fasthosts late payment penalty charges reclaim court claim raised **WON**

[robert_harper_2000]

A penalty charge is applies when one party to a contract breaches that contract and is penalised for doing so by the other party. In Law, a penalty charge cannot exceed in value such losses as the losing party incurred (or could reasonably be expected to incur) as a result of that breach.

 

 

I guess I could just type the fact above.

[vfrsutton]

I've just been charged £23.50 as well. I intend to take them to court if tehy do not pay me back.

[robert_harper_2000]

So... what shall I write ? I've got one week to send the next letter! argh lol

 

Should I type it up and then check it with you guys?

[robert_harper_2000]

sent off a reply asking for breakdown of costs and how I shouldn't be paying for their development costs.

 

Judge replied with The particulars of the claim must identify the contract and state in detail why the claiment has a claim.

 

A proper particulars of claim is required complying with the civil prodedure rules and with a statement of truth.

 

 

Why was I not given a breakdown??? Judge is being abit out of order?

[robert_harper_2000]

Could anyone give me some advice??? please

[robert_harper_2000]

The case will be thrown out in a few days...

[robert_harper_2000]

Please could someone advise me?

 

My Fasthosts thread on this might be getting lost. I have taken Fasthosts to court over the £40 late payment and as the last thread I made states;

 

sent off a reply asking for breakdown of costs and how I shouldn't be paying for their development costs.

 

Judge replied with The particulars of the claim must identify the contract and state in detail why the claiment has a claim.

 

A proper particulars of claim is required complying with the civil prodedure rules and with a statement of truth.

 

 

Why was I not given a breakdown??? Judge is being abit out of order?

[JonCris]

Please could someone advise me?

 

My Fasthosts thread on this might be getting lost. I have taken Fasthosts to court over the £40 late payment and as the last thread I made states;

 

sent off a reply asking for breakdown of costs and how I shouldn't be paying for their development costs.

 

Judge replied with The particulars of the claim must identify the contract and state in detail why the claiment has a claim.

 

A proper particulars of claim is required complying with the civil prodedure rules and with a statement of truth.

 

 

Why was I not given a breakdown??? Judge is being abit out of order?

 

Sorry Robert the judge is correct & you seem to have jumped in without checking the procedure.......Anyway try sending a part 18 request to Fasthosts with a copy to the court whilst asking for a continuence to allow the defendants to reply..............If Fasthosts don't comply with your deadline (14 days) then you can ask the court to make it an order......... Failing all of this if your claim is struck out for none compliance you can reissue

[robert_harper_2000]

What exactly is a part 18 ... what I can gather it is asking for further information. Please could you help me with the request? I'm not sure how to put it ... thanks!?

[Advoc8]

Point 1 - the judge is right. His job is to judge and not to tell you what to put on your form, your job is to put your claim in properly. If your claim doesn't meet the legal requirements it'll get slung back at you (not a dig at you personally - it's just the way it is).

 

Point 2 - What else did the judge say? Has your claim been struck out or are you being told to amend it?

 

It sounds like your particulars of claim need drafting properly. Post them here if you can and some advice might be forthcoming.

[robert_harper_2000]

Judge replied with The particulars of the claim must identify the contract and state in detail why the claiment has a claim.

 

A proper particulars of claim is required complying with the civil prodedure rules and with a statement of truth.

[Advoc8]

OK - but have you been given 5 days to correct them, or have they been thrown out? Not sure from the title of your thread. Are you able to post your particulars (suitably edited to take out any personal details / contract or account numbers, etc).

[robert_harper_2000]

A summary - I had another post but this is the copy and paste summary - appreciate any advice only 4 days...

 

I have been charged £47 for this adminstration fee

Debt recovery adminstration fee - over due paymeents £47

 

 

1. The Claimant has an account n4xxxxx with the Defendant, opened May 2004 2. On 11/09/06 the Defendant debited a charge in respect of purported breaches of contract. 3. Defendant is aware of all details as my charge has already been supplied. Another copy will be sent. 4. Claimant contends: (a) The charges exceed the Defendant's losses caused by the breaches; (b) The Term permitting the Defendant to levy such charges is unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1977 and at Common Law. 5. Claimant claims: return of the amounts debited of £47 6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act 1982. 7. Costs allowed by the Court.

 

 

Their defence

in response to 4)

The admistration fee applied by Fasthosts in the case of customers failing to pay for services provided to them is a measure implemented to recover part of the cost to our business from dealing with delinquent debt being passed on to those customers who maintain valid payment details with us and do not allow their accounts to become deliquent.

The costs to us of dealing with the delinquent debt include, but are not limited to:

-The development & maintenance of automated billing systems to deal with payment failures;

-the customer communication as a result of failed payment;

-the cost to the business of not receiving funds when due;

-the processing costs of failed transactions;

-the cost to the business of not receiving funds when due;

-the processing costs of failed transactions;

-the costs of managing such issues when escalated internally.

The decision to apply a flat fee appears to bee the fairest way to address the 'deliquency' issue. Our policy is not to apply the fee to any individual customers more than once per calendar month, and to consider the justification for a refund in any case where there is evidence, or reason to belivev, the the failure to take payment due was the result of events outside of the control of the customer. An example of such a situation would be a bank error. We also made sure that the details of this fee and the coniditonsunder which it would be applied were cleary stated in our terms of service, prior to the implenmentation fo the measure. Any change in our terms service is always communicated to our customers via e-mails and such an email was sent to mr harper on 28th July 2006 informing him that our terms of service had been updated.

We understand that accurate and relevant communivation with our customers is essential and we are suprised that mr harper chose not to act in response to the emails that we sent him on the 7th, 14th and 28th August. Acting diligently on any of these emails would have enabled mr harper to avoid the second charge applied and acting diligently to amintain valid card details in the first place would have enabled mr harper to avoid the first charge.

 

in response to 4b)

we do not recognise the relevance of the claimants reference to the unfair terms in the consumer contracts regulations 1999, given that the claimant is contracted to us in the capacity of a limited company. The provisions of the aforemention regulations stipulate that:

"consumer" means any natural person who in contracts covered by these regulations, is acting for the purposes which are outside his trade business or profession.

We do not recongise the releance of the claimants reference to the unfair contract terms act 1977, as this act appears to be specifically apply to exclude clasuses to limit liability.

We do not recognise the relevance of the claimants reference to the supplse of goods and services act 1982, as the act only refers to the reasonableness of the price of the service actually being provided, In this case the service provided is a hosting account and the administration fee is not charged in respect of any service.

 

 

Judge Request:

1. The claim is stayed on the grounds that the claimants statement of case disclose inadequate particulars of claim. Unless by 4.00pm 5th Feb 07 the claimant files and servces a further statment of case that sets out full particulars of the claim, the claim will stand struck out.

 

 

I replied along the lines of

A penalty charge is applies when one party to a contract breaches that contract and is penalised for doing so by the other party. In Law, a penalty charge cannot exceed in value such losses as the losing party incurred (or could reasonably be expected to incur) as a result of that breach.

 

Basically sent off a reply asking for breakdown of costs and how I shouldn't be paying for their development costs.

 

Judge replied with The particulars of the claim must identify the contract and state in detail why the claiment has a claim.

 

A proper particulars of claim is required complying with the civil prodedure rules and with a statement of truth.

[Advoc8]

The Judge is wanting an updated particulars of claim, not just a few lines of explanation. Something like this (needs more details on the number of fees, exact descriptions, the alleged breach, what the fee was charged for):

 

PofC removed pending further information

[Advoc8]

Also needs the following:

 

1. What was the term you allegedly breached?

2. Did you breach it?

3. What is the term that allows them to charge you £47?

[Rich44]

Just as an aside I was using Fasthosts for their reseller account and jumped ship and transferred all my domains out when they started this carry on and I can highly recommend an account with UK Reseller Hosting, Multiple Domain Hosting, Personal Hosting and Domains: Heart Internet they are half the price of fasthosts nowhere near as arrogant and offer many many more features included. For example FH dont include and SQL databases for resellers to offer on they are an optional extra whereas Heart offer unlimited free SQL databases to the reseller. You can also build packages to resell that you cant with FH.

 

Also with Heart you can pay by DD so dont need to rely on continuous credit authority (we all know how much of a pain they are to cancel)

 

Good luck with your claim!

[Advoc8]

PS also be helpful to know how you paid (e.g. card, direct debit etc) for your account and how that particular charge was paid.

[robert_harper_2000]

It was all done through credit card, I wasn't given other methods of payment, I tried to update it through their site but wouldn't update!

 

Thanks for this advice everyone thought I would have to let them win ... but will continue! Thanks to everyone here

 

1. What was the term you allegedly breached?

Late payment

 

2. Did you breach it?

Yes, payment was delayed.

 

3. What is the term that allows them to charge you £47?

Our actions are driven only by our wish to lower the costs associated with

customers defaulting on payments. The administrative charges associated with

this have a direct impact on the level of service that we are able to offer our

customers. The resources used in the administration of billing issues of this

nature are not available to respond to customer service issues that are not the

result of a failure on the part of our customers to ensure that sufficient funds

are available to pay for the services we are supplying.

 

It is as a result of this problem and in the interests of our customer base as a

whole that we have decided to apply the administrative charge that you are

disputing.

 

We have taken a number of steps to communicate to our customer base the changes

in our terms and conditions. The decision to apply an administrative charge to

accounts that enter debt collection was not one that we took lightly and the

charge itself does not necessarily cover the cost to us of reconciling the

problem.

 

Unfortunately, I am afraid that we cannot refund the charge.

[Advoc8]

More questions I'm afraid.

 

Why was the payment late?

 

How much was the payment you were supposed to make?

 

How late was the payment?

 

Is there an actual term in their conditions that says they will make this fee?

 

The argument needs to be that you did breach the contract ( because you did and they will have proof from payment dates) but EITHER being able to charge wasn't a term of the contract you entered into OR being able to charge was in the terms but the charge is unfair.

 

Sorry to be picky but as the judge wants more details that's what you'd better provide him!

 

I'll do my best to draft the necessary amendments later this evening if you can provide them (but it might be tomorrow).

[Advoc8]

Version 2 (but still not happy with this):

 

Answers needed to my previous post. also how much was the payment you were supposed to make, was the £47 the payment + fee or the fee alone or two or more fees added together? What services were Fasthosts supplying?

 

PofC removed pending further info

[JonCris]

A summary - I had another post but this is the copy and paste summary - appreciate any advice only 4 days...

 

I have been charged £47 for this adminstration fee

Debt recovery adminstration fee - over due paymeents £47

 

 

1. The Claimant has an account n4xxxxx with the Defendant, opened May 2004 2. On 11/09/06 the Defendant debited a charge in respect of purported breaches of contract. 3. Defendant is aware of all details as my charge has already been supplied. Another copy will be sent. 4. Claimant contends: (a) The charges exceed the Defendant's losses caused by the breaches; (b) The Term permitting the Defendant to levy such charges is unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1977 and at Common Law. 5. Claimant claims: return of the amounts debited of £47 6. Alternatively, if the charges are a fee for a service, then they must be reasonable under S.15 of the Supply of Goods and Services Act 1982. 7. Costs allowed by the Court.

 

 

Their defence

in response to 4)

The admistration fee applied by Fasthosts in the case of customers failing to pay for services provided to them is a measure implemented to recover part of the cost to our business from dealing with delinquent debt being passed on to those customers who maintain valid payment details with us and do not allow their accounts to become deliquent. Oh my gawd they are admitting their penaly charge is to indemnify others

The costs to us of dealing with the delinquent debt include, but are not limited to:

-The development & maintenance of automated billing systems to deal with payment failures;

-the customer communication as a result of failed payment;

-the cost to the business of not receiving funds when due;

-the processing costs of failed transactions;

-the cost to the business of not receiving funds when due;

-the processing costs of failed transactions;

-the costs of managing such issues when escalated internally.

The decision to apply a flat fee appears to bee the fairest way to address the 'deliquency' issue. Our policy is not to apply the fee to any individual customers more than once per calendar month, and to consider the justification for a refund in any case where there is evidence, or reason to belivev, the the failure to take payment due was the result of events outside of the control of the customer. An example of such a situation would be a bank error. We also made sure that the details of this fee and the coniditonsunder which it would be applied were cleary stated in our terms of service, prior to the implenmentation fo the measure. Any change in our terms service is always communicated to our customers via e-mails and such an email was sent to mr harper on 28th July 2006 informing him that our terms of service had been updated.

We understand that accurate and relevant communivation with our customers is essential and we are suprised that mr harper chose not to act in response to the emails that we sent him on the 7th, 14th and 28th August. Acting diligently on any of these emails would have enabled mr harper to avoid the second charge applied and acting diligently to amintain valid card details in the first place would have enabled mr harper to avoid the first charge.

 

in response to 4b)

we do not recognise the relevance of the claimants reference to the unfair terms in the consumer contracts regulations 1999, given that the claimant is contracted to us in the capacity of a limited company. The provisions of the aforemention regulations stipulate that:

"consumer" means any natural person who in contracts covered by these regulations, is acting for the purposes which are outside his trade business or profession.

We do not recongise the releance of the claimants reference to the unfair contract terms act 1977, as this act appears to be specifically apply to exclude clasuses to limit liability.

We do not recognise the relevance of the claimants reference to the supplse of goods and services act 1982, as the act only refers to the reasonableness of the price of the service actually being provided, In this case the service provided is a hosting account and the administration fee is not charged in respect of any service.

 

 

Judge Request:

1. The claim is stayed on the grounds that the claimants statement of case disclose inadequate particulars of claim. Unless by 4.00pm 5th Feb 07 the claimant files and servces a further statment of case that sets out full particulars of the claim, the claim will stand struck out.

 

 

I replied along the lines of

A penalty charge is applies when one party to a contract breaches that contract and is penalised for doing so by the other party. In Law, a penalty charge cannot exceed in value such losses as the losing party incurred (or could reasonably be expected to incur) as a result of that breach.

 

Basically sent off a reply asking for breakdown of costs and how I shouldn't be paying for their development costs.

 

Judge replied with The particulars of the claim must identify the contract and state in detail why the claiment has a claim.

 

A proper particulars of claim is required complying with the civil prodedure rules and with a statement of truth.

 

See above in red Also you need to cite the case law

[Advoc8]

Quite a helpful defence that one! He doesn't need to cite the case law in the particulars of claim but he does need to expand on the facts and be more explicit on the breach of statutory provisions. Hopefully he'll get back and answer my queries.

 

However a problem rears its head:

 

The defence states that the claimant was contracting as a limited company and not acting as a consumer. Is this correct or not? If he was then that's the statutory provisions out of the picture.

[robert_harper_2000]

Why was the payment late?

Fraud on my account card was cancelled and the website didn't accept my new details.

 

 

How much was the payment you were supposed to make?

£4.99 or something very similar

 

How late was the payment?

They didn't phone me just kept trying to take payment - check

 

Is there an actual term in their conditions that says they will make this fee?

I never saw anything about the fee

 

also how much was the payment you were supposed to make, was the £47 the payment + fee or the fee alone or two or more fees added together? What services were Fasthosts supplying?

I was charged for one late payment at £40 plus VAT £7

Yes I am helping my Dad who owns this limited company

 

Wow, Thanks for helping with this- just hope I can get it off in time.. I'll send it asap to both court and FH

Cheers again!

[Advoc8]

Your original claim was thrown out because it was too vague. I'm asking you all these questions because I do not have access to the basic facts. Dates and amounts are important if you want to improve the prospects of success.

 

The claim I put in my posts (and have now taken down because of the query about the status of the claimant) was not complete and also contains pleadings that are not applicable in this case if it's a limited company making the claim.

 

Who actually is the claimant? You, your father or your father's company? If it's you are you over 18?

 

Did they make two separate charges of £20 or on charge of £40? Were both charges taken on the same day (11/09/06) or on different days?

 

Was the outstanding sum paid promptly?

[rosiecotton]

However a problem rears its head:

 

The defence states that the claimant was contracting as a limited company and not acting as a consumer. Is this correct or not? If he was then that's the statutory provisions out of the picture.

 

That would be my main concern, as if you contracted as a company you would not have protection under the UTCCR, in addition the company are correct in saying the UCTA covers exclusion clauses and not penalty charges.

 

You could try arguing that the SGSA would apply as you are effectively paying for a service in their administration of your debt, but that's quite weak (though I have tried it myself in the past and the company went for it, doesn't look like this one will).