Monday, 27 February 2012

Thanks for the support

I am really pleased at how much support I am getting on this whole ADR thing. Even people who have used ADR and won awards are giving sympathy and advice.

I do not know how it will end. It is causing more stress than anything before because it so fundamentally upsets my view of the world. I really thought I had a handle on contracts and liabilities.

I really hope the outcome is a change in the way ADR works. If we cannot win this argument we need to go higher - writing to MPs, complaining to OFCOM, judicial reviews, whatever. It simply cannot be allowed.

I really hope this does not change the way we work with our customers.

To be clear - this is a business that wanted to be a cheapskate and stream live video commercially on ADSL lines for the Royal Wedding. We provided the service they wanted in time for the event they wanted for the price they expected (well, according to them within £6.94, and we credited more than that). We bent over backwards to get the service installed and working in time even though we faced huge obstacles. The ombudsman agree we were not in breach of contract.

There is no way that any sane legal framework allows us to be penalised for that.

For journalistic purposes, criticism and review, I am quoting one paragraph from the initial decision. I believe this is valid under copyright law. It is the final paragraph addressed to the claimant.

"You complain that you have incurred direct losses as a result of the delays AAISP demonstrated. You have not provided me with any evidence of this, and in any event it is not appropriate to recommend that AAISP make any such payment to you because it has not breached its terms of contract, which also preclude such claims being made. However, I am mindful of the multiple shortfalls in AAISP’s service, and the likely additional problems that they have caused you. I am satisfied that warrant a fairly substantial goodwill award, of £500 in addition to the £200 referred to above."

In this one paragraph we see the contradiction. The fact we are not in breach of contract. The fact it would be inappropriate to award losses as we are not in breach of contract. Then the award for loss of convenience with some magic sum that they do not explain and call "goodwill".

That should simply not be valid.

26 comments:

  1. Do we know what the shortfalls in your service were?

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  2. From reading your diary on these events and the comments from all it would appear that you are not in the minority regarding how stupid the people who run the ADR are.

    In my 10 years in business I have luckily only had 1 person who has complained, in a similar vein (giving them everything and more but it still isn't good enough). As others have stated you will never please these morons, I have learnt it's best to ignore them and focus your energy on what you're good at. It's a very difficult thing to do as you're a genuine honest person wanting to help anyone as much as possible. Unfortunately this is also how you get taken for a ride by stupid people.

    Just look at your customer base and work out how many are happy; probably 99.9%?

    Only one thing to say; keep up the good work RevK!

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  3. Indeed, if you're not in breach of contract (assuming it's not due to some devious terms in small print (and even then with a business customer it's probably their fault for not checking it carefully)), and you didn't make any promises beyond the scope of the contract that you didn't meet (i.e. you didn't say "Yes we will deliver by date X", but "We'll try to deliver by date X depending on "), then there has been no shortfall, so nothing to award for - obviously this is without reading the entire judgment but quite where the 'multiple shortfalls' could come from I don't know...

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  4. Thanks all for the comments.

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  5. @Alex - that is precisely my point. The 'multiple shortfalls' must have come from somewhere. The way I see it is that:

    1 - RevK is deliberately withholding information by not telling us about the cock-ups A&A made,

    2 - The Customer has lied through their teeth to the ADR people, or

    3 - The ADR people are hallucinating.

    If (1), I for one would be extremely disappointed.

    If (2), isn't there a case against the customer for fraud and also for libel?

    If (3), well, I guess there's just no hope. A&A may as well pack up and go home.

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  6. I am not going to publish the whole decision without checking that is allowed. The shortfalls are clearly not actually shortfalls as they agree that we are not in breach of contract. They list cases are apparently not replying to emails as shortfalls, which I have to check. The main one is the time taken to get BT to install annex M - again not a shortfall as we did not agree to any date so did not fail to meet it.

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  7. Oh, and they don't reply to emails, so if that is a shortfall worthy of hundreds of pounds of compensation - they owe us rather a lot by now.

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  8. Hang on - the goodwill gesture is because the customer has claimed "it cost me meeelions of dollars! I'm going to lose my flying unicorn!" (paraphrased), and not presented evidence to show that they really have lost meelions of dollars and had their flying unicorn put at risk of repossession due to AAISP's mistakes?

    If so, that's truly mental. There are good reasons why the courts require you to provide evidence for your losses - amongst other things, it's fundamentally unfair to ask you to pay out for my gold plated Ferrari that got damaged in a freak DSL downtime incident, if said gold plated Ferrari never existed outside of my imagination.

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  9. Maybe the rules for ADR should be changed to make it so that only personal, domestic, customers are allowed to use ADR. As has been already been pointed out, business customers are supposed to understand contracts and are (at least in theory) able to negotiate a contract. ADR seems like consumer protection which is, at least in other areas, only applicable to contracts between businesses and consumers not business to business.

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    1. The ADR only covers single end users and organisations with fewer than 10 employees or volunteers as thats where Ofcom draw their artificial line between those big enough to look after themselves (and pay for court) and the 'man in the street' that they have a duty to protect.

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  10. As a friend as well as a business customer, let me add my note of support. I agree with the others and plead that you don't let one complete idiot colour your judgement to the majority of good customers you have.
    I was explaining the situation you're in to my wife today. While utterly perplexed about the ADR decision, she was unsurprised that it could break a geek brain quite badly, and akin to "being told 1=0 or black is white."
    While I won't say "Don't worry about this", I would repeat what others have said, and remind you that your sleep, sanity and health is worth more than £2,000 of company money... Try to let it go a *little*,and yet you can still address the injustice.

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    1. That is a good way of putting Dan!

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  11. Chartered institutes take complaints about their members very seriously. Try this ...

    Chartered Institute of Arbitrators
    12 Bloomsbury Square
    London
    WC1A 2LP
    Tel: 020 7421 7444
    Website: www.ciargb.org

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    1. ciarb.org I assume, but they appear to cover individuals not organisations. The individual that decided my case is not a member. Hmmm

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    2. RevK, you are charitable to a fault. That person produces a cockeyed ruling and you're still willing to state that they are not a "member"

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  12. Others have already expressed most of what I think about the situation, but I will say one thing - This idea of ADR forcing you to make a good will gesture goes completely against the reasoning behind why "good will" gestures exist. They're a optional instrument to be used by a company - at their discretion - to go beyond what they're legally obliged to do in certain circumstances where it makes sense. Perhaps you just want to keep a customer happy to ensure repeat business. Maybe they've been a great customer for a long time and you've messed them about a bit but haven't done anything which would strictly entitle them to any sort of compensation. Maybe it just seems morally right for whatever reason, but isn't legally required. They're a monetary way of "going the extra mile". In my opinion, the "extra mile" should be definition be the "optional mile". In my view (and I've been on both sides of this), it should always be a company's prerogative as to when they wish to do that. If they don't do it in situations when they arguably should, then they should be willing to accept the possible consequences - bad PR, loss of business, etc. If the customer feels the contract was unfair or interpreted incorrectly, then that's a different matter. The idea of someone at ADR deciding what they feel is morally "right", beyond the legal definition, scares me a little.

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    1. I agree, and that is why we do good will payments, and yes, how can someone force good will.

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    2. It rather seems that ADR has turned your original goodwill payment into a badwill one.

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  13. Your arbitrator must be a member of something - solicitor, accountant, something - otherwise why would you accept what was said? They will be a member of some professional organisation. If you phone up, check that the individual is a member of whatever and then ask what you do in this situation you will likely get some reasonable input. Better a phone call than an email. Ask about the formal complaints procedure, it can be very effective.

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    1. May be worth a try. We did ask about formal complaints procedures and got nothing!

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  14. Bet there has been the odd once or twice that you got nothing from BT as well but did that stop you?

    If Ofcom organised it, have a look at this -
    http://www.ofcom.org.uk/about/policies-and-guidelines/complaints-about-ofcom/

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  15. Obviously without seeing the entire case my view will be a little biased to what you have published, but frankly a situation where it is quoted that there is no breach of contract by you as the supplier yet still results in you receiving a fine for "shortfalls" is out of order.

    Sadly I have learned from other non-ADR related experiences that "fair" is not how the system works in many cases in these "dispute" situations. I've first hand experience of having to pay out many thousands in compensation to people for a baseless claim simply because I cannot provide evidence that something that never happened, er, didn't happen.

    Since funnily enough if it never happened, you'd have no records of it "not happening" by definition. I was effectively told I should log things I am not doing... which is just insane.

    Thus you have my sympathy about the crazy processes you've come across in ADR as I would imagine it is equally stupid and poorly conceived.

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  16. We are going through the decision paragraph by paragraph now. It gets madder. They are saying to waive all services from 31st May, but we cannot find any suggestions that they asked to cease then and in fact we have found emails in June categorically stating "we want to continue with the service" - emails we have sent to the ombudsman.

    So this time we are sending with highlighter pen and numbers and arrows on it.

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  17. Why don't you post the complete finding? Its a bit hard to comment on something that we have not seen.

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    1. I don't know if we are allowed to - but I am trying to find out. The whole thing has got sillier as the claimant just filed a defence on the court case stating they referred the case to the ombudsman on 9th Jan 2012 which makes it absolutely categorically beyond the 9 month limit on acceptable of cases. So unless the ombudsman want to accuse them of perjury them they should not have accepted the case.

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