Which Legal stepped in to help when a service offering to help a man set up his own website proved more costly than expected.
Jamie Whitehorn had a call from 1and1 Internet Limited, a web hosting company, in March 2012. The company, trading as www.1and1.co.uk, offered him a free trial of MyWebsite: calling it ‘everything you need to quickly create a personalised website’.
Jamie was told that he’d get an immediate email that would include details on how to cancel, followed by a second email just before the trial ended reminding him to cancel if he didn’t want to continue with the service that cost £20 a month.
He heard nothing further from 1and1 until April 2012, when he got a bill for £71.96, which had been debited from his credit card. When Jamie emailed 1and1, it said a ‘valid sale’ had occurred, his free trial had ended and he was committed to a contract for a year. He then contacted our lawyers for advice.
We advised that, as the contract was concluded over the phone, 1and1 had to provide Jamie with specific information – including his cancellation rights and how he could contact the company to exercise such rights. Its failure to do so was likely to mean he was entitled to cancel the contract and receive a refund of any money he’d paid.
Jamie said the advice he received from Which? Legal gave him the confidence to pursue 1and1 and insist it cancelled the contract without penalty to him. In May 2012, 1and1 agreed to cancel the contract and refund Jamie’s money.
Under the Consumer Protection (Distance Selling) Regulations 2000, if you buy goods or services online, you have the right to certain information including a seven working day cooling-off period (or notice that no such cooling-off right applies).
If you’re not told about the cooling-off period by letter or email, your right to cancel is extended to a maximum of three months and seven working days from the day after the day the contract is concluded.
In October 2006, Ian Rowland paid £3,080 for a high-spec laptop from online retailer Alienware. He chose the laptop because it could run two powerful graphics cards at the same time.
Within three months, one of the graphics cards failed but Alienware agreed to replace it for free under the one-year warranty.
But Ian faced further problems with the laptop in July 2009 when it failed to start up. He asked a computer repairer to examine it and got a report saying that the replacement graphics card and the other original graphics card had failed, and both needed replacing at a cost of £957.
Ian contacted Alienware. It said replacement graphics cards were no longer available, so it could do nothing. Later, it said it could repair the laptop, but Ian would have to pay the cost. Ian argued that the failed graphics cards should have lasted longer than three years, but his letters to Alienware went unanswered. Ian then issued legal proceedings in November 2010 against Alienware’s parent company, Dell Computers. He obtained a judgment for £1,075 against Dell as it failed to file any defence to his claim.
Dell instructed a solicitor who had Ian’s judgment set aside on the grounds it had never received his claim form and that the laptop’s warranty expired in August 2007. It suggested Ian should have bought an extended warranty for up to four years if he wanted protection beyond the first year. Dell’s solicitor offered Ian £200 in full and final settlement of his claim. Ian contacted us.
We advised him that it was likely that Dell had breached the contract as it was reasonable to expect that an expensive computer should last longer than three years before the graphics cards failed. It was also likely that he could claim the cost of replacing the cards if Dell wouldn’t replace them for free.
Ian offered to settle his claim for £500, the cost of one of the failed graphics cards, but Dell refused. We guided Ian through the process of preparing the documentation for court.
At the trial in June 2011, Ian was awarded the cost of replacing the defective cards and court costs – £1,192.
The Sale of Goods Act 1979 sets out the obligations of businesses that sell goods to consumers. The Act says goods must be of ‘satisfactory quality’ when sold.
When assessing if goods are of satisfactory quality, durability is one factor taken into account; price is also relevant – you can usually expect an expensive computer to be more durable than a cheap one.
So, if your goods fail prematurely under circumstances that wouldn’t ordinarily be considered normal wear and tear or misuse, you should be able to argue the seller has breached the contract and is obliged to repair or replace the goods and, if it doesn’t do this, you can claim compensation which could be the cost of having the goods repaired or replaced by another trader.
The fact that warranties or guarantees may have expired, by the time the lack of durability is discovered, doesn’t affect your statutory rights under the Sale of Goods Act 1979.
If you have to issue proceedings, make sure to claim against the right legal entity. Many firms have trading names that are part of a limited company so if you get the information wrong, a judgment could be worthless. The named defendant should be individual names if against a sole trader or partnership, and company names should end in ‘Ltd’ or ‘plc’ if it is a registered company.
Sales of breadmakers have shot up in the past few years as many more of us look to enjoy the taste and smell of fresh homemade bread. But you’d expect to get more than a few months’ use out of a new breadmaker.
When David Robertson paid £102.38 for a Panasonic breadmaker, he was irritated when it broke down twice in the first 18 months.
As his son is gluten intolerant, David researched breadmakers carefully and bought a model with a gluten-free program. However, he was unhappy with the breadmaker from the start, as all the bread it made came out misshapen. But things got worse after just 15 months’ use when the only two programs he’d been using failed.
He contacted Panasonic and was told that as the machine was out of warranty, it could do nothing for him. Unhappy with the customer service he received, David contacted us for advice.
We advised him that as his warranty was only for a year, Panasonic had no liability. However, we told him that he had a claim under the Sale of Goods Act 1979 because the breadmaker was not of satisfactory quality.
Armed with this information, he approached Amazon, who had sold him the breadmaker, and it agreed to give him a replacement for free.
David had a claim even though he’d had the breadmaker for 15 months and it was out of warranty. The Sale of Goods Act says that goods sold must be of satisfactory quality and durability. In this case, the breadmaker didn’t last as long as a buyer would reasonably expect. The remedy under the Act is for a repair or a replacement that must be carried out within a reasonable period of time and without causing significant inconvenience.
As David had paid for the breadmaker with his credit card, he could also have made a claim under Section 75 of the Consumer Credit Act. If you’ve paid by credit card for goods worth more than £100 but not exceeding £30,000, you can ask for a refund from the credit card provider.