Shell Energy - Failure to disclose data

[Intrepid]

There is a negative account balance showing on the account however it is disputed.

Shell Energy have been applying increased standing charges to the account on a monthly basis which I do not believe I am liable for following their mismanagement of my account.

 

The cause for action is their continued harassment for a debt which is disputed in breach of the protection from harassment act 1997.

 

Shell Energy have failed to respond to the LBC I sent them on 1st November 2021 regarding their incomplete disclosure, so I will bringing a further claim for this next week when they miss the deadline to respond.

Edited November 11, 2021 by Intrepid

[Intrepid]

What has likely happened is, as a result of their payment system failing last month 2 payments were made to the account.

 

Lloyds bank refused to return the second payment so I simply did not make a payment to the account this month.

 

Shell Energy have clearly put the account on a payment plan without my agreement (in breach of their obligations) and as a result of not making a payment this month, have decided to default the account.

[Intrepid]

@BankFodder Shell Energy were specifically instructed on 31st March 2021 not to contant me via text message regarding the balance of the account. They are of course free to write to me via e-mail or post.

 

Today I received another text message to my mobile phone.

 

Are you still of the opinion given the information I have provided that there truly is no cause, if you think it is doomed to fail I will heed your advice, however in summary below:

Shell Energy have been instructed not to contact me via text message and have breached that instruction twice in two days. This is causing me distress. They have already been put on notice with a letter before claim not to harrass me in this way and this meets the criteria as laid out in the protection from harassment act 1997.

Edited November 12, 2021 by Intrepid

[Intrepid]

I propose the following particulars of claim:

 

Quote

1. On 31st March 2021 Shell Energy were instructed to cease and desist sending harrassing text messages to my personal mobile.

2. Shell Energy breached this lawful instruction on 11th November 2021, again on the 12th November 2021 and have not agreed to discontinue their campaign.

3. Shell Energy's campaign of harassment is causing me distress.

4. The claimant seeks relief of £100 for distress under the Protection from Harassment Act 1997.

 

Edited November 12, 2021 by Intrepid

[BankFodder]

Thanks. I didn't realise that this was a harassment issue. I thought it was about the dispute over money owed or not owed and that we were dealing with inaccurate data processing.

You say that they had been instructed to cease sending harassing text messages. Who was it who said that instruction? Or that the energy ombudsman?

Is there a right of action under the small claims system for breach of the 1997 act?

[Intrepid]

Thanks for your reply.

Unfortunately the issue is complex and as a result of Shell Energy ignoring my instruction it now covers all of the above, a disputed account balance, their inaccurate data processing and their campaign of harassment.

I sent the instruction.

That is an excellent question the only provision I can find for allocation under CPR concerning harassment is the following:
 

Quote

PART 27 - THE SMALL CLAIMS TRACK
Scope of this Part

27.1 (Rule 26.6 provides for the scope of the small claims track. A claim for a remedy for harassment or unlawful eviction relating, in either case, to residential premises shall not be allocated to the small claims track whatever the financial value of the claim. Otherwise, the small claims track will be the normal track for –

 

any claim which has a financial value of not more than £10,000 subject to the special provisions about claims for personal injuries and housing disrepair claims;

 

any claim for personal injuries which has a financial value of not more than £10,000 where the claim for damages for personal injuries is not more than £1,000; and

 

any claim which includes a claim by a tenant of residential premises against his landlord for repairs or other work to the premises where the estimated cost of the repairs or other work is not more than £1,000 and the financial value of any other claim for damages is not more than £1,000)

 

Quote

PART 26 - CASE MANAGEMENT – PRELIMINARY STAGE
General rule for allocation
26.7 (4) The court will not allocate a claim to the small claims track, if it includes a claim by a tenant of residential premises against his landlord for a remedy in respect of harassment or unlawful eviction."

 

The CAB have the following information posted on their website regarding harasssment:

 

Quote

Take action under the Protection from Harassment Act 1997

Harassment is both a criminal offence and a civil action under the Protection from Harassment Act 1997.

This means that someone can be prosecuted in the criminal courts if they harass you. It also means you can take action against the person in the civil courts.

In addition there is a case upheld in favour of the claimant vs British Gas for harassment detailed here at https://www.bailii.org albeit that due to the value of the claim it was allocated as a part 8 claim.

My understanding of the above is that a claim for harassment can be allocated to the small claims court as it does not fall under the criteria highlighted above in bold.

 

If you have any thoughts of where else I could refer to, to ensure I have a right of action under the small claims system I will gratefully receive them and seek out the information.

 

Edited November 12, 2021 by Intrepid

[BankFodder]

A quick response to part of your post – it confirms my suspicions that the small claims track cannot be used for the action you are considering.

This means that it would have to be a part eight claim – and this is much more complicated but also the small claims cost rules don't apply and that means that if you lose, you may end up having to pay quite a bit of money.

I think you are looking at very dangerous terrain

[Intrepid]

I understand this and immediately thought this is where this was headed but I urge you to read the above post in full, in particular the parts highlighted in bold within the quotes.

The way CPR is written, only claims for harassment brought by a tenant vs a landlord are barred from the small claims track.

Have I overlooked something @Andyorch ?

 

My understanding is this does't mean that the claim cannot be allocated to part eight, and certainly I risk the court deciding to allocate the claim as a part eight claim and facing the issue of whether to lump it or contest the track allocation, after all it is likely at the courts discretion where no particular practice direction is specified.

Edited November 12, 2021 by Intrepid

[AndyOrch]

Making a claim of harassment through the civil Court

 

The Protection from Harassment Act 1997 (Act) prevents a person from acting in a way which amounts to harassment of another or in a way which he/she ought to be aware would amount to harassment of the other. This is an objective test and considers whether a reasonable person with the same information as the defendant would be aware that his/her actions would amount to harassment. 

 

The burden of proof in the civil Courts is lower and only requires a claimant to prove harassment on the balance of probabilities. This means harassment must be shown to be more likely to have been caused than not.

 

A part 8 claim can be submitted but will be automatically allocated to Multi track...which can still be dealt with through the small claims track but with the threat of MT costs implications.

 

 

[Intrepid]

In the link I provided above, in the case vs British Gas, the court decreed that in the absense of an individual, the actions of a company can be assessed on the basis of whether a reasonable person would have acted in the same manner. Thus removing the defence that a corporation cannot be held liable as a "person".

 

 

Quote

51. One excuse which has formed part of British Gas's legal argument for striking out the claim, and which has been advanced as incontestable and decisive, is that a large corporation such as British Gas cannot be legally responsible for mistakes made either by its computerised debt recovery system or by the personnel responsible for programming and operating it. The short answer is that it can be, for reasons explained by Lord Justice Jacob. It would be remarkable if it could not: it would mean that the privilege of incorporation not only shielded its shareholders and directors from personal liability for its debts but protected the company itself from legal liabilities which a natural person cannot evade. That is not what legal personality means.

 

In this case Shell Energy were informed that contacting me via text message was distressing and considered a form of harassment. Shell Energy were not barred from contacting me at all, only using that medium.

 

In addition as two payments were made last month, should it be the case that Shell Energy automatically default the account and contact me through an unapproved method of communication. Or should they rather investigate the account and write to me accordingly, all very distressing and feels like a campaign of harassment.

Edited November 12, 2021 by Intrepid

[AndyOrch]

Yes I accept that but doubt that it could be relied upon as a precedent...unless it was heard in the High Court. 

[Intrepid]

Quote

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE SEYMOUR QC
(SITTING AS A JUDGE OF THE HIGH COURT)
HQ08X01805

 

[AndyOrch]

Fair enough   now what about the threat of Multi Track costs ?

[Intrepid]

Yes a well brought up point. Is it through your own experiene that you know a claim for harassment must be brought as a part 8 claim and that it cannot be brought as a claim like any other such as breach of contract or breach of statutory duty?

 

After a brief search I cannot find anything definitive as to whether it must be brought as a part eight claim but will certainly search further. I am also mindful that when it comes to returning allocation forms both parties could agree to the small claims track and that would probably weigh heavily on the courts choice of allocation and even further the issue of costs.

Edited November 12, 2021 by Intrepid

[BankFodder]

Well it says that it can't be bought as a small claim – this means that it definitely doesn't on the small claim track. This pretty well means that it has to become a part eight claim.

Even if it is simply a money claim – but not on the small claim track it means that you have the same risks of costs

[Intrepid]

Thanks for your reply BankFodder, could you please indicate where exactly it says that it cannot be brought as a small claim?

 

I genuinely thought the same when I first looked at it but after reading the detail as stated above it only states that is the case when a claim for harassment is brought as a tenant vs a landord.

Edited November 12, 2021 by Intrepid

[AndyOrch]

2.9 The following proceedings may not be started in the County Court unless the parties have agreed otherwise in writing:

(1) a claim for damages or other remedy for libel or slander, 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07a

 

[Intrepid]

Thank you but this isn't a claim for libel or slander.

[AndyOrch]

But it is for damages or harassments...which is not a part 7 claim.

[Intrepid]

With respect as much as I seek clarification for myself, I cannot read anywhere that it definitely is or is not either a part 7 or part 8 claim. Either within the act itself or the practice directions.

 

Table B provided for in part 8 is very encompassing and does not specify as to the Protection from Harassment Act 1997.

 

I do appreciate all your input as it is most certainly furthing my understanding of the issue at hand.

Edited November 12, 2021 by Intrepid

[AndyOrch]

If its determined that its not a part 8 claim it can always continue as a part 7.

 

8.1

(1) The Part 8 procedure is the procedure set out in this Part.

 

(2) A claimant may use the Part 8 procedure where –

 

(a) he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact; or

(b) paragraph (6) applies.

 

(2A) In the County Court, a claim under the Part 8 procedure may be made at any County Court hearing centre unless an enactment, rule or practice direction provides otherwise.

 

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part08

 

[BankFodder]

I certainly realise now that I had mis-read your earlier post and I now see that what you posted suggest that only when harassment is related to tenancy that it can't be brought on the small claims track

[Intrepid]

Thank you BF, it is indeed very specific. It is certainly a point to be wary of and explored in detail before deciding how to proceed.

"The claim form

3.3 If a claimant wishes the claim to proceed under Part 8, or if the claim is required to proceed under Part 8, the claim form should so state. Otherwise the claim will proceed under Part 7."

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07a

 

I have seen no definitive statement that indicates that this particular type of claim is required to proceed under Part 8.

Edited November 12, 2021 by Intrepid

[Intrepid]

There is one more point to consider if I decide to bring the claim for harassment.

 

I will be bringing a claim next week for Shell Energy's ongoing breach of statutory duty by way of an incomplete disclosure.

 

Do I have a duty to combine these claims or can they be brought separately?

 

Combining the claims will increase the total value of the claim to approximately £200 and may increase the likelihood that Shell Energy will defend the claim.

Edited November 12, 2021 by Intrepid

[AndyOrch]

I would combine it into one claim....then the claim would be leaning more towards a part 7 and could be issued as a part 7.