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Consumer rights and #bendgate

You may have seen the above hashtag trending on twitter or come across it in the mainstream media. The moniker relates, of course, to claims made by several iPhone users that Apple’s latest release, the iPhone 6 Plus, had bent whilst in their pockets. Apple argues that such issues would be rare where the phones were only subject to normal use.

Initial reports of #bendgate were quickly followed by a torrent of social media reaction and viral videos of purchasers testing the integrity of their latest smartphone. No doubt if you step into an Apple store over the coming days, you will see a group of teenagers covertly attempting to test the ‘flexibility’ of the new models themselves.

Bends were initially thought to have been caused either in manufacturing or through being inadvertently sat on whilst in user’s pockets. It will come as no surprise that as smartphones become increasingly thinner and longer with bigger screens, they also become increasingly fragile.

The amount of iPhone 6 Plus users who have faced deformation issues is still unknown, though Apple claims that under normal use there should be no problems with the models. So, if your brand new phone has been unfortunate enough to have suffered this fate, what can you do?

You are protected for faulty products

When you buy goods from a retailer or trader, you have rights as to the quality of the product, its fitness for the purpose in which it was designed and a guarantee that it matches its advertised description. These rights are implied into your contract with the retailer by virtue of The Sale of Goods Act 1979, as amended.

It is reasonable for a user to expect a mobile phone to be free from defects, including deformation, if indeed the alleged bends experienced with the iPhone 6 Plus have been caused during manufacture.

Similarly, there are persuasive arguments that a mobile phone by definition should be fit for carriage in your pocket. If the deformation was caused whilst using the phone in a normal way, for example, keeping it in front pocket whilst moving around, there would be a strong argument that it was not fit for purpose. On the other hand, common sense dictates that normal use of a mobile phone will not involve sitting on it – you would be hard pressed to convince a retailer or the courts that sitting on a phone represents its intended use.

If you have purchased a defected product what are your options?

You should consider approaching the retailer or trader immediately (in some circumstances in writing) and ask whether they can satisfactorily resolve the matter. This may include providing either a repair or a replacement of the product in issue.

If a repair or replacement is not possible, or too costly, a partial refund may be sought if you have had some benefit from using it or the product can be returned with a request for a full refund if the fault(s) have meant no benefit has been gained from the product as a result.

If the retailer does not resolve the matter satisfactorily, you may wish to consider taking small claims court action. The small claims process generally deals with actions under £10,000 and would be suitable for an individual complaining about a faulty mobile phone.

Obtaining advice from a legal specialist on low value claims can be expensive, sometimes costing more than the value of any claim itself. These costs are usually not recoverable from the other side and, therefore, it is often advisable to initiate a small claims action yourself.

Higher value transactions

Your consumer rights apply regardless of the value of the transaction. It goes without saying that the decision to pursue a retailer where considerable sums are at issue will be more important to you. Accordingly, initial advice from a specialist legal professional will provide valuable guidance with regards to the merits of your case and whether or not it is worth pursuing.

Furthermore, if you do decide to commence proceedings for a sum greater than £10,000 and your claim is successful, you may be able to recover your legal costs from the other side.

If you have experienced faulty goods or believe your consumer rights have been breached and, having regard to the value of the claim, you feel it is appropriate to seek specialist advice from a legal professional, contact a member of Linder Myers commercial litigation team.

Find out more about our Commercial Litigation department
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