Orange - Liability Clause and Small Claims Case

[OrangeSquasher]

Can anyone offer advice on a way round the non-liability clause in the Orange broadband contract in my forthcoming case:

The story (v briefly) is that I was bounced off dial-up onto broadband when Orange closed the dial-up service, and then I moved house... Three months later and A LOT of mucking me around, they had not reconnected me at the new address and I cancelled the contract.

In that time, I had to pay out the for continuing to get emails via another pay-for dial-up and, in the end, I factored-in the call charges, the monthly charges, the extra expenses, my time spent on the matter, and the fact that I was very annoyed... and claimed about £200 pounds from them. They refunded me £50.

So it's going to the Small Claims Court.

Orange's defence basically comes down to their clause - "We shall not be liable to you; for any loss or damage arising out of any loss of data or for any other loss or damage which is indirect and not reasonably foreseeable by us;"

I had a couple of thoughts so far -

1) it would be reasonably foreseeable that if they weren't providing me with a service I'd have to get it elsewhere and, given that they blocked access for other providers, it would be expensive.

2) they bounced me off a working service

3) what is the value of an 'agreement' - I didn't sign anything, and the service wasn't working, so I wasn't using it (and not agreeing by using the service?)


Please, are there any thoughts on this matter??

It will be my first time in court and I'm thinking it will be an interesting experience... but I'd like to win against these cowboys too!

N



By the way, the next company I approached for broadband connected me within eight days.

[old_andrew2007]

bump

[Bernie_the_Bolt]

Is it reasonably forseeable that if Orange fail to supply a service you will look elsewhere? I would say so. Are the costs of an interim service directly related to their failure to supply? I think so as there is no intervening cause!

[buzby]

However, as this is a service contract, there are no service guarantees in place. If they have paid/credited toy with £50, if you kept this it may be argued that you accepted their offer of compensation and that any action is vexatious. If you refused to accept it, then you have a stronger case, but only insofar as they cannot charge you for services you didn't receive. They wouldn't be liable to pay for service provided by an alternative carrier if you weren't paying them in the first place!

[Bernie_the_Bolt]

Originally Posted by buzby

However, as this is a service contract, there are no service guarantees in place. If they have paid/credited toy with £50, if you kept this it may be argued that you accepted their offer of compensation and that any action is vexatious. If you refused to accept it, then you have a stronger case, but only insofar as they cannot charge you for services you didn't receive. They wouldn't be liable to pay for service provided by an alternative carrier if you weren't paying them in the first place!

Who says it has been accepted in full and final settlement? It could be partial, interim or have been rejected as settlement but not returned.

On dial-up services (or indeed anything else that appears to be "free") does not of-itself mean they have no liability for failure to deliver contracted services. It may be the case if it was a gratuitous gift. That is not the case here, the consideration is in a non-cash form.

[gni03349]

Buzby summed it up.

Basically, it is illegal to charge for something that is not provided (whether it's goods, or a service).

They should have at least refunded you each month that you couldnt use their "service"... as a MINIMUM. Anything after that can be argued until the cows come home, such as the inconvenience, and the paying out for a working service etc.

[OrangeSquasher]

Thanks all of you... I thought that was reasonable too ... but am also in need of knowing what a court might think.

Orange did - eventually - pay me £50 which approximated the absolute minimum refund of what they had taken from me, plus calls to the 0870 line: though they called it a 'goodwill payment', not a refund.

The £50 was just paid into my account long after I demanded the £200 - I wrote and thanked them for the first installment of the money I was owed and demanded the rest - and it's that, I guess, that will be argued about at a hearing.

Buzby - you mention "service contract": is this the area of law concerned here?

The court documents suggests making every effort to settle out of court - is it in my interest at this point to write once more to the CEO or their legal office and offer them the opportunity to settle before hand?

Any other thoughts / ammunition still welcome.

Thanks

N

[gni03349]

They may have shot themselves in the foot by calling it a goodwill payment. The law is quite clear about charging for goods or services (ie. supply them, or else don't charge.. simple really).

You would have to convince the judge that you haven't been reimbursed for their illegal charges (if they want to insist it is a goodwill payment), so if you can get a good case for that, the rest "should" follow, although you shouldn't go overboard with too high an amount. £200 isn't so much though really IMO.

[OrangeSquasher]

Thanks - I like the potential headline: "Cowboy ISP shoots self in foot."

They have been truly incompetent at every stage so far - I hope they have shot themselves in the foot here too.

The amount I asked for was small, but accurate: I was a bit surprised that they decided not to pay me as I had threatened legal action if they did not; and more surprised they decided to defend the matter.

I like to think they've spent £200 on lawyers already...

N

[buzby]

Originally Posted by Bernie_the_Bolt

Who says it has been accepted in full and final settlement?

The courts. Acceptance of a refund is a tacit agreement that the service was not up to standard. Attempting to recieve 'compensation' in addition for services provided by another would be denied. If the original carrier didn't offer any compensation then the matter would be different, but as money has changed hands, a 'win' is not assured.

This always assumes the firm will contest the claim, as it can often cost them mre to defend than let it proceed, that said - I dislike this it's really a form of blackmail.

[OrangeSquasher]

Originally Posted by buzby

The courts. Acceptance of a refund is a tacit agreement that the service was not up to standard... as money has changed hands, a 'win' is not assured.

Thanks again.

Orange paid the money directly into my bank (in the same way that they took money out) does that count as my acceptance?

Should I have posted it back to them..?

N

[buzby]

Unfortunately, yes. You lose much control when you let them do what they like to your bank account. You could argue is was credited without your agreement, but then the trick would be to write them a cheque for the amount and hope that it is credited to your account, so they still have not compensated you.

As it stands, a court could ask if restitution had been made to the claimant, then they show they have, this puts you on the back foot as you'll be seen as trying to squeeze them for additional money. I accept it didn't happen that way, but it doesn't alter the fact that they made a refund and you still have it.

[Prolix]

I think the issue for you would be to etablish first that there was a breach of contract and that it was entirely the fault of Orange. If you can do that on the balance of probabilities then I think you would win your claim. The problem would be establishing the reason for the breach. Do you know if there were technical issues or was it simply a cock up? If it were a technical thing to do with where you live, then you might have problems.

If they simply didn't provide a service then the remedy for breach of contract is that you be put in the position you would have been should the breach not have occurred. One also has to mitigate losses, so if your £200 is the most reasonable sum and you have it all documented, then I see no reason why you wouldn't be entitled to it.

Just because they have given you £50 doesn't mean you are settling, unless of course, you signed something to that effect. I'm sure you could convincingly argue that you took the £50 as part payment as you suggest.

Good luck at court and remember, if you are in Scotland, there may be a way that you can claim 75% of the equivalent solicitor costs for your time spent in bringing the case if they don't turn up. Details on request...

I, like Buzby, would be shocked if they turn up!

[zootscoot]

Thread moved to the telecoms forum so that you can get more specialised advice

[OrangeSquasher]

Thanks to all of you once more.

Current update is that I wrote to the CEO again to inform him of the forthcoming case and give Orange a final chance to settle. His 'office' telephoned me... and offered a payment and an unequivocal apology.

I accepted them.
So, presuming the cheque arrives... I won't have to dig my suit out. Which I'm a bit disappointed by, in a sense... but very pleased to get an apology.

(Any one know how I stop the case now...)


I had written to the CEO previously, but it was during a changeover of CEOs. Otherwise, maybe it would have been sorted sooner.
Maybe they needed to know I was serious.

However, it does prove that if you kick off hard, and not let a company walk over you, then results are possible.

N

[ps should this be in the broadband section?]

[Prolix]

Superb