OT: Credit card dispute / optician follow-up

[mike]

I posted in a previous thread about disputing a credit card payment over glasses that were fitted with the wrong lenses.

Thanks to everyone who offered advice on the previous thread, particularly Peter Parry and RDS.

I just though I'd update you as it seems that what most of us thought was reasonable under consumer legislation may not actually be correct.

The background is that my missus went to pick up some glasses she'd ordered, tried them on and couldn't see through them. The woman fitting them wouldn't accept that they were wrong even after supposedly checking the paperwork, despite missus's protestations, insisting that she should wear them for two weeks.

Eventually, she left the shop with the glasses, tried them on every morning to show willing, phoned back two weeks later and Dolland & Aitchison immediately admitted they'd fitted the wrong lenses. The person on the phone said she could have a refund but by the time she got to the shop, the manageress would only repair, and insisted that trying them for two weeks was reasoanable.

When missus pointed out that trying the *wrong* lenses for two weeks was not reasonable, the manageress really didn't seem to understand this distinction.

The woman who did the fitting has meanwhile left the company - don't know if it was voluntarily.

We contacted Trading Standards who suggested writing to head office and asking for refund under Sale of Goods Act as glasses had inherent defect and were unfit for purpose.

So we wrote to head office who essentially repeated what manageress said, including repeating that trying the wrong lenses for to weeks was reasonable and saying that they only knew the glasses were wrong when they discovered it two weeks after the fitting, not when it was pointed out to them at the time. Won't refund, have a right to repair.

Wrote to head office again, pointing out that they had known at the time of fitting they were wrong, and were given a chance to repair at this point but declined. And pointed out that a two-week adjustment period is irrelevant when the lenses are wrong.

Incidentally the woman who did the fitting (wrongly) is never mentioned in the letters from head office. Her performance (or lack of) has been airbrushed out, and only the manageress and her performance is referred to.

Head office reply again implying that the lenses were only wrong when they admitted they were wrong, that recommending getting used to the wrong lenses is reasonable and that bespoke items are excluded from the Sale of Goods Act / Supply of Good and Services Act as far as getting a refund is concerned. Suggest contacting Optical Consumer Complaints Service to confirm that D&A are right, or going to court - which they will contest.

Contact Trading Standards again. They still think D&A are wrong but ask me to get in touch with General Optical Council for an opinion.

General Optical Council say they only cover unfitness to practice and that I should contact Optical Consumer Complaints Service first who will refer it to them if necessary.

Contact Optical Consumer Complaints Service, who describe themselves as a mediation service on the phone. They say that D&A are right in saying that bespoke items are excluded from SOG act, that Trading Standards don't know what they're talking about, and that failing to spot the lenses are wrong after being told and continuing to insist that getting used to the wrong lenses for two weeks is acceptable, is not a "fitness to practice" issue but just a level of incompetence that one has to accept.

We call Trading Standards again who still don't seem entirely convinced that bespoke items are excluded, but say that they don't think they can take it further as they don't have enforcement powers anyway. They think there's a case to be made under the Sale of Goods and Services because of the initial incorrect service in insisting the glasses were right and that this would qualify for a refund, but it would be up to a judge to decide.

So that's where we're at. She's not keen to go back to an optician that seems to think that trying to get used to the wrong lenses is reasonable, but it's a question of weighing up the aggro/vagaries of the court system.

[djc]

you can make your claim online, will cost you £25 but that's added to the claim so you get it back if you win. If your dealing with a large company direct the claim to the head office not the brancg you dealt with. It will then end up with their legal dept, who will be less bothered with aguing the detail.

[Arfa Daily]

I followed the original thread, and contributed a few thoughts to it. I'm not really sure now where exactly this is going, or indeed where you want it to go. I can sort of see how you think that you are being badly treated by the optician, but it seems to me that it's more a case of how you're being treated by the system. Whether or not you believe that the insistence that your wife tolerate the glasses for two weeks is reasonable, the optician, in his professional opinion, felt that it was, and it would seem from what you say, that his professional body backs him in that contention.

When push comes to shove, it seems to me, looking in from the outside, that an unfortunate set of circumstances came together to create this situation in the first place. You talk about having recourse to the law to recover your money, but the consensus seems to be that that path will not be open to you, and in fact that the optician has the law on his side in offering to rework the glasses to correct his (admitted) mistake. Some might contend that it is as unreasonable of your wife to refuse this, as she believes it is of the optician to not give her the money back. I mean, it's not as though she has to go back to have his professional attention again - which she no longer trusts - in another eye test. It is likely, as D&H are a reputable company, that he was professionally competent in determining the original prescription, so all you are doing is allowing him to resubmit it to the laboratory. The chances of it coming back wrong again, I would suggest, is slim to zero.

IMHO, life is too short and stressful to get into disputes like this, where all it seems to be is a head-butting contest. A simple resolution has been offered. Take it, and if all is well at the end, chalk it up to experience and go to someone else next time. If you're still not happy, just smile sweetly, walk away, lose the sixty quid or whatever, and start again somewhere else. Better than all the angst that this is generating for you ... :-)

Arfa

[Man at B&Q]

Have you used D&A in the past? Were you happy? Is one rogue employee going to sour that relationship without a chance for them to make amends?

They've offered to sort it out. Accept the repair and move on.

MBQ

[Rod]

You deserve congratulations on your tenacity so far.

Any mileage in the 'goods not as described' approach? After all, you asked for lenses with prescription XY, but they supplied ZQ.

[Dave Plowman (News)]

Although the lenses *may* be standard, after they've been ground to fit the frames they're unlikely to be of any subsequent value. But it matters not anyway. A company should just admit their mistake, pay up and move on. The actual loss to them will be much less than the price paid. The markup in optical bits and pieces is vast.

[Dave Plowman (News)]

After having had poor service, employees being rude, and a brush off from head office I'd not want anything to do with them ever again either. Life's too short to have to deal with that sort of firm. Most need an optician every so often throughout their life - so would prefer to stick with the same one.

[Peter Parry]

The Sale of Goods Act has become somewhat muddied in recent years by the piecemeal addition of EU directives. Fundamentally however the buyer has two quite separate sets of rights given to them by the Act.

The first (sometimes called the old rights) have been around for a century or more and still remain. These give an absolute right to the buyer to reject goods which do not conform to the contract when they inspect them. This right last for a very limited time, basically it allows you to inspect goods but no more. Case law more or less puts a time limit of 14-28 days after delivery on this right. However the Clegg case I quoted made it clear that if an attempt at repair was being made then the "rejection clock" stopped during that time.

You need to tell the optician (if you have not already done so) that you are rejecting the goods after examination (SOGA S34) as they do not conform to the contract which was to provide a set of spectacles to correct your wife's vision. You are not claiming under any warranty they may offer, you are rejecting the goods. As the optician has admitted they failed to manufacture the lenses to the measured prescription there isn't any real doubt about your right to do this.

If you reject the goods the contract ceases to exist and the seller must refund any money you have paid (there are no other remedies such as repair allowed) . You actually have no obligation even to return the goods, only to make them available for collection. (SOGA S36). Nonetheless it would be polite if you did return them.

So under the old rights you can reject the goods, rescind the contract and have your money back. That the goods were bespoke, pink, unsuited to anyone else, made for you are all completely irrelevant.

The second set of rights you have are the "new rights" brought in by the Sale and Supply of Goods to Consumers Regulations 2002. These introduced a set of rights for consumers which went from the time of purchase to an indeterminate time of at least 6 months after purchase. This means they overlap at the beginning with the old rights.

During this time under the new rights the supplier is under a duty to rectify any errors but may do so by repair or replacement and only if these prove impossible to refund the purchase price (SOGA Part 5A Additional rights of buyer in consumer cases).

Whether you chose to use the old or new rights is _entirely up to you_, not the supplier. The only limitation is that _if_ you require the supplier to repair or replace the goods under Part 5 (the new rights) you cannot reject them under the "old rights" until you have given the seller a reasonable time to repair or replace.

Quite simply there is no obligation on you to allow an opportunity to repair. You can simply reject the goods. Since Clegg

has also been clear that your rejection does not have to be reasonable. In other words if you rejecting the goods would cause the seller great expense whereas repairing them would be simple that fact would be irrelevant. You have a right to reject which is independent of the cost of the rejection to the seller.

Possibly where the Optician is getting confused is if they have some form of "satisfaction guarantee". Usually this lasts for a month or so and if any problem arises during this time they will fix it for free. This is useful if the prescription or fitting requires a bit of tweaking but you need to make it quite clear to them that you are not claiming under any quality guarantee they may have but under the Sale of Goods Act as the goods supplied did not, by their own admission, even come close to conforming with the contract. Any warranty they offer is subordinate to this.

[Peter Parry]

Oh yes there is :-)

Actually there isn't.

No they are not. The customer has an absolute right of rejection if the goods do not conform with the contract which is given to them by Part 2 of the Sale of Goods Act.

Only if you are using SOGA Part 5.

[Dave Plowman (News)]

In this case it seems the customer had an argument with an assistant and quite rightly might not want to go near the shop again. Perhaps a different branch?

[Bruce]

I very much doubt that your argument would stand up in a court of law in this case.

The retailer made a mistake and has offered to correct it. It would be unreasonable on the part of the customer to deny the retailer that opportunity.

We are not talking about some fly by night market trader here - this is one of the most respected chains of opticians in western Europe. They fouled up, but this is not an indication of overall incompetence, rather it is the result of the incompetent actions of one individual employee whose employment has now been ended. In that circumstance it is reasonable for the customer to allow the retailer to put the matter right, and I think probably unreasonable for the customer not to.

However, I did say that in the retailer's position I would have given a refund - quickly and without question. But there is a difference between the legal position (which is based on a presumption of reasonable behaviour) and a refund that in my opinion would have made commercial sense. Apparently, the retailer sees no reason to back down and that seems to be supported by the legal position, otherwise Trading Standards etc. may have had a different view.

I note that you carefully deleted any quoted reference to my views on that aspect from your reply. Clearly you are nowhere near as confident of your assertions as you would wish to appear.

[Bruce]

I agree, and that's why if I was the retailer I would offer a refund.

But the retailer has rights too, and is choosing to assert them, probably reasonably. But I repeat, as a retailer, it isn't something I would do personally.

Several years ago I did some work for someone and fouled up. I gave an immediate and complete refund along with a full written apology and a voucher for a substantial discount against any future purchase. That's because my business lives, or dies, on goodwill, or a lack of it.

The result was a customer who gave me a lot of repeat business and recommended me to friends and business colleagues. I was lucky - the result might not have been so positive even though I made every effort I thought reasonable and appropriate in order to ensure that it was.

I wouldn't want to take the route this particular retailer appears to have chosen because it will generate nothing but bad feeling and recommendations to friends to avoid that shop in future.

My decision was based on what I thought made commercial good sense rather than relying on a strict interpretation of the law.

[mike]

Actually, the retailer was told about the mistake at the time of fitting, refused to accept it and declined to put it right.

Is that reasonable?

[Dave Plowman (News)]

Err, you think they have the right to insult someone, supply faulty goods, and refuse to refund the money?

[Michael Chare]

Whilst I don't have much sympathy for the shop, I think that you should give them an opportunity to put right the mistake that they have now admitted.

I don't know about your wife's vision, but when buying glasses I would expect clear sharp focus at the distance the glasses are designed to work at as soon as they are put on.

Personally I have not had to adapt to the glasses that I wear to distance vision, thought these do nothing for my near sight vision!

Varifocals are perhaps more of an acquired taste. All I can say there is that I have got on better with some new lenses, partly because I eyesight changed, and partly becasue the lenses themselves are better.

[Peter Parry]

Of course it would. It already has in the Clegg case I quoted which is why it was such an important case.

There were two significant factors in that case. Firstly it confirmed the time for rejecting goods would be lengthened if any attempt at repair was allowed. Secondly that the right of rejection was absolute and the customer had no obligation to be "reasonable" or allow the seller to attempt to remedy the fault.

This is standard contract law. If the goods supplied do not match the contract they can be rejected. If they are rejected the contract is rescinded.

The Clegg case concerned the supply of a £250,000 yacht built for him- goods don't get much more "personalised" than that. It was delivered with incorrect keel weight. The supplier wanted to fix it and Clegg wanted his money back.

In Clegg the first trial judge adopted much the line you are suggesting - that Clegg was being unreasonable in not accepting repair. Cleggs view was that the yacht was "not as described in the contract (SOGA S13)

"13 Sale by description (1) Where there is a contract for the sale of goods by description, there is an implied [term] that the goods will correspond with the description. "

It is worth mentioning that the deviation from the specification of the yacht was considerably less than the deviation from the specification of the spectacles we are discussing.

Clegg lost the first case and it went to appeal where the original decision was overturned and the right of Clegg to reject the yacht without allowing the seller to mitigate their loss was upheld.

Lady Justice Hale said "Seller and buyer often agree to try and put defects right but neither is obliged to do so. The fact that the remedy supplied by English law may be thought disproportionate by some is irrelevant to a consideration of whether the implied term has been broken.... In English law, however, the customer has a right to reject goods which are not of satisfactory quality. He does not have to act reasonably in choosing rejection rather than damages or cure. He can reject for whatever reason he chooses. "

Immaterial, see above.

All the more reason why they should be held to high standards.

The company has responsibility for the actions of its employees. "We fired Fred" does not give the customer a working set of spectacles or the company any right to refuse recompense.

put the matter

Whether or not it is reasonable or otherwise doesn't matter. Because the supplier fouled up the customer is entitled to reject the goods and rescind the contract. It really is that simple. The choice or whether to reject or accept repair is solely that of the customer.

No it isn't

I am absolutely confident of it thank you. Trading Standards view is entirely consistent with mine.

Ervine in 2003 wrote "The primary remedy for a consumer buyer has been, and continues to be, rejection of the goods. This is a potent but, at least in contracts of sale, a short term weapon ...Where the defect is such that the consumer has lost confidence in them he or she may well wish to reject the goods and seek another brand rather than explore the new remedies."

(The Law Commission Consultation Paper No 188)

[Bruce]

Had the customer rejected the glasses at that point, fair enough. But the customer took the glasses home and used (tried) them for two weeks, which rather muddied the waters.

I find the views of Trading Standards quite illuminating. If the customer's position under consumer legislation was as clear as most people on here seem to think, why didn't Trading Standards offer the same unequivocal support?

The fact that they didn't should tell you something.

[Bruce]

They have offered to replace the lenses with the correct ones, which seems reasonable. A mistake was made, which the retailer has conceded, and they are keen to put it right.

As for being insulting, without an independent account of the behaviour of all the parties involved, it is difficult to tell who insulted whom, and who has behaved unreasonably. We have heard only one side of the story. Many things are said in the heat of the moment, and people who feel that they have been wronged can be surprisingly vindictive.

I think it is very telling that Trading Standards have not sided unequivocally with the customer, as you seem to have. Perhaps there is more to this than meets the eye, if you will pardon the pun.

But I repeat, had I been the retailer, I would have made an immediate refund without question, because allowing the situation to drag on is not doing anyone any good. Whatever the rights and wrongs, there is nothing to be gained by letting it continue to fester.

[Peter Parry]

Not really as they took them away on the word of the supplier that they would get used to them. Their subsequent testing on the suppliers advice did not constitute acceptance.

It tells you we don't know how exactly how the question was worded or what the exact response was. I suspect we now have far more details here than TS may have had when they were asked.

[Bruce]

First, there is nothing in law that is "absolute". Rejection is only allowed if it is reasonable. Conversely, an unreasonable rejection, for example of something that is independently adjudged to be fit for purpose/of merchantable quality, would not be allowed.

Then the customer in this case doesn't have a leg to stand on, because there can be no legal basis for rejecting the glasses when they are fitted with the correct lenses, which is what the retailer has offered to do. Indeed, to reject such a reasonable offer seems unreasonable, and that is probably why Trading Standards are not prepared to support the customer.

But as usual, the massed barrack room lawyers of uk.d-i-y have scented blood and want their pound of flesh ... ;-)