Steven4064 - v - BrightHouse***WON***

[steven4064]

Go get them Steve, I am not with them but NEARLY did sign up a few months ago but didnt agree with their policy on insurence cover (Isnt optional suppose to mean optional !!)

Lucky escape! I never signed up either - I'm doing this on behalf of a friend.

 

If you want the lowdown, read lefty's posts earlier in the thread

 

Steven

 

If this post is helpful, please click the scales

Any opinions are without prejudice & without liability.

Almost everything I know concerning the law I learned from this site

[HSBCrusher]

job done!

[steven4064]

Thanks Crusher

 

Steven

 

If this post is helpful, please click the scales

Any opinions are without prejudice & without liability.

Almost everything I know concerning the law I learned from this site

[Digital-D]

Had a phone call from the local store today (SRA sent to head ofice) saying they had had this letter from us forwarded from head office and didn't know what it meant! What did we want actually? Told them, and they said they didn't think they would be able to provid it, as all the records were destroyed when we closed the account (about a month ago).

 

Anyone know for how long they have to keep records of HP agreements?

 

Hi

I am a Delivery driver that has just terminated my contract after a good few years working for them..

To answer ur question they Keep records for 3 months for tv sales{activate old customers}they never totally close ur account for future sales..i hope that helps

[Digital-D]

Hi again Anyaaa

 

Don't worry about not having your own home insurance policy. You can still cancel their "optional service cover" - and you should do this STRAIGHT AWAY!!!

 

When you were sold "second hand" goods, was this explained to you? If not, then you may possibly have a misrepresentation claim against them - "goods not described correctly" which is contrary to the sale of goods act. Either way, the "second hand" goods should have still carried at least a 90 day warranty.

 

Bottom line is this...

 

The VERY EXPENSIVE "optional service cover" premium you are paying would, at best, only provide you with another "second hand" product if your current machine broke down. My guess is on a cash price of £600, you're paying around £4 a week (£16 a month - £416 TOTAL!!!) for the "optional service cover" !!!!

 

CANCEL IT NOW!!!!!!!

 

 

Cheers

Lefty

Lefty

i am a delivery driver for this company that has just left Due to how they treat there customers..

In ur second paragraph u go on about second hand goods...

This might SHOCK every 1 of wot am about to say..But they have ****ed my off big time..

I know several sales that have been totaly illegal..

One that stands out for me is when i was Orded to take a Gas cooker to a customer that had the old gas pipe still connected to the cooker{Refurbed},They told me the customer has seen it and accepted it..

As i took the cooker to the customers house i showed the item.they had never set eyes on the cooker and thought they were getting a new cooker not a used one...I could go on about second hand goods from this place.It would open a can of worms..

So please if ur going to buy from this place MAKE sure u read ur contract if ur expecting a new item it should say in the contract..

[steven4064]

THanks DD and well done for following your conscience and leaving this company. The sooner we can persude the OFT to take their consumer credit license off them the better.

[sweetnsexyenglish]

I will be watching this post if anybody happens to be successful in their claim let me know as I am hot on their heels too after the bull they have tried to deal me, revenge is a dish best served cold!!

 

Is there any way all the cag posters who have had bad dealings with Brighthouse can flood trading standards with a list of complaints and evidence to force their hand?

[steven4064]

Is there any way all the cag posters who have had bad dealings with Brighthouse can flood trading standards with a list of complaints and evidence to force their hand?

Absolutely, S'n'SE. Anybody reading this thread - please do.

[steven4064]

Quick update - received notice of allocation to the small claims track this morning plus 'new' draft directions word for word. Court date to be fixed later.

 

So it's off to prepare our court bundle.

[Lefty]

Hey Steven. Long time no speak!

 

I'm a bit disappointed that ITV have decided to drop the Brighthouse segment from their forthcoming documentary, aren't you?

 

They tell me the evidence collected is compelling, but there simply isn't time in the program(s) to give it full justice.

 

Just strikes me as Brighthouse are off the hook again!

 

Oh well... Back to my one man campaign I guess!

 

 

Cheers

Lefty

[steven4064]

Hi Lefty

 

Good to hear from you again. I didn't know they had dropped it they did seem to be covering a lot of ground. I wonder if we could suggest a BH 'special' - theremust be enough for a half-hour prog.

[steven4064]

Starting to put stuff together in response to court's order.

Friend of Steven4064 (Claimant)

AND

Caversham Finance Ltd T/A BrightHouse (Defendant)

 

______________________________

 

STATEMENT OF EVIDENCE

______________________________

 

1. The Claimant submits that the charges levied to his account, as set out in the enclosed schedule, are, notwithstanding the defence of the Defendant, default penalty charges arising from and relating directly to breaches of contract on the part of the Claimant. As a contractual penalty, the charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 and the common law.

 

2. It is admitted that the Defendant’s charges were levied in accordance with the terms and conditions of the account in question. In the Hire-Purchase Agreement (Attachment 1) it says:

 

J- Charges

If you are in default of this agreement the following charges are payable:-

 

Late Payment £2.70

Tracing Fee £45.00

Re-possessing Direct Debit £5.00

Returned Cheque £5.00

 

These charges are liable to change – see clause 9 of the Hire Purchase Terms and Conditions.

 

If you are late in payment then you must pay interest on the late payment (to te extent that the interest exceeds the late payment charge) at a rate of 4% per annum over the Royal bank of Scotland base rate – see clause 9(d) of this agreement.

 

We will charge you for all reasonable expenses not covered above incurred by us as a result of your breach…

 

Note: A copy of the full agreement, including the referenced clauses 9, is not available since the Defendant has failed to supply a copy despite a request pursuant to CPR Pre-Action Protocol 4.6©.

 

3. All of the charges in the enclosed schedule arose as fees for Late Payment, that is as defaults or breaches of the Hire-Purchase agreement, and levied by virtue of section J of the agreement. Each charge is a multiple of the basic £2.70 (£2.50 in earlier charges) depending on the number of items outstanding on the account at the time.

 

4. However, it is submitted that the Defendant’s charges are not related to or intended to represent any actual loss arising from a breach of contract, but instead unduly enrich the Defendant, which exercises the contractual term in respect of such penalty charges with a view to profit.

 

5. The Claimant cites the case of Robinson v Harman [1848] 1 Exch 850, which states that a contractual party cannot profit from a breach of contract and that the charge for a loss suffered from the breach should be the amount necessary to put both parties in the same position before the breach occurred.

 

6. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co v New Garage & Motor Co [1915] AC 79 set down a number of principles in definition of a penalty clause and how such clause may be ascertained from a liquidated damages clause. These principles include –

It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach and;

 

The essence of a penalty is a payment of money stipulated as in-terrorem of the offending part; the essence of liquidated damages is a genuine covenanted pre-estimate of damage

7. Numerous cases throughout the 20th century have upheld and reinforced the principles set down by Lord Dunedin defining contractual penalty clauses and the unenforceability thereof. For example, in Murray v Leisureplay [2005] EWCA Civ 963, it was held that a contractual party can only recover damages for an actual loss or liquidated losses.

 

8. The breaches of contract in this case relate to late payments of the account. For example, on Monday 24 January 2005 a charge of £16.02 (6 times £2.70) was levied because the payment was due on Saturday 22 January, one working day earlier. The claimant holds this charge and indeed every other charge in question, to be punitive in nature, and wholly disproportionate.

 

9. It is not disputed that the Defendant is entitled to recover its damages following the claimant’s breach of contract, and it is entitled to include a liquidated damages clause. The Claimant contends that the charges made by the Defendant are disproportionate and excessive, and do not represent a pre-estimate of, nor are they in any way related to, its actual loss suffered as a result of the Claimant’s breaches of contract.

 

10. The defendant has declined to answer the Claimant’s written requests for information regarding its administrative costs, or other such costs, incurred as a result of the contractual breaches from which its charges arise. Further, the Defendant has declined to offer any explanation whatsoever in regard of how its charges are calculated, or any other such justification thereof, despite repeated requests to do so.

 

11. It is submitted that the Defendant’s charges are applied by an automated and computer driven process. It is therefore impossible to envisage how the Defendant can incur the sort of costs charged to the Claimant by carrying out a completely automated and computer driven process.

 

12. Recent coverage in the media, for example BBC Radio 4's Money Box broadcast on 18 February 2006, the BB2 documentary “The Money Programme” aired in December 2006 and the recent BBC “Whistleblower” programme all conclude that, in the case of banks, the costs of automatically administering similar contract breaches amount to no more than a few pence. It is difficult to see how the Defendants costs can be any higher. Manual interventions (eg in the returning of cheques) incurred higher charges but the Defendant does not use manual interventions in the management of contract breaches and certainly no costs can be directly attributable to a given contract breach.

 

13. Further, without prejudice to the above, even if a charge of £2.70 is deemed fair to cover any loses incurred as a result of the Claimant’s breach of contract, the Claimant contends that the losses to the Defendant are independent of the number of items on which charges are due at any time and that further multiples of £2.70 only go to enrich the Defendant unjustly.

 

14. Further, the Claimant contends that the contract provision in section J of the Hire-Purchase agreement is unfair under the Unfair Terms in Consumer Contract Regulation 1999:

 

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

Schedule 2(1) also includes such clauses (to define examples of unfair clauses) as those which have the object or effect of:

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.

15. The defendant is a large company and the term regarding charges was inserted unilaterally in the contract. The contract was pre and mass produced and the Claimant had no opportunity to negotiate the clause, or indeed any of the contract. The Defendant claims the rate to increase the charges unilaterally and, in fact, has done so during the period referred to in this claim without any opportunity fro negotiation. Thus, the Defendant has unilaterally altered the terms of the agreement with the Claimant to the Claimants detriment and their own advantage.

 

16. As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the Claimant’s breach of contract. The charges are punitive, held "in-terrorem", and unduly enrich the Defendant. As such, they are disproportionate contractual penalties and unenforceable at law.

I, the Claimant, believe all facts stated to be true.

 

Attachments:

 

1. Copy of Hire Purchase Agreement

Any comments on this? Any corrections/additions/mods of any sort - I would be grateful for any input as this is not the same as a bank charges claim.

[Lefty]

Steven.

 

All sounds good, but I would make it clear (perhaps at the opening address) that Brighthouse's penalty charges are WEEKLY charges. Their charges also apply if a payment is ONE DAY LATE. A bank, or loan company may make a penalty charge, but that would reflect a MONTH of transactions. Get my point?

 

To some, a charge of £2.70 may not sound much - until it's put into perspective.

 

Keep up the fight.

 

 

Cheers

Lefty

[steven4064]

Well spotted! I'll add those points in. Thanks

 

I also added in a sentence pointing out that the charge of say £16.20 may be made up of 6 lots of £2.70 but that is an interna accounting matter for BrightHouse - the charge is still £16.20.

[steven4064]

And we have a court date - 17 October, 1 hour 30 minutes allocated

[sweetnsexyenglish]

good job...i will keep my fingers crossed for you!!

[steven4064]

Court bundle submitted today and sent to BH's solicitors - it will be deemed served on 8 August so they have until 22 August to respond. Let's see if they do.

[steven4064]

Court bundle received by BrightHouse's solicitors 8 August, Cheque for full amount received by us today - 3 days later!

[Lefty]

ABSOLUTELY SUPERB!!!

 

Great going, Steven. Give yourself a well deserved pat on the back!

 

So, Brighthouse now accept that their "penalty" charges are excessive and unfair... Floodgates, me thinks...

 

 

Cheers

Lefty

 

 

 

PS - did you let ITV know?

[steven4064]

ABSOLUTELY SUPERB!!!

Thanks

So, Brighthouse now accept that their "penalty" charges are excessive and unfair...

the cheque came "without any admission of liability", of course - but the fact that it came by return of post after receiving our Statement of Evidence is pretty conclusive, methinks!!

Floodgates, me thinks...

Here's hoping

PS - did you let ITV know?

Spoke to C today - I'm going to send all the details later.

[sweetnsexyenglish]

Well done!!

 

Looks like it's my turn to try but tell me do I have to wait until I have paid off everything or can I do it now?

[steven4064]

I think you can do it whenever. If you are not seriously in arrears it should be OK. If you are seriously in arrears they may turn nasty (even nastier).

 

Anyway S'n'SE, go for it. Tell all your mates too.

[sweetnsexyenglish]

I am not in any arrears so I guess i'm good then. But again another question I have seen you say that before but dont know what its is... S'n'SE??

[steven4064]

S'n'SE = sweetnsexyenglish (too long to type every time;))

[sweetnsexyenglish]

lol shows ya i'm loosing da plot!!.....I spent the last how long the first time i saw it search the net:o