MARTIN3030 Virgin Media charges ROUND 3

[Bookworm]

My thoughts are that it doesn't cost them £10 when you're late paying. Especially considering they charge you £4 for not paying by d/d, which seems to me already covers their costs in case you don't pay exactly on time.

 

If they can't/won't supply a breakdown of their costs, it seems to me it would be reclaimable.

 

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[Bookworm]

I feel they're 2 different things, and it probably is a good idea to keep them separate so as not to confuse the issues.

 

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[Bookworm]

"commercially sensitive"... the same answer the banks gave to a Commons Select Committe when asked for a breakdown of their charges... If that is not an admission, I don't know what is!!!!

[Bookworm]

Even so, in the unlikely event of you losing, do remember you also have a liability for costs (which is capped at around £80) so the whole thing would have set you back £120.

 

Only if the judge awards them, and he would only do this if in his opinion, Martin's claim had no virtue, or that he hadn't tried to settle this in other ways.

 

Good luck, Martin, I'll be following this!!! ;-)

[Bookworm]

As much as I respect your opinion and experience - there is no discretion, the loser pays.

 

In Scotland, maybe, (I'm guessing, I don't know about the Scottish system much) but I can assure you that this is not the case in England and Wales in Small Claims Court. That is precisely the reason we advise the people to keep their claims under 5 k, so that it stays on Small Claims, so they don't get exposed to costs should they lose.

The Small Claims system was developed precisely so that the Claimant could seek redress against big corporations without the fear of being landed with huge costs.

 

Sorry for hijack, Martin!

[Bookworm]

One of the funny things is that in their defence they say that their late payment charges are justified because they incur additional costs including letters and telephone calls!

 

Telephone calls ????

 

You couldnt make it up ..............

 

Ah, hang on, I can vouch for that!

 

The way it goes is, the phone rings. Pick up. Silence. Hang up after a few "hello"?

 

10 mns later, phone rings again. Repeat as above. Start thinking that the TPS doesn't work any more.

 

10 mns later, phone rings again. Ominous "hellooo" from me. "Hi, can I speak to Mr Bookworm, pls?" "Who's calling?" "It's Telewest". Check date. Say: "Yes, I'll pay the bill this Friday coming, as per usual, as Mr BW gets paid on a 4 weekly basis, and by now, SURELY you should have noticed the pattern?" "Oh, ok, then, I'll make a note of it".

 

So yes, they do call. I bluudy wish they wouldn't.

[Bookworm]

Yes, that's right. Unless your suit is "vexatious or frivolous", in which case the judge may take it upon himself to award costs against you, but otherwise, all you stand to lose is your court fee. This is in fact one of the "complaints" from the banks, who say that even if they won (... excuse me while i go and have a chortle somewhere ), they wouldn't be able to recover their costs, and it is therefore "uneconomical to defend".

Limit 5 k here, btw. ;-) Moving down South yet?

[Bookworm]

Ok, blind as a bat maybe, but I've lost track (thanks to the Russian invasion in the middle of your thread, lol).

 

You're claiming £159.00, what is that made of? Both lates and non D/D charges?

 

Amazingly, I don't think I've ever incurred a late charge with T/west, but I have been slowly getting myself more and more annoyed about the £4 pm. I have just paid my bill before posting this, and yet again, they tried to get me to "save" £4 by switching to DD, to which my terse answer was that I had a serious objection to allowing people to help themselves to my bank account contents, but that if they ever expanded their services to accepting Standing Orders, I'd be there like a flash!... NO, sorry, you can only save £4 with d/d, etc... stuck on a loop.

 

Anyway, thanks in advance for the clarification, Martin.

[Bookworm]

Well, that's hardly surprising, look at the banks' definition of "fair" and "transparent", never mind "lawful", lol.

[Bookworm]

]"Remember if you have had the opportunity to settle this out of court and haven’t, you may not get your costs back, even if you win your case.

 

Correct, that comes under the vexatious part I was talking about, and why we give them 28 days (2x14 days) as per CPR recommendations.

 

Costs will not be awarded by the court unless the successful party asks for them. This should be done when the judge is giving judgment. If there has not been a hearing, the successful party will need to write to the court asking for costs.

 

Also correct, that's why we ask for costs when issuing court claim.

 

 

If a claim for more than £5000 is allocated to the small claims track, the winning party will be able to claim costs including solicitors' costs against the losing party."

 

See highlighted.

 

A chat with the online service folk in Northampton (apologies, I had previously assumed this was Chesterfield) revealed the bulk of cases where the Pursuer* loses, the defender invariably claims. Therefore, I'd like to renew my warning that taking an action and losing does not mean the cost ends there.

 

*Claimant doon here, btw.

 

The Defendant might claim does NOT mean that the judge will grant it. I can't really keep on thinking new ones of saying it!

 

Don't assume that the service folk in Northampton know the rules, btw, they are invariably helpful, but not always that knowledgeable.

 

Finally, from the forum FAQ:

 

Q. Is there any limit to the amount that I can claim?

 

A. No. If you keep your claim value under £5000 then the case should stay on the County Court Small Claims Track. This way, if you lose, you shouldn't be liable for costs.

 

and

 

Q. I'm worried about costs if I lose the case.

 

A. If your claim is less than £5000 then it will most likely be conducted within the Smalls Claims procedure of the County Court. Costs are not awarded either to the loser or to the winner unless the case is highly exceptional. The only costs you might lose are the cost of your summons and the reasonable travel expenses of the defendant.

If you win, the only costs you will receive will be your summons fee and your reasonable travel expenses.

 

and

 

Q. Supposing I have a lawyer. Can't I get the costs of that legal help?

 

A. No, but neither can the Defendant

 

I'm sorry, but I can't keep on finding ways to convince you if you've decided I'm wrong.

[Bookworm]

Ok, you made me do this!!!!!

 

From "Small Claims Procedures: A Practical Guide" by Judge Patricia Pearl, Chapter 6 , page108:

The no costs rule

 

Basics:

 

The basic principle is that in Small Claims cases legal costs are not recovered by the winner.

The rules allow for the winner to be reimbursed for

• court fees paid (including allocation fees)
  
• the fixed costs shown on the summons, if a solicitor issued the proceedings, or up to £260 if it is an injunction case
  
• expert fees up to £200
  
• expenses incurred by the party and witnesses, including the reasonable cost of staying away from home for attending the hearing
  
• loss of earnings for the parties and any witnesses (up to £50 per day)

Any award for costs is discretionary, and the Disctrict Judge has the final say on whether costs and expenses are allowed in any particular case.

Further sums may be allowed if the District Judge comes to the conclusion that a party has behaved unreasonably.

The no costs rule does not apply to appeals.

 

There's a whole chapter on costs and it very much confirms what I said, which is that it is to the judge's discretion to award costs, ("overall discretion") and that the defendant can not recover their solicitors' costs ("Fixed costs are only relevant where a solicitor has issued the proceedings").

 

Can't say more than that, really. If you're thinking of suing in England, I strongly suggest you buy PP, it is invaluable for any E&W litigant.

 

Oh, an as for the expert's fees, the judge would have to agree in advance that an expert is to be present, and the key there is proportionality (Is his presence necessary, and is the expense justified?).

[Bookworm]

I would think it unlikeley any additional time would be given - that would be unfair! Fingers Xrossed!

 

The overriding objective is to enable the court to deal with cases justly. In layman terms, it means that the time limits can be stretched to accommodate either party. It would be nice to think the judge will strike out the claim, but the most likely scenario is that if they come in with late paperwork, it will be allowed.

 

It is, however, and yet again, at the judge's discretion. They do have really a lot of latitude, don't they, come to think of it...

[Bookworm]

NOOOOOOOOOO!!!!!!!!!!!!!!! Telewest cheque BOUNCED???? OH MY LORD!!!

 

 

(Rather priceless though, if you think about it!!!! )

 

 

PS: Bailey's? BAILEY'S? What is wrong with you?

[Bookworm]

Oh, and by the way, all Telewest people out there, if you haven't looked at the leaflet sent recently, the charge for non d/d payment is going up to £5 !!!

[Bookworm]

I too pay for anoymous call rejection (ACR) from BT, It is free on NTL cable.

 

Hijacking Martin's thread again, sorry, Martin!!!

 

But I am confused... I thought NTL & T/west were one and same now? Yet, T/west charges me £1.75/month for that service (just gone up form £1.50)... :-?

[Bookworm]

Cor, I really need to get cracking with mine, I have been meaning to get to them for months...

[Bookworm]

Ermmmm:

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/149442-virgin-media-contact-details.html

 

;-)

[Bookworm]

Martin is perfectly correct, no bank ever settled happily and without trying to discourage claimants in the first instance. They tried every tactic under the sun to make people go away or settle for less than they were due. Anybody who thinks otherwise is obviously not as clued up as they think.

 

As regards the Limitation Act, there is no harm in adding these to the claim, and if VM settles out of court, all good, if VM were to go to court, then the judge can deal with those separately (2 different arguments deriving from one - a) lawfulness of the charges THEN b) statute-barred or not). The only issue arises if VM settles before court but digs their heels in about the 6 yrs+ charges, in which case one has to decide whether to go to court on those charges alone.

 

As for CPR 27.14, it is highly unlikely a judge would award costs based on an action which is based on law, may or may not have a valid argument (no precedent set as of yet) and which the claimant brought out on good faith. If that were the case, no-one would dare bring out a case ever in case they get landed with costs, and the beauty of the Small Claims system is that it is designed precisely to protect the litigant in person from exorbitant costs when they bring actions against big corporations. What you refer to is CPR 27.14 (2) (g) which is the exception to CPR 27.14 (2):

The court may not order a party to pay a sum to another party in respect of that other party's costs, fees and expenses, including those relating to an appeal

 

As for your mate, if he only got advice from forums without doing his homework and finding things for himself as well, then he deserved everything coming to him, frankly.

[Bookworm]

Martin, save me from re-reading the 21 pages again.

 

How long did it take you from prelim to full payment?

Do you think yours was characteristic of the timescales anyone should expect?

And did you claim for both penalty £10 charges and the non-DD fees or only one or the other?

 

I really need to get cracking with this one, I think I requested my stuff 18 months ago and still haven't done anything with them. Shame on me.

[Bookworm]

Thanks, m'dear, you are a prince amongst men.

[Bookworm]

Absolutely, Emma. It's not "only classed as unfair if it isn't avoidable or you weren't told", there are plenty more things which would make terms unfair:

INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

 

1. Terms which have the object or effect of-

 

 

• (a) excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier;
   
  (b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;
   
  © making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;
   
  (d) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;
   
  (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
   
  (f) authorising the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract;
   
  (g) enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;
   
  (h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early;
   
  (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;
   
  (k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;
   
  (l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;
   
  (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;
   
  (n) limiting the seller's or supplier's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;
   
  (o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;
   
  (p) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement;
   
  (q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.
   
  

Statutory Instrument 1999 No. 2083

 

bearing in mind that these are NOT exhaustive terms, so there is plenty of scope for more terms to be unfair. ;-)

 

 

 

 

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[Bookworm]

No, I have found that providing correct information actually gets results. Then again, I suppose you'd disagree.

 

Non-exhaustive means that. Saying that the charges can "only" be unfair if they fall within the short 2 parameters you describe is misleading and potentially will lead people wanting to challenge VM down a path where they think they can't reclaim. That would be a shame, as most of us by now know better than that. ;-)

[Bookworm]

Oh, so that's how they're going to play it now, is it? And there was me thinking they couldn't stoop any lower...

[Bookworm]

'Hostile'. Specifically....?

http://www.consumeractiongroup.co.uk/forum/show-post/post-2092642.html

 

Specifically, terminating his account (retaliatory action) and passing to a DCA (breach of OFT guidelines as regards accounts in dispute).

[Bookworm]

...And we could all avoid bank charges by not going overdrawn, and we could all avoid getting conned by salesmen if we were all a lot sharper, and there is no need for consumer protection in any form or shape, let the weak get shafted and the strong get righteous, that will teach the weak to get stronger. Or not, if they can't adapt, they die.

 

Liberalism a la Thatcher adapted by social Darwinism, or the World according to Buzby.

 

Martin, thanks for that quote, nice to know the penny is finally dropping higher up. ;-)