I was interested to learn a bit more about the court service's arbitration service recently. When I had previously taken people to court this was not available, but in a recent case the paperwork offers both parties an arbitration as an option.
Obviously, having previously encountered arbitration in the way of The Ombudsman Service for ADR I was a tad sceptical, but the fact that we could go on to a normal hearing if the arbitration did not work meant there was no risk. So, I had a case go to arbitration.
One of the key, and rather annoying, points is that the arbitration is that it is confidential. Part of the agreement to arbitrate, and the final settlement agreement that can be reached by arbitration, is that the details are confidential to the two parties. This means I am unable to comment on the specific case, sorry.
I did, however, discuss a couple of points with the arbitrator, and he is happy for me to blog on the process itself. Also, he noted, very sensibly, that there was no point trying to change things that were already posted on my blog, even about the specific case - what is published is published. This seemed a sensible enough compromise that I agreed to the terms in this case. Interestingly, in a case that is coming up (and not going to arbitration), the other party (Deane) has offered to settle if I remove all details from my blog. This was the same tactic tried by someone else previously. I did not agree to his offer, or agree to make his offer confidential. With any luck this will go to court in November and we'll have a much clearer case on the whole spamming issue. The case is pretty sewn up, but the defendant seems determined to fight it having won a case before (where the target email was not an individual subscriber, from what I can gather).
Anyway, the arbitration process was simple enough. They book a one hour slot, and call you each on the phone, in turn, to discuss the case. The objective is to try and come to a settlement without having to go to a hearing, and both parties have to be prepared to try and do that, which may mean compromise. The arbitrator was friendly and helpful and offered useful advice. He had read the paperwork that we had submitted to the court (claim and defence and so on). If the agreement is reached, then that binding.
It as amusing that he said he had learned something from this as he did not know you could take action against spammers :-)
I did ask what if one side does not stick to the settlement agreement, and apparently this agreement is not simply like a normal contract where you would sue for a breach of contract - if the agreement is broken then I could apply to the court for summary judgement, of if I prefer, to have the case go on to a hearing. A timescale is agreed for the parties to do what is agreed. So it is quite a simple process.
Another key point is that the arbitration call is free of charge, though you do have to made a claim in the first place which can cost as little as £25 in the county court.
This does rather lead to some serious questions about the ADR process that telcos are forced to join. The cost for ADR is of the order of £350+VAT just to take a case. Some recent rule changes are being considered where the arbitrator can decide that the case is vexatious and dismiss it, but that still means the case fee is paid by the telco as I understand it.
Now, if the county court service can do an arbitration call, and even a hearing in front of a judge for a few tens of pounds, why on earth would ADR cost £350? Something is very wrong there.
What I have suggested via ISPA to CISAS is that taking an ADR case should have two stages. The first stage would be an arbitration call just like the court service's arbitration. This would allow many cases to be resolved, and would allow the arbitrator to determine if a case is totally unfounded or vexatious. Only if the arbitration call fails would a full ADR process then happen. Such a call could be done for tens of pounds, if that. Even though this would (unfairly, by design) fall on the telco, it would allow cases to resolved quickly and cheaply, and bogus cases to be dismissed cheaply.
In an ideal world, that initial cost, lets suggest £20, would be payable by the claimant if the case is dismissed or resolved in the telco's favour. Perhaps, to come to agreement quickly, the telco could offer to cover that fee, if it is agreed that the issue is just a misunderstanding. That would mean that telcos would not be unfairly burdened with bogus case costs, and would create a small but very reasonable barrier to abuse of the process. Apparently the EU regulations creating the need for ADR do not actually say it has to be free, so this would be sensible. If that was the maximum risk to claimant, e.g. a full ADR cost is always paid by telco, that would still avoid a lot of risk for the claimant.
That's the suggestion. If any other ISPs think this is sensible, please let ISPA know.
Showing posts sorted by relevance for query Arbitration. Sort by date Show all posts
Showing posts sorted by relevance for query Arbitration. Sort by date Show all posts
2013-10-07
2014-03-31
ADR
I have not mentioned ADR for a while - it was a dark time - a time of changing my views on society and the rules of law and justice beyond reason. I was not in a happy place...
But this week I have a meeting that involves ISPA. It seems OFCOM and/or CISAS are interested in changes to the ADR system. This has to be good!
To explain, for those that do not know, ADR is meant to be an alternative to using the courts to resolve a dispute, the clue is in the name Alternative Dispute Resolution. Supposedly the courts are too scary ?!?!?! It is designed to be biased in that the telco pays regardless and that decisions are only enforced against the telco - so it is in no way an alternative to court for resolving disputes. A court has power to make judgment either way and enforce it. A court awards costs (albeit minimal) against the loser in most cases. ADR is a kangaroo court type of alternative to court.
Given that the court service itself has an ADR - a telephone call to the parties for an hour to try and resolve the dispute by arbitration - at no extra cost as part of the process, having an alternative to this alternative to court is simply not necessary anyway.
The one case we had was wrong in every conceivable way, from the fact the claimant was clearly a communications provider, to the complaint being later that the 6 month time limit, to the fact that all they asked was to be "let out of the contract with no penalty" which had already been done, to the final judgment that agreed we were not in breach of contract but insisted we pay compensation and write off charge that post dated the dispute and had been agreed in writing with the complainant already. Legal advice was to pay up - in hind sight I wish I had not.
My huge challenge is keeping my cool and proposing changes that have a positive effect on the legislation and process.
This will be hard, very very hard.
One has to wonder what could change. Ideas so far....
1. Scrap it - allow courts and their arbitration option to be used instead.
2. Keep it - but accept courts arbitration as valid ADR scheme.
3. Consider loser pays a fee of some sort to discourage bogus claims.
4. Have a front end (free or covered by claimant fee) vetting of claims.
5. Have a means to reject bogus claims with no cost to ISP (as above really).
6. Have an option of lower cost simple mediated arbitration call like the courts do.
7. If must be ISP pays, allow ISP to cover court fee to allow access to courts arbitration scheme as way cheaper than any of the ADR providers now.
8. Don't have ADR for small ISPs. A size that covers us!
9. Regardless of other changes, make some clear cut rules - a point that a dispute is formally closed and so cannot ever go to ADR later (as part of compensation offer maybe). A point at while disputes formally starts (actually meets some basic criteria for a valid dispute). Remove all of the ambiguities that exist now.
10. Allow ADR opt-out by end users not wishing to burden ISP with ADR. Most of our users would happily opt-out and confirm so clearly at time of order.
11. Clarify "communications provider" exception in the law - it seems to cover anyone "operating a communications network" which could mean they are in charge of a gigabit switch at home.
Update:
We have made some constructive suggestions.
We have understood more about how CISAS work and it is better than we expected.
We have suggested the concept of a dispute over "quality of customer service" is a nonsense as (a) there is no legal basis for compensation for poor customer service (we exclude customer service from our contract even), and (b) we would not actually "dispute" such a complaint (we'd dispute a claim for compensation for such as a contractual matter which CISAS do not handle either). They were very confused by the idea that a complaint could fail to constitute a "dispute" if we do not disagree the complaint. They point blank refused to agree on a definition of "dispute" in the meeting.
However, overall, a good meeting.
But this week I have a meeting that involves ISPA. It seems OFCOM and/or CISAS are interested in changes to the ADR system. This has to be good!
To explain, for those that do not know, ADR is meant to be an alternative to using the courts to resolve a dispute, the clue is in the name Alternative Dispute Resolution. Supposedly the courts are too scary ?!?!?! It is designed to be biased in that the telco pays regardless and that decisions are only enforced against the telco - so it is in no way an alternative to court for resolving disputes. A court has power to make judgment either way and enforce it. A court awards costs (albeit minimal) against the loser in most cases. ADR is a kangaroo court type of alternative to court.
Given that the court service itself has an ADR - a telephone call to the parties for an hour to try and resolve the dispute by arbitration - at no extra cost as part of the process, having an alternative to this alternative to court is simply not necessary anyway.
The one case we had was wrong in every conceivable way, from the fact the claimant was clearly a communications provider, to the complaint being later that the 6 month time limit, to the fact that all they asked was to be "let out of the contract with no penalty" which had already been done, to the final judgment that agreed we were not in breach of contract but insisted we pay compensation and write off charge that post dated the dispute and had been agreed in writing with the complainant already. Legal advice was to pay up - in hind sight I wish I had not.
My huge challenge is keeping my cool and proposing changes that have a positive effect on the legislation and process.
This will be hard, very very hard.
One has to wonder what could change. Ideas so far....
1. Scrap it - allow courts and their arbitration option to be used instead.
2. Keep it - but accept courts arbitration as valid ADR scheme.
3. Consider loser pays a fee of some sort to discourage bogus claims.
4. Have a front end (free or covered by claimant fee) vetting of claims.
5. Have a means to reject bogus claims with no cost to ISP (as above really).
6. Have an option of lower cost simple mediated arbitration call like the courts do.
7. If must be ISP pays, allow ISP to cover court fee to allow access to courts arbitration scheme as way cheaper than any of the ADR providers now.
8. Don't have ADR for small ISPs. A size that covers us!
9. Regardless of other changes, make some clear cut rules - a point that a dispute is formally closed and so cannot ever go to ADR later (as part of compensation offer maybe). A point at while disputes formally starts (actually meets some basic criteria for a valid dispute). Remove all of the ambiguities that exist now.
10. Allow ADR opt-out by end users not wishing to burden ISP with ADR. Most of our users would happily opt-out and confirm so clearly at time of order.
11. Clarify "communications provider" exception in the law - it seems to cover anyone "operating a communications network" which could mean they are in charge of a gigabit switch at home.
Update:
We have made some constructive suggestions.
We have understood more about how CISAS work and it is better than we expected.
We have suggested the concept of a dispute over "quality of customer service" is a nonsense as (a) there is no legal basis for compensation for poor customer service (we exclude customer service from our contract even), and (b) we would not actually "dispute" such a complaint (we'd dispute a claim for compensation for such as a contractual matter which CISAS do not handle either). They were very confused by the idea that a complaint could fail to constitute a "dispute" if we do not disagree the complaint. They point blank refused to agree on a definition of "dispute" in the meeting.
However, overall, a good meeting.
2017-01-29
"Alternative" Dispute Resolution
We have ADR in the telecoms industry and it is creeping in to other areas from what I can see.
My issue here is simple, why "alternative"? Surely that simply means the "original" is not fit for purpose? If that is so, why not fix the "original" rather than making an "alternative".
So what is the "original"
Well, to for most civil low level disputes that ADR may cover it is the county courts system under the small claims track.
I have used the courts may times. I have seen them work, and (in my opinion) go wrong. I have been the one making the case, and the defender. I have learned a lot of lessons. In some ways, the fact that I have had to learn lessons is an issue. It should be a process the novice can handle without learning lessons from the past.
The process, and I mean the "small claims process" here, has some really good features.
My issue here is simple, why "alternative"? Surely that simply means the "original" is not fit for purpose? If that is so, why not fix the "original" rather than making an "alternative".
So what is the "original"
Well, to for most civil low level disputes that ADR may cover it is the county courts system under the small claims track.
I have used the courts may times. I have seen them work, and (in my opinion) go wrong. I have been the one making the case, and the defender. I have learned a lot of lessons. In some ways, the fact that I have had to learn lessons is an issue. It should be a process the novice can handle without learning lessons from the past.
The process, and I mean the "small claims process" here, has some really good features.
- Fixed costs, starting very low, in the tens of pounds
- Loser pays (up front if making the claim, so costs known and spent in advance)
- Lawyers can get involved but their costs are not claimable (and they are looked down on)
- Judgement is binding (either way)
There are however issues. It is normally a court hearing, in a location where one of the parties may have to travel at some cost (what with so many contracts over the Internet and not face to face). This itself is a problem, and daunting.
There are some things to help - the county court at Reading, and I assume many others, have a system of free (once you have made a claim) arbitration. This is a one hour phone call (so no travelling) alternating the parties, to try and resolve the issue.
This is huge - it removes the travel and the scary court appearance. It will not always work, but I bet it works a lot - anyone got stats on that?
But if that fails the process is not hard. It may seem scary, it is just you, the other side, and a judge, in a room (an office), and discussion. That is all. Not really a problem (apart from travel).
Can we make it better?
The arbitration is good, but we could do more. How about a remote (email) based arbitration as next step. Each party emails arguments and evidence to the judge to consider. If the parties accept that ruling then all done, if not then a court appearance.
I would be in favour of this, even if it has a small additional fee over the telephone arbitration.
Why is ADR bad?
The only ADR we have had was a fucking nightmare. We were not even allowed to see the details of the case against us - what the hell? That is mental and would never be allowed in a court. The judgement was made with no discussion and no appeal. It was final.
Also ADR for ISPs, and others, is cost one-sided, only the ISP pays either way. It allows customers to threaten ADR with no risk even when they know they are wrong. The cost is way more than the county court, by a factor of around 10. How is "alternative" justice so much more expensive than "real" justice? ADR only makes sense if it is cheaper.
My proposal?
Well, the emailed resolution to add to the phone call arbitration for a start.
In some cases we could err on the side of the consumer, maybe having some limits on cost that are more skewed towards ADR. My suggestion is end user must have a risk and up front cost of maybe £5 or £10, so as to remove the frivolous claims. Then maybe up to a certain level for large claims that is all their cost, with company paying the rest (tens of pounds).
Even so, I think cases need to allow counter claims. If ISP says "they have not paid bill", that should be valid. ISP pays fee to counter claim, and adds that to claim if they win. At present ADR is one-sided and cannot act against end user. Why have any one-sided system?
Conclusion
We could make the "real" dispute resolution better and remove the need for "alternative" dispute resolution in so many areas. Let's do that!
2012-03-14
The farce
Thanks to a very helpful solicitor specialising in arbitration, we have some legal advice on this. She agrees that this is completely unacceptable, and questions whether the contract we have with the ADR provider is at all valid. Technically we can appeal, via the Arbitration Act and going to court.
However, she says that the contract allows them to pretty much do what they like, decide their own jurisdiction, and make any award they like. She says that it would be bankruptingly expensive to challenge it.
Sadly, she advises that we should pay up and change ADR. She offered to look at the contract with the other ADR provider as well.
So, just to clarify, if you are a consumer or small business dealing with any telco, it appears that :-
Just to be clear here, they agree we are not in breach of contract, but required us to pay £500 as good will.
They claim the customer asked to cease service on 31st May, but we have emails in June where we say that they can cease the services on the on-line order page and the reply with [sic] "We want to continue the service". We emailed in June asking if they agreed the prices and services and the reply was [sic] "Yes. Agreed". Yet, we are ordered to credit the charges for June and beyond.
I knew the law was an arse, but this is special. I am not sure how this has been allowed. I am not sure how we can get this changed.
The result is that we have to change the way we work with customers, and none of it will be good. The customer complaints code is already a lot more bureaucratic. The terms are already more onerous (not that contract terms actually matter, it seems). We cannot afford to ever go out of our way to do anything special for a customer because if it goes wrong we can be taken to ADR. I am at a loss. I am going to go home and cry.
P.S. If we get more ADR cases, prices go up to cover the extra costs and so our customers all lose out - well done championing the consumer cause there!
P.P.S. I would like to thank everyone for their support and encouragement on this issue. I do appreciate it.
However, she says that the contract allows them to pretty much do what they like, decide their own jurisdiction, and make any award they like. She says that it would be bankruptingly expensive to challenge it.
Sadly, she advises that we should pay up and change ADR. She offered to look at the contract with the other ADR provider as well.
So, just to clarify, if you are a consumer or small business dealing with any telco, it appears that :-
- Even if they have not broken the contract, you can take them to ADR and get large "good will" awards.
- Even if you agree to service and prices, you can take them to ADR and get those charges refunded.
- Even if you make up new disputes that you have not raised with the telco first, you can include them in the ADR complaint and they will be considered, but the ADR will not show the telco what you said.
Just to be clear here, they agree we are not in breach of contract, but required us to pay £500 as good will.
They claim the customer asked to cease service on 31st May, but we have emails in June where we say that they can cease the services on the on-line order page and the reply with [sic] "We want to continue the service". We emailed in June asking if they agreed the prices and services and the reply was [sic] "Yes. Agreed". Yet, we are ordered to credit the charges for June and beyond.
I knew the law was an arse, but this is special. I am not sure how this has been allowed. I am not sure how we can get this changed.
The result is that we have to change the way we work with customers, and none of it will be good. The customer complaints code is already a lot more bureaucratic. The terms are already more onerous (not that contract terms actually matter, it seems). We cannot afford to ever go out of our way to do anything special for a customer because if it goes wrong we can be taken to ADR. I am at a loss. I am going to go home and cry.
P.S. If we get more ADR cases, prices go up to cover the extra costs and so our customers all lose out - well done championing the consumer cause there!
P.P.S. I would like to thank everyone for their support and encouragement on this issue. I do appreciate it.
2012-02-03
ADR
I have to post something - I am so stressed over this - if I post on here I will feel I have parked the problem, at least for now. Sorry it is long and boring...
This should be a case for putting on our web site as a major success story. It was a company wanting to stream live video from a site in London for coverage of the Royal Wedding last year. They wanted (rather adventurously) to do it on ADSL lines, needing something like 8Mb/s uplink. We managed to get the lines in with a FireBrick doing bonding so that they had around 9Mb/s upload, and all in time for the event. They streamed videos on the day. They even paid the bills (which is not cheap for 4 PSTN lines with ADSL2+ and annex M).
What made it even more of a story is that our favourite telco messed up the records on two of the lines which meant they could not accept an order for annex M (faster upload) as they did not have the line length details. It took Shaun a hell of a lot of work to get that sorted, and he knew he was working against the clock and he managed it. There are logs of him chasing our favourite telco at 2am in some cases. It was a real case of A&A staff going the extra mile, well over and above the contractual requirements to help a customer. All of the staff involved kept them informed the whole time and handled numerous questions and changes to dates and messing around very professionally and politely.
I was pleased, and the customer said they were happy with the service even.
Then we get a dispute from them - they think that they should not have to pay the install price for the lines because of the delay getting annex M on them.
What? That makes no sense. We installed the lines and got annex M and all in time. But they say they needed time to demonstrate to potential customers, and as they did not have time then did not sell as much streaming as they expected. It does not make a lot of sense as they say each stream was 2M, so they could have demonstrated as soon as they got the first 2 lines in long before the event. The delay was getting the final two annex M upgrades. Even so, them not getting customers is hardly our fault as we didn't agree an install date. In fact we make it a clear and explicit part of the contract that we don't guarantee an install date.
We explained that it made no sense. Was he saying he has losses that happened to be exactly the same as the line install costs? Anyway we were not in breach of contract, and anyway we exclude consequential losses even if we were. Sorry...
He starts spouting implied contract terms but cannot say what and where from, and that his claim is not entirely for breach of contract but cannot say what for. He even quoted Sale of Goods Act clauses relating to equipment sales, when he had not in fact complained about the equipment supplied in any way at any time, and clearly it worked as it should have. It really made no sense at all.
Even so, we did issue a good will credit for £272 which was various of the service costs before all 4 lines were working together. We did not have to, but we are nice like that.
He seemed confused by the credit. Anyway, the final email in the dispute was mine asking him to simply and clearly list exactly what he is claiming for, why, and how much. I hear no more.
Months later - The Ombudsman Service say they have a claim. The claim says we have been unhelpful and they lost business due to the delays, and states how much they have paid. It also says how much the calculate they should have paid which is £7 less. We told the Ombudsman that £7 was clearly a frivolous claim, and already more than settled, but they are going ahead anyway?!?!
Today we sent them the case file - something like 500 pages. Good luck!
ADR is Alternative Dispute Resolution. Its required for telcos like us to be part of such a scheme allowing people to take a dispute to an arbitrator instead of the county court.
This is our first case ever. No customer has taken us to ADR or court in nearly 15 years in business, and that alone is stressing me. We strive to provide good service, and to resolve disputes fairly ourselves. How can any case go as far as ADR?
The problem is, even if the arbitrator is sensible and sees we did not breach the contract and we actually bent over backwards to get the service they wanted in time in spite of serious problems (beyond our control) from our favourite telco, and as such there is no case to answer and no award... We pay £350 for that.
Yes, even a totally bonkers case and even if the arbitrator agrees it is a totally bonkers case... we pay £350.
What the hell!?!?!?!?!
We will have to see how the case pans out. In the mean time said company has paid none of their subsequent ongoing service bills, and so we are taking them to county court! Madness.
I think, certainly for business customers, we have to have a clause requiring them to pay us if they bring an invalid case to ADR. No idea if that is enforceable, but at least it is "fair". Maybe that would go to county court if I have that clause - I wonder how a county court judge would rule on the fairness of a clause forcing a "loser pays" arbitration system when, err, that is the system the country court operates... Hmmm.
P.S. had my annual diabetic review today (see other blog post) and for the first time my blood pressure was up - I was awake half the night just stressing on this whole thing being "wrong" so I am not surprised. It is not even the money - £350 is not an issue, obviously - its the injustice that stresses me.
P.P.S. I forgot the "sound bite" type paragraph for ispreview to quote...
This should be a case for putting on our web site as a major success story. It was a company wanting to stream live video from a site in London for coverage of the Royal Wedding last year. They wanted (rather adventurously) to do it on ADSL lines, needing something like 8Mb/s uplink. We managed to get the lines in with a FireBrick doing bonding so that they had around 9Mb/s upload, and all in time for the event. They streamed videos on the day. They even paid the bills (which is not cheap for 4 PSTN lines with ADSL2+ and annex M).
What made it even more of a story is that our favourite telco messed up the records on two of the lines which meant they could not accept an order for annex M (faster upload) as they did not have the line length details. It took Shaun a hell of a lot of work to get that sorted, and he knew he was working against the clock and he managed it. There are logs of him chasing our favourite telco at 2am in some cases. It was a real case of A&A staff going the extra mile, well over and above the contractual requirements to help a customer. All of the staff involved kept them informed the whole time and handled numerous questions and changes to dates and messing around very professionally and politely.
I was pleased, and the customer said they were happy with the service even.
Then we get a dispute from them - they think that they should not have to pay the install price for the lines because of the delay getting annex M on them.
What? That makes no sense. We installed the lines and got annex M and all in time. But they say they needed time to demonstrate to potential customers, and as they did not have time then did not sell as much streaming as they expected. It does not make a lot of sense as they say each stream was 2M, so they could have demonstrated as soon as they got the first 2 lines in long before the event. The delay was getting the final two annex M upgrades. Even so, them not getting customers is hardly our fault as we didn't agree an install date. In fact we make it a clear and explicit part of the contract that we don't guarantee an install date.
We explained that it made no sense. Was he saying he has losses that happened to be exactly the same as the line install costs? Anyway we were not in breach of contract, and anyway we exclude consequential losses even if we were. Sorry...
He starts spouting implied contract terms but cannot say what and where from, and that his claim is not entirely for breach of contract but cannot say what for. He even quoted Sale of Goods Act clauses relating to equipment sales, when he had not in fact complained about the equipment supplied in any way at any time, and clearly it worked as it should have. It really made no sense at all.
Even so, we did issue a good will credit for £272 which was various of the service costs before all 4 lines were working together. We did not have to, but we are nice like that.
He seemed confused by the credit. Anyway, the final email in the dispute was mine asking him to simply and clearly list exactly what he is claiming for, why, and how much. I hear no more.
Months later - The Ombudsman Service say they have a claim. The claim says we have been unhelpful and they lost business due to the delays, and states how much they have paid. It also says how much the calculate they should have paid which is £7 less. We told the Ombudsman that £7 was clearly a frivolous claim, and already more than settled, but they are going ahead anyway?!?!
Today we sent them the case file - something like 500 pages. Good luck!
ADR is Alternative Dispute Resolution. Its required for telcos like us to be part of such a scheme allowing people to take a dispute to an arbitrator instead of the county court.
This is our first case ever. No customer has taken us to ADR or court in nearly 15 years in business, and that alone is stressing me. We strive to provide good service, and to resolve disputes fairly ourselves. How can any case go as far as ADR?
The problem is, even if the arbitrator is sensible and sees we did not breach the contract and we actually bent over backwards to get the service they wanted in time in spite of serious problems (beyond our control) from our favourite telco, and as such there is no case to answer and no award... We pay £350 for that.
Yes, even a totally bonkers case and even if the arbitrator agrees it is a totally bonkers case... we pay £350.
What the hell!?!?!?!?!
We will have to see how the case pans out. In the mean time said company has paid none of their subsequent ongoing service bills, and so we are taking them to county court! Madness.
I think, certainly for business customers, we have to have a clause requiring them to pay us if they bring an invalid case to ADR. No idea if that is enforceable, but at least it is "fair". Maybe that would go to county court if I have that clause - I wonder how a county court judge would rule on the fairness of a clause forcing a "loser pays" arbitration system when, err, that is the system the country court operates... Hmmm.
P.S. had my annual diabetic review today (see other blog post) and for the first time my blood pressure was up - I was awake half the night just stressing on this whole thing being "wrong" so I am not surprised. It is not even the money - £350 is not an issue, obviously - its the injustice that stresses me.
P.P.S. I forgot the "sound bite" type paragraph for ispreview to quote...
A&A have long had concerns over the whole ADR scheme, and this case just shows how it can be abused. A clear case of A&A falling over backwards to help a customer and go way beyond the agreed contract terms, and then having a £350 bill thrown in our faces. ADR is unfair - buy definition - it is a "one-side pays regardless" arbitration scheme unlike the much cheaper country court small claims track where loser pays. We are even tempted to offer customers a scheme where we will pay their fees up front for taking us to court rather than ADR if they have a dispute, after all such a scheme would be a tenth of the cost in most cases.
2014-10-08
ADR
However, recently, the opportunity came up for me to see ADR from the other side. Actually, a few opportunities.
1. Giffgaff refuse to offer anonymous call rejection as a service, even though it has been a legal requirement for over 10 years. Ombudsman (Otello) refuse to take the case. This is a dispute I have and they refuse to take the case - WTF!
2. Apple provide a telecommunications service (iMessage), but have no ADR. OFCOM simply cannot get their head around that as well as being an equipment manufacturer they also provide a telecommunications service to UK residents by direct contract with them and so are legally required to have an ADR. Sounds like we should use OFCOMs arguments back to them and make a VoIP carrier that does not have ADR.
3. Virgin line installed at my home (for reasons to do with stuff I am donating to ORG) but it makes me a residential customer of Virgin in my own personal capacity. Bingo, now I have a case for ADR.
But obviously I need an actual dispute. I did not have to invent one - there was a clear case to dispute. Indeed, I had three clear issues...
a) The install was not at the agreed time - I had to take an extra half day off work. They said sorry but offered no compensation. (note: A&A make a point of not guaranteeing install dates - Virgin did not).
b) Their customer service agent told blatant lies and refused to reply to my written complaint by letter. He insisted twisted pair is the same as coax. He insisted there was no ADR. He insisted that they did provide "fibre optic broadband".
c) They sell "fibre optic broadband" which is not. They even told me in writing that "we provide copper coax cable till the main box and from there we use the fibre optic cable to install the services at the customers property" which makes it clear that they should use fibre optic cable to the property (my house).
Now, I appreciate words and phases change their meaning over time. "broadband" has annoyingly changed from "using a wide band of RF spectrum" to "Internet Access". I don't think "Fibre optic" has changed from "uses actual glass fibre and light" to "very fast" yet, but I did quote from their web site where they define fibre optic: "It’s made from strands of glass as thin as hair, which carry information by light.". So there was no re-definition of the term here.
However, what they supply is copper coax.
So, I took them to ADR (after complaining several times and being told that there was no ADR). It was filling in a form on their web site and a few emails. Simple. Too simple, in fact. It has to encourage bogus complaints!
Now, Virgin had the chance to sort the dispute (and pay a lower fee, but still pay a fee, if I agreed it was resolved). Oddly they did not simply offer me cash of less than the full fee to close the matter. The problem is that they kept saying how they provide service - with fibre to a cabinet and coax from there, and does that explanation resolve the complaint? Well, no, it did not, as they still claim to be selling "fibre optic broadband", and their explanation is that they do not. It made no sense that they would think that would be a resolution. It was like they had some sort of mental block.
The whole issue with the delayed install had not been refuted by Virgin. It was part of my complaint. Virgin did not even mention it in their defence. But the final arbitration said I did not provide any evidence so they ignored it! Well "my word" is the evidence and them not refuting my word means that the arbitrator should have agreed with me. There was no coming back to me saying "do you have any evidence?" of which I have plenty by way of a letter from virgin and lots of time-stamped pictures. No, they just ignored it. They did not arbitrate a resolution to the dispute at all on that point!
The final ruling was that virgin had to apologise, which is good. Interestingly, the ruling states :-
"I am therefore satisfied that the company's documentation is consistent with a FTTP service as its letter is explicit in that fibre optic cables are run to a customer's property, and its description of the fibre product on its website is wholly inconsistent with the use of copper cabling from the nearest connection point (such as the company's cabinet)."
Now, lets just read that again, to be clear to the ASA, Virgin's marketing department, Trading Standards, and anyone else reading this - an independent qualified arbitrator, paid for by Virgin, has stated "[Virgin's] description of the fibre product on its website is wholly inconsistent with the use of copper cabling from the nearest connection point (such as the company's cabinet)." Just let that sink in for a moment here.
They were ordered to apologise, but specifically to me, not in general.
It is also interesting that Virgin claim that all its street cabinets are served by fibre, and I am pretty sure mine is not. See picture at the top. They also quoted an old OFCOM glossary that defined FTTC "fibre" as copper from nearest street cabinet, which does not look to be the case for me or anyone in my street.*
Virgin did, finally apologise, but only to me, see below.
Even so, I did not feel happy that ADR actually made any real effort to work with both sides to resolve the dispute properly. It was submit some stuff, and decide. No questions, no clarifications, just done and dusted for a £300+ fee (paid by Virgin). In contrast I have used the county court arbitration service which is a series of phone calls for up to an hour, and that was much more sensible and productive. So even using this as a user, and winning, I still feel ADR is bad, and should be scrapped.
I will, once again, reiterate that the Virgin service does indeed seem to be a pretty good cable Internet service. It does a good job at a fair price. Just a shame they feel they have to tell porkies to sell it.
* The kit shown in that picture can, apparently take a fibre - so I cannot say for sure that it is not a fibre node. However, other Virgin correspondence did say fibre to the "Main node", so I seriously doubt it.
2012-05-18
A new ADR
So, we are finally on CISAS. There are only two approved ADR companies, and this is the other one.
I have to assume they are the lesser of two evils as it is hard to conceive that they could be worse.
The terms are slightly different, and generally seem better. Of course, the terms of the last bunch seem to have been totally ignored by them. So it is possible this bunch will do the same. Lets hope not.
I really hope we never have to find out.
One small detail they seem to have is that they do outlaw claims where they are subject to proceedings in the courts. The last lot did this too, but only if the customer had started the proceedings. This lot seem to not have that caveat. This means that if we have a dispute with a customer not paying, then starting court proceedings will stop them using ADR against us. This makes sense, as ADR cannot rule (enforceably) in our favour, so no point in ADR tackling such a case (you would think). The last bunch seemed happy to take what was, essentially, a customer not paying their bill, agree with us that we are not in breach of contract, and then insist we waive the charges and pay them money, which is blatantly batshit crazy (IMHO). If ever we have a new case we will be very quick, up front, to quote T&Cs to the ADR and, if needs be, argue with OFCOM.
Anyway, we are asking a few up front questions of CISAS to clarify a few things just in case. I hope they are OK on this. If we have a case that goes to an arbitrator then something has gone very wrong.
But it does get potentially interesting. The contract with the previous bunch does not end until next April, AFAIK.
However, my understanding, which may be wrong, is that one cannot simply take a dispute to an arbitrator. It basically has to be in the agreed contract that you can use an arbitrator in the first place.
In the case of telcos, OFCOM insist that this is the case (as required by the Communications Act). So we have that option in our contract terms.
We have now changed our terms so they say that eligible customers can (following the customer complaints code, etc) take a dispute to CISAS and not to Otelo.
I think that means Otelo cannot take on any more cases for our customers, even though we are still in a contract with them. I do hope so.
It also means that our contract can, correctly, only allow ADR for people the Communications Act says can take us to ADR. This is subtly different to what the scheme rules are for CISAS. It is subtle. CISAS say, for example, a company of more than 10 employees cannot use ADR. The Comms Act says "for which more than ten individuals work (whether as employees or volunteers or otherwise)". not a big issue I expect, but surprised they do not align. Now, if I am right, and the contract terms have to allow arbitration in the first place, then this is fine. Our T&Cs limit to people as per Comms Act, and then people have to meet scheme rules. We'll see what they say.
Please don't get me wrong. I want to be fair and reasonable with all customers and want to resolve any disputes promptly. We *do* have a contractually agreed, up front, in your face, limit of liability, and we don't expect anyone to try and bypass that. We certainly don't expect to have to pay some arbitrator to resolve a dispute for us. One case in 15 years is not a bad record, but that should not have happened in so many ways.
I have to assume they are the lesser of two evils as it is hard to conceive that they could be worse.
The terms are slightly different, and generally seem better. Of course, the terms of the last bunch seem to have been totally ignored by them. So it is possible this bunch will do the same. Lets hope not.
I really hope we never have to find out.
One small detail they seem to have is that they do outlaw claims where they are subject to proceedings in the courts. The last lot did this too, but only if the customer had started the proceedings. This lot seem to not have that caveat. This means that if we have a dispute with a customer not paying, then starting court proceedings will stop them using ADR against us. This makes sense, as ADR cannot rule (enforceably) in our favour, so no point in ADR tackling such a case (you would think). The last bunch seemed happy to take what was, essentially, a customer not paying their bill, agree with us that we are not in breach of contract, and then insist we waive the charges and pay them money, which is blatantly batshit crazy (IMHO). If ever we have a new case we will be very quick, up front, to quote T&Cs to the ADR and, if needs be, argue with OFCOM.
Anyway, we are asking a few up front questions of CISAS to clarify a few things just in case. I hope they are OK on this. If we have a case that goes to an arbitrator then something has gone very wrong.
But it does get potentially interesting. The contract with the previous bunch does not end until next April, AFAIK.
However, my understanding, which may be wrong, is that one cannot simply take a dispute to an arbitrator. It basically has to be in the agreed contract that you can use an arbitrator in the first place.
In the case of telcos, OFCOM insist that this is the case (as required by the Communications Act). So we have that option in our contract terms.
We have now changed our terms so they say that eligible customers can (following the customer complaints code, etc) take a dispute to CISAS and not to Otelo.
I think that means Otelo cannot take on any more cases for our customers, even though we are still in a contract with them. I do hope so.
It also means that our contract can, correctly, only allow ADR for people the Communications Act says can take us to ADR. This is subtly different to what the scheme rules are for CISAS. It is subtle. CISAS say, for example, a company of more than 10 employees cannot use ADR. The Comms Act says "for which more than ten individuals work (whether as employees or volunteers or otherwise)". not a big issue I expect, but surprised they do not align. Now, if I am right, and the contract terms have to allow arbitration in the first place, then this is fine. Our T&Cs limit to people as per Comms Act, and then people have to meet scheme rules. We'll see what they say.
Please don't get me wrong. I want to be fair and reasonable with all customers and want to resolve any disputes promptly. We *do* have a contractually agreed, up front, in your face, limit of liability, and we don't expect anyone to try and bypass that. We certainly don't expect to have to pay some arbitrator to resolve a dispute for us. One case in 15 years is not a bad record, but that should not have happened in so many ways.
2014-11-27
Ed Vaizey says that once you are 70 you don't have to pay your bills?
Well, that seems to be what has been said in relation to a case mentioned in parliament. The actual case seems rather odd, and clearly we don't have all of the details, but it involved a dispute between an ISP and a customer which was resolved by the Ombudsman in favour of the ISP. The issue was raised by an MP at the request of the customer, his constituent. This is good of the MP, I agree.
We really don't have all of the details to comment on the case itself - what was mentioned in parliament seems like a clear cut case of an ISP mis-selling, but my experience of the Ombudsman service is that they would always favour the customer so the case must have been pretty clear to favour the ISP in this case.
Ed Vaizey is reported as confirming this: “In most cases, the ombudsman proves to be a powerful and effective piece of consumer protection. It does work, and figures show that it often works to the consumer’s benefit"
“It seems astonishing that a telecoms company would pursue a man in his 70s … Having won its war with Mr Jones through the ombudsman, it should recognise that its corporate social responsibility should dictate that it should waive this bill.”
We really don't have all of the details to comment on the case itself - what was mentioned in parliament seems like a clear cut case of an ISP mis-selling, but my experience of the Ombudsman service is that they would always favour the customer so the case must have been pretty clear to favour the ISP in this case.
Ed Vaizey is reported as confirming this: “In most cases, the ombudsman proves to be a powerful and effective piece of consumer protection. It does work, and figures show that it often works to the consumer’s benefit"
However, the next comment really does puzzle me, as he is reported as saying:
“It seems astonishing that a telecoms company would pursue a man in his 70s … Having won its war with Mr Jones through the ombudsman, it should recognise that its corporate social responsibility should dictate that it should waive this bill.”
WHAT?!?!?!?
For a start it seems odd to say "having won its war with Mr Jones". It is not a war to expect a customer to pay their bill. Also, it was Mr Jones that pursued a case against the ISP via ADR and the ISP has has to pay for that even though they won!
But surely, having won the case, it is perfectly sensible, normal, and even responsible to the shareholders as required by the Companies Act for the ISP to expect the customer to then pay up.
It seems that Ed Vaizey is saying that even when a third party has confirmed that the money is owed, because someone is in his 70s it is some corporate social responsibility to waive the bill?
Does this mean that when I get to 70 I can simply choose not to pay bills, and even if taken to court, or some other third party arbitration, I should still not have to pay them?
What exactly is Ed Vaizey saying here?
2015-04-01
Distressing
Well, looks like we will actually be going to court over the latest spam.
21 pages, FFS, waffling on about my connection to Dedicated Programmes (from which I buy the email address in question). Whether or not I am an individual subscriber is a matter of fact - it is whether I have a contract with a CP as an individual for the service, simple as that. Even if I was director and shareholder of DP, it would not matter if I, as an individual, had a contract for the service. As it happens, Simon, who runs DP is just a friend and I have never worked for or been a shareholder of DP, but none of that matters. He thinks the invoice was sort of made up - well yes, long before he sent his spam, after previous spams, Simon and I agreed that DP would actually charge me, and properly invoice me, for the email address which he had previously provided free (or in exchange for some help from me). That made it a clear contract, ensuring there was no doubt as to the fact that I contract as an individual for the service and as such am an individual subscriber.
Anyway, I'll have to go through in detail. He has quoted loads from my blog, which is, of course, a breach of my copyright for which I can sue him (sadly I can't in this case).
What is in no doubt is that this is distressing, and it is distress for which I am claiming. I have just checked my blood pressure after looking at this letter from the guy and it is through the roof. I am already on medication for blood pressure. I may take the meter with me when I go to court, as I have to be a bit careful. It will take me a while to calm down now! I can be pretty sure I will lose sleep over this now.
What I have to remember is, that even if the judge throws out my case for some reason, I will have learned something useful and at most paid his costs for getting to court. Small claims has limited costs, and the fact he refused to consider an arbitration call may even get the costs removed anyway, we'll see.
Case on the 15th!
21 pages, FFS, waffling on about my connection to Dedicated Programmes (from which I buy the email address in question). Whether or not I am an individual subscriber is a matter of fact - it is whether I have a contract with a CP as an individual for the service, simple as that. Even if I was director and shareholder of DP, it would not matter if I, as an individual, had a contract for the service. As it happens, Simon, who runs DP is just a friend and I have never worked for or been a shareholder of DP, but none of that matters. He thinks the invoice was sort of made up - well yes, long before he sent his spam, after previous spams, Simon and I agreed that DP would actually charge me, and properly invoice me, for the email address which he had previously provided free (or in exchange for some help from me). That made it a clear contract, ensuring there was no doubt as to the fact that I contract as an individual for the service and as such am an individual subscriber.
Anyway, I'll have to go through in detail. He has quoted loads from my blog, which is, of course, a breach of my copyright for which I can sue him (sadly I can't in this case).
What is in no doubt is that this is distressing, and it is distress for which I am claiming. I have just checked my blood pressure after looking at this letter from the guy and it is through the roof. I am already on medication for blood pressure. I may take the meter with me when I go to court, as I have to be a bit careful. It will take me a while to calm down now! I can be pretty sure I will lose sleep over this now.
What I have to remember is, that even if the judge throws out my case for some reason, I will have learned something useful and at most paid his costs for getting to court. Small claims has limited costs, and the fact he refused to consider an arbitration call may even get the costs removed anyway, we'll see.
Case on the 15th!
2015-04-15
Day in court
So, suing a spammer today, and to be clear, he did send an unsolicited marketing email to me, an individual subscriber - sadly I lost the case. But as ever, it works out a cheap lesson in how the civil justice system works.
Neil Brown was kind enough to observe and make detailed notes, here. Thank you. It is worth noting that the judge was very happy that this was a public hearing and so there were observers allowed. Indeed, the defendant asked his wife to come in when he realised.
There were a couple of interesting procedural points which are worth noting. For a start, even though the defendant had refused an arbitration call, and even though the judge agreed that is normally considered in costs, the judge award expenses against me!
As for the expenses, it seems it is very worth while bringing all your receipts to the hearing, including, it seems, the cost of recorded delivery postage for the defence and paperwork to the court and other party. I had no idea you could claim such things, but the judge was happy to pay documented expenses, and even 45p a mile for travel. So I'll be doing that in future.
Sadly the point of whether I am an individual subscriber was not addressed, which is a shame. The judge went straight for the idea that I had no evidence of damages and hence that I have no claim. She also said that you cannot claim for distress.
This is a worrying view, as it basically makes regulation 30 pointless in almost all cases.
The good news, of course, is that such cases are not a precedent, and the next judge may well have a different view.
So what to do next...
Oh, and obviously, I should report this incident of spam to the ICO and request that they exercise their enforcement function. Sadly they will do nothing as usual.
Neil Brown was kind enough to observe and make detailed notes, here. Thank you. It is worth noting that the judge was very happy that this was a public hearing and so there were observers allowed. Indeed, the defendant asked his wife to come in when he realised.
There were a couple of interesting procedural points which are worth noting. For a start, even though the defendant had refused an arbitration call, and even though the judge agreed that is normally considered in costs, the judge award expenses against me!
As for the expenses, it seems it is very worth while bringing all your receipts to the hearing, including, it seems, the cost of recorded delivery postage for the defence and paperwork to the court and other party. I had no idea you could claim such things, but the judge was happy to pay documented expenses, and even 45p a mile for travel. So I'll be doing that in future.
Sadly the point of whether I am an individual subscriber was not addressed, which is a shame. The judge went straight for the idea that I had no evidence of damages and hence that I have no claim. She also said that you cannot claim for distress.
This is a worrying view, as it basically makes regulation 30 pointless in almost all cases.
The good news, of course, is that such cases are not a precedent, and the next judge may well have a different view.
So what to do next...
- I need a nice clear summary of the recent cases, which do set a precedent, which make it clear that you can claim for distress in cases like this. Had I got this with me I could have countered the assertion that the judge made. There have been several cases where traditional damages were indeed nominal (and £1 awarded) but distress was substantially more (hundreds of pounds).
- I need to look in to how the value of distress is normally calculated, and then show those calculations for the basis of my next claim. This may, of course, mean I end up claiming more.
Oh, and obviously, I should report this incident of spam to the ICO and request that they exercise their enforcement function. Sadly they will do nothing as usual.
2012-03-23
Letter to MP on ADR...
Letter to Dr Phillip Lee MP, our MP:-
We are a Bracknell based internet service provider, and we have to be part of an Alternative Dispute Resolution (ADR) Scheme to handle arbitration of customer complaints.
We had our first case in 15 years this month and we are quite shocked at the way it was handled.
The Ombudsman Service Ltd (Otelo) took a case from a London based business, even though from a communications provider so not eligable to take a case to ADR, and even though after 9 months from the "dispute".
They agreed were were not in breach of contract, but then, in contradiction of our terms and contract law invented a £500 good will payment to make.
They ignored clear statements by the customer that they agreed the price and wanted to continue services in June last year and instructed we credit all charges after May.
We are shocked at how biased they are and would ask that you enquire as to how this happened and ask Otelo for an explanation.
It is seriously impacting the way we do businesses as an internet service provider based in your constituency.
Regards.
Adrian Kennard
Director.
We are a Bracknell based internet service provider, and we have to be part of an Alternative Dispute Resolution (ADR) Scheme to handle arbitration of customer complaints.
We had our first case in 15 years this month and we are quite shocked at the way it was handled.
The Ombudsman Service Ltd (Otelo) took a case from a London based business, even though from a communications provider so not eligable to take a case to ADR, and even though after 9 months from the "dispute".
They agreed were were not in breach of contract, but then, in contradiction of our terms and contract law invented a £500 good will payment to make.
They ignored clear statements by the customer that they agreed the price and wanted to continue services in June last year and instructed we credit all charges after May.
We are shocked at how biased they are and would ask that you enquire as to how this happened and ask Otelo for an explanation.
It is seriously impacting the way we do businesses as an internet service provider based in your constituency.
Regards.
Adrian Kennard
Director.
2013-09-07
S Three / Huxley and contradictions.
So, on 2nd July 2013 S Three plc wrote to the court and stated that we had come to a settlement agreement:-
Yet, now I am suing for breach of that agreement they say that I could not have accepted that offer, so how could we have come to an agreement.
Bear in mind that offer, which was supposedly not capable of acceptance asked me to accept it, clearly indicating that they were going to finalise the matter (releasing payment) that very day.
They now state in the defence that we could not come to an agreement.
At the moment we have an arbitration call later this month on the original case, where I will explain that we already have a settlement agreement which I am enforcing. We'll see how the arbitrator copes with that.
I am also in discussions with the ICO to formally clarify that as A&A are a provider of public electronic communications services, and as I personally have a contract with A&A that makes me a subscriber for email covering the email address to which Huxley originally emailed, that it is definitely covered by the regulations.
Also, for some reason, they are changing the defendant to S Three Staffing UK Ltd. The offer to settle was made on S Three plc letterhead so I'll advise the court that they are the defendant. [update: re-reading, S Three plc made the offer on behalf of S Three Staff UK Ltd, so maybe that is right]
Should be fun.
Yet, now I am suing for breach of that agreement they say that I could not have accepted that offer, so how could we have come to an agreement.
Bear in mind that offer, which was supposedly not capable of acceptance asked me to accept it, clearly indicating that they were going to finalise the matter (releasing payment) that very day.
They now state in the defence that we could not come to an agreement.
At the moment we have an arbitration call later this month on the original case, where I will explain that we already have a settlement agreement which I am enforcing. We'll see how the arbitrator copes with that.
I am also in discussions with the ICO to formally clarify that as A&A are a provider of public electronic communications services, and as I personally have a contract with A&A that makes me a subscriber for email covering the email address to which Huxley originally emailed, that it is definitely covered by the regulations.
Also, for some reason, they are changing the defendant to S Three Staffing UK Ltd. The offer to settle was made on S Three plc letterhead so I'll advise the court that they are the defendant. [update: re-reading, S Three plc made the offer on behalf of S Three Staff UK Ltd, so maybe that is right]
Should be fun.
2009-11-24
"Special" Engineers
They are at it again! Just occasionally our favorite telco try and charge us for "special" engineers. Our main gripe now is the time it takes to get past their hard sell and get them to fix a fault.
They try and push their "special" engineers almost to the point of refusing to fix a fault, and it often takes half an hour arguing to get past that. Even so, occasionally, they charge.
What is even sillier now is they just can't cope if we dispute the charges they do make!
We dispute on the basis we did not order the "special" engineers. Simple. And the contract lets us withhold the money, which we do. But they have a whole department for disputing the clear code for the visit - i.e. whether it is £0 or £144 for the engineer visit depending on what he found. We're not disputing the clear code at all, we're disputing that we ordered the service. So it is a waste of time talking to that department.
But they can't cope with the money staying unpaid. They keep insisting that we have to talk to this other department. They fail to understand that in fact they just have to show somehow that we ordered the service or remove it from the bill. We have said we're happy for the amount to stay in dispute until erased under the Limitations Act in 6 years.
What is more fun is that if ever it gets to court or arbitration we are in the rare situation of being able to prove a negative. Well, not quite, but demonstrate one anyway. We put notes on faults saying we are not ordering their "special" engineering service. We say so on the [recorded] calls to them. We even have an automated system that responds when their system thanks us for booking a "special" engineer saying they are mistaken and not to go ahead with any chargeable service. We we can demonstrate that before, during and after the supposed booking we made it clear we were not ordering the service!
No idea how it will end this time but we are sticking to our guns, and trying to get ISPA involved now as well.
We have said that we'll faff about with their clear code dispute team if they like. It won't change the dispute anyway. And that we'll only charge £144 per item for up to 2 hours work which we are sure they will consider a fair rate for our time.
What is a concern is that for new services (FTTC) they are trying to charge for reporting faults that they clear as "right when tested", even if they did not test at the delivery point, or did not test for long enough to see the fault, or tested and showed the sync below threshold. We think they will try and make this apply to normal broadband in the future! In fact they charge for both reporting and for clearing such faults - scary...
What can I say?
They try and push their "special" engineers almost to the point of refusing to fix a fault, and it often takes half an hour arguing to get past that. Even so, occasionally, they charge.
What is even sillier now is they just can't cope if we dispute the charges they do make!
We dispute on the basis we did not order the "special" engineers. Simple. And the contract lets us withhold the money, which we do. But they have a whole department for disputing the clear code for the visit - i.e. whether it is £0 or £144 for the engineer visit depending on what he found. We're not disputing the clear code at all, we're disputing that we ordered the service. So it is a waste of time talking to that department.
But they can't cope with the money staying unpaid. They keep insisting that we have to talk to this other department. They fail to understand that in fact they just have to show somehow that we ordered the service or remove it from the bill. We have said we're happy for the amount to stay in dispute until erased under the Limitations Act in 6 years.
What is more fun is that if ever it gets to court or arbitration we are in the rare situation of being able to prove a negative. Well, not quite, but demonstrate one anyway. We put notes on faults saying we are not ordering their "special" engineering service. We say so on the [recorded] calls to them. We even have an automated system that responds when their system thanks us for booking a "special" engineer saying they are mistaken and not to go ahead with any chargeable service. We we can demonstrate that before, during and after the supposed booking we made it clear we were not ordering the service!
No idea how it will end this time but we are sticking to our guns, and trying to get ISPA involved now as well.
We have said that we'll faff about with their clear code dispute team if they like. It won't change the dispute anyway. And that we'll only charge £144 per item for up to 2 hours work which we are sure they will consider a fair rate for our time.
What is a concern is that for new services (FTTC) they are trying to charge for reporting faults that they clear as "right when tested", even if they did not test at the delivery point, or did not test for long enough to see the fault, or tested and showed the sync below threshold. We think they will try and make this apply to normal broadband in the future! In fact they charge for both reporting and for clearing such faults - scary...
What can I say?
2013-07-27
Pre-action conduct
There is an interesting document that is well worth reading before taking court action. The Pre-Action Conduct practice direction.
It covers what you should do before taking someone to court. I knew the key matters anyway - giving notice of your intentions, providing enough information to resolve the matter, giving enough time (e.g. 14 days) for a response, and so on.
It also explains that a number of specific pre-action protocols exist. The main ones I have ever been involved in - simple breach of contract or collection of a debt are not specially covered by particular protocols.
One thing I was not fully aware of, and I have to thank the letter from Huxley / SThree for pointing out, are that some form of "Alternative Dispute Resolution" should be considered (ADR). Yes, I know saying ADR is somewhat like swearing anywhere near me but this is not quite the same as the "ADR schemes" that The Communications Act insist on for communications providers.
Thankfully ADR is not compulsory. The court may require evidence that the parties considered some form of ADR. They do say "appropriate form of ADR", and so the cost of various forms of ADR are highly relevant.
They also say that ADR and the practice direction itself should not be used as a tactical device to secure and unfair advantage for one party or generate unnecessary costs.
The types of ADR include, at one end of the spectrum "discussion and negotiation", and then go on to mediation, evaluation by an independent body, and arbitration. Pretty much anything apart from "discussion and negotiation" would, as I understand it, cost a lot more than using the court and so be "unnecessary costs", if the claim is for a small amount.
The main thing seems to be that some form of ADR was considered - so always worth - at least - suggesting that ADR by means of discussion and negotiation is offered. At least then you can tell the court you tried.
So, it seems I give them a few more days for "discussion and negotiation" to break down and then take them to court for breach of contract (assuming they are as intransigent as they seem to have been all along).
If I lose the case for breach of contract, at least I can then continue with the case for spam. Their defence to that was quite long, but the good news, due to a quirk of the way we have clueless set up, is that I personally have been paying (albeit 1p per full moon) for email on aaisp.net.uk and aa.net.uk domains for many years making me the "individual subscriber" for those domains. I, personally, as the recipient for those emails, did not give consent for them to spam me. That should mean we still have a good case on the spam case if ever it goes to court.
P.S. I have just written a few follow up emails to spammers as well as Huxley/Sthree quoting pre-action conduct practice directions and it makes one feel very empowered that one is following the processes. I have invited spammers, including Deane Computer Solutions Limited, to consider discussion and negotiation as ADR before I take county court action.
It covers what you should do before taking someone to court. I knew the key matters anyway - giving notice of your intentions, providing enough information to resolve the matter, giving enough time (e.g. 14 days) for a response, and so on.
It also explains that a number of specific pre-action protocols exist. The main ones I have ever been involved in - simple breach of contract or collection of a debt are not specially covered by particular protocols.
One thing I was not fully aware of, and I have to thank the letter from Huxley / SThree for pointing out, are that some form of "Alternative Dispute Resolution" should be considered (ADR). Yes, I know saying ADR is somewhat like swearing anywhere near me but this is not quite the same as the "ADR schemes" that The Communications Act insist on for communications providers.
Thankfully ADR is not compulsory. The court may require evidence that the parties considered some form of ADR. They do say "appropriate form of ADR", and so the cost of various forms of ADR are highly relevant.
They also say that ADR and the practice direction itself should not be used as a tactical device to secure and unfair advantage for one party or generate unnecessary costs.
The types of ADR include, at one end of the spectrum "discussion and negotiation", and then go on to mediation, evaluation by an independent body, and arbitration. Pretty much anything apart from "discussion and negotiation" would, as I understand it, cost a lot more than using the court and so be "unnecessary costs", if the claim is for a small amount.
The main thing seems to be that some form of ADR was considered - so always worth - at least - suggesting that ADR by means of discussion and negotiation is offered. At least then you can tell the court you tried.
So, it seems I give them a few more days for "discussion and negotiation" to break down and then take them to court for breach of contract (assuming they are as intransigent as they seem to have been all along).
If I lose the case for breach of contract, at least I can then continue with the case for spam. Their defence to that was quite long, but the good news, due to a quirk of the way we have clueless set up, is that I personally have been paying (albeit 1p per full moon) for email on aaisp.net.uk and aa.net.uk domains for many years making me the "individual subscriber" for those domains. I, personally, as the recipient for those emails, did not give consent for them to spam me. That should mean we still have a good case on the spam case if ever it goes to court.
P.S. I have just written a few follow up emails to spammers as well as Huxley/Sthree quoting pre-action conduct practice directions and it makes one feel very empowered that one is following the processes. I have invited spammers, including Deane Computer Solutions Limited, to consider discussion and negotiation as ADR before I take county court action.
2015-07-10
Running up that bill
Please don't get the idea that we sue people all of the time - in all my decades in business we have sued fewer than half a dozen people - sadly there are some things that cannot be resolved without going to court. Fortunately most things can be resolved amicably. However, if you do ever need to go to court, it is worth knowing a bit about how it works in practice - whichever side of the table you are sitting.
It is also worth pointing out that we followed this case through to the end - not to be vindictive - but because this person was being so (in my personal opinion) devious and slippery that we really wanted to understand if the legal system really can get there in the end. If it didn't, we'd know when to give up in future. So thanks for the education on this one...
As ever, having been to court, the case is public record, and as such I believe can be reported. I am happy to correct any errors in my reporting of events here. However, we are not mean, and things do seem to have worked out eventually, so I'm not naming him.
The story is pretty simple, and as always we have learned some lessons. He used a business name, got some data SIMs, used some data (tens of pounds a month) and paid on DD, all was well.
Then he started using a lot of data on one SIM - we spotted this, and contacted him. It got to a £884 bill for a month. He bounced the direct debit.
Well, this is where the excuses start - says he will be paying soon - doesn't understand why such high traffic. We investigated (as requested) and explained that it is someone watching a video surveillance system remotely 9-5 solidly (SIM is apparently connected to CCTV). We also explain it will be cut off as not paid.
To be fair - if it had stopped there we would have considered that there was some aspect of "misunderstanding" going on. He did get the warning of usage at a much lower level (e.g. £50), but ignored it, apparently thinking he'd get a warning every £50 for some reason. We'd certainly have tried to work out some sort of payment schedule (we did offer this I think). But he insisted we not cut off the SIM as that would be breach of contract and he'd be paying soon, honest...
He ran up £1200 bill for next month - and at that point we cut him off, obviously. One lesson learned and coded very quickly is a system to issue interim bills for usage. We don't set limits normally (customers can set warnings) as that is a key part of the service, but we need to know when someone is not paying, so interim invoices will catch this a lot sooner in future.
At this point the excuses came really thick and fast. To be honest I really think this was massively feigned misunderstanding - usage of the SIM is not complicated and we explained what was happening and offered to stop just that SIM even. Things like not knowing who it was that was accessing the CCTV. Things like the CCTV access was via TalkTalk so they pay TalkTalk for the internet access, why are A&A billing (well, duh, it is usage of the SIM!). Insisting our metering is wrong. Just excuse after excuse. He knew how it worked after the first bill, so all of this was just making up excuses.
Several offers to pay which didn't happen, and eventually we had to issue a county court claim. Shame, but really not much choice. This service is one we have a straight cost for usage by the MB and so not simply a case where even a mistake by a customer can sensibly be waived. There are some services where costs are less direct and we can be a lot more helpful for mistakes or misunderstandings, but not here. We also have the fact that he knew, at £700, exactly how it worked and what he was paying and did not take any action to stop further charges.
He says he will defend it, and refuses an arbitration calls. His defence was basically that a data SIM from Three is not this much so why are we so expensive!
He did try one classic excuse at one point - the old "it was not me that ordered, it was someone else". It was ordered in his name, so our stock response worked fine: "Either it was you or someone ordering on your behalf with your permission, in which case you are liable, or it was not, in which case it is criminal fraud and the police need to be involved and we'll pass on all the recordings of calls we have had with you"... He decided against a fraud investigation.
He moved the case to Dudley court as he purchased as an individual under a trading name. Oh well. We sent people to Dudley, and he turned up with nothing. No defence, just more excuses. He said something about his business partner or something, anyway, somehow he convinces the judge that he will be able to get some evidence and some sort of defence if he has more time! The judge allows this and adjourns the case but orders that he has to pay our costs for going to Dudley regardless. Indeed, if they are not paid then there will not be a new hearing, just a case in judgement by default. Only £245 in costs (travel, overnight stay), and he promised to pay, but doesn't.
So case of judgement in default, simple.
Again, he promised to pay by some future date, and so we waited, and he did not pay.
We paid for bailiffs, they went round, he had excuses. First off, he says the warrant is not valid as he is not at number "1a" but at number "1" in this street. Now this is devious, buying a service with a slightly wrong address in the first place. We spoke to bailiffs and convinced them to carry on (we'd just get the court to re-issue the warrant if not). The bailiffs gave the impression they knew him quite well. They said they cannot get access (he has a gate). He then insists that he has an application in to the court to suspend the judgement or something. Then he apparently sent it to the wrong court. Then he says he did not send it as it was going to cost him money. Each step caused extra delay of many weeks. Months down the line now, and eventually bailiffs give up!
Now, bear in mind, at this point it was nearly a year since this all started - he managed to delay and delay at every stage, and kept offering to pay by the end of next week or some such excuse to add more delay.
I had never had a case get to the bailiffs saying they cannot enforce the warrant before. This was new. I wondered if being bloody awkward had somehow worked for him...
But no, there were two more steps we had - one is the High Court Sheriff. For yet another fee we could transfer the case to the Sheriff. So we did.
Again, he gave them excuse after excuse, and again they could not gain entry (not allowed to break in). Months passed, and we were seriously looking at how you get someone declared bankrupt. My theory was that he would want to find the money (bank loan perhaps) rather than have us actually declare him bankrupt which would cause him a lot of hassle for many years.
However, it seems the High Court Sheriffs are good :-) They even hassled neighbours, apparently! I guess asking when he is in, that sort of thing, but making it clear they were after him for money. Somehow this finally worked, and he applied to the court to pay in instalments. To our shock and horror he is actually paying. It will take him (another) year to pay up but we are finally getting paid, though we don't know for sure that he'll keep paying. It is, of course, quite fair and proper that if he cannot pay in one go, he should pay what he can over time, and we told the court we were happy with that.
We think (and asking Dudley county court was not helpful) that in future one can simply go to the High Court Sheriffs in the first place rather than bothering with the local bailiffs. We'll find out next time we ever have a case.
Well done to the justice system.
I would, however, like to say that Dudley county court is a nightmare (in my personal opinion). They simply lose paperwork. We had special delivery and recorded delivery paperwork signed for, and they deny getting. We had one case of faxing them (as well as posting), calling and confirming they have the fax, and the next day they deny receiving it. They charged the wrong amount for a warrant, and then had to post a check back rather than refunding the card. I think even that went wrong somehow. They messed up the transfer to the High Court Sheriffs somehow as well. The judge was OK, insisting on our expenses, but the admin people in Dudley were useless. But overall, finally, a good outcome.
2014-04-23
SFI2 is an optional extra service
This is not a comment I have heard in a long time, but was quoted to me today.
When BT introduced SFI (Special Faults Investigation) it was a cunning way to charge people for fault repair. The underlying issue being the grey area of how well a modem works on a copper pair which had lead to lots of wasted engineer time and BT wanted to recover that. Rather than fix the underlying issue of the product they sold having a grey area (something fixed by BT supplied modems on FTTC), they decided to charge for engineering investigations and launched SFI. Like many, we think SFI pushed the cost too far away from BT and there has been an ongoing battle between ISPs and BTs for many years now. In practice BT charge if they fail to find a fault in BT's network even though the service was always sold as charging if proved to be a fault in the end user's or customer's control.
There have been many stances taken by each side in this ongoing arms rate. For your amusement, at one point in this arms race BT claimed the SFI charge was for inspecting customer equipment and that a visual inspection was done by the engineer - that led to us instructing customers to remove and hide all of their equipment thereby thwarting BTs argument. The arms race moved on.
Even so, the "SFI2 is an optional extra service" is one I have not heard for some time. The standard argument and counter argument for this are as below
BT: We will, of course, fix faults, but when we can't find a fault using our remote testing you have the option of ordering an extra service to investigate if there really is a fault. If it turns out it was a BT fault after all, we don't charge you for this extra investigation, but otherwise we do if it was customer equipment causing the problem after all.
ISP: We can demonstrate that there is clearly a fault in the service, even though your tests don't see it. We have done lots of investigation already and already replaced all end user equipment. Here, look at out findings - you can see a fault, now fix it, please.
BT: We won't do anything unless you book an SFI2 engineer (for which we might charge you)
ISP: But SFI2 is optional - we don't have to order it. So we take the option not to. Now, are you refusing to fix this fault?
The conversation degenerates in to repeats of "no, not refusing to fix, but you have to order SFI2" and "if you are not refusing to fix it, then just fix it, no we are not ordering SFI2 as it is optional" and eventually "fix it! fix it! fix it!" (literally, in one case).
It is hard work, but the final result is usually BT booking an engineer which we, obviously, refuse to pay for because we did not order the extra optional service.
It was not a very good time, so it rather odd that BT have now moved back to this stance with their latest statement in an email (as reported to us by our account manager - who is a good guy).
This all came up because BT have come up with a new policy with regard to SFI disputes. Basically, if we have reported a fault, and they have sent multiple SFI2 engineers, and eventually they actually find a fault and fix it within BT's network, they don't charge for that final SFI2 engineer. The policy used to be that they would also not charge for all of the wasted previous SFI2 engineers, but the change of policy is that they now will charge for all previous engineer visits where no fault was found.
Now, this is, obviously, totally wrong. If there is a fault, as the final engineer confirmed existed, and it is within BT's network, then obviously it is up to BT, at BT's cost, to fix that fault. A working service is what we pay for in the first place.
If previous engineers failed to find the fault, then that is BT wasting our time (and our customer's), so if there is anything to pay it should be BT paying us compensation for that wasted time (so we can compensate our customer, who may have had to take time of work, etc).
There is no way on earth we would pay BT engineers for failing to find and fix a BT fault.
We have said this one will go to arbitration, or even court, if they do not fix this broken policy.
Let's see how it goes, but I warn other ISPs to check this new policy out. It is supposedly briefed via account managers, but we have not seen any such briefing.
P.S. BT have asked for some discussions that don't go on my blog. This is no problem, and I am pleased that my blog is taken seriously. I am happy to work with BT to resolve issues by whatever means we can. An off the record meeting is always possible and sometimes useful. We normally try to work with BT before blogging stuff anyway, and I have previously blogged about cases where we have worked with BT successfully. But there are, of course, cases where other ISPs need to know what is going on and present a united front to BT - so there will be cases, like this blog, where I feel it is important to spread the word, within the bounds of confidentiality agreements, obviously.
When BT introduced SFI (Special Faults Investigation) it was a cunning way to charge people for fault repair. The underlying issue being the grey area of how well a modem works on a copper pair which had lead to lots of wasted engineer time and BT wanted to recover that. Rather than fix the underlying issue of the product they sold having a grey area (something fixed by BT supplied modems on FTTC), they decided to charge for engineering investigations and launched SFI. Like many, we think SFI pushed the cost too far away from BT and there has been an ongoing battle between ISPs and BTs for many years now. In practice BT charge if they fail to find a fault in BT's network even though the service was always sold as charging if proved to be a fault in the end user's or customer's control.
There have been many stances taken by each side in this ongoing arms rate. For your amusement, at one point in this arms race BT claimed the SFI charge was for inspecting customer equipment and that a visual inspection was done by the engineer - that led to us instructing customers to remove and hide all of their equipment thereby thwarting BTs argument. The arms race moved on.
Even so, the "SFI2 is an optional extra service" is one I have not heard for some time. The standard argument and counter argument for this are as below
BT: We will, of course, fix faults, but when we can't find a fault using our remote testing you have the option of ordering an extra service to investigate if there really is a fault. If it turns out it was a BT fault after all, we don't charge you for this extra investigation, but otherwise we do if it was customer equipment causing the problem after all.
ISP: We can demonstrate that there is clearly a fault in the service, even though your tests don't see it. We have done lots of investigation already and already replaced all end user equipment. Here, look at out findings - you can see a fault, now fix it, please.
BT: We won't do anything unless you book an SFI2 engineer (for which we might charge you)
ISP: But SFI2 is optional - we don't have to order it. So we take the option not to. Now, are you refusing to fix this fault?
The conversation degenerates in to repeats of "no, not refusing to fix, but you have to order SFI2" and "if you are not refusing to fix it, then just fix it, no we are not ordering SFI2 as it is optional" and eventually "fix it! fix it! fix it!" (literally, in one case).
It is hard work, but the final result is usually BT booking an engineer which we, obviously, refuse to pay for because we did not order the extra optional service.
It was not a very good time, so it rather odd that BT have now moved back to this stance with their latest statement in an email (as reported to us by our account manager - who is a good guy).
This all came up because BT have come up with a new policy with regard to SFI disputes. Basically, if we have reported a fault, and they have sent multiple SFI2 engineers, and eventually they actually find a fault and fix it within BT's network, they don't charge for that final SFI2 engineer. The policy used to be that they would also not charge for all of the wasted previous SFI2 engineers, but the change of policy is that they now will charge for all previous engineer visits where no fault was found.
Now, this is, obviously, totally wrong. If there is a fault, as the final engineer confirmed existed, and it is within BT's network, then obviously it is up to BT, at BT's cost, to fix that fault. A working service is what we pay for in the first place.
If previous engineers failed to find the fault, then that is BT wasting our time (and our customer's), so if there is anything to pay it should be BT paying us compensation for that wasted time (so we can compensate our customer, who may have had to take time of work, etc).
There is no way on earth we would pay BT engineers for failing to find and fix a BT fault.
We have said this one will go to arbitration, or even court, if they do not fix this broken policy.
Let's see how it goes, but I warn other ISPs to check this new policy out. It is supposedly briefed via account managers, but we have not seen any such briefing.
P.S. BT have asked for some discussions that don't go on my blog. This is no problem, and I am pleased that my blog is taken seriously. I am happy to work with BT to resolve issues by whatever means we can. An off the record meeting is always possible and sometimes useful. We normally try to work with BT before blogging stuff anyway, and I have previously blogged about cases where we have worked with BT successfully. But there are, of course, cases where other ISPs need to know what is going on and present a united front to BT - so there will be cases, like this blog, where I feel it is important to spread the word, within the bounds of confidentiality agreements, obviously.
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