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Everything posted by ShaneG2009

  1. Hi DX That's exactly what we have done but they still insist they tried and failed to get the payment. Their stance and reliance on the Ts & C's is quite unbelievable.
  2. Hi all Hoping someone can help.. . My brother in laws GF wanted to go to Truck Festival - a music event that is held annually in Oxford. She purchased her ticket on a deposit basis to be followed by a number of monthly payments. All going well until the last one for some reason. There were Direct Debits set up for Packman Systems to collect the payments acting as agents for Truck Festival however they have said that they were unable to collect the final payment and therefore her agreement and ticket is cancelled without refund - there Terms & Conditions say they can do that. ..see below copy/paste from the terms 'Our payment plan allows you to pay for festival tickets over 11 months. Any booking & delivery fees will be included in the first payment. Terms are stated at the time of booking with regards to the amount that will be deducted on a monthly basis. The date in which addition payments will be debited will be the date of original payment and amount deducted from your total balance. The method of payment at the time of booking will be debit for subsequent payments. If the funds aren't available in your account, or if your card has expired, you will be notified and given the opportunity to pay the amount due. After notification if you are unable to process the amount due you may incur additional charges or your booking with be cancelled with no refund. Tickets cancelled while on a payment plan will be cancelled down at the amount paid to date and no refunds will be issued' The issue is that funds WERE available for the final payment to go through and that has been confirmed by the bank so I think this is massive try on. The company taking the payments are relying on their terms and conditions and saying she doesn't have a ticket and she isn't getting a refund for the £80 she's paid to date. All she wants is a ticket.. . Can they do this to her? Seems very off to me but I'd appreciate any advice before I speak to them.
  3. Hi I have a 12 month PCP deal due to expire in circa 4 months. I was always of the belief that at the end of such a deal one option open to me was to hand the vehicle back with no ties / penalties etc. (save for damage above normal wear & tear). I have opened by Close Brothers Agreement and its got the following When do the goods become mine? The agreement relating to the goods is a hire purchase agreement and you will only become the owner of the goods when you have paid all the amounts due to us under the agreement. If you wish to own the goods from the outset, this product may not be suitable for you. Until you have paid the total amount payable Close Brothers Motor Finance will be the legal owner and you cannot sell the goods. The agreement gives you a number of rights prior to the final payment falling due and these are set out in full within the terms and conditions of the agreement. These options are: 1) You may pay the final payment with the Option Fee and purchase the Goods from us at which point you will then become the owner of the Goods, until this time we will remain the legal owner of the Goods. 2) You may return the Goods to us for a minimum price of the Guaranteed Future Value (GFV). This value is shown on your agreement. The sale proceeds will be paid towards the amount due under the agreement. 3) You may part exchange your vehicle, at which point the dealer will value your vehicle. If it is worth more than the GFV then you can put the extra funds towards a new vehicle. If the vehicle is returned under option 2 and 3 above the vehicle should be returned in a roadworthy and good condition with no damage beyond fair wear and tear. The car in question is a 2016 VW Golf R - these are very popular lease deals and the market has been saturated with them so if I am reading the above correct (point 2) I may be liable for any shortfall if the vehicle sells below the GFV figure. Can they do this, is it legal or can I fight it (if indeed they pursue this route?) Thanks Shane
  4. Hi all A quick update...on the 6th June we exercised our final right to reject the vehicle on the basis the trader and/or motonovo had failed to offer a repair/replacement in a timely manner and without significant inconvenience. I am a member of Which! Legal Services and as part of that membership I have access to lawyer who can offer advise so I explained the full details of the issue, how we've approached things and that we'd exercised our termination rights. I asked which to offer their opinion on whether we'd gone about things correctly and legally and to my delight one of their consumer lawyers wrote back to me yesterday saying as far as he was concerned we'd ticked all the boxes and agreed that our approach was fine. He suggested taking a case to the ombudsman or Small Claims to recover the travel expenses involved since this all started - considering that now. We've wrote to MotoNovo re-confirming our position and asking them how they'd prefer us to proceed with them getting the keys and other documentation back and we await a response (doubtful given their perceived lack of interest during the original complaint). The original trader has the vehicle in his garage so no organising vehicle return etc. A few things I need clarity on though if someone wouldn't mind offering an opinion:- 1) My brother in law has personal belongings stored in the van and would like them back. How is best to approach this? 2) We've cancelled the direct debit...the next one isn't due until 8th July (he paid the one on 7th June despite the termination being in effect...mostly in the hope theyd be a final hour way forward but sadly not) 3) As the agreement is effectively terminated what should we expect back from MotoNovo to confirm this? 4) Can they contest the approach we've taken...statutory law is clear of our rights when they fail etc. so just not sure how this may go. 5) Early on in the process there was a threat if the DD was cancelled for them to log the data with the various CRA's. What can I do to prevent them taking this action in the coming days / weeks? 6) Is my brother in law entitled to refunds (partial because I know the law allows them to make a deduction for fair usage) against what he's paid to date for the vehicle? If so how should we go about getting this - I assume we take this to MotoNovo AND should we be including a sum of money for the travel expenditure as well? I think that's it lol - could do with your opinions Thanks Shane
  5. Thanks SteamPowered Last night we gave notice to MotoNovo as per the above that we had terminated the agreement based on their failure to offer a repair / replacement within a reasonable time period and without significant inconvenience. Lets see what their response to that is - I will keep you updated. One thing of note the 'trader' who the van came from keeps pestering my brother in law for so called storage fees. To date we've told him we are not liable on the basis it isn't our problem the combination of him and MotoNovo have taken so long to look into the complaint / defect.
  6. A quick update MotoNovo have employed the services of a firm called 'Ace' to review the assumed defective vehicle. Today we've heard via text from the trader who the van came from that the defect did not exist at point of sale. We haven't seen the formal report and have asked for a copy. We did previously notify MotoNovo that the Agreement was terminated because of assumed rights as below:- © the consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement of section 23(2)(a) to do so within a reasonable time and without significant inconvenience to the consumer. I don't know what the law would say is a reasonable time period, but 25th April to now seems unreasonable for a motor vehicle. Inconvenience wise the lack of a van or temporary replacement has meant my brother in law has had to travel to/from work via train or bus at a cost of circa £50 per day...his costs are well over £1,000 now so I'd say hes been inconvenienced beyond belief. The trader and MotoNovo have been in possession of the vehicle since the 25th April. Should we stick to our guns in claiming agreement is terminated on the basis of the above...? Could really do with the MODS help on this one because it appears to be getting quite serious...
  7. I saw the watchdog article. Sadly Vauxhall were only covering up to 7 years old in 2014 so we didn't get there in time (or didn't own the vehicle either). We shall see how things go with MotoNovo...the Team Leader I spoke to was well informed and sympathetic - let's see if this transpires into some form of agreement.
  8. A quick update all MotoNovo have now agreed to have the vehicle in question examined by a third party company to determine if the defect would have been reasonably apparent at the point of sale. They now agree (after many heated calls) that the burden of proof falls on them. Injector failures on a diesel van with 75k miles must be quite rare so I am fairly confident the report will find in our favour (assuming they use an impartial / independent third party who is not geared up to simply give them the answer they want).
  9. Thanks for you're post. I genuinely didn't think the law recognised mileage as a factor, I thought it covered all faults that occurred in the first 6 months.
  10. Hi all An update 1) The agreement is a personal HP agreement between my Brother In Law and MotoNovo. It is not a business to business agreement 2) MotoNovo have issued what they call their final response and say because hes completed approx. 10k miles the burden of proof is on him to prove the defect was there at point of sale. The fault is do to do with the injectors and they say its a wear and tear issue. They also say their regulator would agree with their position - I don't agree. I have argued that the Consumer Rights Act isn't concerned with mileage, it only states (or implies) that if a defect occurs within 6 months the selling party is responsible for repair or replacement. They've now had the vehicle since the 25th April and my in law has been without a vehicle to get to/from London each day. He is paying for the train (about £50 a day). Is he within his rights to reject / terminate the agreement based on the above do you think? How should we take this forward...dig our heals in reject the vehicle / cancel DD or just pay up? Its potentially £2K defect to fix properly - the van was only £7k in the first place.
  11. Thanks for the update, appreciated. My brother in laws business is very much in its infancy. He currently only supplies labour to one contract in London, he has no other sites which he travels to / from etc. The van is insured in his name as a personal policy. I think reading your post and the definitions on the link you provided gives us a robust argument that he is a consumer and the defect identified is covered under the legislation above. I done some internet research last night and it appears that the injector failure is a common fault on the van in debate. So much so that Watchdog got involved in Q4 2014 and the manufacturers in question offered goodwill replacements for vehicles up to 7 years old or with a set amount of mileage. The van in question is a 2008 registered vehicle - I've emailed Vauxhall on the off chance they may offer a good will gesture repair (I know the vehicle is now older than 7 years but worth a shot to see how friendly they are...the van only has 74k miles so bad for this type of failure early on in its 'life'). As always interesting and we shall see how things progress. Thanks for the input.
  12. Mine is an affected model. We've had contact saying we're in a queue that extends more than 10 months. They offered us a discounted new model, think I had to pay £150 - I didn't go for that.
  13. Hi Your post is interesting and I thought I'd update everyone with the latest. So after reviewing the finance documents with Moto Novo it's clear that my brother in law ordered and is paying for the van himself and not via his company. Now on to what might be the sticking point and as referenced above. My brother in law uses the van to commute to/from work in London each day - it is not used for anything else. How do you distinguish between ordinary commuting and using for business purposes. Is commuting a business purpose in the eyes of the law? We've been arguing with the dealer that my brother in law is covered by Consumer Rights Act (defects identified after 30 days but before 6 months). They've pushed back with no sound logic as yet. Moto Novo seem to be more understand and are reviewing. It would be great to have as many opinions on this as possible mind you... Thanks Shane
  14. Hi Im writing on behalf of my brother in law who bought a used van via his limited company in November last year. Recently its been diagnosed that the injectors in the engine are defective and require replacement. This could be a costly repair. The trader he purchased the vehicle from gave him a 3 month return to base warranty which has obviously now expired. After initial queries the owner has come back and said the sale was a business to business sale and not subject to general consumer laws and the rights associated with this. Im not sure how to respond and could do with some help. So i guess the be all and end all is does my brother in law have any rights that would allow him to request a FOC repair to the van (my thinking is the 6 month consumer rule may be relevant in some form?) or does he just have to suck it up because he is not afforded the same consumer rights because the purchase was made via his limited company (which if relevant is very small i.e. 2 directors and sub-contract labour). Finance is with Moto Novo if that is relevant at all? Id be grateful if you could help me out with this one. Thanks Shane
  15. Good point. I did also mention in the email about them confirming what equity was mine. The do buy back using their network of dealers.
  16. Thanks for the advice all, I have emailed VWFS and made them aware of the possibility of VT and i await their response. I'm also looking at selling the car and just paying off the balloon with the proceeds. That way the equity i know is in the car is mine to keep.
  17. Hi I did escalate my complaint to an actual ombudsman and they said essentially word for word what the original FOS gimp said. My response to that was one of dismay and I told them I would not be accepting their findings. PS forgot to mention in opening post GFV is not specifically noted in my agreement however there is a 'Final Payment' noted as being £19,417 which I believe is them saying that's the GFV in a somewhat roundabout way. Thinking about this a bit more I am wondering if I could not just sell the vehicle, pay off the GFV and keep whatever money I have left over....?
  18. Hi Long time since I posted on this board but here goes again... I have a PCP agreement with Volkswagen Financial Services (VWFS) on a 2015 Audi A5 Black Edition. When I signed up to the agreement I put my BMW M135i in as deposit (equivalent to £23,300) which was against the A5 valued at £38,305. I took £7,800 cash back out of the deal which left me with a 24 monthly payments of £250.67. My first payment to VWFS (using the cash back) was a significant partial payment of £4,000 which left me with monthly payments of £63.80. I then got into a bit of an argument with VWFS over adverse credit data they had lodged with Experian (and others) which essentially said I'd missed payments. The reality was I'd made manual payments whilst they were setting up Direct Debits but their computer managed system had failed to pick this up. This was a mistake VWFS acknowledge and rectified within a month or so. As compensation they offered me an 'Audi R8 thrill experience' or £125 cash; I refused this offer as I didn't think it matched the potentially serious harm they had done to my credit profile. I took my compliant to the ombudsmen who as expected sided with them and stated the offer of compensation was adequate. Another toothless assessment by the ombudsman in my experience (Vodafone being the other example I have personal experience of). I have decided I am pretty sick of VWFS and I want to give the Audi back, not because I cant afford the repayments because I can. I just don't want to give them anymore of my money and at the same time continue to suffer the depreciation of cars within their brand because of the emissions scandal (anyone who owns a VW / Audi will notice this is a FACT of life, it is happening regardless of whether you have an effected engine or you have a newer, supposedly compliant engine). My agreement states that I can terminate early if I have paid half the total amount payable. I believe I am about £493.23 short of that (VWFS owe me £200 as a gesture we agreed at the start plus £125 compensation) so I am nearly at the half way point of the required payments. My question really relates to the equity that I think I have in the vehicle. To round things up I have put the equivalent of £19,878 into the car and it's probably worth £28k depending on which dealer you look at. Would I be entitled to the equity in the vehicle or would I concede this if I voluntarily terminate the agreement? The agreement is typically helpful / silent on this... thoughts really would be appreciated. Thanks Shane
  19. Very interesting and fair play to the chap who took them on and won (albeit maybe not as much as he'd hoped). Im still waiting for feedback from the Court over whether my appeal will be heard. I will let everyone know what decision is made.
  20. So another update all Transcipts recieved, reviewed and approved and my file has been passed to HHJ Charles Harris QC toconsider. Mr. Harris QC is famous for his ruling on 'LogBook Loans' http://www.mirror.co.uk/news/uk-news/128k-a-year-judge-charles-harris-qc-223379 If he does consider i have merit for appeal, and that is a big IF i can't see him being sympathetic lol
  21. Hi Brigadier That is exactly what i done for the Judge. The 2 page summary document issued with the bundle pointed him to all relevant arguments raised by me. If he had of read that summary he could have decided which points were relevant and which ones werent. He didnt read it so concluded the claim document was excessive.
  22. Hi Brigadier a few responses to your notes above:- 1) The information issued with the claim was appropriate in my mind. The Judge could have reffered to my bundle summary issued 2 weeks prior to the hearing which summarised all of the points raised by the '100 pages' of back-up. The fact that he only referred to my initial POC left him at a handicap. 2) I issued what i percieved skeleton argument 2 weeks before the trail, like the allocation notice required. These documents had a 2 page summary of all the points raised in the supporing evidence 3) Agreed i made that statement but did infact refer him to my updated POC issued in my trail bundle where it clearly stated all costs / penalties if appropriate were at the discretion of the court. Had he read those documents he would of understood this and the question wouldnt have been raised. 4) Comments noted. I think my supporting evidence detailed fairly accurately that there was a case for the default being 'unfair'. I think had he read my submissions properly he would have understood my case better. I may or may not get the appeal approved but at least i have tried. I thought about it for a few days and despite my best efforts to drop things and move on i had a genuine belief things in that court room were not done properly...there was an itch and i had to scratch it
  23. How can not reading key parts of a court bundle lead to be deemed a reasonable Judgement. Sorry i respect your opinion Ganymede but i dont agree with it
  24. Below is a copy of the 'complaint' letter that was first issued to the Court and then as part of my appeal documentation. On reflection there are a few 'rants' in there which the Court wont care about i suppose but in my defence the letter was drafted shortly after i felt i had been wronged by a somewhat lazy Judge. Cheers To whom it may concern, I wish to express my extreme dissatisfaction at theservice received by the County Court and in particular presiding Judge Payne atthe claim hearing which took place at Oxford County Court on Friday 3rdJanuary 2014. For the reasons expressed below I believe I am entitledto appeal the ruling of Judge Payne however I would like formal response to thepoints raised below before I file a formal appeal. A copy of this letter andsupporting documentation will be filed at the Court in question and it seeks toallow me further time to consider an appeal. 1. Preparation The claim referred to above has been going on for aperiod of 3 years between me and the Defendant (Vodafone Limited) thereforewhen I had no other viable alternative to resolve the dispute than to lodge aclaim with the Courts and for that reason I ensured that I preparedaccordingly. My preparation included several hours researching and compiling mycourt ‘bundle’ which ultimately was served on the Court and Defendant 2 weeksprior to the hearing date noted above. Upon being seated in the court room both myself and theDefendant was informed that the presiding Judge (Payne) had not had time toreview the lengthy submissions. This was disappointing and incorrect in myopinion because a large proportion of my claim relied on the information I hadsubmitted. I believe the Judge is duty bound to have prepared accordingly bythoroughly reviewing each and every page of my submission, without doing so heleft himself blind to the crux of my dispute. That said I do deeply appreciatethat Judges work under extreme pressure and under time limits but this I do notbelieve is justification for ignoring key points of law in a claim that meansso much to me. The result of the above is within 2 minutes of beingseated I knew my claim would be dismissed. 2. Ombudsman Decision As can be evidenced on the transcript of the hearing JudgePayne and Counsel for the Defendant intimated that I was somewhat foolish inbringing my claim as far as County Court given the decision of the Ombudsmanearlier in my dispute with the Defendant. I dispute this in the strongest possible terms becausehad my submission been properly reviewed in advance of the hearing the Judge wouldhave seen documented evidence pointing to perceived failures on the part of theOmbudsman in coming to their decision. The Ombudsman pointed out that OFCOM allowed the ServiceProviders such as the Defendant to levy Early Termination Charges (hereinafterETC) on a Consumer when a Contract ended prematurely. Whilst this is correctany charges levied MUST takedue cognisance of the guidance document whereby under Section 73 – 79 inclusive(attached) it states in their opinion an ETC would only be fair if savings madedue to non-performance of the Contract are factored in (i.e. network, customerservice and avoidable variable costs). OFCOM state that where these important elements aren’tfactored in they would consider an ETC to fall short of Schedule 2 of the UnfairTerms in Consumer Contracts Act. I placed importance on the relevanceof the OFCOM guidance on the assumption it was drafted with the assistance oflegal professionals (it places great emphasis on the OFT vs. Banks SupremeCourt Cases where similar charges were argued). I believe the case officer at the Ombudsman was either unawareor ignored of the requirements of the noted guidance and this in turninfluenced the decision handed down. I would go on record as saying that theirdecision would have been different had the case officer been aware of theactual requirements / responsibilities on the Defendant in setting / applyingthe ETC. It should be noted for absolute clarity that the ETClevied by the Defendant was strictly the Line Rental associated with theremainder of the Contract and did not factor in the savings noted in the OFCOMguidance. This in effect meant that the Defendant was paid an equal figure towhat they would have been entitled to had the Contract been performed despitethe fact that they didn’t have to perform their side of the Contract for asignificant period of the stipulated original agreement. The relevant pointraised in the OFCOM guidance is quoted below:- 1. Point76 – ‘the supplier wouldreceive a disproportionately high sum for not having to provide services underthe contract and the consumer would have to pay such a sum for not receivingthem. The consumer would be paying a disproportionately high sum for failing toadhere to the fixed term of his contract’ The guidance then moves on to say how in their opinion thispoint directly relates to the Unfair Terms in Consumer Contracts Act bystating:- 2. Point 77 – ‘In our view, such a term would fall within paragraph1(e) of Schedule 2 to the Regulations, as a term having the object or effectof, “…. requiring any consumer who fails to fulfil his obligation to pay adisproportionately high sum in compensation.” By doing so, it would cause asignificant imbalance between the CP’s rights and obligations under thecontract and the consumer’s, to the latter’s detriment, contrary to therequirement of good faith, and would be unfair’ Theguidance then states: - 3. Point 78 – ‘in setting ETCs, we consider a CP must make areasonable pre-estimate of the position it would have been in had the consumerdone what the contract obliged him to do (and no more) (i.e. the losses itincurs because the contract is not performed for its fixed term). All weconsider the CP may fairly recover in an ETC is a sum that reflects thatposition. That involves the CP making a reasonable pre-estimate of: · 78.1the costs it saves because it no longer has to perform the contract; and · 78.2the losses caused by the early termination that it can mitigate, · anddeducting those from the fixed contractual retail payments outstanding on termination. And finally:- 4. Point 79 - That pre-estimate willinclude, for example, any variable costs the CP saves on the particularcontract terminated (or, in practice, on contracts for the type of servicesconcerned to the types of consumers concerned). It will also include areasonable pre-estimate of any network costs the CP saves in a particular,reasonable period averaged over the group of consumers terminating contractsearly. We do not expect that CPs will need to calculate each individual consumer’sETC at the time of contract termination. Ialso note for completeness that the Defendant is in breach of Clauses 80.3.2, 80.3.3, 80.3.4, 80.4 and 80.5 which are required to be factoredinto the ETC for it to be considered ‘fair' in the opinion on OFCOM. It has always been my contention that the Defendant actedunfairly and in complete disregard for the above in setting their ETC. At alltimes all I asked for what confirmation from the Defendant that they hadcomplied with the relevant guidance and laws in setting the ETC. I believedthis to be a fair request for a corporation the size of the Defendant. As was well documented, for 3 years the Defendant failedto provide me or the Ombudsman coherent information and as such I had no otheralternative than to seek remedy in the Court. I believe I adequately demonstrated all of the above inmy submission to the Court however the perceived lack of preparation on thepart of Judge Payne led to wholly relevant evidence being disregarded. In summary I did not believe I was ‘foolish’ or naïve inbringing my claim to the attention of the Courts and had Judge Payne reviewedmy claim in its entirety I am sure such a statement would not have been made. 5. Compensation During the hearing Judge Payne asked me to explain the£1,000 ‘compensation’ figure that I had inserted into my original Particularsof Claim. I tried to make it clear that I had clarified this part of mysubmission in the documents provided to the Court 2 weeks prior to the hearingdate (as instructed within the Notice of Allocation). As can be heard on the recording of the hearing I wasmade to feel like an imbecile for not having a proper calculation for the sumnoted however in my defence had the Judge properly prepared for the hearing hewould have learned that in my Witness Statement I declared that any costs /compensation in the case would be at the sole discretion of the Court. This is another example of where a lack of preparation onthe defence hindered the merits of my claim. 6. DocumentsServed This may be a mute-point but I wish to raise it anyhow.The Barrister acting for the Defendant handed both me and the Courts a‘Skeleton Argument’ document no less than 1 hour before the hearing wasscheduled to commence. This document was the one that both the Judge andDefence Barrister largely relied upon during the hearing. If said ‘skeleton arguments’ were just a summary of thearguments presented in the Defence ‘bundle’ received prior to the Court HearingI would not have an issue but it is plain for all to see this documentintroduced new arguments that I did not have the opportunity to defend myselfagainst because of the timing of their availability. In the Notice of Allocation issued by the Courts inadvance of the hearing it was quite clearly stated that any documents thateither parties wished to rely upon at the hearing were to be served no laterthan 2 weeks prior to the hearing date. I complied with this requirement but it appears othersdidn’t therefore I would like clarity on this issue. 7. ClaimRequirements Judge Payne intimated in the hearing that he was unawareof any legislation that allowed him to rule that the default on my credit fileshould be removed by the Defendant. I am not legally trained however I believe the intentionof English Law is to provide a remedy where there has been a proven ‘wrong’. In my case the ‘wrong’ was the Defendant placing adefault on my credit file without demonstrating their entitlement. I believe Ihave adequately demonstrated that in taking such an action (levying the ETC inthe sum they did and ignoring the requirements of their industry regulatorOFCOM in doing so) the Defendant breached the Unfair Terms in Consumer Contracts Act and that this is the basisfor the order to remove the Default in question. I believe and have gone on record as saying had theDefendant applied an ETC to my account that took notice of the above pointsthere would have been no default because I would have understood and acceptedmy liability and made the relevant payment prior to a default situationarising. Conclusion I believe that my submission to the Court wascomprehensive however the majority of it was ignored. This resulted in what Ibelieve was an unfair judgement on the basis key points of law were overlooked. I would like a response from the Court on the merits ofmy full submission, not just the 3 pages Judge Payne relied upon for hisJudgement. If it is decided that my claim had no merit, that the Defendantacted correctly, the default was warranted, that the Ombudsman’s decision wasnot flawed and that the Defendant did not breach the UTCCR I will walk away andget on with my life. As is well documented my claim is reliant upon guidancehanded down by the Defendants Industry Regulator. As mentioned above, I believethe OFCOM guidance was prepared with the assistance of senior legalprofessionals and as such i believe it to be legally correct. Notwithstanding the above, if the Judgement is upheld iwant a commentary on how and where the Court believes the OFCOM guidance to befactually and/or legally incorrect as this could have serious ramifications forother consumers relying on such information. If indeed my appeal / complaint are successful I want theCourt to rule that the Defendant breached noted legislation and as such theyare to remove the default with immediate effect from my credit files. I am aware that there is a fee associated with an Appealin the Small Claims Track however I would seek clarity on whether this ispayable given the obvious lack of service afforded in the original hearing forwhich I paid for. I look forward to your full response to the above andattached.
  25. IN THE OXFORD COUNTYCOURT Case No: xxxxxxx Citation No: (RCJ only) OxfordCombined Court Centre St.Aldates Oxford OX1 1TL Friday, 3rd January2014 B E F O R E: DISTRICT JUDGE PAYNE ---------- MRxxxxxxxx (Claimant) v. VODAFONE LIMITED (Defendant) ---------- Transcript from an Official Court TapeRecording. Transcript provided by: MK Transcribing Services, 29 The Concourse, Brunel Business Centre, Bletchley, Milton Keynes, MK2 2ES. Tel: 01908 640067; Fax: 01908 365958; DX 100031 BLETCHLEY. Official Court Tape Transcribers. ---------- THECLAIMANT appeared IN PERSON. MISSSOBIECKI appeared on behalf of THE DEFENDANTS. -------- JUDGMENT (As approved) -------- Friday,3rd January 2014 DISTRICT JUDGE PAYNE: 1. This is a claim brought by Mr. xxxxxxxxxxagainst Vodafone Limited, for £1,000, in respect of unhappinesses arising outof the termination of his mobile phone contact with the company. 2. The claim is for £1,000, and sowithout disrespect to the parties, is a fairly small, small claim, but it hasgenerated an astonishing amount of documentation. The defence to the claim runs to six pages. The claimant has made a 3 page witnessstatement, backed up by 100 or so pages of documentation, and the defendant’sevidence is in the shape of a witness statement from a legal assistant, Mrs.Crocker, which runs to 9 pages and is also backed up by at least 100 pages ofdocumentation. I made the point to theparties, and I make it again now in this judgment, that I simply do not havethe time to read every page of this compendious documentation. 3. A couple of preliminary points shouldbe made before I advance through the judgment. The first, and I note this principally for the benefit of Mr. Xxxxxxx,is that the hearing has been tape-recorded, either party may apply at its ownexpense for a transcript, which may be a transcript of everything which hasbeen said in the hearing, or as more usually happens, a transcript of thejudgment which I am giving now. Next Ishould make a point about appeals. Thereis an appeal process arising out of hearings such as this one. That process must be started in no more than21 days, and there is a preliminary step in that process which is calledobtaining permission to appeal – a provision inserted, no doubt, with the aimof weeding out appeals which do not have a reasonable prospect of success. The party who seeks permission to appealshall ask the trial judge, that is me, before the end of the hearing, oralternately can make application to a Circuit Judge within the time justspecified. In broad terms there are twobases upon which an appeal might succeed: one is quite simply that the trialjudge has got the decision wrong, the other is that there has been some seriousinjustice in the way the case has been conducted, which means I think that oneparty or another has not had a fair hearing. 4. I have referred briefly to thedocumentation. I should add that I haveheard oral evidence from the claimant, who was cross-examined by thedefendant’s counsel, Miss Sobiecki, and I have had the benefit too of askeleton argument from Miss Sobiecki, which I have no hesitation in saying itis absolutely first class and has distilled the essential elements of thisdispute in an extremely succinct and helpful way. 5. Mr. Xxxxxxx’s witness statement saysin its final two paragraphs, that there are two things which he seeks: thefirst is the immediate removal of the default on his account, which has nowbeen logged with credit reference agencies. I said to him, and I think he accepts, that I am not aware of any powervested in me, to require credit reference agencies to alter their records. That part of the claim of Mr. Xxxxxxx istherefore hopeless. The second part isphrased thus: ‘Compensations/financialredress for the effects of the default entry.’ The claim as I have indicated, is for £1,000. In his evidence to me, Mr.Xxxxxxx conceded that that was a figure which was rather plucked from the air,and indeed when he made his closing comments to me, he told me that hisprincipal objective in this case was not to attain financial compensation atall. 6. The background, and there is quite along background, can be stated briefly. Mr. Xxxxxxx entered into a contract with Vodafone in January 2010. Within a few months he had cancelled hisdirect debit and was in some difficulty keeping up his payments. In June 2010, that is 5 months into the 18month contract, his account was suspended, and 2 months after that, in August,his account was terminated due to non-payment. Mr. Xxxxxxx accepts that he defaulted on the payments which he wasrequired to make under his contract with the defendant. 7. The defendant did then apply somethingcalled an early termination fee, which is in the documentation referred torather confusingly as an ETC rather than an ETF, of some £281, making the totaldefault of Mr. Xxxxxxx some £440. Thatwas what was registered with the credit reference agencies. Mr. Xxxxxxx says, and I accept, that that hascaused him some difficulty in obtaining credit since then. He is very unhappy about the reference to thecredit reference agencies, but I am afraid that I do not think that his unhappinessis justified. It is in the general bestinterests of all those who are involved in the world of advancing credit inthis country, to exchange information when there is default in payment bysomeone who has a contract with a service provider. The reasons for that are too obvious to needre-stating, and if there is some collateral difficulty caused to the non-payeras a result of that reference, then I am afraid so be it. 8. If there is a principal objectionwhich Mr. Xxxxxxx has to the way he was treated by Vodafone, it was in theimposition of an early termination fee of £281, which represents approximatelyten months basic rental for his phone. I remind myself here that his contractwas cancelled some seven months into an 18 month contract. I asked Mr. Xxxxxxx what he felt theappropriate early termination fee should be, and he ventured the figure of£100, though he readily and to his credit conceded that that was a figure whichhad rather been plucked from the air. 9. Mr. Xxxxxxx has been entirely consistentin his dissatisfaction with Vodafone. Somuch so that he referred the matter to the Communications Ombudsman. The compendious documentation which has beenprovided to me includes some correspondence with the ombudsman’s office. Looking at that correspondence, I have afairly clear impression that whoever dealt with the matter there was able togive rather more time than I have been able to give it this afternoon. Suffice it to say that in a letter of 29thMay 2012, the ombudsman wrote to the claimant to confirm that an earlytermination fee was permissible, when a contractual minimum term had not beenadhered to, and that letter continued that the fee should be equal to an not inexcess of what the remainder of the contract would have cost the customer. In this case, quite clearly, the earlytermination fee did not exceed what the contract should have cost thecustomer. The ombudsman concluded, and Iquote from his letter as referred to in Miss Sobiecki’s skeleton argument, “There is no evidence to support that theoutstanding balance was incorrect or payment by you was not warranted.” 10. Giventhat this judgment inevitably is delivered under some considerable pressure oftime, at 4.30 in the afternoon, and with another case still to be dealt with,it is not practical for me to go through the evidence trail regarding thecommunications between Mr. Xxxxxxx and the ombudsman, and between Mr. Xxxxxxxand Vodafone. 11. Sufficeit to say that albeit very unhappily, he did ultimately accept the decision ofthe ombudsman. I am afraid it seems tome that what he has sought to do in these proceedings, is to advance once againarguments which had already been considered in detail and had been rejected. Of course, different considerationsapply. 12. Mr.Xxxxxxx has brought my attention to the provisions of the Unfair Terms inConsumer Contracts Regulations 1999. Iwill simply say that as any District Judge who deals regularly with smallclaims, I have a good working acquaintance with those regulations and I amquite satisfied that there is no evidential basis whatsoever upon which I couldconclude that Vodafone has acted in breach of those regulations. 13. Ihave already indicated that it seems to me that it was perfectly proper andindeed inescapable that the default in payment by Mr. Xxxxxxx was reported tothe credit reference agencies. The othermatter about which he complains, is that he was chased by debt collectionagencies who caused him inconvenience and upset by telephoning him late athome, and caused him embarrassment by telephoning him at work. I have some sympathy with him in thisregard. For all that as will by now havebecome clear, I do not think that Mr. Xxxxxxx’s claim has the legal legs toenable me to find in his favour, he comes across to me as a man of decency,honesty and integrity, who genuinely feels that he has been hard done by, by amassive and rather faceless corporation, which has not heeded complaints whichhe genuinely and strongly felt to be legitimate complaints. I understand all that. But the rather crude tactics of the debtcollection chasers do not in my view come close to establishing that they havecommitted the civil wrong of harassing Mr. Xxxxxxx, and there is accordingly nobasis upon which I could make an award to him under that head of distress. 14. Soin a nutshell, drawing these threads together, the request that I compel thecredit reference agencies to amend their records must fail, as I have no powerto do so. The imposition of the earlytermination fee was completely in accordance with industry practice, as wasconfirmed by the ombudsman after a detailed investigation. The registration of the default entry wasperfectly proper, and the actions of the debt collection agency did not displayimpropriety. Accordingly, for thereasons I have endeavoured to explain, this claim is dismissed. ----------
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