Again vs. 21st Century Schizoid Telco

[meagain]

Push has most definitely come to shove up against my telco. You know the ones, InterCableTransTeleVirgin, or something or other.

 

After months of complaints, and months of degraded services, it has come to this. There are issues with the phone that I'm not prepared to discuss publicly, but the VOD hasn't worked since January, and I could get more channels if I bought a Freeview box. Well, bought a Freeview box and moved to somewhere where radio reception is not non-existent, perhaps. I cleared the bill (from my perspective) in mid-January, at which point it was fully paid-up (from my perspective) as far as the end of February (i.e. the bill due in January). Their argument? "You're £42 in arrears". I said "£10 late fee + £4 non DD fee = £14, £14 x the 3 times you charged me them = £42. I don't have to pay those, so the balance is nil."

 

Several complaints (all of the "I don't actually owe you anything" or "I haven't had any service for last month, so I'm not paying" variety) later, and here is the list of excuses I've had:

 

• "Of course £10 is reasonable."
  
• "Sorry, that £5 is company policy"
  
• "It's in your terms and conditions, we've got a contract"
  
• (My personal favourite) "Yes, even though we're not providing the service you're paying for, you still have to pay for it"
  

 

A month ago, this went out:

 

For what is now the third time (following on from occasions in April and August of last year), I have found need to rectify your errors in billing for services provided to me. Once more you have seen fit to include such postings to the account under the headings "Late payment fee" and "Non-Direct Debit handling charge".

 

There is no provision anywhere in the terms of the contract between us for the levy of a "late payment fee". Furthermore, were there such a provision, it would not be binding upon me, trading as a consumer, under Regulation 8(1), Unfair Terms in Consumer Contracts Regulations 1999 (SI No. 2083):

 

(1)An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

 

On the subject of the "non-Direct Debit handling charge", may I take this opportunity to remind you that as consideration for the purposes of the contract between us, payment of the bill is a service that I provide to you, and as such the levy of any fee for this service is my prerogative exclusively.

 

Furthermore, you unilaterally suspended my services on 25 December 2006, and have continued to bill me for this service which you have not provided. The suspension of services over a debt that is not lawfully due is a breach of the contract on your part, and continuing to bill for the same service is an act of fraud.

 

Therefore, I have taken the liberty of recalculating the bill, to exclude erroneous and unlawful entries, and to take account of your failure to provide the service billed. For this additional service, I have added a fee for my time in calculating the bill and drafting this letter, and additionally a further fee to cover the cost of service of this notice by Special Delivery.

 

In response to this request, you will perform all of the following:

 

1. Acknowledge the calculation of the account balance to be £xx.xxCR.

2. Credit the account with the necessary £xxx.xx to reflect this fact.

3. Immediately restore service to the level billed for and restore access to on-demand services.

4. Correct the monthly payment history with all credit reference agencies to a status of "0", backdated to October 2006, pursuant to the requirement of the Data Protection Act 1998 to record accurate information.

5. Correct the monthly payment history with all credit reference agencies on the previous account (xxxxxxx) to a status of "0", backdated to August 2005. This was a requirement of the settlement agreed in August 2006, which you have agreed to but failed to perform.

6. Cease and desist from imposing further such penalties upon me, in perpetuity.

 

You have until 5pm, 12 April 2007 to comply with this notice, and failure may result in legal action being taken against you, which may result in further costs and compensation being payable.

 

12 April came and went. On the morning of 13 April, I went to set about completing the LBA, realised my dissertation was due in two weeks, and promptly adjusted my priorities.

 

This evening, I called Disgustomer Disservice, and spent an hour on the phone to someone who admitted to having the facility available to her there and then to credit the account with the amount I had asked for, but steadfastly refused to do it because she thought "I didn't deserve it". I pointed out to her that I was disgusted with her attitude, and that she was lucky she didn't end up in prison 6 months for being accessory to fraud. Got the Hook HQ switchboard out of her.

 

Spoke to someone in the legal department, pointed out that while there was a customer care issue, my gripe was really with their T+C. Was referred to Wythenshawe (OMG THEY HAVE PHONES!) to see if the previous letter had arrived. Was told "I'll have to go look, it might take a while, I'll call you back." Before hanging up, 'just in case' I managed to get a direct dial number into the Wythenshawe centre out of them. (I'm in two minds about whether to post this publicly). Got the call back, sent a PDF containing the previous letter, saying the substance in the opening paragraph stands, but since circumstances had changed, the list of targets was now invalid, and I was no longer willing to settle for them.

 

Forwarded a copy of the proposed LBA:

 

I am disappointed that you have ignored all previous correspondence in regard to your unlawful practices. Therefore you leave me with little choice but to take enforcement action to assert my rights. Again I have recalculated the bill, to exclude erroneous and unlawful entries, and to take account of your failure to provide the service billed for. For this additional service, I have added a fee for my time in calculating the bill and drafting this letter, and additionally a further fee to cover the cost of service of this notice by Special Delivery (to both locations). [should this need to go to both Wythenshawe where they can see it, and to the legal team in Hook]

 

In response to this notice:

 

1. You will acknowledge the attached calculation to be correct.

2. You will acknowledge that your “payment handling charge” and “late payment fee” are unlawful, or alternatively provide a fully-costed breakdown of your costs. Failure or refusal in the latter shall constitute an admission in the former.

3. You will remit in the amount of £xxx.xx, representing your error in the bill, plus interest at 4 percentage points above the Base Lending Rate of National Westminster Bank plc. [That last part lifted directly from S6.2 of the T+C]

4. You will further remit in the amount of £xxx.xx, representing the price of the services for the remainder of the 12-month minimum term of the contract. Your refusal to act suggests that you have no intention of providing the services billed and paid for, and the unilateral termination of the services have therefore been interpreted as repudiation of the contract. Since you have terminated the services while the contract is still in force, I therefore require you to buy yourselves out of it. [Remember, as far as I am concerned, they owe me money, so the arrears ground holds no water]

5. You will correct the monthly payment history with all credit reference agencies to a status of “0”, backdated to the commencement of the contract, correct the outstanding balance to nil, and remove any derogatory status (including but not limited to default) pursuant to the requirement of the Data Protection Act 1998 to record accurate information.

6. You will correct the monthly payment history with all credit reference agencies on the previous account (xxxxxxx) to a status of “0”, backdated to the commencement of that contract, correct the outstanding balance to nil, and remove any derogatory status (including but not limited to default). This was a requirement of the settlement agreed by yourselves on 24th August 2006, which you have failed to perform.

7. You will cease and desist from imposing further such penalties upon me, in perpetuity. This applies to the current agreement, and any past and future agreements. [This is bearing in mind that in many areas they are the best provider - best of a bad bunch, but best nonetheless]

 

You have until 5pm, 10 May 2007 to comply – late responses will not be accepted. [i say this, since I feel that three months was more than adequate time for them to get their act together] Failing this, an action against you will be raised in the County Court, for which you will be liable for any and all costs.

 

In summary, that's:

• Around £140 to rectify the bill (full total - around £80 will be offset)
  
• Around £40 in costs to cover postage and my wasted time (vast quantities thereof)
  
• Around £150 for VM to buy themselves out of the contract
  
• Potentially another £100 in court fees and costs if they fail.
  

 

They've made their bed. I'll be damned if they get out of laying in it.

[meagain]

I lie - I've just recalculated the figures. It turns out that I was not paid-up to the end of February - I was a massive 49p short. So I was paid-up to the day before the bill was due. In case I lost you all in there, at the time of the payment, that was the following month's bill (and therefore the service for the month after that). Here's a month-by-month breakdown of the position for each month's bill (them/me).

 

25/10 - £29.85/£29.85

25/11 - £71.84/£57.84

25/12 - £83.98/£55.98

25/01 - £59.26/£17.26 (£5.24CR with deduction for non-service)

25/02 - £66.99/£0.49 (£22.01CR with deduction for non-service)

25/03 - £79.14/£14.86CR (£37.36CR with deduction for non-service)

25/04 - £79.14/£37.36CR (£48.36CR with deduction for non-service)

[meagain]

Update: Concern originally claimed to be unaware of the letter that I had sent them previously. When I called them late last week, they said "Oh, we've been told to take no action, since you want to go to court with it".

 

I only wish I'd been recording the call, since then I'd have evidence of their unwillingness to settle.

[meagain]

Response from Virgin:

 

You telephoned me on 29 May regarding your account and you suggested letters had been sent to me at 160 Great Portland Street regarding money you claimed was owed to you and they remained unanswered. You agreed to send a copy of your dispute to me by email.

 

To date I have neither received the letters addressed to our registered office or the email. (Odd, it's definitely in my sent-mail folder)

 

Nonetheless, I made enquiries within the business and established that you have communicated with our Customer Concern department and I have seen a number of communications from you.

 

It would appear that your dispute centres around your contention that we have imposed invalid charges on your account and your demands and excesses all stem from that belief. It perhaps will be simplest to point out that you are mistaken in your belief.

 

In your letter of 02 April 2007 you suggest that there is no provision in our Agreement to impose a late payment fee. Please refer to the Residential Customer Service Agreement applicable to your Agreement with Virgin Media Limited (formerly ntl Group Limited) - the former ntl Group terms and condition at clause 6, Charges and Payments provides that;

 

"6.2 If you do not make your payments on time, we may charge you a reasonable fee for late and/or non payment. ...". (completely dodging the point I made, in that the level was not "reasonable")

 

In the more current Virgin Media terms and conditions, which took effect earlier this year, we also provide that;

 

"F3. You must ensure that your payments are received by Virgin Media Payments by the due date for payment shown on your bill. If you do not pay your bills on time, you will be liable to interest or other charges for your default. ...".

 

You then attempt to dismiss the possibility that any such contractual term, would fall into a category that would not permit us to impose such a charge due to secondary legislation regulations that refer to unfair terms. The mere existence of such a term does not in and of itself make it unfair and as you provide no argument to substantiate such a claim I assume you have none to make. It is certainly not sufficient to simply assert it is unfair to make it so. (Actually, I think they'll find the burden is upon them)

 

You then refer to the payment handling charge for paying by a method other than Direct Debit and suggest that your consideration [for the Service we provide you], namely payment, is in itself a 'service'. This is of course utter nonsense. (No more so than the notion that them "handling" the payment is a service)

 

All the charges that have been raised on your account have been checked and validated and I understand XXXXXXXXXX was prepared to contact you with this information, but you told one of her colleagues that you did not want XXXXXXXXXX to contact you as you were sending 'legal papers'.

 

(This paragraph removed - it alludes to a previous conversation with the contact centre, so at least proves they do have it on record)

 

I trust you now consider your issues have been addressed and you will arrange to settle your account. I am sure that if you are having difficulties settling your account in one payment, XXXXXXXXXX will look at the possibility of a reasonable payment arrangement for you.

 

For the avoidance of any doubt, we shall not be acting on any of the demands you listed in your letter and other correspondence. (my emphasis)

 

I shall infer from that last statement that they have no intention to settle, and therefore any offers made subsequently cannot possibly be genuine. N1 time it is, then.

[meagain]

Proposed POC (paragraph numbering tentative):

 

1. The Claimant and Defendant entered into a contract for the provision of telephone and television service ("the present Contract"), with an accompanying account (ref. 4xxxxxx - "the present Account"), which was concluded on or around xx xxx 2006, and unilaterally terminated by the Defendant on or around xx xxx 2007. The contract was of indeterminate duration subject to a minimum of 12 months.

 

2. The Defendant is therefore a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

 

3. During the period in which the present Account was operating, the Defendant debited numerous charges to the present Account in respect of purported breaches of contract on the part of the Claimant, and in respect of receiving payment on the part of the Claimant. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the present Contract between itself and the Claimant, and that the Defendant also contents that the mere act of receiving consideration is in itself a service it provides to the Claimant under the contract concluded between them.

 

4. A list of the charges applied is attached to these particulars of claim.

 

5. On or around xx xxx 2006, the Defendant without good cause suspended its provision of services. The Defendant alleged an outstanding balance, consisting solely of charges as detailed in Paragraph 3. The Defendant since refused to restore its provision of services upon demonstration that no such balance existed.

 

5. The present Account was terminated unilaterally by the Defendant, without written notice in advance, and without written confirmation in rear, citing their right to terminate the contract on non-perfromance. The alleged balance outstanding consisted solely of charges as detailed in Paragraph 3 above.

 

6. The Claimant notes that the Defendant has lodged record of the Claimant's refusal to pay the charges mentioned in Paragraph 3, with respect to both monthly payment history and the alleged state of delinquency, with numerous Credit Reference Agencies ("the Agencies").

 

7. On xx xxx 2007 the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant, with which the Defendant has yet failed to comply. Upon enquiring on or around 30 May 2007, the Defendant had yet to begin to action the Request.

 

8. The Claimant contends that:

 

a) The charges debited to the present Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The mere act of receiving consideration under the Contract is not and cannot be construed to be a service in itself.

 

c) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

d) The claim by the Defendant that the present Account is delinquent is inaccurate; the Defendant therefore did not have the right to terminate, and is thus still bound by the minimum duration of 12 months.

 

e) The Defendant has processed and communicated inaccurate personal data to the Agencies within the meaning of the Data Proection Act 1998.

 

f) The Defendant has treated the time frame specified by the Data Protection Act is as entitlement, rather than as a strict limit.

 

g) The failure to action the Request in a timely manner has caused undue delay to the present Claim.

 

9. The Defendant had previously agreed on xx xxx 2006 to correct information it had passed to the Agencies in respect of a previous contract and associated account (ref. 4xxxxxx, "the prior Account"). It has as yet failed to do so.

 

10. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £52.00;

 

b) the return of the amounts debited in respect of service that was not provided in the sum of £75.50;

 

c) payment in lieu of specific performance for the elapsed and remaining parts of the minimum duration of the contract in which service was not and will not be provided in the sum of £305.00;

 

d) payment of costs incurred in pursuing the Claim, including Court costs,

 

e) interest under clause 6.2 of the terms of the present Contract at the rate of 9.25%pa on compond basis, from xx xxx 2006 to xx xxx 2007 of £16.09, or in the alternative interest under Section 69 of the County Courts Act 1984 at the rate of 8%pa on simple basis, over the same period of time, £xx.xx; and also in either case interest at the same rate up to the date of judgment or earlier payment at a daily rate of £x.xx or £x.xx.

 

f) specifically the rectification, not blocking or erasure, of data held by the Agencies in respect of both the present and prior Accounts, to record no delinquent status, including but not limited to alleged default.

 

g) an order by this Court that the Defendant cease and desist from debiting further such charges as described in Paragraph 2 against the Claimant on any such contract in perpetuity.

 

I believe that the contents of these particulars of claim are true

 

... and exhale. They are long and unwieldy, and some parts I am uncertain of, but need to file as soon as practically possible. Any thoughts?

[meagain]

Filed mid-August (having fixed the various mistakes in the PoC, such as noting the DPA failure but then not claiming anything about it). Acked on day 14, defended day 28. VM's AQ missed the deadline (going by my call to the court at 3.45pm that day), but was accepted anyway. As predicted, they requested the 28-day stay for settlement (despite several unambiguous statements insisting they will not be paying) and requested mediation. I will be writing to the court to say that mediation won't work where one side has nothing to gain and nothing to lose from the process, and requesting the short stay be removed due to the aforementioned unambiguous statements (nothing ventured ...).

[meagain]

DJ declined to remove the stay, citing that "defendants are willing to mediate", and "given the commercial implications" he is taking submissions on "why the case should not be allocated to Multi Track".

 

I have written back pointing out that Virgin have requested mediation not to reach a agreeable compromise but (direct quote from David Bond @ VM Legal) "in the hope the mediator might persuade you that you have no case", seeking clarification on the "commercial implications" (I didn't expect that having to act fairly and lawfully was supposed to be such a stretch ...), and making the usual arguments for Small Claims (no points of law to argue, the piddling sums of money involved, defendant frustrating).

[meagain]

Bugger. Allocation hearing this morning. My main point for defeating mediation was crushed when I couldn't unleash the direct quote - Mr. Bond (somewhat correctly) claimed the conversation was without prejudice, so it went unsaid. Substitute DJ suggested a costs implication for refusing mediation, citing a case involving what was then Railtrack, in which an appeal was successful but the appellants were ordered to pay all costs from the commencement for refusing mediation. I felt at this point I had to accede to mediation, as since the judge had pointed out a risk of costs I'd have looked pretty stupid rejecting this and then using the risk of costs in an argument supporting SCT. I pointed out that I would require protection but may agree in principle to mediate - will resubmit proposed orders to the court later this week, noting them as a "necessary precondition" to my going to mediation. Otherwise, stayed for 6 weeks.

[meagain]

Cheque received in the post this morning. Contains the original value of the cash parts of the claim. Does not include any interest for the time since the case began. "Purely commercial decision...", "no liability inferred..." etc. It does not make any mention of rectification to credit records.

 

If I accept the cash at this stage, can I still make a complaint via the ICO to have my records wiped? Would it also be worth seeking wasted costs?

[meagain]

Proposed response:

 

Response to settlement offer.

 

Dear Mr Bond,

 

Thank you for your letter dated 17/04/2008. I am in receipt of your cheque number xxxxxx in the amount of £xxx.xx.

 

I am prepared to accept this payment in full and final settlement of the cash elements of this claim, however, I will continue to pursue the non-cash elements of the claim, including the removal of defamatory information from your own records and those of third parties, and orders preventing you from levying further penalties against me in future.

 

You may prevent this by:

• agreeing to restore the account balance to zero, record monthly payment status of 0, retroactive to the opening of both account xxxxxxx and account xxxxxxx;
  
• agreeing to waive all such penalties and payments referred to in the Particulars of Claim, including but not limited to late payment penalties and payment handling fees, and any like penalties and payments that you may later introduce that do not bear direct relevance to the provision of telephone, television and Internet services, on all future accounts I may hold, in perpetuity;
  
• agreeing not to process my personal data to any third party by any means, including but not limited to any credit reference agency or any debt collection agency.

 

If I do not hear from you by 8am on xx April 2008, I shall assume you have agreed to these terms and cash the cheque.

 

I trust this clarifies my position.

 

Yours faithfully

 

M. E. Again

 

Note the clever use of assent-by-silence.

[easybetman]

Hi MeAgain,

 

I am cosnidering similar thing - did they accept your assent by silence? Did it work ?

[meagain]

Hi MeAgain,

 

I am cosnidering similar thing - did they accept your assent by silence? Did it work ?

 

We shall never know.

 

While there was that payment, they didn't file their documents on time, as a result two weeks ago today their defence was struck out and they were ordered to pay the difference in interest by ... about five minutes ago, actually. I've checked with the "secretary" at home, and with the bank, and there's no sign of the extra payment due.

 

The case is not yet over, since the default is still there.

[easybetman]

Thanks for the update.

 

My friend's case went to CISAS but was not successful. Basically CISAS took nearly single claim that VM made.

 

So... are you going to send in the sheriff ?

[meagain]

My friend's case went to CISAS but was not successful. Basically CISAS took nearly single claim that VM made.

 

AIUI, you are not required to accept the decision of an ombudsman service, and their decision is not binding until you do. If your friend is not happy, they should make it clear that they do not accept their findings and go one step further. Things may proceed more smoothly at court, since when they are asked if alternatives have been considered, they can rule it out since they have already tried them.

 

So... are you going to send in the sheriff ?

 

Maybe. I have some interesting information that may prove useful if it turns out to be true. All I need to know to go with it is when VM pay their staff.