Virgin Media pay monthly phone keeps getting barred

[itsamomentintime]

hello all

I have a VM contract phone, with a monthly 1GB data allowance. It seems however that this allowance is not added to my account every month, resulting in me running up huge charges, which in turn breaches my monthly credit limit, resulting in the phone being barred.

 

This has happened at least 3 times. I have to contact VM every month who add the data allowance, lift the bar and reduce the bill.

 

I have however had enough and want to cancel the contract. I believe they are in breach of contract by barring my account every month.

 

Can anyone offer any reasons in contract law that would allow me to cancel whilst still in contract?

 

regards

[Human Writes]

See this:

 

13.3 Discharge by Breach

13.3.1 Definition

When can the innocent party terminate the contract and regard himself as discharged from his contractual obligations because of the other party's breach?

It is always possible to sue for damages for breach of contract (i.e. for breach of condition or warranty), but the right of the innocent party to treat the contract as discharged arises only where there has been a breach of condition, or a repudiatory breach in the case of an intermediate term, viz.

(a) Where the party in default repudiates either before performance is due (anticipatory breach) or before the contract has been fully performed.

(b) The defaulting party has committed breach of a term of major importance.

13.3.2 Repudiation before or during performance

Such repudiation may be either express or implied, and it must be established that the defaulting party has made it clear beyond reasonable doubt that he no longer intends to perform his part of the contract.

 

insitelaw - Law of Contract: Discharge of Contracts by Waiver, Breach and Frustration

[buzby]

Risky. You would need to assert it, and if they reject it you're not further forward. If you then stop paying your credit file is trashed remotely and winding back the clock takes a lot of time and effort.

 

None of this of course excuses the anamalies in Virgin Mobile's billing service (that's all they do, they have no 'network') so the way to turn this to your advantage is to lay down some ground rules. You don;t say how long your contract has left to run, but you need to write, stating that you have had to seek manual adjustments to your bill due to their billing errors, and after X times, with the error being repeated, you are not prepared to accept this. As you are having to spend time and effort managing your account because of their inability to do so, you feel it reasonable to request that any futher errors of a similar nature should result in a credit of £25 for each and every incorrect monthly bill generated, to be gredited against the following month's airtime.

 

Alternatively, if they cannot agree to this, then you request that the contract be cancelled due to their inability to deliver accurate bills, and operate their billing system in the manner prescribed by OFCOM.

 

This gives them a choice, and lays down the course of action you wish to take. This is an intermediate (negotiating) stage, if they refuse to play ball or indeed ignore you, you can use this as grounds for cancellation.

[itsamomentintime]

thanks to you both

 

i have emailled them stating i wish to cancel the contract but so far have not had a reply.

 

i will however send a letter along the lines of buzbys respose

 

thanks again

[itsamomentintime]

hello all

VM have phoned me and - surprise surprise - they are not in breach of contract

 

is there any legislation that anyone can point me to that i could use, or should i go to ofcom/otelo?

[locutus]

Have they sent you a "DEADLOCK" letter? If not try asking for one. Thats the only way you can complain to the "independent arbitrators" (you are correct, it is Otelo for Virgin Mobile) Also ask them to confirm in writing the number of times they have barred your phone due to their error, and why they feel that they are not in breach of their contract.

 

This is from their T&C :-

10.2 Your right to cancel: You may end this Agreement immediately in the following circumstances:

(a) if we break this Agreement in any material way and do not put it right within seven days of you asking us to

Did they not rectify your data package within 7 days? I'm guessing not with them barring you on 3 diferent occasions! Try throwing that at them

[itsamomentintime]

Have they sent you a "DEADLOCK" letter? If not try asking for one. Thats the only way you can complain to the "independent arbitrators" (you are correct, it is Otelo for Virgin Mobile) Also ask them to confirm in writing the number of times they have barred your phone due to their error, and why they feel that they are not in breach of their contract.

 

This is from their T&C :-

 

Did they not rectify your data package within 7 days? I'm guessing not with them barring you on 3 diferent occasions! Try throwing that at them

 

thanks for the reply.

 

i noticed the 7 day thing, they fix the problem within 2 days of me reporting it, only to then bar it the following month. therefore i am unsure if the 7 day clause applies

[buzby]

Have you read the terms of your contract? You cannot simply say they are in breach if they are not, or if you were just hoping they'd agree with you! Is there anything that has happened to you, that is covered by their terms of service, and their failure to delivery opening the door for their non compliance of those terms?

[itsamomentintime]

i have read the terms fully and there is not really anything that states they are in breach by continually barring my phone and incorrectly billing me. i think a complaint to Otelo may be the best way forward

 

i am awaiting their response to my letter:

 

On at least 3 occasions my account has been barred due to you incorrectly billing my account. As a result of the I have had to seek manual adjustments to my bill. After 3 times, with the error being repeated, I am not prepared to accept this. As I am having to spend time and effort managing my account because of your inability to do so, I feel it reasonable to request that any futher errors of a similar nature should result in a credit of £25 for each and every incorrect monthly bill generated, to be credited against the following month's airtime.

 

Alternatively, if you cannot agree to this, then I request that the contract be cancelled due to your inability to deliver accurate bills, and operate their billing system in the manner prescribed by OFCOM.

Furthermore your Customer Service Team stated that they would reduce the current overcharge balance on my account, as it currently stands at £xxx. This has not been done. Please amend the balance accordingly.

will keep you posted

[locutus]

thanks for the reply.

 

i noticed the 7 day thing, they fix the problem within 2 days of me reporting it, only to then bar it the following month. therefore i am unsure if the 7 day clause applies

I'd be stating it was the same problem (i.e. them not adding the data allowance to your account) and pushing them to release you from the minimum term as per their terms and conditions or giving you a DEADLOCK letter. Add that to the letter you are sending them and see what they come back with. A complaint to Otelo costs them money so it may be cost effective for them to not risk your complaint going to arbitration.

[buzby]

This was my point! Don't give them any opportunity to deny, of course it isn't in the contract as incompetence rarely gets a mention. You need to paint them into a corner by pointing out the issues that affected you, and ask firstly for an explanation, and secondly for an assurance that it will not happen again. It is most likely they have no idea how it happened (other than it being 'a systems' error) and of course they cannot guarantee it won't happen again. BUT, you've laid the groundwork for later action by you either for a release, or enhanced compensation due to them being pre advised of the problem and not doing anything about it!

 

Your paper trail is what will sink them, and if it comes to court, you are the one being reasonable, and they are not. It is a perfect situation to be in. I have no faith in Otello whatsoever, as their dispute resolution processes appear to be largely slanted to the operator.

[itsamomentintime]

This was my point! Don't give them any opportunity to deny, of course it isn't in the contract as incompetence rarely gets a mention. You need to paint them into a corner by pointing out the issues that affected you, and ask firstly for an explanation, and secondly for an assurance that it will not happen again. It is most likely they have no idea how it happened (other than it being 'a systems' error) and of course they cannot guarantee it won't happen again. BUT, you've laid the groundwork for later action by you either for a release, or enhanced compensation due to them being pre advised of the problem and not doing anything about it!

 

Your paper trail is what will sink them, and if it comes to court, you are the one being reasonable, and they are not. It is a perfect situation to be in. I have no faith in Otello whatsoever, as their dispute resolution processes appear to be largely slanted to the operator.

 

thanks both of you

 

i have laid the groundwork in my letter, and await my response

 

another query, what do i do if we do indeed find ourselves in deadlock? can i take them to court to get the contract cancelled, rather than them trash my credit file and no doubt set a DCA on me?

[locutus]

Best bet is to keep paying your bills on time until you get the contract cancelled. A deadlock letter is them stating they are unwilling or unable to do any more for you, and this will be a very nice piece of paper if it does go to court, and if you've overpaid them, taking them to court for a sum of money and for them to cancel the contract is cheaper than taking them to court to cancel the contract.

[buzby]

As locutus notes, keep an exemplary pyment records, as this way YOU remain the injured party of these proceedings. Small Claims actions are invariably for money, not for contract cancellations. Whilst you can certainly raise it as part of a wider-ranging dispute, I always recommend ensuring the company cannot (due to their incompetence) do anything other than release you from it. Assuming you are getting the other services 'as advertised' then it's not a major sticking point, as you'd have to pay someone else to provide it at roughly the same cost. I have to say though, their cable BB service has nothing to compare it with, ADSL is a poor substitute.

 

Basically, all you want is the minimum term restriction lifted, as once this is done, you can cancel thew contract yourself giving 30 days notice, so that is the angle to push for.

[itsamomentintime]

payments are up to date, DD has not been cancelled

 

i figure that keeping up payments is paramount to my case

 

 

quick question - what happens if they simply refuse to accept responsibility, and will not reduce the minimum term?

[locutus]

There will be options open to you.

 

You can request your PAC even during the minimum term, they'll bill you for the rest of your minimum term then you can take them to court for the return of this money. (that is providing you have the funds to buy out your contract in the first place!)

 

Just out of interest, this is not something that effects you is it?

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed-internet/263015-virgin-mobile-increasing-call.html

[buzby]

Because you are bound under contract, there are two ways to play it. Either continue to complain each and every time the phone is blocked, keeping those details, until the contract#s minimum term is complete, then give notice and leave. At the same time, state your reasons for leaving stem from the ongoing (and ridiculous) requirement that you had to keep calling for reactivation. YOu estimate oyur cost at £25 per disconnection/block, and seek to recover this as an ex gracia payment for the total amount.

 

If they refuse, you can raise a moneyclaim safe in the knowledge your contract is concluded and they cannot blight your credit file 'in error'.

 

Second, whilst under contract, ask them to warrant your service will not again be distrupted in this way due to their failure. Should they block your phone again, you will take it that they do not want your business and you will advise formally of your termination due to their inability to rectify a known problem with your service. This is more confrontational, and carries a risk of creating a mess thatr might take longer to clear up - but if you cannot rely on the service being available when you want it, it is still a reasonable one.

[itsamomentintime]

again thanks to you both for your replies

 

buzby i would prefer the second route (its really doing my head in)

 

i guess it depends on what their reply to letter will be

 

regards itsamomentintime

[buzby]

Keep us posted!

[itsamomentintime]

update

 

I remembered that in May, I was overcharged as my data allowance was not added. I asked VM to correct my bill on the 5th May but this was not done untill the 24th May, breaching their own T&Cs, which state a problem must be sorted within 7 days of me notifying them - if not, the contract can be cancelled, even during the contract.

 

I contacted their retentions team only to be told that there is no way that they will honour their own '7 days' term.

 

there must be a way that I can legally cancel the contract now....?

[buzby]

Which clause number? I keep copies on past contract terms, and I don't see this on VM's one.

[locutus]

Try writing to them. Retentions get a bonus for not cancelling people (the clue is in the name ) and claiming that they cannot do it doesn't make it true!

 

Write to them here

 

Virgin Mobile

PO Box 2692

Trowbridge

BA14 0WX

 

Tell them to end the minimum term and give you your PAC (if you wish to retain your number) or cancel the contract (if you don't care about the phone number you have with them) or send you a deadlock letter.

[itsamomentintime]

no update as yet

 

 

incidently, this is the letter i sent:

 

 

Virgin Mobile Telecoms Limited,

160 Great Portland Street,

London

W1W 5QA

Mobile no

Dear sir/madam

On xxx this year I contacted you to advise that I was being incorrectly charged for data usage, and that I required my bill to be adjusted to reflect the true amount owed. This adjustment was only completed on xxx, and only then because I had to contact you again.

You will be aware of the term in which you state that a contract can be terminated mid-term, if a problem is not rectified within 7 days of me notifying you. As my bill took xx days to be rectified, I hereby give you 30 days notice of my intention to cancel my contract. Please forward me a PAC code and final bill.

Regards

[buzby]

You will be aware of the term in which you state that a contract can be terminated mid-term, if a problem is not rectified within 7 days of me notifying you. As my bill took xx days to be rectified, I hereby give you 30 days notice of my intention to cancel my contract. Please forward me a PAC code and final bill.

 

You didn't respond. WHERE is this timeframe explicitly mentioned in their contract? I've now seen 3 VM contracts and none feature this groundbreaking revelation in consumer power.

[locutus]

Virgin Mobile: Mobile Phones & Mobile Broadband - PAYG & Monthly

10.2 is the section.

 

Just to add, some of this confusion is because the thread title is "virgin media" but the problem is actually "Virgin Mobile"