Tuesday, 13 March 2012

ADR: Stand back and review

Apparently the next step is reporting us to OFCOM if we do not comply.

They also say their decision is final and so no need to send them anything more.

We do plan to dig out all the proof of their factual error in claiming that the customer asked to cease the service. They should consider a factual error. We have told them once and they ignored us.

We don't believe the customer asked to cease, and later emails discuss both the price of the ongoing service (stopping "premium" on the lines) and stated "we wish to continue with the service". They also used the ongoing service.

One of my biggest gripes is that a dispute over the date they asked to cease does not exist! The customer has not disputed this to us. They have simply included it in an ADR claim. So we have not had the chance to resolve the dispute.

Confusion over cease dates is something we sew up very well in our terms - we provide a "receipt" by way of a digitally signed order confirmation, and if the customer cannot provide the order confirmation (or number thereof) then they have to pay the ongoing charges. If they can, then we correct our error. It is a simple one to resolve.

Anyway, I think we probably need to ask OFCOM about this. They are the ones requiring us to comply with a decision made in accordance with the scheme rules (which we assert is not the case here).

At least if we are asking OFCOM we preempt being "reported" to OFCOM.

However, I am trying to get some legal advice on this.


  1. I think legal advice is what you need at this point, as you say.

    And a tea and a biscuit and a chance to relax.

  2. Even if they do report you to Ofcom the question is will Ofcom even bother to do anything about it?

    1. Well, OFCOM could fine us - but they would have to resolve the whole argument of whether the decision is made in accordance with the terms first.

  3. Well, I have found the emails about the idea that they asked to cease in May.

    1. We have an email in June where we ask that they confirm what they are paying is correct and that it is for 4 PSTN lines and 4 broadband lines with annex M and premium. The reply starts "We agree" and then goes on to say they will stop premium from the end of the month. The idea that someone asked to cease services in May would say this in June is laughable.

    2. We have an email in June advising how to cease services (a cease order via the web site) and no such order was placed.

    3. We have an email in June where we ask that they cease the services if they do not want them, and the reply stating "we wish to continue with the service". Again, that really does undermine any notion that they asked to cease in May!

    4. We have an email dated August when we say we are ceasing lines for non payment where the customer says they are sorry the commercial arrangement has to end like this - clearly agreeing the commercial arrangement is ending in August and not May.

    5. We have not actually had a dispute from the claimant regarding the cease date so why the hell is the ombudsman even considering it!

    Well, we'll send a letter and again copies of the emails - this time with highlighter pens...

    I bet they ignore it.

    1. Just to add - they were sent all of these emails at the start.

  4. Looking at the ADR provider in a quasi-judicial role, the e-mails are merely evidence and OS determines the facts. But you could still show that they did not follow law in determining the facts, e.g. ignoring evidence which they should not have ignored. Consider: did any statement of reasons for their decision indicate why they ignored the e-mail?

    Looking at the ADR provider as a private organisation fulfilling a contract, it would seem against natural justice to see things entirely that way! The ADR provider can't have the role of both judge and party in the question of whether you breached its contract. IOW if they were to take you to court for breach of contract, surely you have the opportunity to show "manifest error" of whatever sort.

    So perhaps the regulatory position and the question of breach of contract need to be considered separately.

    On the issue of mediation, over the past couple of years the county courts have been rolling out such a service, and Civil Mediation Council providers (I think this was called the National Mediation Helpline?) have a fee structure which might be cheaper than OS even if you were to agree to pay for, say, both party's fees for 1 or 2 hours. Perhaps some providers will do live telephone mediation? If suitable, you could encourage this as a preferred method before the "official" ADR.

  5. time to get legal advice from a paid-for lawyer!

    However, my gut reaction would be to pay $customer 'under protest without goodwill' the minimum ordered by the ADR in order to keep OFCOM off your back, and then take ADR provider to court for failing to provide the service in accordance with their terms. Sue them for the amount they incorrectly forced you to pay as a result of gross dereliction of duty.

  6. OK, we have a professional taking a look now. We'll see what they quote.