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Human Writes

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Human Writes last won the day on May 23 2011

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  1. Check out my comments over here which may give you some pointers about what to say - http://www.consumeractiongroup.co.uk/forum/showthread.php?454365-TalkTalk-website-hacked-4m-customer-s-data-at-risk&p=4811943&viewfull=1#post4811943
  2. I think even if you did not suffer direct personal harm you could still argue that Talk Talk are in breach of contract, because they have failed to to provide to service to every customer with reasonable skill and care. They have been grossly negligent having failed to encrypt customers personal details, the DPA requires that they take "reasonable technical and organisational measures" to protect customers data, this is apparently the third cyber attack Talk Talk have suffered in less than 12 months and they are still not encrypting data on their website. The DPA has been statute since 1998, this is 2015. Literally unreal. The sections of their contract ref data breach would definitely get set aside as an unfair term in a consumer contract, they are trying to use their contract to set aside their legal duties under statute to their consumers, which wouldn't wash with a judge or an ombudsman. Compensation under the DPA is definitely out as you have to be able to demonstrate loss, but if you stuck to simply securing a release from contract without charge due to their breach of contract you should be able to secure cancellation regardless of their public statements that they will not cancel the contract. If I was still with them, I would make a complaint, when they refuse to cancel contract take the matter to arbitration (at their cost of £500+), and then onto the courts if you still don't get any joy, there is no way an impartial third party would not take the view that they have failed in their duty of care and are in breach of contract.
  3. You have various rights against whoever supplied you with your phone in respect of the goods under the Sale of Goods Act, the Sale and Supply of Goods to Consumers Regulations and others, these boil down to a repair of the goods, replacement of the goods, or a full or partial refund. They have no legal obligation to offer a different model phone to you. The contract you have with Orange is for the supply of network services only, it specifically excludes the phone and the accessories, see paragraph 14 of the contract, because the contract is for supply of network services only, they cannot be in breach of their service contract with you in relation to the faults you have suffered with the phone. In relation to dropped calls, you need to establish specifically whether the phone or the network are at fault for this, your post implies that it could be one or both of these factors, dropped calls due to a network fault could be a breach of contract, however, this would have to be of a sufficiently serious and ongoing nature that the service was highly unreliable to amount to a breach imo - you also have to remember that they never guaranteed your service would work everywhere and all of the time, the contract actually specifies that some interruption in service is inevitable. As the previous poster stated you should not cease paying for the contract, that's probably the worst thing you could do.
  4. There is possibly another route you could use to have them waive all liabilty for the contract, although it would take more effort to argue and prove. One of the cornerstones of contract law is something called capacity, this means that you must understand the contract and have the capability of entering into it of your own free will. You made a throw away comment about not being compus mentis, I don't know if you were serious about this or not, but if you were suffering from a mental illness or condition which meant you were unable to take reasoned decisions about entering into the contract, from a legal standpoint you may not be be able to be held liable for it. People with mental illnesses, even temporary ones from which they have recovered, who didn't understand their contract or were not in their right mind when entering into the contract cannot be held liable for it. You'd likely need medical evidence to support any claim that you were suffering from a mental illness, a doctors letter stating that at the time you were suffering from XYZ and would not have understood the contract would probably be sufficient to get them to drop the stop collections activity, waive the debt, and remove entries from your credit file.
  5. Send them a copy of his birth certificate and ask that they cancel the contract, as long as you can prove he is a minor they can't hold him to the contract as it is not legally enforcable.
  6. Arbitration is one step shy of a country court claim and follows the same legal principles. Try to remember if you do make a claim that onus rests with you to prove any points you want to rely on, it may not be sufficient for you to simply say something happened, you may have to prove to the satisfaction of an independent third party, usually a solicitor or barrister that what you say is true. The only way for you to do this is provide evidence which supports your claim.
  7. I guess their point of view is that they've waived charges for you once in those circumstances i.e you used a lot of data and incurred an unexpectedly large bill, these were charges which they have no duty or obligation to waive and which you would be liable for under the terms of contract, then you've gone out a few months later and done exactly the same thing again to a greater degree, whilst I don't agree with the size of the bill you've incurred, you have to take responsibility for your actions, it's difficult to see how this is all Orange's fault or why they should just waive the charges for you for a second time. I'd assume the first time out they explained how to use the phone and how you could monitor your usage in the future or they offered to sell you data bundles which covered your usage?
  8. The contract for staff accounts would be covered by the same code of practice as the contract for regular accounts, if it has been more than eight weeks since he first complained about the matter he'd be able to make a complaint to either Otelo or CISAS which will cost the company he's working for circa £500.00 if they have to defend it. Personally I'd tell them they've had long enough to investigate the matter and your tired of waiting for them to resolve the complaint, give a letter to your Ops Manager to this effect setting out your recollection of events and tell them that unless they resolve the matter to your satisfaction within seven days you will make a claim via independent arbitration or the courts for redress without notice. If they don't sort it out, make a claim via the arbitrators for cancellation of the contract or replacement of the goods on the grounds that the company induced you to enter into the contract with the promise of goods which they failed to supply to you/lost/and they refuse to provide you replacement equipment or cancel the contract, this will in all probability land on the desk of some underpaid and overworked person in the Legal Department, as long as you don't claim for massive amounts of compensation they will in all likelihood settle the claim, because, it sounds like it has merit, they will have more important things to do with their time and its cheaper to settle than it is defend claims.
  9. From a strict contractual standpoint you are liable for the calls, voda don't have to show you any "goodwill" in this instance if they don't want to, they can insist that you pay the charges in full.
  10. They just get passed to a complaints team, no CEO of a major multinational company that I'm aware of answers this stuff themself.
  11. Complain to Ofcom about it, it's the process they approved and which all of the networks use. If you ask to transfer your number, the onus lies with you to ensure that it does happen, but they should send you something in writing to confirm if you don't use the PAC the number will remain connected.
  12. Your assuming that the data that he wants was held by Orange in the first instance or that they still hold the data now, both of which I'd be less than certain about. Do mobile phone providers get location data when your using another network in a foreign country? Do they get mast info? Aren't you using a different companies network altogether so would this information even be passed along? On the topic of whether or not you've been spammed or whether your device was faulty, I'm guessing that from the networks point of view they really don't care - they provide access to a service, the fact that someone may or may not have spammed you will likely be completely incidental to them, the service was used, they will probably still want paying for this service regardless of the content of the actual communications - I'm guessing this would be there viewpoint. In terms of faulty equipment, if you got it from them directly and if you could prove on the balance of probabilities the equipment was faulty then you may have grounds for a dispute, but generally telecoms contracts are for supply of service, any equipment you receive is usually provided outside the terms of the contract and generally it says this sort of stuff in the small print, so this may also be a problematic point. The OP really should have followed this up in the first instance, not let it lie for a couple of years, you will have a great deal of difficulty getting a credit file entry removed at this stage I would think. The other problem the OP will have is this I guess, if it comes to court the onus would rest with the person making the allegation to prove their claim, so if you say the bills are wrong or the equipment was faulty you will probably have to prove this to the satisfaction of the judge hearing your case, I'm guessing that you can't do this, the reverse situation probably won't apply i.e the judge is unlikely to insist that the network prove the bill is correct. Before you take it to court consider the fact that any case probably won't be decided on the basis of what you say, rather it will be decided on the basis of what you can prove, what you say and what you can prove are likely to be two completely different things.
  13. An interesting read, it seems to me that you lost your CISAS claim for two reasons, one is that a lot of the issues raised fell outside of the scope of the scheme, it seems that Orange told you that this would be the case before you made the claim and you chose to proceed anyway? The second is that like in any civil claim the burden of proof lies with you the person who made the allegations, but because you were arguing rightly or wrongly about completing some paperwork they sent you for a SAR, you did not have any evidence from their records and they did have evidence to support the statements they made, so you failed to prove your claim. It is worth pointing out at this junction that although the court process promotes disclosure you still have to provide evidence to prove any allegations you make on the balance of probabilities, (i.e. is it more likely than not that what you say is the truth and can you prove it). I'd suggest that you look on this as a learning exercise and consider strongly whether you can prove with evidence to support your position any allegations you make in your court claim, before you make them, it looks like you got an independent solicitor as an adjudicator appointed by CISAS, if you couldn't provide evidence to convince a solicitor, look at the evidence you do have and consider whether or not you can prove your allegations to a judge, also consider getting some professional legal advice on the merits of your claim, you may find yourself facing off as a lay person against qualified legal professionals from the Legal Department of a multinational company which could be daunting. Orange can make a counter claim for their legal fees should they defend the case, if a judge ends up deciding in their favour you could face paying some or all of their legal fees, so a claim is not without risk, especially as they are likely to be represented by a professional solicitor or in house legal council, so their fees could run to hundreds if not thousands of pounds, they may also have to travel large distances to defend the claim and they can attempt to reclaim these fees from you as well IIRC. Also just a suggestion, you may want to consider dialing down the levels of anger/exasperation/rhetoric in further correspondence/submissions if you take the matter further, stick to the cold hard rational facts which you can prove with evidence, judges like facts and they are used to dealing with solicitors/barristers who have no personal investment in the points they are arguing, try not to come across too strongly in your submissions or in person if the matter ends up in front of a judge, some judges can be unsympathetic to litigants in person (people representing themselves) especially if they think your too invested in the issues or your claim lacks merit or is vexatious.
  14. You could argue quite successfully I would believe that it is the fault of the son, the mobile phone company accepted the information he provided them with about his age on on good faith. If he misrepresented his age when taking out the contract (presumably to ensure he could take the contract out as he knew he was under eighteen) which is what the original post would seem to indicate, then he has obtained goods and services by deception which is a criminal offence. Whilst he can't be held liable for the contract on a civil basis, there is a possibility albeit a small one as I highlighted earlier that he could be held liable for his actions on a criminal basis.
  15. It's an interesting one, from a strict legal standpoint your son cannot be bound by a contract he entered into as a minor, because legally at that time he lacked the capacity to enter into the contract. The legal issues are whether or not continued use of the services after he turned 18 constitute acceptance of the contract and whether he can be bound by the terms of the contract which were presented to him before he turned 18. I suspect that he has a contract of sorts with the network, on the basis that they supplied services and he paid for those services, but in my opinion he cannot be bound by the networks terms and conditions unless he specifically accepted them after his 18th birthday. So it really is questionable whether they can add entries to his credit file in the first place, because he can't have consented to this, because he lacked the legal capacity to consent to it when he entered the contract, on that basis you've got a fairly strong case to have the entries removed. I'd suggest that you offer to pay for the services your son used on the condition that the contract is cancelled and any credit files entries are removed, the network will probably accept this. The network are unlikely to take this matter to the police, mobile phone fraud is rife, the networks cannot deal with the fraud that they've got, there will probably be dozens if not hundreds of fraudulent contracts taken out each day. The networks have to focus the efforts of their fraud teams on organised fraudsters, they probably are not interested in making an example of your son - fraud is a cost of doing business to a mobile phone network, they'll probably just put it down to experience and write the debt off.
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