thanks

We received docs this morning asking if we wanted to go to mediation.

The defence I suggested and they filed was:

We are disputing the Claimant's claim in full on the following grounds:

1. We were cold called by Shine Networks with an emphasis on the saving we would make by switching from BT to them for our telephone line and Broadband service. The figure of £28.50 per month was constantly bandied about and as we were led to believe this was the total figure plus VAT, we agreed. We later discovered around £80 per month was being taken from our account. Rather than making a saving we were now paying more than we were to BT.

2. We signed a Service Agreement (marked X) on 10/10/16 and this states:

Broadband:

One off payments: Router charge £39.99, connection charge £0, line installation £105.00

24 x monthly rental charges of £28.50.

Notes:

Shine Hosted Services (to be collected by direct debit) - 3 x Shine hosted seats licences (users), unlimited local and national calls, 1000 mobile minutes £24.80. *** Although, after consideration it would appear this was a monthly charge - nowhere does it state that and the full service was sold as costing £28.50 per month as the Agreement would appear without very careful scrutiny.***

Notes:

Additional one-off/setup charge

3 x SIP Cordless Handsets £162.72

During the cold call we were not made aware of the installation and handset charges, but we accepted these.

3. The telephone system was rarely used, as most of our calls are made and received by mobile phones. Therefore, we cannot comment on the performance of the single telephone line, however, the broadband service was constantly going down for long periods. Their only resolution was to disable our fixed IP and change it to a dynamic (random) IP. As we use CCTV and Remote Desktop to connect to the office PCs this was an unacceptable solution as the Internet address we need to connect to must constantly remain the same and a dynamic could potentially change frequently.

4. Our business was considerably disrupted due to the constant breakdown of the Internet.

5. We constantly contacted the ISP but the Internet continued to fail,

6. They claimed the same problems would be experienced with BT and yet since switching back to BT their Internet has been problem free.

7. The following amounts were taken by Shine by direct debit:

November 16 £472.81.

December 16 £82.02

Jan 17 £80.69

Feb 17 £81.19

March 17 £80.69

April 17 £80.69

May17 £81.71

June17 £80.69.

As they have not sent any invoices it is impossible to reconcile these charges. If we say the initial one-off charges of £307.71 and monthly fees we cannot get close to the £472.81, and even adding VAT, this doesn't explain the monthly charge of £80.69 to £81.71.

Furthermore, without any explanation on 19th July they attempted to take £570.34 and £882.58 on the 18 August. Both attempts failed as the direct debit had been cancelled.

8. Because of the risk to our business we had warned them that we were going back to BT, but their attitude was you have signed a contract and you are bound by it.

9. However, in June the unreliability of Internet had made the situation untenable and we returned to BT.

10. We have only received one email from Shine and this was on 21 July (marked B) demanding payment of £570.34 or the service would be cancelled on 31 July.

11. Despite their advice of the service being cancelled, we confirmed this by email on 1 September (marked C), once again requesting all the invoices.

12. We have paid them a total of £1,039.95. If we take the contract to have run from 11/10/16 to 31/07/17 when they said they had cancelled the service it the total owing would be:

9 full months and 20 days at £53.30 (£28.50 and £24.80) is £525.23.

Set up and equipment is £307.71.

VAT on this £164.59

Total payable of £987.53

we have overpaid them by £52.42, which we are prepared to write off to experience and be very wary of cold callers like Shine in future.

13. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 19/07/17 to 18/08/17 on 882.58 and also interest at the same rate up to the date of judgement or earlier payment at the daily rate of £7.54.

£7.54 X 365 is £2,752.10 per year interest. £2,752.10 divided by 8 then multipled by 100 is £34,401.25 and not the amount they claim.

14. In their terms clause 14.5.1 allows the customer to terminate when the ISP has materially breached the contract and they have not rectified the breach within 60 days of first being notified (or if the IPS fails to provide a service for 60 or more consecutive days). Few modern businesses could survive 60 days without internet or email and this is unreasonable.

*****end of defence***

Bearing in mind "they feel" they feel they have already overpaid, and would offer no more at arbitration, is there any point in taking this route?

I am now out of my comfort zone, so need help on the benefits and problems of arbitration.

I cant see any point in this instance accepting mediation as its not suitable to the claim.......decline

Yea I agree with Andyorch.

Are the documents inviting you to Small Claims Mediation via the Court?

If so, in a nutshell, this is done by telephone with both parties dealing separately with a Court appointed mediator who will convey offers and try to bring matters to a settlement. If a settlement is agreed then the mediator draws up a binding agreement. If not then the matter goes through the usual small claims litigation process (i.e. transferred to a local Court, parties file their evidence at a specified point (usually 14 days) before a hearing).

What it seems your Client wants is a 'drop hands settlement' where each party just bears their own losses and costs and the litigation is stopped. No harm, in my view, writing to the other side and suggesting this, at the same time as you decline mediation.

Yes. the court seems to be suggesting a three way conference call of around 60 minutes.

Just filling out a draft Directions Questionnaire (Small Claims Track) and want to check I am doing it correctly.

A1 - refer to Mediation Service - No

B - Contact details - complete

C - Do you agree to Small Claims Track - Yes

D1 - Hearing venue - name of the court local to the defendant

D2 - Expert evidence - use? No

D3 - No of witnesses - 1 (just defendant)

D4 - Specify dates n/a for hearing - give ranges

Sign on last page

Seems straightforward.

Thanks, missed "copy to claimant" (representing themselves)!

Thanks, missed "copy to claimant" (representing themselves)!

Ah yes and very evident

Deadline for form is 9th October, and suggested they post by recorded delivery by Wednesday, but think it may be better to send early Friday.

Just noticed question D1 requests reason for changing court to local one and states it may be the preferred court of either party.

If the claimant opts for mediation (seeing we have already declined it) the court may see them as the more reasonable party and allow them choice of jurisdiction - or am I just looking too deeply into it?

Too deeply..... its irrelevant...always conducted at the LIP defendants county court

Thanks, I will ask them to put the name of their local county court and say "prefer my local court to minimise travel time"

"prefer my local court to minimise travel time"

No need...simply name your local county court on the DQ

Thanks Andy

Oh bugger, it is being allocated to the claimants county court not our one to be heard in March. A nice day out for someone so long as they pay the £80 hearing fee by February.

Can we claim expenses for attending the hearing and how should we calculate this?

Shine failed to copy the defendant in on their recent documents to the court so they had no opportunity to oppose transfer to claimant's local court,

Are the defendants likely to succeed in an local N244 application to move to their local court?

Oh bugger, it is being allocated to the claimants county court not our one to be heard in March. A nice day out for someone so long as they pay the £80 hearing fee by February.

 

 

Can we claim expenses for attending the hearing and how should we calculate this?

Ring the court...you shouldn't need to make application if its the courts error...you did state your local county court on the DQ ?

DQ answers:

A1 - refer to Mediation Service - No

B - Contact details - complete

C - Do you agree to Small Claims Track - Yes

D1 - Hearing venue - name of the court local to the defendant

D2 - Expert evidence - use? No

D3 - No of witnesses - 1 (just defendant)

D4 - Specify dates n/a for hearing - give ranges

So a court error...simply ring them and ask they transfer it to the local county court of the defendant LiP

I rang the court where the case is currently listed for them and the court office insist it was not an error but the decision of the judge given the facts.

They suggested writing into the court giving reasons for moving the hearing.

CPR Practice Direction 26

26.2A

(1) This rule applies where the claim is for an amount of money in the County Court, specified or unspecified.

(2) If at any time before the service of a notice by the court under rule 26.3(1A) a court officer considers that the claim should be referred to a judge for directions, the court officer may send the proceedings to the defendant’s home court or the preferred hearing centre or other County Court hearing centre as may be appropriate.

(3) Subject to paragraphs (5) and (5A), if the defendant is an individual and the claim is for a specified sum of money, at the relevant time the claim must be sent to the defendant’s home court (save that where there are two or more defendants, one or more of whom are individuals, the claim must be sent to the home court of the defendant who first files their defence).

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part26#26.2A

As the defendant named in the summons is a Limited Company and not a named individual, I assume the section highlighted is not applicable?

As the defendant named in the summons is a Limited Company and not a named individual, I assume the section highlighted is not applicable?

Yes it is.......always the defendants home county court unless its an individual suing another individual

That's great, but the plaintiff's court office said your not an individual, I said "oh yes we are, a Limited Co is still seen as an individual."

"We;re not trained in law" came the reply "put that in your letter".

Currently on hold for Northampton County Court office for 20 minutes.

Which court office can sort this? Assume the plaintiffs one as they currently hold the case?

Ah apologies ...the defendant is a limited company...then the court is correct....sorry my confusion.