Getting evidence to prove your claim

In the guide

• The law
• What sort of evidence should you obtain?
• Expert opinions: what you need to know
• Where can you find an expert?
• What should the expert's report contain?
• What to do if things go wrong

This guidance is for England & Wales

In most cases you will not encounter a problem with faulty goods or digital content or have a complaint about a poor service. If you do the trader will usually accept responsibility and agree to an appropriate remedy, whether it is refund, repair, replacement, price reduction or repeating the service. However, there will be occasions when you find yourself in dispute with the trader because you cannot agree what caused the problem and who is responsible for putting it right. The trader may insist that the service wascarried out properly, you damaged the goods or digital content or the problem wasdue to wear and tear. However, you may believe that the service wasbelow standard or the goods or digital content supplied werefaulty.

If you need to prove your claim, you should gather as much evidence as you can. You may even need to obtain another person's opinion. How do you know that this person has the required skills, knowledge, qualifications and experience to give an opinion? What happens if the trader does not agree to an inspection and report? How do you prove that the trader misled you or used an aggressive commercial practice? This guide will give you the practical information you need to obtain evidence.

The law

The Consumer Rights Act 2015 gives you rights when you make a contract with a trader for the supply of goods, services and digital content. If something goes wrong, you may need to provide evidence to prove your claim.

GOODS

If you exercise your short-term right to reject (that is, to reject the goods within 30 days) then you may have to prove that the goods were faulty at the time they were supplied to you, unless the fault is obvious.

However, if you opt for a repair or replacement or are seeking the remedies of either price reduction or final right to reject and a fault is discovered within six months of receiving the goods, then in most cases it is presumed that the fault was there when you bought the goods. Sometimes faults do not show up straight away but they were nevertheless present in the goods. It is for the trader to prove otherwise; they may, for instance, believe that you have damaged or misused the goods. This is commonly referred to as the 'reversed burden of proof'.

After six months, the burden switches back to you to prove there was a fault if you want to make a claim against the trader because the goods are faulty.

See the 'Sale & supply of goods: your consumer rights' guide for more information

DIGITAL CONTENT

If you discover a fault with the digital content within six months of the date it was supplied to you, then in most cases it is presumed that the fault was there in the beginning. As for goods, this is commonly referred to as the 'reversed burden of proof'.

After six months, the burden of proof switches back to you to prove there was a fault if you want to make a claim against the trader because the digital content is faulty.

See 'Supply of digital content: your consumer rights'.

SERVICES

If a service is not carried out with reasonable care and skill, at a reasonable price, within a reasonable time or is not carried out in line with information given to you (whether verbally or in writing) then the trader is in breach of contract. This means that you are entitled to seek a legal remedy but you may need to prove your claim.

The 'Supply of services: your consumer rights'' guide give more information.

UNFAIR TRADING

If you enter a contract because a trader misled you or because a trader used an aggressive commercial practice, the Consumer Protection from Unfair Trading Regulations 2008 give you rights to redress: the right to unwind the contract, the right to a discount and the right to damages. You may need to provide evidence in support of your claim. The 'Misleading & aggressive practices: rights to redress' guide gives more information.

CONSUMER CONTRACTS

Under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, in relation to a sales contract (a contract for the sale of goods or the supply of goods with a service), you are entitled to check the goods after delivery (as you would in a shop) to make sure you are happy with their nature, characteristics and function.

If you decide to cancel and return the goods andthe trader believes you have used them more than isnecessary to decide if they aresuitable, they may be able to claim compensation from you, up to the contract price. A trader can deduct thisfrom the amount you are due to be reimbursed, or it must be paid by you to the trader. However, this does not apply if thetrader did not provide you with the legally required information on the right to cancel the contract. You may need evidence to demonstratethe condition of the goods before you returnthem.

The 'Buying at home: off-premises contracts explained' and 'Buying by internet, phone & mail order: distance contracts explained' guides explain the rules in more detail.

What sort of evidence should you obtain?

If you are in dispute with a trader over a contract for the supply of goods, a service or digital content, it is essential that you obtain and retain as much evidence as you can to prove your claim. The following tips will be useful:

• depending on the type of goods, services and digital content supplied and where the contract is made, the trader may be required to give you certain important information, such as the contract details, payment arrangements, delivery, after-sales service and details of any complaints-handling policy they may have. This information will be a useful guide to what evidence you need to gather
• keep a file of all other relevant documents, such as the original advertisement (if applicable), your order, acknowledgement / confirmation of order,the credit agreement (if applicable), any plans the receipt, emails, correspondence and any guarantee or warranty
• write down a statement of events in chronological order and keep it updated
• make a note of the names of the people you contacted about your dispute and their role within the business
• where appropriate, take photographs or videos of the problem - for example, the faulty goods, bad workmanshipor below-standard holiday accommodation
• make a list of sub-standardwork and a list of any outstanding work
• if you are returning goods after cancelling a contract, consider taking photographs or videos to demonstrate the goods hadnot been handled beyond what was necessary to establish their nature, characteristics and function
• for digital content,take a screen print on your PC or laptop, or use another device to take a video of the screen as evidence of the problem
• if there is a witness to the problem or event, ask them if they will give you a written account as supporting evidence
• check online review sites - you may find someone else with a similar complaint this could support what you are stating
• keep any parts or materials that are removed or replaced; you may need them as evidence of the fault at a later date
• if you have had remedial work done by another trader, ask for an itemised bill or better still ask them to write a report for you on the work they carried out and the reasons why it was necessary
• obtain a valuation on the work done by the trader to date
• keep a record of and receipts for your out-of-pocket expenses; you may be able to claim them back
• keep the packaging and instructions for use; they may be useful
• if you write to the trader, keep the certificate of posting or recorded delivery slip
• If you email the trader, keep auto-replies and read-receipts if you receive any
• the trader may have an online reporting form that you can use to submit your complaint. You mayreceive an email confirming what you have submitted, which is evidence of your complaint
• if a trader supplies you with digital content that damages your device (such as your mobile phone or laptop) or it causes damage to other digital content, which would not have occurred if the trader had taken reasonable care, gather evidence on your loss to claim repairs or compensation

If a trader gives you false information about the goods, service or digital content, the overall presentation of the goods, service or digital content is misleading or they use an aggressive commercial practice (such as pressure selling) you may need to obtain extra evidence you can use when making your claim - for example:

• details of what you expected and evidence of what you actually got. For example, if you chose a trader because they advertised that they were a member of a trade association and this turned out not to be true, you should keep a copy of the advertisement and obtain written confirmation from the trade association that the trader is not a member
• if you sold goods to a trader and you agreed to a below-market price because they lied to you about their quality, you should obtain the correct market price of the goods and have evidence of the price the trader gave you
• if you signed a contract because a trader refused to leave your home until you went ahead and agreed to the contract, keep a detailed written record of the incident to use as evidence
• details of any financial losses that you suffered as a result of a payment you made to the trader. You may be able to claim damages for your losses

Expert opinions: what you need to know

If the trader does not accept any of the evidence you present in support of your claim and you remain in dispute, you may need to obtain an expert opinion to establish what the problem is, how it was caused, what it will take to sort out the problem and who is to blame.

Initially, you may able to obtain the opinion of another trader that provides the same goods, service or digital content as the trader you are in dispute with. The second trader may be able to offer you guidance so that you can approach the first trader with some knowledge to back up your claim. However, not all traders will be prepared to get involved in a dispute.

If the trader you are in dispute with is a member of a trade association, part of that trade association's service may be to offer conciliation or arbitration, including an expert's examination and report paid for on a 'loser pays' basis.

You may be able to come to an agreement with the trader to obtain a joint independent report, perhaps splitting the cost so that you can both be satisfied about the impartiality of the opinion. Of course, the trader does not have to agree to this, but if you make this request in writing and the trader rejects it, they may find it difficult to argue later that they have acted reasonably.

If you obtain your own independent report, you should inform the trader in writing of your intentions before you go ahead. Keep copies of all your correspondence. If the report finds in your favour, you may be able to claim back the cost of the report as well as having the problem sorted out or claiming the cost of rectification.

The limit on the amount you can claim in the 'small claims track' of the County Court is 10,000. The court may not accept a report you have obtained prior to taking legal action and may direct you and the trader to appoint a single expert. If you and the trader cannot agree on the choice of expert or the arrangements for paying the expert's fee, then you or the trader must apply to the court for further directions. The court would then make a decision about the expert. The limit for recovering expert's fees in court is 750.

The 'Writing an effective letter of complaint' guide includes a template letter to a trader asking them to consider a joint expert report.

Where can you find an expert?

Sometimes it can be difficult to find an independent expert so you should contact the Citizens Advice consumer service for guidance. Check the trader's advertisements, website, emails and business documents to see if they claim to be a member of a trade association. If they are, contact the trade association consumer helpline for advice on how to complain about a member. If you are not sure whether the trader is a member of a trade association, see the 'Trade associations & regulatory bodies' guide, which has a list of contact details for some of the main associations. You can also research trade associations online.

If you find it difficult to get an independent opinion, consider using alternative dispute resolution as a way to resolve your complaint without going to court (the 'Thinking of suing in court' guide explains what this means). Evidence you have obtained so far will be useful to your case.

What should the expert's report contain?

You should make sure that your expert includes the following in their report:

• a full breakdown of the nature of the problem
• what is the cause or likely cause of the problem and why - for example, bad workmanship, inherent defect, faulty components
• what needs to be done to put the problem right
• the cost of corrective work
• if relevant, photographs, diagrams, plans, etc should also be included
• the person giving the opinion should also give details of their qualifications, credentials and experience
• a statement of truth verifying the report

If you are not sure about obtaining a report, ask the expert to show you an example of the type of reports they produce. Always find out how much the report will cost, bearing in mind the 750 limit on recovering expert's costs in court.

What to do if things go wrong

The 'Sale & supply of goods: what to do if things go wrong', 'Supply of services: what to do if things go wrong' and 'Supply of digital content: what to do if things go wrong' guides give more information on what to do if you are in dispute with a trader.

Key legislation

• Consumer Protection from Unfair Trading Regulations 2008
• Consumer Rights Act 2015
• Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

Last reviewed / updated: July 2020

Please note

This information is intended for guidance; only the courts can give an authoritative interpretation of the law.

The guide's 'Key legislation' links may only show the original version of the legislation, although some amending legislation is linked to separately where it is directly related to the content of a guide. Information on amendments to legislation can be found on each link's 'More Resources' tab.

For further information in England and Wales contact the Citizens Advice consumer service on 0808 2231133. In Scotland contact Advice Direct Scotland on 0808 164 6000. Both provide free, confidential and impartial advice on consumer issues.

© 2021 itsa Ltd.