B&Q – the dishwashers with no discretion
We've all felt at one time or another that we've lost out on a bargain through no fault of our own. While most of us would love to stick it to the Man, preferably by nailing Him to a tree, the fact is most of us simply can't be bothered to do much more than grumble at the checkout. Taking on a national retailer over a questionable deal feels like such an effort most of us quietly concede the point.
Unless you're Bitterwallet reader Tom Beckett. After B&Q failed to deliver on the promise of a cut-price dishwasher, Tom decided to take his complaint as far as he could. We asked Tom to tell his story of how he took B&Q to court last week... and won:
Browsing through the MoneySavingExpert forums I found the deal I'd been waiting for: “Zanussi Integrated Dishwasher - £94 delivered”. Scrambling for the credit card, I made my payment and within seconds the confirmation email appeared. At last! I secured a bargain, not realising of course that this dishwasher would represent more than just the promise of clean dishes.
Delighted with my order, I announced to the MSE forum that I too was a lucky buyer. In fact, there were a lot of lucky buyers and some doubt was emerging on the forum as to whether this was too good to be true, and it was.
Recounting a conversation with B&Q the following day, I was told the dishwasher had a scheduled delivery date in 2050. I explained to the call centre person that 2050 was a bit far ahead, but could they fit me in for an afternoon delivery. After much banter, I was told, as was others that the dishwashers were out of stock but not to worry as more were on order with the supplier and within a month, my marigolds could be binned, or so I thought.
The next day my inbox brought bad news. An email from B&Q confirming the order had been cancelled as stock was exhausted. Disappointment turned to annoyance and I thought back to the poor woman on the forum who had binned her father’s old working dishwasher to make way for the new one. Oh dear.
The MSE forum was rife with annoyed customers. Posts recounting the same old emails received from B&Q were unveiled as more victims emerged. Then, thoughts turned the legal position, afterall, didn’t B&Q just dissolve (in the words from their terms and conditions) a legally binding contract? I sent emails to B&Q, many of which were ignored. The same replies came back with the kind gesture that I could order an alternative dishwasher if I wanted to pay hundreds more pounds. Then came the idea of the ‘loss of bargain’ rule.
Met with much criticism from others, including a nomination for most ‘the most stupid letter ever written to a company’, a number of forum members wrote to B&Q citing Section 51 of the Sale of Goods Act which states: (3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or (if no time was fixed) at the time of the refusal to deliver. Surely, presented with the legal line, B&Q would accept the facts? No.
The standard replies came back from B&Q to forum members stating that B&Q will rely on the terms and conditions on the website which states we reserve the right not to supply you at our discretion. Whilst many forum members gave up on the strength of B&Q’s reply, no doubt assuming that such a large corporation would know more about consumer law than the man on the street equipped with google, a few were not convinced and I submitted my claim at the small claims court, claiming the difference between the £89 I had paid (and had refunded) and the £350 it would cost to buy the machine elsewhere. The claim cost £25.
Like most defendants in the same position, B&Q filed a defence at the 11th hour and the claim was allocated to the small claims track. A date was set for the hearing, 11.30am on Wednesday 11th June. At the time, it seemed a long time away.
On reading the allocation questionnaire, I decided to email the solicitor acting for B&Q to see whether there was room for negotiation. B&Q quickly responded to say they were committed to negotiation which resulted in a one and only offer of £100 (not quite a negotiation!). I declined and suggested that £200 would be the middle ground and for that I would even sign a confidentiality disclosure. Request declined!
In the meantime, the dates for other hearings loomed near and private messages on the forums indicated that B&Q were settling cases behind the scenes. It felt like a hollow victory as the consumer had been made to sign confidentiality documents and paid off. OK, the ‘loss’ was compensated, but what about the right for the little person on the street to prove them wrong?
It was approaching the deadline for B&Q to supply documents intended to be relied upon at the hearing and I emailed a reminder to the solicitor to say I hadn’t received anything. The following day, a brown envelope appeared, inside contained a thick wad of papers, much more than I had prepared. Without seeing the contents, my heart sunk, but only for a second.
Browsing through the witness statement, B&Q were denying a contract was formed but they also wanted to rely on a term of the contract (confusing, I know) which stated they could supply at their discretion. I recalled an argument I read on the MSE forum about Unfair Terms in Contracts Act 1977 which basically states the seller cannot dissolve the contract willy nilly. I then turned to the documents B&Q wanted to rely on to find they had printed large sections of the MSE thread in an attempt to discredit me (never mind the copyright infringement!). B&Q cited that because I alluded to the fact the deal may not be successful; it somehow relieved B&Q of their contractual obligation.
As the court date loomed, I contacted B&Q to try and ascertain whether settlement would be forthcoming. However, it seemed that B&Q had focused their attention on my case and they wanted to see me in court. And they did.
I arrived at Newbury County Court at 11am on the hearing date and the Trading Law Manager of B&Q arrived moments later. I would have thought she would have introduced herself but we sat in stony silence for half an hour until ‘Beckett V B&Q to court’ was announced over the tannoy.
Sat on opposite sides of the room, I witnessed the defence team of the largest DIY retailer in the UK reach into her duffle bag to pull out the bulk of my comments made on the MSE forum and some other papers. The Judge then invited me to recall why I was claiming and during my monologue, I covered the Sale of Goods Act and how I believed a contract had been formed between the defendant and I.
I then talked about the term discretion, the one point which I will claim to have made up myself and the one point that I feel was pivotal to the whole case. Did B&Q not supply me at their discretion? I argued that the term 'discretion' meant that there was a choice between more than one outcomes and I stated if B&Q did not have any stock, surely they couldn’t then decide whether or not to supply the dishwasher as there weren’t any. If B&Q had no choice in the matter, how could discretion be used? B&Q then had to admit only seven dishwashers were available at the offer price and no more stock could be obtained.
B&Q were then given the chance to respond and they could only agree with my chain of events. The forum posts were mentioned in passing, but I felt that the defence had given up on that argument as none of the comments I had posted were read out, despite them all being neatly highlighted and marked with colourful post it notes. B&Q admitted errors were made and more stock sold than was available but also stated they could supply at their discretion. The judge backed up my argument and when we were sent out for the judge to consider her decision, I felt positive.
After 15 minutes the tannoy announced to the waiting room that Beckett V B&Q were due back. As we sat in our seats listening to the judge summing up, her final words brought joy – I find in favour of Mr Beckett. At last, a victory for the consumer but a PR gamble gone wrong for B&Q.
As we walked out of court, I approached the Trading Law Manager and I asked her whether I should wait to hear from B&Q before making the decision public, afterall a judgment this bad would have warranted a damage limitation plan B? No. Instead B&Q replied “you can do what you like Mr Beckett”.
In view of this case, I have now taken to helping other disappointed B&Q customers claim for their loss of bargain and I am confident that B&Q will not wish to repeat the Beckett V B&Q case.