Saturday, 25 February 2012

Not our fault?

This is really trying to spark some debate and not give a definite answer.

One of the things that has come out of this whole ADR fiasco is that there was a problem caused by BT. But our contract is with BT and our customers contract is with us and not with BT.

So what happens when there is a problem like this.

Now, I fully understand that the customers contract is with us and not with BT. We usually give details of what the cause of any problem is, and what we are doing to solve it. This means that if we are the cause we say so. If BT are the cause we say so. We are not trying to "excuse" the fact things are broken by passing the buck or blaming someone else - we are simply trying to provide truthful and honest details of what is happening and why.

In contract terms we take some care to mirror the terms we get where we can - where BT do not guarantee a delivery date, or experience tells us they will not meet targets, we don't try and offer any guarantee to our customer.

This means we can find that we let people down on some occasions, whether our fault or someone else's - it is *us* that has let the customer down.

We make sure we don't have liability in such cases - other than not charging for services until they are finally, possibly delayed, installed. We don't make money until they are installed, so we lose out as well.

We thought that was good enough - being up front on what we can and cannot guarantee and what remedy there is for delay, if any.

It seems however that when someone else causes us a delay, even though the delay on our part is not breach of contract and not going against what was agreed in any way, somehow we are liable to pay for the inconvenience caused. Yet we are not able to do the same to our suppliers. We have no way to insist our suppliers ignore the terms we agreed and compensate us.

So what should happen?

Is it right that the agreed contract is what matters? i thought so.

Should we take the hit on compensating someone for a delay that was not our fault when we never agreed to a date in the first place?

Should we be able to pass on this liability to our suppliers some how? If that is not down to contracts, what legal framework should allow that?

What if the delay was our fault, and we did not guarantee an install date? is that different, or just covering our arse as effectively?

Is it really fair that we can offer a service without guaranteeing a date, and the only compensation being that the customer does not start paying until the install finally happens? Is that fair and reasonable? I thought so.

I am interested in feedback on this as I have actually toned down our T&Cs to allow for delays that are not our fault more clearly. i.e. that there is not charge for service we have not installed because of a delay, even if the delay is not our fault. I think that is fair too.

Whats the view here?


  1. My own personal opinion is that I never thought I would see the day when someone would make an allegation of poor service against A&A and have it upheld by a so-called independent adjudicator.

    I think you have enough friends in the ISP industry who will recognize that while A&A is a competitor; being held financially responsible for screwups made by 'our favourite telco' would significantly affect their ability to recover any kind of meaningful profits from their ADSL offerings.

    I guess what I am saying is that you may find allies in unexpected places due to this decision.

    Methinks the only good that may come of this if your appeal fails is that you can take 'our favourite telco' to ADR in an attempt to reclaim the 'goodwill payment' citing this case as supporting evidence.

    If both cases succeeded and it was determined that the wholesale division of 'our favourite telco' was found ultimately responsible in a financial sense for issues such as this, I would suspect that the precedent set for A&A would be worth far more than the hassle and sleepless nights which this has caused for you personally.

  2. Firstly let me say that this idiotic situation is par for the course in our dear country. Just as householders catching and detaining a thief end up being hauled of by the police for kidnap, so this ADR organisations seems set up using the same logic.
    However, how can there be inconvenience to a customer who is told at the outset that no provision date can be given? How can you possibly be late when there was no given supply date?
    I may be more than a little *inconvenienced* if my hospital tests for a possible cancer take weeks to come through, but I am not entitled to claim money from anyone.
    So how can you define Inconvenience?
    It is all too subjective.

    Take them to court and hope that the facts speak for themselves.

  3. The problem is A&A can't take our favourite telco to ADR, as I believe they don't count as a small business thus ADR does not apply - the only thing they could do is take them to court, at which point a judge will apply the law (rather than do whatever they please) and almost certainly (unless our favourite telco's legal team was rubbish when writing the contract) declare it not a breach of contract, and thus rule against A&A...

  4. If the final decision goes the way of the current draft one then you might want to talk to your MP, and ask if he/she can start asking questions of Ofcom about how this ADR scheme can ignore the contract and effectively mean you run the risk of not being able to do business as it appears your contract terms are just ignored...

  5. Alex, yes. We have tried to work out if we can contrive to be small business (we are not far off their definition) but I think there is a spend factor that rules it out, sadly.

  6. Alex, indeed - once we get a final decision, if it is like this we get some legal advice (costing money) on whether it is valid and enforceable.

    If not, then we may have a battle. If it is, then yes we talk to MPs. You cannot have businesses dealing with businesses and unable to rely on contract law, that is fundamentally broken. Even dealing with consumers we should still be able to rely on contract law even though that law is biased to consumers in various ways for obvious reasons.

    I want to make sure our contracts are fair, hence asking the sort of question in this blog. Getting the contract right should be what matters. Then both sides know where they stand and can rely on that contract.

    Of course, if we do have a fight and win - i.e. a real court says that theses arbitrary "good will" awards are in fact outside the terms of reference and so not valid - that could have interesting implications for the ISPs and telcos that have had to pay them so far. They would, I hope, all sue the ADRs to get compensated (not sue the end user, after all they were not to know the award was outside normal contract law). If the only two ADR companies went bankrupt as a result that would be something of an interesting situation :-) One can dream.

  7. Ive Never understood how BT can enjoy such a position of "non responsibility" in my case it is yellow VPs that reduce my throughput in the evening from near 6 megs to less than one meg. now if it was my ISP I have a remedy - even if in contract - the law requires that they use "reasonable skill and care" in provision of a service. BT are apparently exempt from this as there is no contractual connection between the end user and the wholesaler.

    So they are insulated from the "consequences of inaction" as not only do I have no legal redress... the regulator is useless and looks to most to be in bed with BT group. This is an area that the OFT should be looking at, as the consumer and the ISP get shafted especially on 20 cn market one exchanges where we pay a high price for a slow service on old tech. My exchange is not even seeing investment in curing contention (engineers locally say there is no date they are aware of for a fix) much less an uplift to WBC - and the only fibre we can look forward to is in our breakfast cereal!

    Its time BT group were made responsible for the problems they cause, this one sideed and abusive relationship must end. They need bringing into line over engineers charges and delays in execution of of works as well as a radical redrawing of charging bands to f=refelct the poor service on 20cn exchnages.

  8. I've been reading this whole debate with interest. I do find this whole situation fairly unacceptable. That said, I think most or all of the problem is at the BT end.

    If I'm moving house/premises, and need a network connection up and running for a particular date, that is really what I need. I'm having to agree a move out & move in date well in advance with landlords etc, and getting a "well, we'll try and get it running for the 20th, but there's no guarantee we'll get it running at all" is really not what I want to hear.

    If it gets to the 20th and it's not up and running, why should it then be my problem to pay my out of pocket costs to provide a replacement service for an unknown period of time?

    Sure, things can and do go wrong, but if BT make a mess of things, surely they should be taking some responsibility for that.

    I've been on the wrong end of this as a consumer - my ADSL was dropping on incoming phone calls, and one department in BT was consistently sending the wrong type of engineer who was hence not able to complete the required work, resulting in me taking a pointless day off work. The ISP (not A&A) in this case were unwilling to offer any compensation, but ADR told them they had to. That was (in my opinion) a correct conclusion.

  9. Can you please post the ADR finding in full so we can all see it?

  10. Joseph, that is an interesting comment. It is good to hear the view from the consumer side.

    You are right, of course - why can't you get a guaranteed date. I would love to offer you a guaranteed date, but as BT don't offer that to me, I can't. So the best I can do is make clear up front what I am offering and you can choose to take the service on that basis or not.

    If someone else offered a guaranteed date you could go to them. They would charge more I expect. If you don't want to pay the extra to get the guaranteed date then that would be your choice.

    As for faults taking a long time to fix and lack of compensation - we do offer compensation for faults that take too long to fix - we offer the refund of the line cost for the time it was faulty and was not fixed promptly. But that is generally very little money. It does not cover the costs of getting alternative access. Again, this is because we get bugger all compensation from BT (there is some, but it is literally a couple of quid if that).

    BT, of course, are saying that they offer services to us on a contract and we can agree their terms or not take the service - so we are in the same boat as you.

    I would hope that if you had been with A&A then we would have got the fault fixed sooner - but at the end of the day we cannot physically go and tamper with wiring in BTs network so we have no choice but to put up with their poor performance. So if we had not done a better job we would be offering you a few pounds - what was paid for the line for the days it was not working - as compensation - and no more.

    My concern here is that we make that clear in the contract with a consumer, such as yourself, when the service is ordered. You would be agreeing there is bugger all compensation. If we did what we agreed and paid the compensation we agreed then there should be no option to take us to ADR or court. That is the whole point of having an agreement.

    It seems, scarily, that if we had been in that situation you could take us to ADR, and even if ADR fully agree we were not in breach of contract they could "award" some arbitrary extra compensation to you. That is clearly not on. The whole point is that the contract sorts these in advance and they are agreed and you have a choice to buy from us on those terms, or not.

    It is a shitty contract - don't get me wrong. It would be nice if there was a significant compensation for delayed install and delayed fault repair. If we had significant compensation from BT for such things we'd be happy to offer contracts on that basis. Once upon a time BTs SLGs were really good for things like phone lines (months rental for each day late was the standard). Sadly this is not the case now.

    In the case of the ADR issue we have now - from BT's side, the issue was that having ordered a line they "could not take an order" for annex M as they messed up the line details on their system. That means that even if there was compensation for delayed install from BT it would not have mattered as, having not accepted an order, they have not agreed a date. So simply having compensation from them would not have helped. Once they did accept the order the annex M was applied promptly and within their normal lead times.

    Personally I think the key thing is to be up front and clear on what is offered. That is what we have always tried to do.

  11. Tom, I am not sure if that is allowed, but I will be trying to do so. I'd like to post the whole text of the final decision if I am allowed to.

  12. Can you please post the ADR finding in full so we can see it?

  13. Surely if somebody (BT/ISP/garden fairy) makes a commitment to get an engineer to a customer's site on a specific day (as in Joseph's case) and they don't, then that in itself is a contract that's been broken? As a result, the consumer is surely due compensation for having to take *another* day off work? Given that the consumer only has a contract with the ISP, surely it's the ISP who's got to cough up?

    Just thinking out loud.

  14. Nicolas - if only it were that simple - our favourite telco make few contractual commitments and in many cases where they have breached contract and outright lied to us it is still impractical to get any compensation.

    We could issue a county court claim against them (we have in the past) but we would be doing that every day, and it would make it even harder to work with them than it is now.

  15. No, I mean from the end-user's point of view. If making arrangements for an engineer's visit has a cost (day off work etc.) and they've been told that an engineer will be visiting on a certain date, it is fair to expect the end user to suffer that cost. If, however, the engineer doesn't visit (or is the wrong kind of engineer so to all intents an purposes an engineer doesn't visit), then it is not fair to expect the end user to suffer those costs twice.

    Given that the end user only has a contract with the ISP, the only body they can claim from is the ISP. If the ISP refuses to recompense the end-user, then (in my humble), the only option the user has is to ADR it. In those circumstances, I certainly would and I see it as fair enough.

    Now, given those circumstances, your point that you can't (or won't) sue your upstream provider isn't the end user's problem (and why should it be?). If the ADR process says you must pay me and you elect not to persue recompense from your provider, then that is your decision. Tough nuggie, I say.

    Again, just thinking out loud.

  16. Ok, but if we make it clear that an engineer might not come when there is a fault, and you still by a service on that basis, then why would here be compensation to pay?

  17. Actually, I think that if BT don't send an engineer, then for some of the services we have there may be a few quid we can claim, so we should pass that on. I'll look at putting hat in the terms. Only fair. Nothing like compensating for a day off, of course. But that is what would be in the agreed terms and so all that should be claimable even through ADR...

  18. This is a general problem, though - if you've made no promises, then fair enough. If you've booked an engineer's visit, got me to take time off (expensive for me), and then your supplier ignores their contract with you and does a no-show, you are the only party I can chase - you can, however, chase your supplier for recompense, too.

    I think there's a world of difference between Joseph's situation (engineer booked, time agreed, supplier then misses it), where you should be liable to compensate the customer, and the one you've outlined as the ADR case, where you had not yet agreed a date, and missed the customer's internal deadlines.

    Basically, once you've agreed a date, it's your problem to make your suppliers meet it or compensate the customer appropriately. Until then, I don't think you owe the customer anything - but remember that there's a balancing act here, as (for example) a day off booked 14 days in advance is easier for me than a day off booked at 8am on the day.

    1. I suspect we need to pin this down a tad in our contract terms - offer whatever compensation we can get on to our customer, and make sure it is clear up front how much that is. I don't want to surprise people.

      The discussions on this are interesting - it always helps to hear the customers views in a non confrontational setting so that we can try and make our contract fair and clear as much as possible.