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Failed Delivery? Fight Back! 'If I waste a day, you'll pay'

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Next day delivery boxIt's enough to make you growl. You've been told you need to be in for a delivery or service installation - sometimes taking a day off work. Then you wait in all day and they're hours late, or don't turn up.

Yet you can fight back if you know your rights. You may even be able to force compensation for the lost time.
The aim's to be reasonable, but with our sometimes rotten delivery culture, we need to start to make them understand there could be consequences when they fail to, er, deliver. Then hopefully standards will improve.

While every effort's been made to ensure this article's accuracy, it doesn't constitute legal advice tailored to your individual circumstances. If you act on, it you do so at your own risk. We can't assume responsibility and don't accept liability for any damage or loss which may arise.

Get compensation for extra time off work

Urgent delivery stampIt's possible to get compensation for extra time off work, additional costs, and even inconvenience and distress caused by late delivery problems.

Of course, we're not talking about when you stay in hoping the delivery may turn up, but when a delivery or installation's been booked for a certain day - and you've arranged to be in specifically to receive it.

While your legal rights can only truly be enforced in court, just knowing and quoting them boosts your chance of success.

Some inspiration before you begin

Wrote to Ikea using the compensation letter template and had great success! They took four attempts to deliver to me, one broken table and a taxi fare. The order was only £60 and I kept the order and got £100 compensation!

By quoting bits from the guide I was able to secure close to £60 for my wasted day. Much better than the £10 offered before I went to this site!

Got £150 from Argos for multiple cancelled deliveries and one failed delivery over a period of several months. It's well worth persisting.

I got £90 compensation for a failed boiler service appointment.

Read more MoneySavers' successes...

If you've successfully used the steps in this guide to get compensation for a failed delivery, please let us know in the forum discussion. Here are the five things you need to know:

1.Your relationship is with the retailer -
not the courier company

From the moment you pay for your goods or service to the second it's delivered, the retailer - and not the courier or delivery company - is responsible, as that's who your contract is with. So the retailer should always be your first port of call for any complaints.

This applies even if you've paid extra for a specific courier company via the retailer. The same rights and remedies apply if you've a contract for installation, or have arranged for a service to be carried out, and it's been breached due to a no-show.

The only exception is if you arranged delivery yourself separately with the courier company. In this case, rather than being an ancillary, it's the core service you've paid for that has failed (full info on that in the Consumer Rights guide).

2.Compensation for lost time depends on whether you had a 'consequential loss'

When a company promises to deliver to you, it does so under a contract with you - even if it isn't written down. This is because whenever you buy goods and services, you're technically entering into a contract.

If a company breaches that contract, you may be eligible for compensation, either due to a direct loss (eg, for not receiving the product), for what's legally known as 'consequential loss', or for both. 'Consequential loss' is an indirect loss that occurred due to a breach of contract, ie, if what went wrong made you lose out in additional ways.

The point of compensation is to put you in the same position you would have been in had the contract not been broken. So the consequential loss you may be able to claim for, and the amount, depends on if you lost out because of the missed delivery.

What if the company has a consequential loss exclusion clause?

The consequential losses must have been foreseeable

3.The key issue: did you take EXTRA time off?

Although it might seem slightly unusual, you can't claim compensation for the original no-show day as you haven't technically lost out through this. You were going to take that day off work anyway; the fact it turned out to be futile is aggravating, but not a loss in a legal sense. The key is what's needed to put it right.

So if the end result is you need take a SECOND day (or morning/hour) off for a new date, you should be due compensation for loss of earnings or loss of a day's holiday.

To have good grounds for compensation, your complaint needs to be considered reasonable in a court of law. So if the failed delivery happened when the area's roads were closed due to snow, you're less likely to have a strong case than if there were no adverse circumstances.

Can I claim if I didn't take any extra time off?

What if the deliverer came outside the agreed time window?

How many hours can I claim for?

Can I claim for my time even if I'm on a high salary?

You may be able to claim compensation for other reasonable costs

Is there a limit to how much I can claim for?

4.You're expected to try to minimise your loss

Before you can legally claim, you're expected to try to minimise your loss. For example, this means you'd need to try to arrange delivery at a convenient time when you'd be home without incurring problems, or ask a friend, neighbour or family member to wait in for you (if you need to pay them, or for their costs, you could claim that).

Remember, you can always say to the seller: "Look, you've broken the contract. I'm off work from 5pm Saturday or all day Sunday. If you deliver then it'll save you a compensation claim from me, but I won't pay more for that delivery."

But if it can't do any convenient times, and you have to take time off work as a result, it's time to put in a claim.

5.Buy online or use 'time is of the essence' trick

The easy way to ensure you can always get a refund is to buy online. Most goods and services you buy online (or by mail order, or phone) from an EU-based company are covered by Distance Selling Regulations. This gives you the right to cancel orders within seven working days and get a full refund, although you may need to pay return delivery costs.

For other orders, there's a useful little legal phrase called 'time is of the essence'. This means when you buy goods or order a service, it must be delivered within a specified time (eg, before Christmas). If this isn't in the agreement and there's no specified date, the only obligation is that it must be delivered within a 'reasonable' time, and that is rather loose.

It's less hassle to try to get this before you buy or order, but you can always make time of the essence without the retailer's consent after it's been guilty of undue delay.

Full details on how to do this in the time is of the essence section.

Late delivery compensation Q&A

Who is this guide for?

This guide has been written with English and Welsh law and consumers in mind. However, much of it will also apply to Scotland and Northern Ireland, as well as small businesses.

How to try for compensation

Boxing glovesThe aim here is to use your legal rights to get the company to negotiate compensation without the hassle, expense and risk of going to court.

It's about showing the company that a judge would rule in your favour - so it's in their best interest to reach a reasonable offer of compensation.

You've technically got six years to make a claim in court, but avoid waiting this long. The sooner you complain, the more seriously the retailer's likely to take your claim.

Step 1. Try the company's own late delivery procedure

Some (but not all) companies have a standard procedure to compensate you if they've failed to deliver, so it's well worth a check on the company's website, or call customer services to find out. This should be your first port of call - any extra compensation's likely to be at the store's discretion so there are no guarantees, but it's certainly worth a try. Here are the main ones:

Late delivery policies

Company Policy Complain to Main compensation Tell us what happened
Amazon Case-by-case basis Customer services Case-by-case basis Amazon delivery
Argos Case-by-case basis Customer services on 0845 640 2020 Case-by-case basis Argos delivery
Asos Refund delivery + 10% off next order Contact form / Facebook / Twitter Discount code + delivery refund Asos delivery
B&Q Case-by-case basis Store / cust services Case-by-case basis B&Q delivery
Co-op Case-by-case basis Customer relations Co-op vouchers Co-op delivery
Debenhams Case-by-case basis Customer services Case-by-case basis Debenhams delivery
Dixons Case-by-case basis Customer services Case-by-case basis Dixons delivery
eBay Tell buyer protection team within 45 days Buyer protection Refund or replacement eBay delivery
Homebase Case-by-case basis Contact centre on 0845 077 8888 Case-by-case basis Homebase delivery
H of Fraser Case-by-case basis Customer services Case-by-case basis HoF delivery
M&S Case-by-case basis Customer services Gift cards or refund M&S delivery
Ocado Contact cust services Customer services Not stated Ocado delivery
Sainsbury's Case-by-case basis Customer centre Case-by-case basis Sains delivery
Tesco Case-by-case basis Customer services Case-by-case basis Tesco delivery
Waitrose Case-by-case basis Customer support, Facebook / Twitter Case-by-case basis Waitrose delivery
Correct as of 9 December 2013

Even if it has a system in place, this shouldn't stop you from pushing your legal rights if you feel its standard compensation isn't adequate. But if the company's already making you a reasonable offer, you're less likely to get extra compensation on top.

Step 2. Call the company to say it hasn't met expectations

If it doesn't have a standard procedure, or you don't feel its normal compensation offer is adequate, call the company to let 'em know its service "didn't meet your expectations". This applies even if you don't have legal compensation rights. Companies are interested in protecting their reputations and won't want to leave customers disgruntled if they can help it.

Before you call, work out what you really want to achieve and what compensation you'd settle for. Then be reasonable and focus on achieving that, not 'grabbing every penny'.

If you've had to fork out due to the botched delivery, you may want compensation in the form of cash. But if it's simply compensation for extra time and hassle, consider if you'd be happy with a credit note or voucher. Remember, the more you want, the harder it'll be to achieve.

What to say

Ask to speak to the most senior person available (eg, "Can I speak to your manager or supervisor please?") then clearly state your case. Always be firm but polite. Being rude won't help, and it certainly isn't fair to the person you're calling. Try something like this (key legal phrases to use are in red):

If they don't agree, ask what they can offer - they may come back with something else. It's then up to you to consider whether to accept it, but remember, if you turn down a reasonable offer it's less likely you'll get extra compensation on top. Ensure you state what 'remedy' you'd like in any correspondence to ensure it's clear what they need to do to fix it for you.

Step 3. Write a formal letter asking for compensation

Important letterIf it hasn't offered suitable compensation yet, write a formal letter to the company. This will shift your case up a gear by showing them you know your legal rights, and that you're serious.

Again, while you don't want to take the case to court if at all possible, the letter's about reinforcing that if you did, you'd have a strong case for compensation. So you want to show them they'll save themselves a lot of further hassle and expense by reaching a negotiated settlement now.

To help, we've drafted a template letter with the basic text to get you started. Just delete any parts that don't apply, and send to the retailer. Keep a copy for reference, and send the letter by recorded delivery to make sure it arrives.

It's worth noting that you could do this by email if you prefer, but it's crucial you receive a response back to acknowledge it, otherwise legally you've no proof it's arrived. So if you send it by email but don't get a response, follow up by posting the letter by recorded delivery.

Step 4. Negotiate, negotiate, negotiate

Once you've sent the letter, remember, everything hinges on negotiation. If the company gets back to you with an offer of compensation, you need to carefully decide if you want to take it.

  • If you want to accept its offer: Get in touch to let it know and arrange payment. If you want to accept its offer but also you've got another unresolved complaint relating to it, say you're accepting its compensation 'without prejudice' to your outstanding claim. Using this specific term is crucial, as it means the offer isn't binding or usable against you in any further legal processes.

  • If you don't feel it's enough: You could try to negotiate a higher settlement. If you decide to do this, clearly state what you'd be prepared to settle for, and reiterate the reasons, costs and evidence you have to back these up.

    This is going to depend largely on your negotiating skills, but don't forget - it's never guaranteed the company will meet your counter-offer, and it may renege on its first offer.

Even if it's less than you originally asked for, it may be worth accepting the company's offer to save the hassle of court action. Yet there are no rights and wrongs here; it's about how hard you're prepared to push. If thinking of taking it to court, ensure you read the next section for full pros 'n' cons first. Please do report how you get on in the Delivery Rights discussion.

Step 5. If all else fails: how to take 'em to court

Broken piggy bank

Important note: This step is based on the process for England and Wales. We've included the basics for the rest of the UK, but for more see the Northern Ireland Courts and Scottish Small Claims sites.

Hopefully the letter should settle it. But if you've tried all the steps above and it still hasn't offered you a satisfactory settlement, taking it to the small claims court is a last resort, although it isn't for everyone. If you're a court novice, maybe try to seek help from a legal friend or advice centre.

The only person who can force action is a county court judge (sheriff court in Scotland) but don't always think judges and wigs; this is often just a case of filling in some forms online.

Sometimes simply doing this will mean a company settles (assuming you've a decent legal claim), so you might not have to go all the way to court. Remember, you've a legal right to fair treatment, and it's rare to have to pay the other side's costs, so it's relatively risk-free but do read on to see if it's the right thing for you.

It's also worth noting that it isn't generally a quick process. Court action can take about six months, so do factor this in if you decide to go for it.

Think very carefully about whether you want the hassle of this process and whether it's worth it. It's far better to use this as a last resort threat and settle with the company if possible.

Try to go through the smalls claims process

Many people talk of going to the small claims court, yet it doesn't actually exist. It's a system within the civil claims procedure where many claims for under £10,000 are allocated, and a local county court judge makes the process as informal as possible.

In difficult cases (and always for those above £10,000) you may be allocated the 'fast track' or the 'multi track' system, which is beyond the scope of this guide, see the Ministry of Justice for more info. If that happens, it's worth really considering whether you should carry on as there can be cost implications. Here's one MoneySaver's experience for inspiration:

I successfully won a Small Claims case for damages after a failed delivery, despite the company's terms stating it wasn't responsible for failed deliveries. I won every penny I claimed, including £660.77 for late delivery damages.

Of course, for belt and braces you could consider hiring a lawyer for larger claims; see the Law Society website for more. Here are the key points to consider, click each header for more info:

You shouldn't have the other party's costs awarded against you.

Try to resolve things directly first.

Remember to factor in the fees.

It's designed so you can go it alone.

Be careful if you go over £10,000.

There are different limits in Scotland and NI.


Making a court claim online

Papperwork to make a claim online

The main part of your claim involves filling in a form called a 'Particulars of Claim' ('Statement of Claim' in Scotland). This is a statement telling your side of the story. You need to include full details of what you're claiming for and why.

It's better to claim a fixed total amount (eg, 'damages of £5,000') rather than an amount set by the court, as this should avoid a hearing where the amount has to be decided by a judge. Read more on the UK's online claim systems.

Sadly, even if you win in court or by default it doesn't mean they'll pay up automatically. If the company doesn't pay, you've a right to send the bailiffs in to claim the money, but it'll cost you another £100, which you should also get back if you win. See the Ministry of Justice website for more or ask a question in the consumer rights forum. Please report back on how you get on.

Always weigh up the costs and headache of continuing before making a decision. Sometimes it may be better to call it a day.

Safeguard against future problems

Though you may be able to get compensation if the worst happens, it's far less stressful if a delivery goes as planned. Use these quick tips to help future deliveries go smoothly.

Send the right way

A little extra planning can go a long way towards helping your parcel reach the right destination on time. Thanks to MoneySaver audirob for these insider tips, please add yours in the Failed Delivery Fight Back discussion:

Add a contact number. I'm a trainer for a delivery company. When ordering online, in the third line of address detail that's rarely used, put your phone number. As this will always be printed on the delivery label and handheld scanner, the driver can call if he has problems locating you.

Leave a note. If you know you're having a delivery, leave a note on the door or window specifying which neighbour will take your delivery in your absence.

Tell 'em where to stick it. If you want the parcel left, leave a signed note saying where. The driver can take that away and leave the parcel as instructed.

Pass it on. As MSE is well viewed I hope many people will see this and hopefully improve your delivery success. I deliver between 50-110 stops per day and if people would do the above it would make things so much easier.

Become a roboshopper

Become a roboshopper: Research offline, buy online

Many worry about online shopping safety, but in terms of consumer rights it's a blessing.

The Distance Selling Regulations mean if you buy online or by phone from an EU-based company, you've a right to change your mind within seven days, even if there's no fault.

Just send the goods back to get a refund of the price and delivery charge - though not the cost of returning it.

This is why many people have become ‘roboshoppers' - researching offline, buying online. This is especially worth it for bigger items; go to the shops to look, then order online for extra rights. See Martin's Roboshopper blog.

If you or the seller specified a certain delivery date (eg, in time for a birthday or Christmas) but your order wasn't delivered on time, you've a right to a full refund. If a date wasn't specified at all, then delivery should be within 30 days.

This makes any delivery problems much easier. For example, say you ordered a games console online for a Christmas pressie. If it doesn't arrive by Christmas as promised, these rights mean you can just buy one in store, send back the original when it arrives, and get a full refund.

If you need to send it back, it's likely you'll need to pay for the return delivery, but they should refund the original delivery cost.

Here's a quick rundown of the key info, see Rights when buying online for more:

RETURN REASONS ALLOWED
Type of purchase:
Goods or services from an EU-based business via mail order, phone or online.
Protected under:
The Distance Selling Regulations
Time to cancel:
Goods: Seven working days from the day after you receive goods
Services: Seven working days from the day after the order is provided
Exceptions:
Fresh food and flowers (for obvious reasons of decay!), personalised goods, accommodation/transport/leisure services purchased for a particular timeframe, newspapers and magazines, lottery tickets, sealed audio, video or computer software that has been opened or a service that has already started, can't be cancelled. You also can't cancel if you have examined the goods in a shop then ordered from the same retailer online and this inspection was specifically noted as part of the purchase contract.
How to cancel:
You usually need to write to let the seller know, although some allow you to cancel by phone. As soon as you've cancelled, take good care of all of the goods in your contract, as you have to send them all back in reasonable condition (but not necessarily in the same packaging). You'll also usually be asked to pay for return delivery, unless the seller doesn't say this in its T&Cs, or the goods were faulty.
Getting a refund:
The seller must then pay back any cash within 30 days, including cost of delivery to you - although be sure to specifically ask for this to be included as some stores don't add it automatically. If it didn't tell you about your cancellation rights, you may have longer to cancel the order.
Specific delivery:
If you or the seller specified a certain delivery date (eg, in time for a birthday or Christmas) but your order wasn't delivered on time you've a right to a full refund. If a date wasn't specified at all, then delivery should be within 30 days.

Use the 'time is of the essence' trick

alarm clockIf all else fails and you need an item delivered by a specific time or date, there's a little-known rule of contract law you can use to give yourself extra consumer protection. Get the company to agree to a delivery deadline marked 'time is of the essence', and you'll qualify for a load of extra rights if things go wrong.

If you don't state this, the only obligation on the company is that it must deliver within a 'reasonable' time, so it'd be solely down to your negotiation skills to get your money back (see above).

Make it clear that 'time is of the essence', and if goods don't arrive by the specified date, or a service start or finish date isn't met, you'll be legally entitled to cancel your contract and demand any linked credit agreement be annulled or deposit refunded. Or if you'd rather, you can choose to continue, but at a lower price:

refuse or agree picture

  • Use it in store. Add 'time is of the essence' to beef up your rights when ordering in store.
  • It adds to your consumer rights. This is because buying in store means you wouldn't be covered by the Distance Selling Regulations which only protect you when buying online, by mail order or phone from an EU-based company. They mean you're already automatically entitled to a refund if an item isn't delivered within 30 days, or by the agreed date.
  • They don't have to agree. It's there to put into practice, but it doesn't automatically mean the trader will agree. As with any consumer rights, whether it's binding would ultimately be down to a judge to decide (if it gets that far).
  • This is a relatively unknown trick. 'Time of the essence' isn't widely known because companies simply don't want to be held to such close account for delivery. It'd mean businesses would be forced to improve delivery service, which would be better for consumers - but at the company's expense.

So if you need your goods or service by a specific date (eg, a present in time for Christmas, or windows fitted before you go on holiday), use this to build up extra legal ammunition.

While it's theoretically possible to add 'time is of the essence' to your contract if you've already ordered, it's far easier to add it when ordering.

It is also possible to add 'time is of the essence' after you've ordered, especially if they are playing games with delivery. However, companies may refuse and then it'll be up to the courts to decide. See how to add time is of the essence.

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