Tuesday, 4 September 2012

Well done Entanet

In a report on ispreview, Entanet call for rejected ADR claims to cost the consumer something.

At A&A we have serious doubts on the current ADR process, and even OFCOM's latest changes, having had one seriously broken case which involved large costs and compensation even when the arbitrator completely agreed we were not in breach of contract with a business customer (one that we assert was even a communications provider and so not even eligible for ADR in the first place). We got screwed over, basically. It cost me and my family money.

I appreciate that consumers do not want to be put off making valid complaints. They should not be. There are, indeed, many cases where ISPs and telcos make mistakes. Even we make mistakes, though we always aim to rectify them fairly and promptly if we do.

It is nice that we have a system in place (the county courts) that have such a predictable and cheap way to resolve disputes. For a matter of a few tens of pounds (in most cases) a consumer can take a case via the small claims track of the county court with little or no risk, and their costs paid if they win.

ADR is massively more expensive than the courts, and is paid by the ISP. This creates a scenario of quite simple blackmail. Yes, I am happy to say the word blackmail. If you are a consumer and you are in any way unhappy with your telco or ISP, you know that taking them to ADR will cost them a minimum of around £350 and probably way more even if the ISP is right. So you can threaten ADR for any claim under that and it would be not be acting in the best interests of the shareholders for the telco/ISP not to cave in and pay up. It is not fair to put consumer's morals under that pressure.

This is an obvious blackmail scenario, and I fully understand the position of the consumers in this case. Heck, I am sure I would do the same knowing the company that has annoyed me in some way could have much greater costs if I take them to ADR. It allows a consumer and small business to disregard contract conditions, no matter how clear and agreed they were, and screw over companies for the hell of it. It happens. We have had totally unfounded threats of ADR from a customer following the publication of the one ADR case we had. From what I understand, so have other ISPs! I would like to add that we had loads of people offering support and starting off by promising not to take us to ADR when asking us to resolve an issue. By far we have sensible and loyal customers who would not screw us over. The issue is that it only takes a tiny fraction of less scrupulous customers to cause serious problems for any telco.

The fact that those companies have shareholders like myself and my family who feel the cost of being screwed over just the same is often not something people see, understandably.

So I agree with Enta, failed ADR should have a cost, even if not the full cost, so that consumers only take real cases forward. They should not be put off, but even if they have to spend £50 up front, that would screen out the people taking the piss. Of course, as soon as you do this, then why on earth do we need ADR anyway when the county courts do such a good job for such a reasonable price in the first place. What we need is the courts to be less scary for people, not ADR at all.

Adding to my original post...

The issue we had was not so much the existing ADR structure. It has sensible T&Cs. E.g. they are there to find an agreed resolution, so if the claimant proposes a resolution (such as "to be let out of contract with no penalty") and ISP agrees that in full, there is no dispute, and no case, and no costs or awards. Similarly, if the arbitrator honoured the contract terms and legal principles, as they claim, a case where no breach of contract is agreed  by the arbitrator could never lead to an award (even if it meant the telco paying ADR fees to agree that). In our case these existing principles and terms were disregarded completely by the arbitrator (who is reminded that even reading this blog is breach of copyright). We agreed the claimant's resolution, and the arbitrator agreed we were not in breach of contract, yet still we paid lots of money and no recourse.

I cannot see how new rules would not be open to the same abuse without some changes.

The only way I can think that such clear abuses of the rules (the existing rules, or OFCOM's proposed new rules) can be addresses is a means of appeal. I cannot see why ADR should not in fact be fair (one of the things it claims to be) and allow either side to disagree the resolution and take the case to county court if they wish (paying to do so). At present the system is categorically designed to be unfair (offering the two sides different remedies, risks and costs) yet uses words like "fair" in the terms?!?

P.S. I know the world is not fair, a concept told to kids just to cause them annoyance later, but claiming to be fair when you are not does annoy me, and that is something ADR claims.


  1. I can't be the only person who thinks that it would be fairer and cheaper all round if, instead of ADR, ISPs were required to front the court fees for the SCC process, can I?

    Basically, instead of ADR, I could indicate that I intend to take you to court; you, as the ISP, would be forced to loan me the court fee, or face Ofcom sanctions. If the court then orders you to pay costs, you have to write off the loan; if the court orders me to pay costs, I have to pay you back immediately.

  2. Shame it's not easily possible to organise a mass protest like a flashmob i.e. anyone with a BT/Virgin or other $LARGEISP account just take them to ADR for the hell of it. Overload the system and point out how unfair it is.

    If hundreds of cases suddenly occurred, perhaps then BT & Virgin would have a word with OFCOM?

  3. The big problem with this is - and you see it in the comments of the linked article, any attack on the ADR process is seen as a Ryanair style attack on the customer, and you get knee jerk reactions saying "Well just provide what you're supposed to and you'll have nothing to worry about" - which we all know is a load of crap

    1. I quite understand, but we have PROOF that is not the case.

      We have a ruling from The Ombudsman Service where they agree that we are not in breach of contract,so, to put it bluntly WE DID WHAT WE AGREED, and yet we had a large award against us plus writing off loads of charges which post dated the dispute, had not been disputed, and had two separate emails confirming the customer was happy with.

      I cannot see how any changes short of some appeals process could fix this. The terms of the ADR, if followed, would have been no problem.