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

[steampowered]

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.

Good idea. It is always going to be extremely difficult to quantify/prove a counterclaim like this, and it may not stand up in court if this gets that far. At this stage a very rough estimate is fine.

 

But I would still put a counterclaim in the defence and on the table as it creates negotiating leverage to encourage the supplier to agree a reasonable settlement. Putting a counterclaim forward doesn't cost anything.

 

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.

In theory, yes he can - you can't claim for time spent on its own, but you can claim for time wasted in a business context if that resulted in a loss of business. This kind of counterclaim is extremely difficult to prove and not often awarded for that reason.

 

I would phrase the counterclaim in the defence fairly generically together with anything else he is counterclaiming for, along the lines of "The Claimant breached the contract in that it [explain]. The Defendant suffered loss as a result, including [provide a short list]".

[maggie60]

But I would still put a counterclaim in the defence and on the table as it creates negotiating leverage to encourage the supplier to agree a reasonable settlement. Putting a counterclaim forward doesn't cost anything.

 

 

If the counterclaim is greater than the original claim isn't a fee for the difference in fees payable?

[maggie60]

Bugger, 2017 revenue up 100%+ on 2016, despite Shine.

 

 

 

 

Sending:

To Shine Accounts

Subject: Cancellation of Contract

Dear Sirs,

 

Can you please take this as confirmation of our wish to cancel our contract (quote the contract number) with you with Immediate effect as you have been unable to provide the service promised to an acceptable level.

We are concerned that in over 12 months we have not received a single invoice from you either by post or email and we would ask you to email all invoices without further delay. Indeed the only communication we have received is an email chasing an invoice we have not seen.

We are currently calculating our claim against you.

Yours sincerely,

Edited September 1, 2017 by maggie60

[AndyOrch]

You have to pay a fee for a counterclaim irrespective of its value

 

Andy

[SuperVillain]

The customer here needs to put a timeline together of when and what problems were notified to Shine, and on each occasion what they did (or tried to do) to fix them. If they have copy emails that they have sent, all the better.

 

The reason is clause 14.5.1 which allows the customer to terminate when the ISP has materially breached the contract and they have not rectified the breach within 60 days of first being notified (or if the IPS fails to provide a service for 60 or more consecutive days)

 

Also with regards to the counter-claim note the exclusion clauses at 13.4...

[maggie60]

Thanks SV and apologies for delay in getting back.

 

 

Clause 14.5.1 - is 60 days reasonable? I would have cancelled it myself if not sorted within 72 hours.

Clause 13.4 - counterclaiming for time spent, not included in the 6 points, or am I misreading it?

[steampowered]

There are two possibilities for terminating this contract before expiry of the minimum term:

 

1) The express contractual term in clause 14.5.1, which allows termination if the customer notifies Shine of a breach in writing which is not remedied within 60 days.

 

2) The common law right to terminate a contract for fundamental/repudiatory breach - this applies in addition to what is stated in the T&Cs.

 

In order to rely on (1), the customer would have to prove that the supplier was notified in writing of its breach of contract and failed to remedy it within 60 days. I could be wrong but it sounds like the customer cannot prove this.

 

In that case the customer can only rely on (2). The difficulty would be proving that the supplier was in fundamental/repudiatory breach of contract. But at least worthwhile putting this in the Defence for now, as a robust defence will increase the chance of a reasonable settlement.

[maggie60]

Thanks Steampowered. I am sure the current (v2.0) Terms we see online are a heavily updated version of the original single page, simple agreement they signed up to. Let me check with them.

 

 

In the meantime with an Issue Date of 21st August, I would like them to get an AoS filed by tomorrow. What do they need to say in the acknowledgement. Someone mentioned a fee payable to make a counterclaim, but like you I thought it was free unless it was higher than the original claim. I haven't been able to find anything online to say if a fee is payable. Anyway, I understand they need to dispute they claim in full, (and make a counterclaim), how do they move it to their local court and what other boxes do they need to tick in the AoS.

 

 

Thanks,

 

 

Maggie

[steampowered]

Yes they need to get on with filing the AOS to risk a default judgment.

 

They don't need to say anything in the acknowledgement. Just tick the appropriate box indicating an intention to defend all of the claim.

 

Yes a fee is payable for a counterclaim when you file the Defence.

 

Allocation to a particular court comes later.

[maggie60]

Thanks, I don't want them to screw up on a technicality and the clalmant get judgement just because a box wasn't ticked.

 

 

Are there any links to a sample AoS so I can fully check it out.

[steampowered]

Tick box 1 which says "I intend to defend all of this claim". Don't tick box 2 or 3.

 

There shouldn't be anything else on the AoS aside from filling in the defendant's address and claim number etc.?

[maggie60]

That's good - doesn't need to say he is making a counterclaim at this stage then?

 

 

Can I just confirm AoS needs to be filed by 8 September if ussye date 21 August.

[AndyOrch]

Friday the 8th before 4.00pm

[maggie60]

Thanks will get him to do tomorrow and check it is confirmed received.

 

 

Does the defence submission clock start ticking for 14 days from when the AoS was sent or the last due date? If the latter, I will get him to do it now.

[AndyOrch]

Defence should be submitted Friday 22nd September before 4.00pm

[maggie60]

That's great, let's get the AoS off now.

[maggie60]

as of close of business today they have still not received one invoice and we need to get the defence/counterclaim off for Thursday.

 

I believe that the Terms and Conditions showing online for Shine Networks Ltd are now vastly amended from what they originally signed up to, but as all links lead to the new Ts and Cs it is impossible to prove.

 

Is a counterclaim for £250 for time wasted on resolving Internet issues a feasible counterclaim and what would be the cost?

 

Any ideas for a reasonable defence based on the poor quality on the Internet service?

 

 

I know they went about things the wrong way, in just walking away, but according to Shines Ts and Cs they give themselves so long to resolve any issues, a normal business relying on Internet/emails would have gone bust long beforehand.

[AndyOrch]

Up to £300 £35 paper format £25 online...you will have to quantify and evidence the amount claimed ...may be difficult to prove " time wasted "

[Isiris]

I dont like to challenge Andyroch but are you SURE the S69 Interest is correct.

 

It says the daily rate is £7.54 per day

 

So 7.54 X 365 is £2752.10 Per Year Interest.

 

£2752.10 divided by 8 then multipled by 100 is £34,401.25

 

So, IMO, for the daily rate to be £7.64 per day, the claim would need to be £34,401.25

[AndyOrch]

Let me just check Isiris

 

Interest is £70.56 over 12 months

 

40 days claimed

 

should be 0.19 per day ?

 

£7.60 ? I think they have stated the total interest instead of the daily rate.

 

1. Work out the yearly interest: take the amount you’re claiming and multiply it by 0.08

(i.e. 8% - this will equal 8% of the amount claimed).

2. Work out the daily interest: divide the yearly interest from step 1 by 365 (the number

of days in a year).

3. Work out the total amount of interest: multiply the daily interest from step 2 by the

number of days the debt has been overdue.

 

 

Well spotted Isiris

[maggie60]

Thank you both.

 

As Andy says a counterclaim based purely on wasted time is going to be pointless and impossible to prove.

 

My instinct would be to dispute the claim in full or would the defendants be better to admit the claim up to the point they emailed cancellation. No legal rep fee so just the cost of the summons (and a valid rate of interest) so far? Is it too late to do that?

 

My suggestions to them for defence would be:

 

1. The constant, unworkable downtime of the Internet service provided and their attitude towards the problems.

2. The fact they said they would have the same problem with BT. Since returning to BT, no downtime at all.

3. The unreasonable time they allow themselves to correct connection problems.

4. The fact that up to now not one invoice has been received from the plaintiff.

5. Use Isiris' figures to demonstrate the ridiculous interest rate they are claiming.

 

I have a copy of service agreement they signed up to and will ask they for a schedule of payment made to Shine so I can check this.

Is 8% the accepted interest rate?

Edited September 20, 2017 by maggie60
correct grammar

[maggie60]

The service agreement was signed on 10/10/16 and states:

Broadband:

1. One off payments: Router charge £39.99, connection charge £0, line installation £105.00

2. 24 x monthly rental charges of £28.50.

Notes:

Shine Hosted Services (to be collected by direct debit) - 3 x Shine hosted seats licences (users), unlimited local and national calls, 1000 mobile minutes £24.80. Although commonsense would tell us this was a monthly charge - nowhere does it state that and they were sold the full service as costing them £28.50 per month.

Notes:

Additional one-off/setup charge

3 x SIP Cordless Handsets £162.72

The following amounts were taken by Shine by direct debit:

November 16 £472.81.

December 16 £82.02

Jan 17 £80.69

Feb 17 £81.19

March 17 £80.69

April 17 £80.69

May17 £81.71

June17 £80.69.

 

As they have not sent any invoices, it is impossible to reconcile these charges:

If we say the initial one-off charges of £307.71 and adjust two months x £24.80+£28.50, then add VAT, we get close to the £472.81, but this doesn't explain the monthly charge of £80.69 to £81.71. £53.30 plus VAT does equal that.

Furthermore, in July, one month after a normal payment they tried to take over £800 and £600 the following month. Both attempts failed as the direct debit was cancelled.

[maggie60]

Could erratic and unexplained charges and no invoices be used as a defence?

[maggie60]

Defence has now been filed online, but this has references to attached documents and I cannot see a way of attaching/downloading anything. Are these forwarded later and should I amend the references on the defence.

[AndyOrch]

You cant submit evidence with a defence through MCOL...that is normally done at the next stage should they wish to proceed through your witness statement.

 

An initial defence should just admit or deny or accept...not introduce.

 

Regards

 

Andy