'Shoplifting fee' legal?

A fee charged by The Warehouse to recover its losses from shoplifting may be unenforceable, according to Marlborough lawyers

The lawyers and at least one judge in Marlborough have questioned the legal basis of civil recovery notices the store serves to arrested shoplifters, demanding they pay $275 within 21 days to cover costs caused by their theft.

In May, Judge Richard Russell said The Warehouse in Blenheim faced "a real difficulty" dealing with shoplifters and it did not deserve to suffer from theft, while in June Blenheim branch manger Ian Daubney told the Express about five or six people were caught trying to steal from the store every week. Up to 10 people a day were deterred from stealing while still in the shop.

To combat its losses, the company serves every shoplifter caught with the civil recovery notice as well as having criminal charges laid against them, he said.

"A classic example of that is when we caught a guy with a gas cylinder worth $2.50, and it cost him $275."

However, Blenheim lawyer Philip Watson said he had advised clients not to pay the fee as he did not believe it was enforceable. Fellow Marlborough lawyers Bryony Millar and Kent Arnott both said they would be interested to know what law The Warehouse was basing the notice on and lawyer John Holdaway questioned how The Warehouse came up with the $275 figure.

The Warehouse declined to comment on the fee or the process.

While the notice says payment is required within 21 days, University of Canterbury associate law professor Cynthia Hawes said the notice was vague and created no legal liability for people to pay.

"I would not advise anyone to pay the $275 without some proof The Warehouse has suffered loss to that extent as a result of this theft."

The Warehouse could claim for reasonable and foreseeable losses from a theft and it could take cases to the Disputes Tribunal, where it would have to prove its losses, she said.

"If The Warehouse can prove some sort of direct losses associated with what happens [that's fine], but it doesn't follow that they can make some sort of blanket charge."

Mr Arnott said most clients he saw had paid the fee, but he thought it was a "legal grey area" he would like to see tested in court.

Police prosecutor Sergeant Mark Lucas, questioned about the fee by Judge Ian Mill in the Blenheim District Court this month, said he did not want to comment on the legality of it, but said other judges had commented.

The Marlborough Express understands Mr Lucas was referring to comments by Judge Stephen Harrop in court on October 19 questioning whether the notices were enforceable.

In 2005 Judge John McDonald also questioned the fee, which was then $150, during a case in Whangarei.


The Marlborough Express