Claim Form and Defending the Claim

[progeniga]

Hi all,

 

I have today recieved a Claim Form photocopy from County Court Money Claims Centre.

They are claiming for cancellaction of a magazine advertisment. I was wondering what my best defence is to the claim if anybody can help?

 

The Story So Far: Thu16th Feb, pressure sales phone call says "If you order in the next 10 minutes it'll be half price as I've just managed to speak to my financial director for you!". My reply "Well I really need to check with my business partner, but send over the information anyway". It turned out that to potentially get the deal I sent back an email specifically quoting the words "I DO agree to your terms and conditions" when they said i should reply with "‘I agree to your terms and conditions’ to confirm your space allocation". I know it's only one little word, but I hoped it may make the sentence not the same as what they asked for incase I needed to cancel... is that a possible defence?

 

As it turns out I did decide to cancel and sent an email (which they can't find) on the very next day. On Wed 22nd Feb I get an email saying they need my copy for print and I remind them that it was cancelled and that the sales woman knew I was waiting for the other director to come back to me. The date for the finalised copy to be sent was the 1st of March so they haven't even printed anything.

 

Next thing I know on the 22nd I've got an email saying they will pass the matter to the legal team if payment is not recieved within 7 days.

 

On the 29th I then get a letter saying it has been passed to the legal team for recovery. They still haven't reached their copy deadline!

 

Now I've got a claim form come through the door which says I owe them money. They interestingly say "The claimant has complied with Sections III and IV of the Practice Direction on Pre-Action Conduct."... which I'm pretty sure they haven't as this is the first thing I know about it. The only letter I have recieved was an invoice.

 

I have also attached a copy of the Terms & Conditions which I think might come under the 'Unfair Contract Terms Act 1977', but I'm not a lawyer so am not really sure. There seems to be a lot of provisions for them... not me!

 

Also I'm pretty sure there is a 'cooling off' period afforded by 'The Consumer Protection (Disctance Selling) Regulations 2000', but again I need advice as to if this applies to my case.

 

Any help would be greatly appreciated.

 

Thanks

 

 

[brokebutnotbeatn]

Do you have the email regarding your cancellation? Did you send it with a delivery and read receipt? Do you have all your correspondence stating the ad was cancelled? As it has no progressed to court you need to acknowledge receipt and say you will be defending.

[andydd]

I agree with the above, you need a copy of the email, its hould be in your sent items (depending upon your settings), I always copy in myself for important mails too.

 

If you sent it from a work address there may be sytems that capture and hold sent mails or back ups from which it can be retrieved.

 

Further to that, I believe that the distance selling regs would have some effect too, although havnt checked. I'm sure that there are other regs that deal with pressure put on potential buyers.

 

I doubt thought that the missing 'DO' would constitute much of a defence.

 

If youve received no other correspondence than its unlikely they have complied with any pre-action protocls, make sure you do thoughh and point out their non-compliance to a judge.

 

You need to scan T&C's as pdf and postn it as we cant read it. I can just about read the Chelmsford Court bit, thats sneaky as normallyum companies wopuld have to travel to YOUR local court, (not sure if its valid).

 

Andy

[progeniga]

Thanks for that,

 

I didn't request a read reciept for the email and can't find my copy anywhere!... Looks like I'm relying on T&C's then, so I've copied and pasted them out as the file upload keeps reducing the size to unreadable!

 

TERMS AND CONDITION OF ORDER:-

1. Publisher means Public Sector Information Ltd. Advertiser means the person, firm or company named above and/or their agent. This

document contains the whole Contract. Alterations can only be made with the written consent of the Publisher. This Contract is made under

the laws of England & Wales.

2a. ACCOUNTS ARE STRICTLY NET UNLESS OTHERWISE STATED AND ARE SUBJECT TO SETTLEMENT ON PUBLICATION.

2b. All classified advertising must be pre paid at the time of booking.

3. A Cancellation Fee is payable at the time of cancellation. This fee is equal to 50% of the advertisement cost plus VAT. Cancellation must be

notified to the Publisher by the latest copy date above, in writing and sent Recorded Delivery to the Publisher. Failure to do so will result in

the Publisher publishing the advertisement as originally offered and the Advertiser will become liable for the full rate per insertion plus

VAT.

4. The Advertiser shall provide suitable legible copy and is liable for the full cost of the advertisement plus VAT if they fail to do so by the latest

copy date above.

5a. The Publisher will be entitled to publish the advertisement as proofed to the Advertiser in the absence of any instructions to the contrary

within 24 hours of dispatch to the Advertiser. Proofs will only be provided in circumstances where the Publisher has undertaken to provide

a design service. No author's corrections will be accepted only one set of changes may be made to proofs.

5b. No Proof shall be provided for classified advertising. The advertiser is responsible for the provision of legible copy inline with the PSi

specification sheet.

6. The Advertiser will indemnify the Publisher against any claim for damages in respect of the publication of the advertisement copy or editorial.

No liability shall accrue to the Publisher in respect of any delay, error or omission of publication or in any advertisement copy or editorial

whether due to the negligence of the Publisher its agents or other circumstance.

7. The Publisher accepts no responsibility for loss, damage, destruction or unauthorised use of the Advertiser's property whether due to the

negligence of the Publisher or otherwise.

8. The Advertiser warrants and undertakes that the contents of any advertisement copy or editorial submitted to the Publisher do not in any way

violate any existing copyright, nor do they contain anything of a libelous, illegal, indecent, dishonest or untruthful nature.

9. The Publisher reserves the right in its absolute discretion to refuse, omit, or withdraw any advertisement without incurring any liability

towards the Advertiser and without explanation.

10. Where the Publisher provides data to the Advertiser this will be subject to the prior settlement of account and the Data Protection Act. The

data may not be passed to a third party, or processed on behalf of a third party. No guarantee is made for the accuracy of the information.

Not everybody on the database is sent a copy of the publication.

11. The Publisher reserves the right to publish a free listing service/index of advertisers/products/ services and or buyers guide or, but is not

responsible for any errors or omissions.

12. In the event of a "Force Majeure Event" [which means any event beyond the control of the Publisher] that prevents or hinders the Publisher

in the discharge of responsibilities under this contract, the Publisher may at his discretion suspend or terminate the contract by giving

notice accordingly to the Advertiser.

13. It is hereby agreed any disputes arising out of the above terms and conditions which falls within the jurisdiction of the County Court shall be

heard in the Chelmsford County Court, London House, New London Road, Chelmsford, Essex CM2 0QR

[asokn]

If you needed to speak to your business partner why did you then send an email agreeing to their terms and conditions apparently without having done so?

[progeniga]

The phone call with the offer was recieved around 16:45 with the pressure sales speil and I was told that it needed to be agreed that day to get the special offer. I got the T&C email at 16:57 so without reading the T&C's about cancellation fees I returned it at 17:02... So yeah... a stupid thing to do, but like everything else I assumed I would have a right to cancel.

 

In the T&C's:

 

Point 3 seems to have allowed the publisher to apply a cancellation fee without allowing for any cancellation period

Point 9 allows them to withdraw or refuse and advert without incurring liability... Which is what I have done, but now find myself liable!

[progeniga]

This seems to make my point quite well as I definately cancelled and have confirmation that they knew about it within 7 working days: http://www.legislation.gov.uk/uksi/2000/2334/regulation/12/made

[andydd]

There will of course be other laws that overide/add to their T & C's such as the cooling off period and also cases are normally transfered to the local court (if they are a LiP, are you ?..or does this relate to a business ?) maybe overiding point 13.

 

If they have started court action I would of thought your defence was that you cancelled the advert by email within the cooling off period as allowed by Distance Selling regs (had a quick look and it seems that it applies).

 

But as mentioned above, your claim that you cancelled it but were waiting for the other director dont make sense.

 

Andy

[progeniga]

Thanks AndyDD,

 

I will be an LiP representing my small company (Or is that not an LiP?). I guess they have employed solicitors as it came from a Litigation Assistant at a legal services firm... Is that what you meant?

 

The problem is actually that I accepted the terms before talking to the other director to make sure the offer was available... after speaking I then cancelled the order.

 

Anybody with more advice on the Distance Selling Regs or their non compliance with Pre-Action Conduct?... Or how to write a defence based on those?

[asokn]

I don't know about the distance selling regulations but non compliance with the PAP, even if proved by you, is not a defence to the claim, it would only be relevant to costs. It's a point well worth looking into in due course but I would focus on your legal routes to defend the claim as a priority. Having said that, make sure that your defence denies compliance with the PAP if you are of the view that it has not been followed.

[brokebutnotbeatn]

This was not a face-to-face sale and you did not sign any documents so the Distance Selling Regs apply and you cancelled within the 7 days. You say you have proof that they knew you had cancelled (Post #7) but in Post # 4 you say you don't have proof so which is it? If you have proof that they knew you had cancelled then that is your defence and I wouldn't look to overcomplicate things with their T&Cs. A company's T&Cs can say anything they like but they can't be held over and above other laws e.g. the Distance Selling Regs. You would need to have this researched and the relevant point of the DSR earmarked with a Post It note ready to 'educate' the judge if needs be if it actually gets that far. Also contact Trading Standards as they will be a good source of info for you as you get your ducks lined up.

[andydd]

I believe that DSR apply BUT there would appear to be no proof that you did cancell, therefore a judge may decide on the evidence in front of him and could go either way.

 

A LiP is anyone not represented by a solicitor, as for court hearing locations these are normally transfered to the local court if one side is an individual, itys unclear whether the claim is against you or your company ?. Are you near Chelmsford, co-incidently..I am.

 

Andy

[progeniga]

I see your point... But I do have proof of cancellation within 7 working days because I have the emails from them. On the 22nd Feb I have an email from them which states: "It has been bought to my attention that you have instructed cancellation of the above invoice."

 

Is that going to help?

[brokebutnotbeatn]

deleted

Edited April 13, 2012 by brokebutnotbeatn

[brokebutnotbeatn]

Hang on. Bit hasty here. the Regulations do not apply to contracts between businesses...you need to research b2b contracts. You are bound by their T&Cs. If you did not send a cancellation recorded delivery then you are liable to 100 per cent plus VAT. No, you can't argue they are unfair and you put in writing that you accepted their T&Cs. I realise it feels unfair but you fell to high pressure sales tactics that worked. Given the speed within which you cancelled it is unusual for people to persue in this way I agree but it is what it is. As they have written acknowledging your cancellation you might be successful arguing that you are only liable for 50 per cent plus VAT.

Edited April 13, 2012 by brokebutnotbeatn

[progeniga]

I've just looked up B2B contracts and you're right there is no cooling off period as far as I can tell. I have found this on a website though:

 

In some situations where a B2B contract has been called into question, court may take into account, amongst other factors:

 

1. the strength of the bargaining positions of the parties relative to each other
   
2. whether an inducement was offered to the customer
   
3. the opportunity for the customer to obtain similar goods or services with other persons, without having to accept the term of contract in question, and
   
4. whether the term was brought to the party's notice.
   

The test of reasonableness also imports an element of good faith into the contract.

“Good faith” in the context of the Unfair Contract Terms Act requires that customers are dealt with fairly and openly. When standard terms are drafted to protect commercial objectives, those standard terms may not go further than necessary to protect those legitimate commercial interests.

 

 

When looking at that then there was definately an inducement offered because they wanted to reduce the cost by 50% from £2000 to £1000, but only if I returned confirmation that working day. I kind of have proof that I was pressured as the email came through at 16:57 and my reply went back at 17:02 without reading the T&C's properly because I just checked the prices.

 

The sales woman also didn't mention anything about a cancellation fee, it was just in the T&C's at the bottom of the letter.

 

 

I'm starting to think that I might be on a losing arguement now... which is a shame, because as a B2C contract it would have been simple.

 

Any more thoughts?

[asokn]

I kind of have proof that I was pressured as the email came through at 16:57 and my reply went back at 17:02 without reading the T&C's properly because I just checked the prices.

 

Or you were just very enthusiastic. I don't think you will get far claiming you were put under undue pressure; you could have ignored the email as its not as if someone came to your place of business and had a face to face meeting with you. As a business customer I think you would be presumed to be astute enough to read the contract before agreeing to it.

[brokebutnotbeatn]

I think you should also bring into it that you said you would have to speak to your business partner first and were not made aware of the fact that you would not be able to cancel if your partner did not agree and you made it clear to the sales person that joint agreement was necessary moving forward. They told you to secure the deal return the email with the words in the full knowledge that further authorisation was required in order to proceed and that this was not therefore a firm order.

You will need to put your defence succinctly and without emotion or emotive language (eg it is unfair...)

Include the fact that you cancelled at the earliest possible opportunity (in line with your verbal agreement with the sales person) and the publication have not suffered any loss as a result because of the speed (i.e. well before publicaiton date). Spend time researching similar cases that you can quote. They may argue you did not put it in writing sent recorded delivery, but you can counter that you did not raise a formal PO as you advised the sales person you would need to do once you have approval to do so and if an email was accepted by them to create a contract than you can reasonably assume it is accepted in cancellation. Others will come along to advise I'm sure but meanwhile get researching.

[brokebutnotbeatn]

And look up mis-selling and misleading - you may find similar cases there