Friday, 24 February 2012

Changing terms

Well, the whole ADR thing is causing several small changes to T&Cs for A&A.

They are pretty small to be honest - the first is the "customer complaints code" which now says that to make an official complaint you have to tell us:-
  • The exact amount you are claiming
  • How you worked out this amount
  • What steps you have taken to minimise this amount
  • What exactly we did wrong
  • Why this was a breach of contract. i.e. which clauses exactly. If it was not a breach of contract you have no claim.
  • For any claim relating to an ongoing service that was not working for a period, then, for each specific service (i.e. broadband is separate from annex M and separate from email, etc)
    • In what way the service was not working
    • Why was the service not working our fault
    • When you reported the service not working
    • When the service was fixed (or ceased, if not fixed)
    • Exactly how much you were charged from when reported to when fixed or ceased. Please quote the invoice numbers.
  • If the amount you are claim exceeds the limit of liability agreed in the contract (i.e. what was charged for each service for the period it was not working due to our fault), then explain why you believe the limits in the contract do not apply. You cannot claim more than is agreed in the contract.
That is meant to cover this case - the claimant never made any clear claim in the first place, and did not state the amount or why, or what we did wrong or why that was breach of contract.

So that change alone should help a lot. To be honest I think this is a small change. When shit goes wrong people get cross. You need to focus. You need to be able to say what you want and why. That helps massively. So doing this up front makes it easy for us, and if ever it goes to ADR it helps. We also added a whole section on "Step 3: Feedback and rants" on the basis people have some way to just complain without making a "formal claim".

To be clear, and we say this as well, we can make good will payments (if we decide, not if ADR decide) if things did not go well even if not our fault. We do this. Of course, if doing this makes us somehow more liable we'll stop, so I hope not. But we want to be fair. Problem is that ADR is by definition unfair, which is odd as their own terms say they should be fair. It is unfair as one side pays regardless for the case. Why are they even using the word "fair" in their terms when clearly they are not.

The big issue is that this would have meant there was no case - we did not breach contract. Sadly, having changed our complaints code we now realise that the fact we did not breach contract is irrelevant!!! WTF!

So other changes in the main terms. We state "We expect our staff to always be helpful and polite, and we expect customers to do likewise - however this is not part of the contract. If we, or you, are rude or unhelpful then there is no compensation for this either way in the contract. We may terminate a call or chat if we feel you are being rude, and we would happy for you to do the same if staff are rude. We are happy for your to provide feedback on such cases and we will endeavor to address them (again that is not part of the contract). Just to be clear - we are not agreeing to compensate you for causing stress or inconvenience either."

Again, I was hoping this meant that no accusation of being rude or unhelpful would count as not breach of contract. Little did I know that not being in breach of contract did not count!

So finally we have added "Alternative Dispute Resolution (ADR) is a service that allows you to make a claim without going to court if you think we have done something wrong and we owe you compensation. It is important to realise that this contract has clear limits on our liability even if we do something wrong, and you have agreed to those limits. This includes the fact that nothing is due for being rude or poor customer services, only where we are in breach of contract. ADR can take complaints for many reasons, but not about our terms and conditions. However, as we are not confident that ADR will limit any awards to the limits agreed in this contract, it is a term of this contract that if you take an issue to ADR and are awarded an amount in excess of the limits strictly due under these contract terms, then you will immediately re-imburse us that excess or allow us to deduct it from the award. The arbitrator claim to consider the law and our terms in their decision, and so this clause should never be needed."

I have no idea if that holds water legally. It should, IMHO, because it says "this contract counts". It says "what we agreed was the limit of liability really is the limit". It should not need saying. It is normal contract law that if we agreed a penalty for breach then that is what we agreed. Saying we can enforce the contract over what an ADR says should be a non issue as they are meant to take in to account the contract and the law. Clearly they don't do this, so by putting this in, in theory we can sue someone that takes us to ADR and gets a silly award, or simpler we just withhold the award as agreed in the contract - something they cannot argue about.

This does not stop them using ADR though - they can - and the things ADR are good for like billing errors, are covered and no problem. Basically, anything ADR should cover, within the contract, they can. We would never expect any dispute to ever get that far as we will happily fix any mistake we genuinely make.

I can only hope we have another 15 years before another case like this and testing that contract clause.

I hate having to be "mean" to anyone, but really - contracts should rule. They say what we have agreed, and that should matter!


  1. You'd need to be careful about creating terms that are unfair, or that disclaim some statutory right - particularly as far as consumers go.

    For instance, wording like "Why was the service not working our fault. If it was not our fault, you have no claim." /may/ hold no truck with the courts if, for instance, you can be held responsible for faults by your supplier. And if it deems that term unfair, you risk having the entire term struckout - including the bits that might otherwise be OK.

  2. Fair point - on that one there is force majeure obviously, and we do try to sort things, but yes, I see your concern.

  3. From what you have explained, this does sound like a scam. Can you post the ADR finding in full so we can see it?

  4. Can I also echo some concern re: the "Why was the service not working our fault. If it was not our fault, you have no claim." clause.

    It might be BT's fault, and I know that when it is you guys will move Heaven and Earth to get BT to get off their a***s but at the end of the day I'm your customer and have no contractual relationship with BT wholesale - so I *can't* get any compensation from them; my only recourse is to deal with A&A because that's who my contractual relationship is with**.

    **yes, yes, I know - never end a sentence with a preposition. I tried contorting it to conform to that particular rule of grammar and then decided it looked better in its present form.

  5. I am happy to address that point - you are quite right - customers contract with us and not BT. This is a point that comes up.

    The fact BT may mess something up and that causes us to fail in providing a service to you is force majeure - a matter beyond our control. We are only agreeing to use all reasonable skill and care to provide the service, so when something beyond out control happens that is a factor - not necessarily in whether we are in breach of contract but it is a factor in whether there is compensation due.

    The point is that we know various of our suppliers do not guarantee install dates or availability to us, so we make sure, knowing that limitation, that we don't guarantee such things to our customer. We make it clear that things can take time to install, can break, and can take time to fix. So we are offering something we can in fact offer.

    So when such things happen, we are not actually "at fault" anyway and not in breach of contract, as we never guaranteed they would not happen, and even said that they could happen. We try to be clear and up front about such things.

    That is because we know our suppliers and their limitations.

    This ADR case is a huge concern because, having made our contract like that - even though we did nothing wrong and the problem was a matter beyond our control, and even though we used a lot more than "reasonable skill and care" to get BT off their arses and sort the problem for us, we are being penalised. The whole point of us making the contract the way we do is so that we are not penalised in such cases. We have no way to get that compensation back off BT as they are also careful with what they agree in their contract with us and they too were (almost certainly) not in breach of contract.

    The way contracts work is you don't get compensation if someone was not in breach of contract - well, that is how they have worked for some centuries until ADR came along.

    In practice we are more than happy to offer reasonable good will gestures and compensation even when it is BT letting us down and even when we cannot get that back off BT. A recent example is a customer without his FTTC line for a week and BT refusing to actually do anything to fix the fault. Personally, I think BT were in breach of contract with us then, but getting compensation for it will be impossible in practice. None the less the customer got a months line rental from us without even asking.

    So maybe I need to clarify that or reword it a bit to explain.

    Thanks for the feedback.

  6. OK, I have added "We make clear that if the problem was not our fault you have no claim - this is not just because of force majeure (i.e. that matters beyond our control are excluded from the contract), but because the compensation agreed in the contract is only for where the cause is our fault."

  7. Even so, I may see if I can change the wording. In general, if there are matters beyond our control, we would none the less not expect you to pay us for a service we are not providing while providing it. So the force majeure is really down to delays doing things, which we clearly exclude already. I may need to make this a tad better.

  8. OK I have removed the bold text saying if we did nothing wrong you have no claim, but have left the question about whether it was our fault.

  9. What on earth is going on with google, it says I just posted "RevK Feb 24, 2012 08:07 PM". It is 4am FFS.

  10. Anyway, hopefully that looks better now. Seriously - I am not trying to rip people off here - I want it to be clear what we offer, and some of the limitations in that (largely due to what our suppliers offer us by way of service guarantees).

  11. The ADR has become an process to "protect" the individual/small from the "big guy", regardless of actual responsibility. It doesn't matter whose fault it is -- the thought is that the "system" is such that the corporation has the resources to protect its own interests and the little guy is not in a position to protect his own. Furthermore, the big guy *must* have been responsible in some way, and in any case, has the financial resources to give the little guy something.