How can businesses manage delays to delivery because of Covid-19?

In the current climate, operating your business in a normal fashion may feel like a distant memory. Businesses are facing many different challenges simultaneously, despite the easing of the lockdown. If you supply goods to consumers, one of these challenges is likely to be fulfilling orders within normal timeframes.

So what does the law have to say around this?

As a starting point, the Consumer Rights Act 2015 (CRA) says you should deliver goods to a consumer without undue delay and, in any event, not more than 30 days after the day on which the contract was entered into. The exception is if you have both agreed a different delivery time or period.

Consumers are entitled to statutory remedies if you breach the delivery rules set out in the CRA. Depending on the circumstances, the consumer may have the right to:

• immediately terminate the contract or treat it as at an end – for example if you have refused to deliver goods to the consumer, or where it was essential that delivery was completed within a certain period and you have failed to do so
• set a new time for delivery (and terminate if you didn’t meet the new deadline)
• cancel their order or reject goods that are delivered late.

If a consumer treats the contract as at an end, you must refund any sums paid by the consumer without undue delay.

In normal times, meeting these obligations isn’t difficult. But these aren’t normal times. The risks of breaching the obligations are much higher. So what can you do?

How can businesses manage the risk of a delayed delivery because of Covid-19?

It may not be possible to avoid delayed delivery. However, you can take steps to manage the risks, always taking into account the statutory rights of the consumer. For example, you could:

• specify a date range for delivery of the goods. However, you should be wary of relying on delivery dates as estimates only, as this may be a ‘blacklisted’ term under the CRA.
• manage changes to normal delivery dates. Your website may state a particular delivery timeframe as standard, but it is possible for you to agree something different with customers. You cannot make such a change unilaterally, though.
• manage any rescheduled delivery dates. If you are likely to miss a delivery date you should contact the consumer and attempt to agree an appropriate new date.
• rely on a well-drafted force majeure clause, if you have one in your terms – see our guidance here. The delay to delivery must be unavoidably caused by the event(s) outside your control. The force majeure clause must not be so broad in scope to be considered unreasonable (and therefore unenforceable) and you will be expected to have taken reasonable steps to prevent or minimise the delay in any event. Where there is a risk of a substantial delay, the consumer will be entitled to a penalty-free right to terminate the contract.
• investigate whether the contract is frustrated – as we have noted in other guidance, there is a high threshold for this and it may be unlikely to arise in practice.

One final point to bear in mind is that a consumer may (depending on how the goods were sold) simply rely on their right under the Consumer Contracts Regulations 2013 to cancel the contract within 14 days of delivery of the goods. There is more on this here.

For advice or for more information, please contact Kevin Mahoney on 07741 907 454 or at [email protected]

This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the issues covered.