Version: 24/7/09
ADVICE TO CONSUMERS & TRADERS REGARDING DISPUTES WITH EBAY OR PAYPAL
NOTE: There are many hyperlinks within this document which provide further detail on the points mentioned. They do not appear due to technicalities with submissions to this site, however the advice is also enclosed in the Word document which is correctly formatted and therefore easier to read
See DISCLAIMER below before deciding how to proceed with your claim.
Legislation may change over time and the advice given is based on the information available at the time the guidance was produced. It is not necessarily comprehensive and is subject to revision in the light of further information.
Only the courts can give a definitive interpretation of legislation.
This advice is not intended to be a definitive guide to, nor substitute for, the relevant law. It is based upon a Trading Standards Officer’s opinion as to the legal position. It does not necessarily reflect the views of the profession. Independent legal advice should be sought where appropriate.
A number of consumers online are asking ‘Can I sue eBay?’, ‘Can I sue PayPal?’, ‘How do I sue PayPal?’ or ‘How do I sue eBay?’. If you have an eBay or PayPal complaint that you would like to resolve, this guide will attempt to answer those queries. Courts should be the last resort but should this be necessary you will find details of how you can progress a claim against eBay or PayPal.
Blogs are very useful for tips and contacts, but for impartial, free legal advice you may want to consider contacting the Government helpline Consumer Direct on 08454 04 05 06 (calling from a mobile?) should you require further advice on any of your consumer rights mentioned below.
Even if you don’t want any advice it pays to inform Consumer Direct of your problem because Trading Standards have access to all of these complaints. Trading Standards monitor these complaints to identify common complaints, causing the most detriment to consumers. They can not resolve every individual problem but are able to target their resources to explore ways of overcoming those systematic issues affecting the many.
You’ll find some tips on resolving your issues below:
Problem with purchase?
• Paid directly with credit card? Consider a section 75 CCA 1974 claim if goods cost over £100, even if only paid part of cost on credit cards
• Paid with debit card or credit card for goods under £100? You may benefit from your bank’s chargeback protection. Also see PayPal guide on chargeback
• Paid by PayPal – If not covered by seller or buyer protection, you may make a claim under the PayPal Buyer Complaint Policy – 13.10
• Report seller to Consumer Direct
Problem with eBay? eg. overcharged on fees, account unfairly suspended, ebay refused to provide seller’s contact details (see FAQs below for advice)
You’ve emailed? You’ve phoned (020 8605 3000) and faxed (020 8605 3001)?
What’s next?
Well, you have 2 routes to resolve it:
1.
Send a Letter Before Action. Although your contract is with eBay Europe S.à r.l., Luxembourg you will be able to serve your letter on their UK office (eBay, Complaints Department, Hotham House, 1 Heron Square, Richmond upon Thames, TW9 1EJ)
In the letter, clearly set out:
• your dispute,
• your rights (NB: Consumer Direct on 08454 04 05 06 or visit TSI site) – also check OFT guidance if they appear to be using a term in their listing that you feel is unfair
• how you would like the issue resolved
• and give 14 days for a reply before you consider court action,
The letter should be sent recorded delivery, keep a copy of it and the online proof it was signed for – the courts will want to see your reasonable attempts to resolve the issue.
ONLY after your Letter Before Action consider 2 or 3
2.
Court
Although your contract with ebay.co.uk is with eBay Europe S.à r.l., 15 rue Notre Dame, L-2240 Luxembourg, you are entitled under the Hague and Lugano conventions to file a claim in your local County Court (but see Money Claim Online below) and serve papers on relevant offices for the company in your own country. When submitting a claim against eBay the main defendant will usually be eBay Europe S.a.r.l c/o eBay (UK) Limited, Hotham House, 1 Heron Square, Richmond upon Thames, TW9 1EJ.
eBay has numerous registered companies, which can be found on Companies House, however not all of which are relevant to the eBay.co.uk site. Should the judge disagree that the ‘Hotham’ address is relevant, you may consider the following alternatives: Ebay (UK) Limited, 5 New Street Square, London, EC4A 3TW OR Whittaker House, Whittaker Avenue, Richmond, Surrey, TW9 1EH (registered address for Paypal (Europe) Ltd and Paypal (UK) Limited, a wholly owned subsidiary of eBay Inc). Evidence of it working in practice against PayPal.
The courts should be familiar with the rules around suing foreign companies, but should the courts query how you can sue a foreign company and serve papers on a UK address there is some guidance on the civil procedure rules that explains this and the rules themselves. The relevant sections are:
• CPR 6.6 – see 6.11
• CPR 6.11 – your contract with eBay (term ‘Governing law and dispute resolution’ at bottom of User Agreement: “You and eBay both agree to submit to the non-exclusive jurisdiction of the English Courts”) and Paypal (term 14.3 ‘For complaints that cannot be resolved otherwise, you submit to the non-exclusive jurisdiction of the English courts’) allows you to make a claim in the UK. Those residing in the UK other than in England, were this questioned by the courts, should argue that a term restricting your ability to claim in your local court is unfair and so void under the Unfair Terms in Consumer Contracts Regulations 1999 – see 17.4 of OFT guidance and top of pg 107 of Annexe for example of what OFT consider to be fair term. Unclear terms are to be read in the consumer’s favour and one could argue that ‘non-exclusive jurisdiction’ permits the consumer to choose courts other than in England and Luxembourg.
• CPR 6.23 - Address for serving court papers is eBay, Complaints Department, Hotham House, 1 Heron Square, Richmond upon Thames, Surrey, TW9 1EJ
• CPR 6.33
o (1) it IS a civil claim relating to a commercial contract within the financial limits set down for the county court
o (a) you’re not already suing them somewhere else
o b)(i) they have office in UK
o (ii) Article 16 not usually applicable unless you are disputing misuse of your trademark (s.4). Schedule 3C, section 4 - Article 13, para 3, and Article 14 of the Civil Jurisdiction and Judgment Act 1982 are relevant.
Most eBay / PayPal claims will typically be straightforward claims for financial compensation and so it would be recommended to use Money Claim Online – easier and cheaper. This appeared to work well for user variousdruid - here. You don’t need solicitors and wouldn’t get such costs back anyway, other than the fixed £50/80 cost as applicable, but if you insist check out or your local CAB (some have duty solicitor rotas), CLS or LCF
3.
If you are unsure whether your claim may be successful and do not wish to risk court, complain to the UK European Consumer Centre on 08456 04 05 03. They have a relationship with Luxembourg’s ECC which may resolve your complaint with eBay’s Luxembourg head office.
Problem with Paypal?
You submitted complaint via PayPal's online system and unhappy with the response. The following are thought to be the most helpful: Executive Escalations ppelce@paypal.co.uk
If poor response THEN try:
crme@paypal.com
appeal@paypal.com
account-review@paypal.com
complaint-response@paypal.com
resolutions@paypal.com
appeals@paypal.com
escalations@paypal.com
Tel: 08707 307 191 & 0208 6053000 Opt 1=Customer services
Assuming none of the above worked, if you have a claim against PayPal you have 5 routes to resolve it:
1.
Send a Letter Before Action (as advised above with eBay) to PayPal Complaints Dept, Whittaker House, Whittaker Avenue, Richmond, Surrey, TW9 1EH and copy to complaint-response@paypal.com
ONLY after your Letter Before Action consider steps 2 - 5
At stages 2, 3 or 5 send a copy of your complaint/claim to their Luxembourg regulator, the Commission de Surveillance du Secteur Financier (the "CSSF"), to direction@cssf.lu or contact here so they are aware of the problems with PayPal. You may not get a reply but only by being aware of the issues affecting PayPal customers can they be in a position to consider regulatory action.
2.
Court
Your contract with PayPal UK is with PayPal (Europe) S.à r.l. & Cie, S.C.A., 5th Floor
22-24 Boulevard Royal, L-2449, Luxembourg, As above, you may file a claim in your local court. When submitting a claim against PayPal the main defendant will usually be PayPal (Europe) S.à r.l. & Cie, S.C.A c/o PayPal (UK) Limited, which is registered with Companies House at Whittaker House, Whittaker Avenue, Richmond, Surrey, TW9 1EH.
3.
If you are unsure whether your claim may be successful and do not wish to risk court, complain to the Financial Ombudsman Service (FOS). Although no longer regulated by the FSA (since their move to Luxembourg) they are still caught by the FOS which will be able to consider almost ANY complaint you may have with PayPal up to and including poor customer service. Complain here. Some have suggested on blogs that PayPal are charged £300+ for each FOS complaint. While FOS can make this charge, it’s unlikely where the company is voluntarily (as a non-UK company) adhering to FOS’s decisions.
FOS probably cannot assist if you do not follow clear PayPal guidelines eg. file a dispute with PayPal within the designated 45 days – they can’t force the company to extend these deadlines. However, say PayPal were unreasonable with their deadlines for seeking information from you to resolve your claim eg. ‘we want a witness statement from the rights owner within 10 days or your claim will be closed’, this would come within their remit. If PayPal have acted unreasonably in freezing your account the FOS can compensate you for lost interest and may also consider your wasted time in trying to resolve the matter, so be sure to include these consequential losses in your claim.
4.
An alternative to the FOS would be to complain to the Commission de Surveillance du Secteur Financier (the "CSSF"), rather than simply copy them into correspondence - contact here.
5.
Complain to the UK European Consumer Centre. They have a relationship with Luxembourg’s ECC which will raise your complaint with PayPal’s head office.
LEGAL BASIS FOR YOUR CLAIM
Consider breach of contract; not providing a facility/service with reasonable skill and care as per the Supply of Goods and Services Act 1982 (1, 2) IF:
• eBay/paypal overcharged on fees;
• paypal not honoured paypal protection or dealt with your claim in a haphazard manner
eBay may be liable as joint tortfeasors, common law negligence – see 1, p.346-351 IF:
• You have a problem with a seller and believe eBay/paypal are partly to blame for the issue eg. eBay have not removed illegal items as you requested.
Most common FAQs
1. What you need to know: simple guides to court process, guides to making a claim and FAQs
2. What if I lose? Don’t be put off by concerns that you may have to foot the bill for eBay’s expensive lawyers if you loose. The small claims court is designed to enable joe public to make claims easily and with little cost and does not allow parties to recover unlimited legal costs of instructing a solicitor. If you loose, you will not get the court fees back. It is unlikely that you will have to pay any other costs but the judge MAY request you to pay the REASONABLE costs associated with eBay defending the claim eg. expert – only if they were necessary AND both parties had agreed to their report; between £50 and £80 fixed cost if they instructed a solicitor to assist them defend a claim – again, only if the judge believes it was reasonable for them to seek such legal advice. The relevant court rules are CPR 27 and CPR 45. Get some advice from Consumer Direct on your rights and you should know beforehand whether you have a good claim.
3. Will I need a solicitor? This will often not be necessary as PayPal disputes are fairly straightforward matters and there is plenty of online advice from CAB, HMCS and here and private sites eg. JustClaim. Also, you can only claim a fixed amount (around £50) for their assistance in completing the claim form. CAB can provide free advice on completing a claim.
4. I’m looking for an eBay alternative – see the following sites for details of other auction sites:
www.ukauctionline.co.uk/uk-directory.html
http://www.kyotee.co.uk/uk-business-...tion-Sites.htm
www.reviewcentre.com/products629.html
5. ebay refused to provide seller’s contact details - Your User Agreement ie. your contract with eBay, under ‘Using information about other eBay users’ and ‘Privacy’ require you to agree that your contact and postal information may be shared with those transacting with you. Under the Privacy Policy you are informed that “We may also share your personal information with: Other eBay users, whether located within the United Kingdom or abroad. For example, where you are involved in a transaction with another user, the other user may view your email address and obtain your contact information and postal address to help complete the transaction”
It is reasonable for consumers to expect to be provided with seller contact details where they need to exercise civil action and therefore there may be an argument that eBay is negligent at common law by not providing those details to you. You may be able to make a claim in court for the loss you have suffered (ie. the compensation the seller owes you) as a result of eBay refusing to provide the seller contact details which would have enabled you to sue the seller.
Other issues
1. I lost in court. Now what?
You may be liable to pay a small fee to eBay for their time in replying to your claim, however eBay cannot claim back high costs for any lawyers/barristers it chooses to employ. Pay straightaway to avoid getting a CCJ which could affect your credit rating. There may be limited rights of appeal against a small claims decision – see here.
2. I lost and they have arranged for bailiffs to collect the judgement debt - see the know your rights and the Directgov guide for what bailiffs can and cannot do.
3. Competition issue? Some users have been unhappy about being forced to accept PayPal as a payment method in listings or not being able to use their preferred e-money provider. You may want to add your name to this Facebook campaign but if you feel strongly you may want to put your complaint direct to OFT on 08457 22 44 99.
4. I am being chased by their debt collectors, which are harassing me. Harrassment does not include them writing or telephoning you often to pursue the claim but would include the following:
• Calling at unsociable hours
• Contacting you at work
• Informing your neighbours or friends that you owe a debt
Creditors and debt collectors must follow OFT debt collection guidance. Inform Consumer Direct where the debt collector is breaching this guidance.
5. Is seller reputable?
Check feedback by user or email, however feedback doesn’t always tell you the whole story:
• Are they really a Company as claimed. Check here for UK and here for non-UK to check if registered and their registered address. Sole traders and partnerships may not be registered so this doesn’t mean they’re not legit in itself
• ‘Google’ seller ID and details – perhaps others have complained online
• Check complaint forums: grumbletext blagger clik2complaints complaints.com AND OFT Injunctions database
• Always check any accreditation logos that they display in their ads. It’s easy for them to copy and paste them and easy for you to verify it by Googling the accreditation body and checking if they’re a member/accredited
• Check Report Auction Fraud Service
6. Avoid scams - visit the Community/Discussion Boards on ebay’s site for additional information and help
7. How do I spot fakes?
• Price – if it’s too good to be true it often is
• Compare picture in listing with that on the manufacturer’s website
• Some companies and retailers have issued guides to spot the fakes. You’ll find these on the companies website or by googling ‘fake’ and the name of the product
• Rogues can use stock photos of real goods so ask to see additional photos of product in a normal home background and copy of receipt if in doubt
COMMENTS?
If you found you were successful in pursuing your claim with the courts or the CSSF it would be helpful to know which routes prove most useful to tweak this guide. Also, if you have comments on how this guide may be more comprehensive please post your comment. I will be reviewing posts over coming months before updating this guide.
Last edited by Consumer-Empowerment; 15-10-2009 at 02:24 PM.
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