Mobile Phone Dispute

[mrpenguin]

Hi,

 

As part of a contract renewal and upgrade received a new Nokia 5800. When I got the phone I noticed that the box had 2 security labels on it. At the time I didn't do anything about it but over the following weeks the phone was troublesome and kept freezing and shutting down leading me to beleive it was not in fact 'new'.

 

I did call the company and tried to address the issue but they were less than helpful over the phone and declined to replace the phone. After leaving it a while have become evermore frustrated with the phone and wrote to the company to ask them to address my long standing issue. My demand and reasoning was that as it seemed the phone I received was not actually new, I wanted them to replace the phone with a new one.

 

After speaking with a member of their complaints team, twice, I was advised I would only be offered a replacement with a 'refurb' phone. To me this was not acceptable as I wanted to have a 'new' phone as I thought that the phone origionally supplied was not.

 

Following this stalemate I possibly rather hastely sumbitted a MCOL via the HMCS website requesting an amount to cover a new handset direct from Nokia, £50 for compensation (possibly rather foolishly) and aslo costs.

 

POC below:

 

1. The Claimant's contract for account 077xxxxxxxx with the Defendant, started in August 2009 which included a new handset 2. Since reporting faults & issues with the handset provided under this contract the Defendant has refused to address the matter reasonably. 3.The Defendant has received a detailed letter regarding the handset faults. 4. The handset is not of reasonable quality nor fit for purpose as described under the Sale of Goods Act. 5.Claimant seeks: (a) an amount of money to purchase a new handset to replace the faulty item - £250; (b) Compensation for inconvenience, stress and loss of use of handset - £50 6. Permitted costs.

 

I have since had the claim acknowledgement at a copy of the defence. the defence is asking for the claim to be struck out - I can make details of this available if necessary.

 

Can anyone help/advise me on what to do? Ultiamtely, all I want is a 'new' handset as I have to date, not received one, and my £25 costs back.

 

Many thanks

[buzby]

I'd like to point you to a simple answer, but there is none. The massive flaw in your argument is the delay in receiving the goods and then rejecting them. You wait a few weeks, and then complain?

 

You issue would be either (1) you expected a new phone and did not get one. Your reject the item and send it back as you reject the goods. You didn't.

 

(2) The phone you received did not do what it was supposed to, and they offered a replacement. A refurb is often better than 'new' as it has the latest firmware, has been individually tested to ensure it hits the specifications required (new phones are not, as a rule just batch sampled).

 

Your claim for the full retail price of a retail handset is unrealistic, as this is often considerably higher than one locked to a network (and sold at a discount in exchange for you lock-in for a further minimum term. Add to this, your contract will STILL be rolling on regardless, and you would have to keep paying your monthly rental or suffer the ignominy of a cancelled subscription and a CRA default.

 

Your claim would have been for the cost of the handset on the contract you currently enjoy (as to claim otherwise would be betterment). How do you justify your costs of £25? Finally, should you lose, you can be held to replay their capped costs (around £100) for defending the action.

 

It remains a risky business. If they don't defend, then you'll have won by default - and if they do not appeal, you'll get your wish - but it is very much Russian roulette as to what the outcome will be.

[sea-sidelady]

Thread moved

[mrpenguin]

Thanks for the response Buzby. I admit there was a delay in initially contacting the company but this was due to the fact that I had no no real cause for concern until after repeated issues with the handset. At this point I did reject the handset.

 

I would gladly accept a new phone but seeing as the company wont provide one, nor do they offer the handset locked to their network as 'buy on its own' I am left with no alternative than to seek a the replacement from a 3rd party (the origional manufacturer).

 

My issue is not with the company's ait-time service or contact itself, just the equipment supplied so I wont be cancelling any contract.

 

My cost of £25 is for the fee paid to MCOL to submit the claim - overall I'd rather not go to court but I honestly feel I am justified in asking for a 'new' phone having never received one in the first place.

 

Any further advice or guidance is much appreciated.

 

Thanks

 

Am I able to amend my POC or do I just respond to their defence?

[buzby]

Court fees are usually £50 or so - so unless the amount sued for was small, or you got a reduced dispensation, you cannot (as it appears) charge twice. The costs you incur to raise the action are separate from the action. So if you claim £100, and it cost you £25 to raise the action, you still only claim £100 - because when you win, your costs are added automatically by the court. Unless I've picked you up wrongly, you are distorting the value of the claim - and this is often a good reason for the case to be discontinued with prejudice.

 

The retailer will say the phone was new, and ask you to prove otherwise. Because you hadn't raised this issue at the time, it may well be viewed with suspicion and discounted, leaving you with nothing to pursue.

 

You can certainly amend your PoC up to (I believe) a few days before the hearing and it goes to Proof, but the other side need reasonable notice of this otherwise they can ask for a continuance and this knocks things back a few months. You don't respond to their defence - as you should always keep your answers for the judge.

 

Keep us posted on how it turns out!

[mrpenguin]

Thanks again Buzby - can you advise on how I go about amending my POC?

 

My costs of £25 was covered under point 6. of my POC but not itemised as £25.

 

Thanks again

[buzby]

I'm only up to speed as to the Scottish Small Claims system - there are some thngs better crafted by someone in the country! As to the £25, you probably will be required to orally explain the costs forming the claim so watch out for this.

[mrpenguin]

The company have since written to me to advise that they will replace the phone with a new handset up to the value of the phone I had & also a credit to cover the cost of submitting the MCOL. I'm considering the offer and will probably accept it.

[buzby]

Sounds an equitable deal - glad it worked out!

[mrpenguin]

I've decided to accept the offer - it is quite funny that the way the company worded their letter to me makes it sound like a commercial decision rather than any other reason. I am 100% confident that if this had gone to court I would have got the same result but to avoid all the hassle, this is probably the best end result.

 

Thanks to all for any advice contributed.