that would not be apparent on a reasonable examination of the sample.
(3)See section 19 for a consumer’s rights if the trader is in breach of a term that this section requires to be treated as included in a contract.
When the consumer considered which shade of carpet to purchase, he relied upon samples which were sent to him, along with a sample which he examined in the retailer’s store. He therefore based his purchasing decision on these samples, and then proceeded to place his order on this basis, in satisfaction of the carpet being suitable for his requirements. However, when the carpet was installed, it was obvious that the installation did not provide a match to the samples previously examined, and therefore the goods did not conform to the contract.
As it was accepted by the retailer that the carpet installed did not provide an exact match to those samples examined pre-sale, I was satisfied that the difference in shade was sufficient to cause the retailer to order a replacement, and accordingly that the difference was not ‘negligible’. Whilst the retailer subsequently advised that the shade of the carpet was within ‘tolerance’, the retailer failed to elaborate on this point, nor provide any marker as to what would be considered as ‘within tolerance’. Further, in order for the retailer to have been able to rely upon a ‘tolerance level’, it would have had to have brought this concept to the attention of the consumer pre-purchase, as is made clear in section 13(2)(a) of the Consumer Rights Act 2015.
As it was accepted by the retailer that the carpet was different from the samples, I found that the goods did not conform to the contract, in accordance with section 13(2)(a) of the Act.
As a consequence, I found that the consumer was indeed entitled to a full refund following the uplift and removal of the carpet, together with reimbursement of his fitting fees.