Sueing the BBC.........again.

[Its WAR]

 

 

I have claimed (on behalf of my uncle) 8 months refund for TV licence fee in line with TV licensing policy. All requests by posted letter. Initial request for refund 8 Feb, result.... No refund. I have chased a couple times later and still no refund. I threatened proceedings in the County Court (all by signed for post) and still no refund. Two weeks ago, I issued proceedings in the County Court and (lo and behold) in response to the summons a Without Prejudice letter arrived today (you've guessed it......still no refund).

 

BBC are complaining it is unfair that I issued proceedings because had they received my request for a refund (or more accurately.....had I submitted my request by answering the questions on their refund application form), I would have had the refund.

 

So it seems, they seek to choose only to refund people who use their form rather than make a request by letter.

 

Anyway, their without prejudice letter accepts I sought to cancel the license in February and now offers me the refund but refuses to pay the £25 court fees (in other words they will refund the license fee only if I drop the case). Then this.........."If you do not accept the offer, they will defend the case......"

They state they will be relying on 2 points.......1) the idea that TV licence refunds are discretionary 2) That I do not hold Power of Attorney to act for my uncle, so my wife (who does) should have issued the claim. Therefore they will seek to have the claim struck out on a technicality.

 

Somehow I expect (if I ignore the letter and neither accept nor reject their offer), I will simply get a cheque plus fees in the post before they submit a defense (they have 2 weeks to do so).  The thing is, if it goes to a hearing, the argument regarding whether a simple letter requesting a refund (followed by repeated requests) is as good as completing their application form (as far as a letter should be good enough). 

 

I suppose the question whether I or my wife should be named as the Claimant could be important, but I wonder what the point would be for them to fight it rather than just settle. Also if the case were heard in court and I lost because of the need to have completed their form rather than a applying by letter,   I would still request a refund afterwards assuming the judge ruled the application must be made on their form. I would simply make another claim on their form.

 

I think the BBC must still have a horrid taste in their mouth after I sued them last year because they auto renewed my uncles direct debit for seven years. This time they want to fight back.

 

Edited May 27, 2021 by Its WAR

[FTMDave]

Filling in their silly form is neither here nor there.  They owe the money.  They ignored your letters and they ignored your Letter before Claim.  Their fault.

 

I would be more worried about the fact this money is owed to your uncle, but you sued.  Either your uncle or your wife, given she has Power of Attorney, should have issued the claim.  I would be tempted to take their money and accept the hit on the £25.

 

Why didn't your wife take this action?  Wouldn't that have been easier and cut out the chance of their defence?

 

However, see what others think.  I have zero experience on anything to do with Power of Attorney!

[FruitSalad1010]

I've seen it recommended on the these forums before, you could try sending them a full and final settlement offer which includes the refund, the court fees and a small sum for the inconvenience they have caused you by ignoring all of your correspondence.

 

It would be surprising if they defended the claim in order to save £25, even if the lawyers are on retainer unless they are completely under utilised this doesn't seem to make commercial sense. I would expect the sum that does make commercial sense to not defend the case is in fact higher than just the additional court fees.

 

Worst case is they decline, perhaps they come back with an improved offer, failing that you have the option to cancel the claim and re-submit it using the correct claimant for the refund however that looks unlikely to succeed given they have offered the refund.

 

How do they know who holds power of attorney? Also who submitted your previously successful claim for 7 years over payment, you or your wife?

[Its WAR]

FTMDave, Do they owe the money, if they have an excuse under Section 365 of the Communications Act 2003 which stipulates that refunds can be considered "in such cases as the BBC may determine" ? In other words it is discretionary. I doubt a judge won't even  get close to thinking that is fair. It will be interesting to see how that flies if we get a hearing.

 

Fruit Salad. I issued the previous claim and the issue of power of attorney did not crop up.

 

I shan't worry about the technicality, if they want to bother defending over £25, they are welcome. I would be quite pleased if they did especially if I get to argue the case. Although it would cost another £25 hearing fee which the BBC will also be exposed to.

 

 

 

 

Edited May 28, 2021 by Its WAR

[FruitSalad1010]

If they bring up the technicality I suppose you should steer focus back to the point that it would not have been necessary to issue proceedings if they had simply issued the refund as they ought to have done.

Did you receive any response of any kind to any of your communication prior to issuing a claim?

If they have refused to communicate entirely that may not be in keeping with pre-action protocol.

While it is risky you may benefit from being a litigant in person. There is a small chance a judge could conclude that if the claim is struck out based on the technicality then the logical conclusion of events is that the claim is simply resubmitted correctly. In order to prevent further burden on the courts they may be able to exercise their discretion to decide the case immediately. However when the question of costs is raised the technicality may be detrimental as the conclusion would be that you should bear the costs of the incorrectly submitted claim and that the defendandt may only be liable for costs of the correctly submitted claim.

The only way I can see costs being awarded is if a case can be made that the defendant has acted unreasonably during pre-action protocol and had they abided by said protocol it would not have been necessary to issue proceedings.

Edited May 28, 2021 by FruitSalad1010

[Its WAR]

There was sufficient correspondence to avoid the court action, but each reply form TV licensing was to send me a claim form to complete so I could answer their questions as to why I was requesting a refund. They suggested that it was their duty to ensure (by asking certain questions) they could be sure I was not committing an offence by not having a license. As if it is their responsibility, which it is not. They may be responsible to enforce the Act but I would think it was my responsibility to ensure I was not acting illegally. It seems my reason saying he "did not want to buy their product anymore" is not one of the reasons on their refund request form.

 

[FruitSalad1010]

Personally I would send a full and final settlement letter for the refund, the courts costs and a small sum for the inconvenience caused. You could remind them that should the case proceed to court you will be claiming interest on the sum they have failed to refund. If they have done their research they should know you are capable of successfully bringing a claim. Therefore they may be more likely to settle on your terms if you provide a written guarantee the claim will not be continued.

It may be that there wasn't sufficient action on their part to prevent court action. If they intend to rely on the fact you did not fill in their form and it can be argued this is unfair or un-necessary then the fact they didn't issue any kind of refund prior to you initiating proceedings and continue to not do so, is in my opinion significant.

Once it is clearly established they owe the money then it should be simple enough to argue not issuing the refund was unreasonable and it was this unreasonable stance that led to the additional costs of issuing proceedings. I would put additional focus on whether a reasonable person would have been able to assess if the money was owed. It's pretty weak ground to defend the case claiming issuing a refund was ambiguous without their form being returned. The fact they have offered the refund makes it pretty clear they have little confidence in this argument or the fact that refunds are entirely discretionary.

In the interest of fairness the judge may deny costs based on the technicality but there's only really one way to find out. Considering their offer is without prejudice they should not be able to rely on this evidence to indicate they have acted reasonably prior to a hearing. The only way I think they could be seen to have acted reasonably is if as you suggest they simply issue the refund.

 

 

Having given some thought to section 365 of the Communications Act 2003 it may be that the BBC have misinterpreted the wording of the act, unsurprisingly in their favour.

"3 The BBC are entitled, in such cases as they may determine, to make refunds of sums received by them by virtue of regulations under this section."
 

I am wondering if the intention of this clause is that the BBC is awarded the scope to refund the license fee which it is lawfully required to collect, without being considered in breach of the act.

The logic being the BBC is lawfully required to collect the license fee.

 

If the BBC issues a refund where there was no requirement it could be considered they are in breach of the act by failing to collect the license fee.

This clause protects the BBC from liability if they determine a refund should be issued.

The clause is not intended for the BBC to become the sole arbiter of what should or should not be refunded but rather means they are not in breach of the act if they determine a refund should be issued.

Edited May 29, 2021 by FruitSalad1010

[FruitSalad1010]

On further thought the consideration of section 365 doesn't appear to hold true. Any fee pertaining to a tv license is simply regarded as recoverable by the BBC, it does not appear that the BBC are in fact obligated by the act to recover the license fee.

Section 365 TV licensing fee (2) Sums which a person is liable to pay by virtue of regulations under subsection (1) must be paid to the BBC and are to be recoverable by them accordingly.

[FruitSalad1010]

Well maybe it wasn't so far off the mark after all, on their own website TV licensing infact refer to section 365 as indicating it requires the BBC to pay all licence fee revenue it collects (via TV Licensing), less any sums required for making refunds, into the Government’s Consolidated Fund.

Link here.

 

So again maybe the clause above exists soley to absolve the BBC of any liability for non payment of revenue collected to the Government's Consolidated Fund, because it was refunded.

Edited May 29, 2021 by FruitSalad1010

[Its WAR]

Great few posts FruitSalad and a very clever interpretation for a counter argument. It will  be exciting to present it to a judge. I doubt it will get that far though. I don't expect I will make a full/final settlement offer because I really want to see their written defense and subsequently a witness statement and what they will rely upon at a hearing. I had thought to simply reply to their letter along the lines of "Thank you for your offer, to which my reply  is no. Yours Sincerely.

 

[Its WAR]

Update. Another letter arrived today. 

 

They now confirm they cannot refund unless they know the reason "as this may leave the person liable to prosecution". So it seems simply telling them you no longer want to buy their product is not a good enough reason, but telling them you no longer watch live TV as it is being broadcast (which is one of the tick boxes on their form) is. They still maintain it is their responsibility to ensure the public are not breaking the law, rather than the individual being responsible for ensuring they do not break the law, and their responsibility being only  to prosecute offenders.

 

They confirm again, they have no legal obligation to make refunds. They state legislation "doesn't allow for any refund if the licensee fails to gain full benefit from it. However, it does give the Licensing Authority power to make any refunds they see fit in certain circumstances. One of these circumstances is that refunds can be given for full unused months as long as the licence isn't needed".

 

They state they need documentary evidence in some instances, but how do you give documentary evidence that you no longer watch live TV, apart from signing a letter telling them? Which I have done.

 

They state that no refund form has been received and confirm again that no refund will be given unless they have a reason why it is no longer required.

 

They fail to address  my letters (in place of their form) and my reason (not wanting to buy their product anymore) as being a valid application and reason.

 

They await my advise updating them. So I guess it would be straight forward if I complete their application form. But having issued the summons I now require them to repay the £25 issue fee too. So I will do nothing more until or if I receive their defense document next week.

 

It seems to me this case will hang on whether a letter is as good as an official form and whether I am responsible to ensue I do not break the law and that is not their responsibility. 

 

[FruitSalad1010]

It may be interesting to learn from their defence document what legislation they are relying on when claiming legislation "doesn't allow for any refund if the licensee fails to gain full benefit from it". I see no such reference in the Communications Act to this claim and it seems to be in complete contradiction to the information provide here.

 

Quote

You can request a refund for your TV Licence if:

• you won’t need your licence again before it expires, and you have at least one complete month left on it

The documentary evidence they appear to be referring to is simply their form. I would put them to strict proof that they do in fact require documentary evidence which constitutes specifically that form.

Justice.gov.uk appears to have a different interpretation of what constitutes a "document".
 

Quote

Here, “document” means any form of recorded information, not just writing on paper. It includes, for example, pictures, emails, mobile phone texts, social networking messages or video-clips.

While justice.gov.uk is referring to documents exchanged as part of disclosure, it would be interesting to know on what basis the BBC claim to have the the right to apply a more restrictive definition of document than that of the courts of the land.

 

Quote

They state that no refund form has been received and confirm again that no refund will be given unless they have a reason why it is no longer required.

This feels like a trap, any further explanation beyond the reason you have already provided as to why the license is no longer required could then be construed in an attempt to claim had further explanation been given before hand they would have issued the refund.

While they offered the refund "without prejudice" I see no reason why you cannot include in your witness statement the fact an offer for the refund was received. You may then be asked to justify why you didn't accept the offer, but equally they may be asked why did they offer the refund instead of simply issue the refund.

[Its WAR]

FruitSalad, absolutely spot on. Win or lose, I don't mind much. But I will request the judge to declare specifically that my letter did or did not constitute a  proper claim for refund. And that simply not wanting their product anymore is a good enough reason (although it does not appear as a reason on their claim form). And that it is the customer who is responsible for ensuring they are not breaking the law, not the BBC.

 

Can't wait to see their defense document to see exactly what part of the claim they are accepting and if it is the value of the refund excluding the court fees, I will wonder why that part at least has not been refunded already. 10 days and counting. 

[Its WAR]

Defense arrived today. They are defending the whole claim. They state.

 

1. The claim is defective and has been issued in the name of a Mr (me) and not Mr (the license holder) to which this dispute relates. A Power of Attorney form has been provided but does not list Mr (me). The declaration of truth has also been signed by Mrs (my wife who holds the Power of Attorney) who is not the claimant nor the licence holder. On this basis we would submit that the claim form is defective and should be struck out as the Claimant has no authority to issue the claim on behalf of the licence holder.

 

2. The Defendant will also assert that a TV Licence is classed as a statutory permission and is not subject to contract law or consumer protection legislation. As such eligibility to refund payments are set out in statute and Section 365 of the Communications Act 2003 stipulates 'refunds can be considered in such cases as the BBC may determine. Accordingly the payment of any refund is made at the discretion of the BBC and is done so inline with the BBC 'Refund Policy'.

 

3. Furthermore the Defendant will assert that a completed refund application was never received by the Defendant, and therefore if it was not possible to adjudicate if a refund was payable and if so what amount was owed. The Defendant had requested that a refund application be submitted however the Claimant refused to provide additional details when requested.

 

My initial observations are:

1. Maybe the claim is defective but it shows the true colours of the BBC to choose to defend the claim on such a technicality. I guess my wife should have issued the summons not me acting as her agent.

2. It may be quite correct that a refund is discretionary, so the question remains whether my reason for a refund qualifies and if so, there should be no discretion.

3. They insist a completed refund form has not been received (which is true as my application was by letter, which they accept they did receive). My letter contained the dates, amount and reason. They rejected the letter implying it did not constitute a 'completed refund form' and continue to reject the claim.

4. I guess they would immediately refund if (my wife) submits a fresh refund application form. I wonder whether the court would expect her to do so rather than pay £25 for a hearing fee. Although I would still seek to pay the hearing fee to have the court decide whether the BBC should still reimburse the legal costs......and of course, this is not about the money anymore, but about examining the argument and getting a judge to decide the issues.

5. I wonder what is 'in it' for the BBC to defend rather than just pay up?

6. Should I write to the court requesting the case is not struck out as it seems to me, the court might well strike it out and suggest I just make a new claim refund on the BBCs application form. 

7. I think maybe I go for rough justice and get the issue in a national newspaper for middle England to judge.

 

 

[FruitSalad1010]

It may be worth exploring what the costs are of changing the name of the claimant. It may turn out that the costs are substantially higher to change the name of a claimant later on but presumably you would be no worse off for finding out as if the costs were prohibitive you simply discontinue the claim and submit a correct one accordingly.

Presumably this throws into question the availability and willingness of the new claimant to participate.

It used to be that a "McKenzie friend" was unable to speak for the claimant in court however there appears to be increasing latitude towards this. While it may be necessary to bring to the attention of the judge there appears to be reported success of individuals other than the claimant being able to advocate the case as a "lay representative".

With regards to point 2. I don't think anyone is claiming a refund under the consumer rights act, this appears to be a stab in the dark at your potential claim unless you specifically mentioned it. I think you would be perfectly entitled to simply refer to the information TV licensing have published on their own website indicating they offer refunds.

Was the previously offered refund subject to the condition of completing their form?

Edited June 7, 2021 by FruitSalad1010

[Its WAR]

The previous offer to refund only had one condition, it excluded the £25 hearing fee. I only had to accept it, which I haven't done yet. So far, the offer has not been rescinded.

 

[Its WAR]

What is the position if the acknowledgement of service states the defendant intends to defend part of the claim?

Surely the form should say which part they plan to defend. Thus giving me the opportunity to settle the claim for the amount they don't want to defend.

 

However, in this case, they have sent in a defence against the whole of the claim.

 

This means they failed to properly complete the acknowledgment of service. It is a defective document, possibly in a similar way they claim the summons was defective.

 

Is there any mileage in suggesting the defects cancel each other out?

[FruitSalad1010]

Presumably the part they do not wish to defend is in relation to the refund as they have already offered to settle for that amount.

 

I believe I have read elsewhere in other threads on CAG that it is not uncommon to see a full defence filed when only partly defending the claim, it is askin to buying a second lottery ticket. The judge may see it their way and if they are to attend a hearing in any case, they may as well attempt the argument.

 

I don't think it could ever be argued one action cancels out another, it could simply be pointed out that the defendant has also made errors but I do not believe this is one of them, a brief read of PAP appears that there are no provisions set between filing a part defence or a full defence.

[Its WAR]

Rather disappointed to to receive an order form the court striking out the claim on the basis that it was not issued in the name of the person entitled to bring a claim (ie my uncle). I had made the mistake of naming myself as the claimant.  I should have applied to be his litigation friend (and of course can do so if I issue another summons and send the litigation friend forms into the court with the summons).  Alternatively I can apply to have the order set aside and support the application with the litigation friend forms. The setting aside application costs £80. So clearly the best option is simply to issue another summons and apply the rules of CPR 21 and in the meantime there is a window open for the BBC to make the refund and safely for them avoid a hearing.

 

However I am sure the court will look dimly on another summons as the defendant has made an offer to settle the value of the refund. This offer has not yet been accepted by me nor rescinded by them. So it is obvious I should first accept the offer and therefore risk  losing the opportunity to discuss this claim in a court if they pay up. Unless of course they renege on their offer, in which case my action has an extra point of claim.