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Business Internet Company claimform - suing for cancelling contract***Struck Out***

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I am helping a friend/client defend a summons from their former business Internet suppliers.

 

Long story short, they were happily using BT for their phones and Internet for many years, until some Mickey Mouse outfit called them and said they could provide everything BT did at a fraction of the price.

 

They foolishly agreed before talking to me and soon came to regret the decision as:

 

1. The Internet regularly went down for long periods.

2. One fix suggested by the ISP was too disable the fixed IP and change to dynamic. As they use CCTV and Remote Desktop this was not a great solution.

3. Their business was considerably disrupted due to the constant breakdown of the Internet.

4. They constantly contacted the ISP but the Internet continued to fail.

5. They claimed the same problems would be experienced with BT and yet since switching back to BT their Internet has been problem free.

 

They have received a summons today from the ISP saying the last two months invoices remained unpaid, emails go ignored and have now cancelled the service. I believe they think the application will be left unanswered so they could apply for the award and get the bailiffs in, so I would like to get a reply back as soon as possible.

 

They did warn the ISP that they would need to switch ISP unless it was resolved their reply was "you are under contract." They finally cracked and moved back to BT.

 

I have advised them to dispute the claim in full and defend on the above grounds.

 

If a business totally fails to provide a service, can be just walk away, on grounds of breach of contract/non-performance?

This is effectively what they were forced to do.

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If a business totally fails to provide a service, can be just walk away, on grounds of breach of contract/non-performance?

This is effectively what they were forced to do.

 

If a supplier is in repudiatory breach of contract, the customer has a right to terminate the contract. The customer can terminate by notifying the supplier.

 

The customer would need to prove three things:

1) That the supplier had breached its obligations under the contract (you need to specify exactly what the breaches were in the defence).

2) That the supplier's breach was repudiatory (i.e. it was fundamental - I suppose not providing the agreed service for a long period of time is fundamental).

3) That the customer notified the supplier that it was terminating the contract.

 

Can the customer demonstrate these three points?

 

With regards to point 3, if a formal notice of termination was never given, the customer should do that now - and may have to accept that it will be liable for invoices prior to the date on which it actually terminated the contract.

 

Regardless, the most important thing is to to file an acknowledgement of service and make sure that a defence is filed within the appropriate timescales. These should be explained on the form. A default judgment will be issued if the timescales are missed. You can still try to negotiate a settlement after filing a defence.

 

If the supplier has breached the contract, the customer should include in their defence a counterclaim for any business losses suffered as a result of the downtime. If the supplier is facing a counterclaim the customer has more leverage to negotiate a settlement.

 

Also, have a look at the supplier's T&Cs to see if there is anything in there which has been breached. Pointing to a breach of a supplier's own T&Cs is always one of the most persuasive points to make in a legal dispute.


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Thanks steampowered, as I understand it, he just walked away. Any notice would have been verbal - does that count, probably not?

 

I wish he had spoken to me first, but he just panicked and switched. When switching ISPs don't you have to get a code from the existing provider, which could be seen as notice? Or is this just mobiles?

 

I just received a fairly illegible shot of the particular of claim, and it appears they are talking about the two existing invoices, but the claim appears to be for £900, so must be full contract.

 

I need to get more info from him and will pist when I have it, so we can see the 3 areas you mention plus look at their T&C and check if they can be viewed as broken or unfair.

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Verbal notice can count, the difficulty is proving it.

 

In the defence, he would need to clearly state in his defence the exact date on which he verbally terminated the contract because of the claimant's breach of contract. It is very important that this clearly goes in the paperwork. If the claimant denies this conversation the judge would have to decide on a 'balance of probabilities' who he thinks is telling the truth.

 

Unless the claimant is citing something in their T&Cs, I doubt the T&Cs are relevant. It will be more important to demonstrate the three points mentioned in my post - i.e. that the supplier was in breach of contract and the customer terminated the contract.

 

By far the most important thing is to get an acknowledgement of service and defence filed in time. Even if the documents he files are very short and basic. If your friend misses the deadlines he will lose the case by default.


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Hmmm, he confirmed that he just threatened to move back to BT if they did not improve things. When things failed to improve he just left.

 

I am sure they would record all calls so he's between a rock and a hard place.

 

They have now terminated his service so would that act as cancellation or does he still need to formally contact them?

 

Ts and Cs

 

“Services” means any one or more of the Fixed Line Service, the Free-phone

 

Service, the Non-Geographical Number Service, the Broadband

 

Service and the Maintenance Service as specified in the Service

 

Agreement Order Form;

 

4. Supply of Services

 

4.1. The Company shall provide the Services with due skill and care to the standards of acompetent telecommunications provider in accordance with any telecommunication regulatory requirements subject to these Terms.

 

4.2. Subject always to clause 13 the Company shall use reasonable endeavors to provide the Services to the Customer by the date notified to the Customer for the commencement thereof but such dates are estimated and cannot be guaranteed by the Company.

 

4.3. While the Company will use reasonable endeavors to make available the Telephone Services and the Broadband Service 24 hours a day 365 days a year, the Company cannot guarantee and does not warrant that the Services will be free of interruptions or will be fault-free or that there will be no degradations of the quality of the Services from time to time due to reasons beyond the Company’s reasonable control.

 

 

The Company shall not be liable for any loss or damages should the Services be interrupted from time to time.

 

4.4. The Company shall not be liable for any faults or defects in the Equipment except to the extent that the Company is providing Maintenance Service.

 

4.5. The Company may change the technical specifications of the Services from time to time provided that such changes do not materially adversely affect the performance of the Services.

 

4.6. The Company shall be entitled to use BT or any other carrier or provider for the provision of the Telephone Services and the Broadband Service from time to time and shall be entitled to switch between such providers as the Company sees fit in its absolute discretion.

 

4.7. Help-desk support: The Company will provide free help-desk support in relation to Telephone Services and Broadband Service during Normal Business Hours up to a maximum of 15 minutes per day.

Unused help-desk support on any day may not be carried forward to another day.

Help-desk support is limited to telephonic support and remote support where operationally possible.

Help-desk support does not include any on site support.

 

 

While the Company will use reasonable endeavors to provide the help-desk support to a reasonably competent level, the Company does not guarantee any response times in relation to its help-desk support.

 

 

The Company reserves the right to charge for help-desk support in excess of the free 15 minutedaily allowance at its standard rates for help-desk support.

 

4.8. Enhanced Services; The Company, in its sole discretion, may provide certain supplemental services to enhance the performance or functionality of any Service (Enhanced Service).

If the Company does provide any Enhanced Service in relation to any Service, the Company shall be entitled to charge the Customer its standard rates, from time to time, for such Enhanced Service provided that the Customer shall be entitled to terminate the Enhanced Service at any time by written notice to the Company during the first 90 days period of such Enhanced Service having provided by the Company.

 

 

In the case of such termination the Company shall refund the Customer any charges it may have paid in relation to the Enhanced Service and the Company may terminate the provision of the Enhanced Service.

 

 

If the Customer has not terminated the provision of the Enhanced Service within the said 90 dayperiod, such Enhanced Service shall thereafter form part of the relevant Service for all purposes under this agreement.

 

5. Customer Obligations

 

5.1. The Customer shall accept, and pay for, the Services in accordance with these Terms.

 

5.2. The Customer warrants that its details set out in the Services Agreement Order Form are true and correct and the Customer undertakes to notify the Company in writing immediately following any change in such details.

 

5.3. The Customer warrants that (if applicable) the Customer's existing telecommunications equipment (if any) is in proper working order and complies with all applicable standards and approvals so as to enable the Company to supply and continue to supply the Services.

 

5.4. The Customer shall provide all reasonable assistance to the Company (including access to all locations at which the Equipment and, if applicable, the Company’s Equipment is situated or is to be situated) so as to enable the Company to supply and continue to supply the Services.

 

5.5. The Customer shall not sell or transfer or attempt to sell or transfer any telephone number provided to the Customer.

 

5.6. The Customer shall not use the Services for any improper or unlawful purpose, (including without limitation offensive, indecent, menacing, nuisance or hoax telephone calls) nor allow others to do so and the Customer shall indemnify without limit in respect of any and all claims made against the Company arising out of or related to such use.

 

6. Company Equipment

 

6.1. The Company shall be entitled to (but not obliged to) place such of the Company's Equipment in the Customer's premises (or in such other location as may be nominated by the Customer) as may be necessary in order to provide the Fixed Line Service. Additional charges may apply for the provision of the Company’s Equipment.

 

6.2. The Customer shall provide a suitable place and appropriate conditions for the Company's Equipment (including a continuous mains electricity supply and connection points at the Customers own expense where the Company's Equipment requires such services) at the Customer's premises or in such other location as may be reasonably nominated by the Customer so as to enable theCompany to supply and continue to supply the Fixed Line Service (without cost to the Company) and shall prepare such premises or location at its own expense in accordance with the Company's reasonable instructions.

 

7. Fixed Line Service

 

7.1. This clause 7 applies only to the Fixed Line Service.

 

7.2. In the event that the Customer's existing telecommunications equipment has least cost routing software, the Company may reprogram such existing telecommunications equipment in order to facilitate connection to the Company Network and the Customer will be responsible for any third party charges in this regard.

 

8. Non-Geographical Numbers Service and Free-Phone Service

 

8.1. This clause 8 applies only to the Free-phone Service, the Non-Geographical Number Service and Geo NTS.

 

8.2. The Customer acknowledges that ownership of Free-phone Number(s), Non- Geographical Number(s) or Geo NTS Number(s) allocated to it by the Company shall vest at all times in the Company and shall not pass to the Customer and the Customer shall have no right to use such Free-phone Number(s), Non- Geographical Number(s) or Geo NTS Number(s) upon termination of the Freephone Service, Non-Geographical Number Service or Geo NTS (as the case may be).

 

 

The Customer furthermore acknowledges that the Company cannot give any assurance or undertaking that any such numbers can be ported or transferred to the Customer or any third party upon termination of the aforementioned Services.

 

8.3. The Company reserves the right upon giving the Customer not less than one month’s written notice to alter (without incurring any liability) the Free-phone Number(s), Non-Geographical Number(s) or Geo NTS Number(s) allocated to the Customer by the Company;

 

8.4. The Customer shall promptly inform the Company in writing of any event which is likely to substantially affect the number of calls to the Free-phone Number(s) allocated to it by the Company so as to enable the Company to devote appropriate telecommunications capacity to such Free-phone Number(s).

 

Tried to add info to last post but exceeded the 10 mins limit by 30 seconds

 

Issue date is 21 aug and will get him to forward AoS this week., then he has 14 days to file a defence?

 

Would you suggest he defend whole claim or admit the part up it's "cancellation".

They cancelled it already after 2 unpaid invoices. should he still formally cancel?

 

The intemet really was unusable and they instructed him to suspend the fixed IP in order for the Internet to work - his IP has to be fixed, otherwise he would be forever losing connection to his CCTV and remote connection to his office PCs.

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as long as he's done AOS on MCOL he has a total of 33 days to defend from the date on the claimform

is this northants bulk or Salford court please?


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I assume its Northants but will double check with him.

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Is that the entire contract/T&Cs you've posted up there?

 

Normally there would be a section about termination of the agreement, i.e. when the ISP can terminate and when the customer can terminate.

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DX100 - Yep, NN1 bulk centre, so Northampton

 

SV - I will check that now.

 

Not sure if I am allowed to post links, bit here are the Ts and Cs,

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follow the upload

 

 

get a CPR 31:14 running to the solicitors


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They are not using solicitors and would be able to come up with most of the info a CPR 31:14 requires.

 

Would they have ANY grounds to defend the claim in full.

 

Particulars of Claim is attached.

 

try again

internet POC.pdf

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looks like charges to end of contract to me

they cant do that

and looks like the 8% is very wrong too?!

mickey mouse company, mickey mouse POC!!

 

 

let andyorch comment too.


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£440.00 per month sounds rather expensive for Broadband...as they state they are only claiming 2 months within their particulars.

 

We really need the rest of the T&Cs with regards to breach and termination and any signed agreement if there is one.

 

Who is this company ??..time to name and shame.

 

Section 69 interest is correct on the amount of the claim.

 

Regards

 

Andy


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They are called Shine Internet in Worcestershire. Can't find anything bad on the Internet about them, they must be very new!!!

 

 

The £880 is about right until end of contract in August 2018, I wonder if they meant 2018 on the PoC and not 2017.

 

 

I will get the full first page of the summons.

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:thumb: ooops thats fortunate if their particulars claimed are wrong...2 months is 2 months :wink:

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so the defence will include?

 

 

. Subject to the above, should the alleged amount claimed include an early termination charge(s) amounting to the total balance of the remaining contract, OFCOM guidance clearly states that any Early Termination Charge, that is made up of the entire balance of the remaining contract, is unlikely to be fair, as it fails to take into account the fact that the provider no longer has to provide and pay for their service.


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Thanks Andy, I now have an email of the summons in front of me.

 

They are Shine Networks of Havants in Hanpshire. Internet gives Worcester as their location.

 

They are claim £890.12 plus £60 court fee. No rep fee claimed, so DIY.

 

Particulars of claim:

 

The defendant was supplied broadband and telephone services by us (claimant) under a 24 month contract due to end 25/08/18.

 

 

They paid for these services for month,

but the last 2 invoices have gone unpaid.

 

 

They have transferred broadband away and unplugged phones.

 

 

There has been no warning or contact.

 

 

We have tried contacting via telephone, email, mobiles and we get no reply.

 

 

As such debt management tasks took place and any services as things stand we stopped due to the length of time and debt.

 

 

They have the broken the contract and outstanding sums have been invoiced as per the contract and terms.

 

 

These are within these invoices,

We have still not been able to contact anybody via any method so are making this claim as per the debt, contract and terms.

 

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 19/07/17 to 18/08/17 on 882.58 and also interest at the same rate up to the date of judgement or earlier payment at the daily rate of £7.54.

 

I have asked for copies of the last 2 invoices as one must be for the remainder of the contract.

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Yes......." They have the broken the contract and outstanding sums have been invoiced as per the contract and terms."


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The Ts and Cs are very large and I had a problem downloading it yesterday. Google Shine Internet Terms and Conditions and look out for v2 (10x the size of v1).

 

 

What's the defence dx?

Internet constantly down - hours on the phone to them.

They advised the users to delete the fixed IP in order to get the Internet working, they need a fixed IP for CCTV and remote access to office pcs

The users warned Shine they would go back to BT if things did not improve and were told BT were just as bad and they were under contract so could not leave.

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Yes......." They have the broken the contract and outstanding sums have been invoiced as per the contract and terms."

 

 

Yes, I know that, but given their situation and the appalling service I would have done the same, but sent an email to say I was cancelling forthwith.

 

 

They believed by warning the claimant of their intention they were giving notice. I doubt if this holds any water but a slim chance is better than none. Do they STILL need to serve notice or has the clock now stopped?

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Just spoken to the guys running the company and they have never seen an invoice from Shine either by post or email since starting with them 12 months ago! Gret accounting.

 

 

They did sign a Service Contract and I am sure it will bleet on about invoices only being available online, blah dee, blah dee, dee bloody blah!!

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Scanned through their Ts and Cs and cannot see any mention of invoices or how they are supplied.

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They believed by warning the claimant of their intention they were giving notice.

If the customer did not clearly notify the supplier that it is terminating the contract, the contract will remain in force.

 

Saying that "we are thinking about moving to BT" is nowhere near enough. Either the customer terminated the contract or it did not. There is no middle ground.

 

If a proper notice of termination was not given, the contract is still in force. And the customer will continue to be liable for all future invoices until such time as the contract has been terminated.

 

The T&Cs has an evergreen clause (clause 3) which says that it will continue renewing forever and ever for successive 12 month terms until a notice of termination has been given. Hence why the customer really needs to get a grip on creating a proper paper trail to prove that the service has been terminated.

 

If the customer feels that the supplier has breached the contract in a fundamental way, it now needs to send the supplier a clear notice of termination. The customer should send a separate notice of termination before filing a defence. This would allow the customer to say in the defence that it has terminated the contract due to the claimant's breach of contract.

 

No doubt the supplier will dispute that it has breached the contract. You can argue about that in court.

 

As the contract was not terminated, I think the customer has to accept that it will be liable for all invoices up to the date of termination. The only way to get around that would be to make a counterclaim against the supplier, so that the value of the counterclaim can be set-off against the outstanding invoices. To go down this road the defence will need to include a counterclaim. This will need to contain (1) a clear allegation that the supplier has breached the contract, and (2) a clear explanation of the estimated financial loss that has been suffered as a result. Read the T&Cs and see if you can identify any particular terms which the supplier has not complied with, especially terms to do with service provision.

 

I see that the supplier is claiming for all invoices to the end of the contract - not just the last 2 months. The defence should make it clear that (1) the future services have not been provided and so the customer is not liable to pay for them, and (2) there is no provision for any early termination fee in the T&Cs.


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Thanks Steampowered for a clear explanation - I have no legal experience and am simply trying to help a friend who is a very hardworking businessman, but a complete pillock.

 

 

I wasn't really being serious about them believing they had given formal notice - just had a crap day. From what I understand it was a very heated conversation with the phone being slammed down in the end, rather than a precious little warning that he was thinking of leaving.

 

 

Anyway, I will get him to email them tomorrow in order to get this cancelled formally. Also, to ask how he can view these magic invoices that are only visible to them.

 

 

I would get him to compare last 3 months revenue using them against same three month last year, but with Brexit investment cutbacks they could claim it is a unfair comparison.

 

 

Can he make a counter claim for the time he wasted trying to sort this? Difficult to access and prove if any business was lost, but would receive many email tenders and it's a first come, first serve type of business with many blue chip clients, so one lost tender could mean tens of thousands.

Edited by maggie60

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