Echowitch-claiming back VM charges.

[echowitch]

Well we've got to the fun stage now. I put in an HMCS claim against Virgin Media, which they acknowledged on the last day possible, and have decided to contest the whole thing. Stating specifically.

 

--------------------------------------------------------------

 

1. In this Defence save as is hereinafter expressly admitted or expressed to be not admitted, each and every allegation of fact contained within the Particulars of claim is denied.

 

2. The claim is pursuant to an agreement for the provision of telecommunications services between the Claimant and the Defendant. The agreement is subject to the Residential Customer Service Agreement Terms and Conditions (?the Agreement?).

 

3. The Defendant will rely on the Agreement for their full terms and proper meaning and effect.

 

4. The Defendant will in particular rely upon the following which provided as follows:

 

Clause F3 of the Agreement:

"You must ensure that your payments are received by Virgin Media Payments by the due date for payment shown on your bill. If you do not pay your bills on time, you will be liable to interest or other charges for your default. We and/or Virgin Media Entertainment may also charge you the full amount of any bill and you may lose any discount we and/or Virgin Media Entertainment have given you. Virgin Media Ltd and /ord Virgin Media Entertainment will also suspend or cancel the services and charge you the costs of debt recovery proceedings to recover any debt you owe under the agreements."

 

5. Each bill sent to the Claimant clearly states that, if the customer does not pay the bill on time, a late payment charge of GBP 10.00 will be incurred.

 

6. The claimant regularly paid his account late and, in accordance with the Agreement following late payment, a late payment charge has been levied on the account.

 

7. We did not charge the claimant any interest on the late payment.

 

8. It is not admitted that the late payment charge was levied on 33 occasions and the claimant is put to strict proof.

 

9. It is the Defendants positive case that the late payment charges raised on the Claimants account were in accordance with the terms of the Agreement and were due and payable and denies that those charges and unlawful and illegal.

 

10. The defendants imposes its late payment charge in accordance with the Agreement with a view to recovering the administrative costs the Defendant incurs in maintaining delinquent debts and the cost of recovering those debts. The charge of GBP 10.00 is based on an average cost the Defendant incurs in relation to late payments and is in compliance with Ofcom's guidance on default charges.

 

11. The defndant denies that by passing the account to a debt collection agency it is in breach of the Consumer Credit Act 1974

 

12. Further or alternatively, the claimant, aware ofthe termas of the Agreement failed to adghre to those terms and now seeks to retroactively change the terms of the Agreement to avoid the burden of that Agreement whilst improving his bargain with no equivalent consideration for that betterment.

 

13. Further or alternatively, the Claimant has failed to mitigate his alleged losses by settling his service account in a timely manner.

 

14. In the premises it is denied that the claimant is entitled to the relief sought or any relief.

[MARTIN3030]

Thanks.

 

Just a couple of points;

 

They refer to clause F3-are some of the charges from Telewest /NTL ?

Why are they disputing 33 charges-did you list these by schedule ?

 

In their reference to the CCA-did you refer to this on your POCS ?

[MARTIN3030]

Any chance you can send me a copy of your POCs ?

[MARTIN3030]

Additionally they say that their default fees are in compliance to Ofcom guidelines ?

 

Ofcoms investigation was extended in September 2009 for 6 months-they are expected to decide on this in March 2010;

 

 

"Update Note – 30 September 2009

On 1 April 2009, we opened an enforcement programme (the Programme) to monitor Communications Providers’ compliance with the Unfair Terms in Consumer Contracts Regulations 1999 (the Regulations) in relation to “Additional Charges”, as set out in the Guidance that we published in December 2008 (see related item). Under the Programme, we are assessing CPs’ standard term contracts and we will take enforcement action where we consider it is necessary and appropriate to do so.

As our analysis is ongoing, we have decided to extend the Programme of active monitoring for a further six month period.

As part of any enforcement action, Ofcom may initiate separate investigations of named communications providers, which will be announced via Ofcom’s Competition and Consumer Enforcement Bulletin."

[Bookworm]

VM are psychic, didn't you know?

[echowitch]

Thanks.

 

Just a couple of points;

 

They refer to clause F3-are some of the charges from Telewest /NTL ?

Why are they disputing 33 charges-did you list these by schedule ?

 

In their reference to the CCA-did you refer to this on your POCS ?

 

Yep, some of them date back to NTL.

 

The 33 charges are on the list based off of my statements from them.

 

What I put on the claim is below:

 

Virgin Media have applied unlawful and

illegal penalty charges of £10 on 33

occasions against my account ********

(formerly NTL account: ********) totalling

£330 of illegal charges.

I have attempted to get them to remove these

penalty charges but have been ignored

repeatedly.

In addition, despite me placing this account

in to a lawful state of Dispute, Virgin Media

still passed the account to a Debt Collection

Agency in blatant breach of the Consumer

Credit Act 1974.

 

The most annoying thing I've found is that I have such a small space to put claim details in but they seem to have a huge defence space.

[MARTIN3030]

Why- was it done online ?

[echowitch]

I made the claim through http://www.moneyclaim.gov.uk the online court service

[buzby]

(1) Your Statement of Claim can be continued onto as may additional sheets of paper ynless you only did an online claim.

(2) You may well have your claim under NTL/TW disallowed, as VM have a habit of providing their service commencement date and the T&Cs the account is operated under.

(3) The OFCOM recommendations referred to are those currently existing. Sure there may be another announcement inb Q2, but irrelevant to this action.

(4) The fact a defence was entered on the 'last day' is standard practice.

(5) BT have won every late payment charge action.

 

As the consumer has the ability to pay ontime and avoid the charge is a powerful defence, and accepted (so far) in all cases.

[Bookworm]

1 - What is done is done, but yes, for future reference, it's better to lodge at your local court.

 

2 - If a company have taken over another, they are still responsible for the previous t&c, charges etc...

 

5 - BT may have, but VM have yet to go all the way to court that I am aware of.

 

Echowitch, don't let the bird of doom worry you, of course they had to file a defence or you would have won by default. It doesn't follow that they'll go all the way to court, as Martin has shown time and again. ;-) Of course, you do have to prepare in case they do, but for now, the next step will be for MCOL to transfer your case to your local court, who will then send out the allocation questionnaire. There is a guide on how to complete the AQ in the bank charges library.

[MARTIN3030]

I am aware of at least 2 pending cases listed for hearings within the next couple of weeks,so yes they have changed tac and are now defending them in Court.

One of these actually is next week.

[Bookworm]

Are they now? Interesting, I wonder what made them change their stance, think they're afraid of opening the floodgates?

[MARTIN3030]

Bookie have sent you sms.

[MARTIN3030]

Ha ha-yes me too-it does not bear thinking about

[buzby]

2 - What nonsense. I still have my original GPO T&C's I got in 1964. You think they apply? I can assure you, this is irrelevant as this was superceded (by the Post Office Telecommunications Board, then BT.

 

As for Bookworm;s usual insults - believe her fluffy view if you will, But the only thing you can console yourself with is that you'll set the unofficial benchmark for the outcome - and it is always better to let others do this, as it can prove to be a waste of money (and don't forget the probably costs in addition).

 

As for Martin's action referred to - are you saying he won....? As I recall the outcome was far from satisfactory.

[Bookworm]

Insults? Where? :-?

 

Never mind...

 

1964? No, the Limitations Act would have kicked in a long time ago. And nonsense? I don't think so dear. If you have a claim against Bradford and Bingley, you can claim against Abbey (Santander). If you have a claim against Citicards, you go against Barclaycard, etc etc...

 

As for Martin's claims, "the outcome was far from satisfactory"? Are you saying he lost his cases? :-?

[buzby]

Insults? Where? :-?

"Echowitch, don't let the bird of doom...."

 

Never mind...

 

I don't darling... never have, never will.

 

Shame for completeness you didn't think of adding the Statute of Limitations caveat to your initial post. Despite this, when a new legal entity takes over, you agreement is with the new company unles specific provision is made to accept those extant. This can be likened to a firm ceasing to trade and a new one created or subsumed by another. No liabilities for the previous entity are passed on by default.

 

The Abbey/Sandanter mention is smoke/Mirrors. The Abbey BRAND has belonged to Santander for a good many years. The brand is of no consequence, the company however, is.

 

As for Martin - he's an ex-customer, as I recall. I'm still with them, as they backed down and we reached an amicable accommodation. However, as I learn to pay my bills on time I pay nothing extra. If Eco 'wins' then I'll revert to paying when I can, rather than because I have to.

 

Win, win - either way.

[echowitch]

Buzby whilst I appreciate the alternate view its no longer helpful, so I mean this in the nicest possible way......can you buzz off and let those helping help and stop thread-jacking. Thank you

[buzby]

Afaid if you want that, move the 'debate' to a private glee club via email.

 

There's little point sticking your head in the sand 'cos you don't get the answers you were hoping for. Based on curent experience, you haven't got much of a hope, but there can be the odd surprise that might make a difference. WHY should you get a service for the same price as me becasue you cannot be bothered to pay them on time, after they modified your T&C's to 'encourage' you to pay.

 

Whilst I don't particuarly like VM, they're certainly in the right here.

[MARTIN3030]

Raymond - I had ALL my charges plus costs in all 3 attempts.

Granted they did not go all the way.

The issues which concern unresolved business,relate to matters under the DPA and OFT guidelines.These remain on the table until I can decide on a course of action that will give me a reasonable chance of success.

[MARTIN3030]

Now can we resume some order ?

[buzby]

This was the point I was making - the outcome was not satisfactory, despite the inpending litigation. On the current issue, the additional charges billed for payment choice remain iniquitous, as they cannot be complied with (disenfranchising those that refuse to give up financial control of their finances), compared to a charge for not paying on time, which CC firms have applied for the last 10 years or so - which can.

 

As to message #71 - don't blame me guv, suggest this to the person who started it!

[Bookworm]

For clarification, "bird of doom" isn't an insult. Your avatar is of a bird and you preach doom at every opportunity. At worst it's a whimsical characterisation. (edit: and a poor translation of the French expression I had in mind, it should have been "bird of ill omen").

 

The statute of Limitations doesn't exist in UK law, it's a US law. What we have here in the UK is the Limitations Act 1980, which is what I -correctly - referred to.

 

As for the take-over of companies, you are very wrong, but I don't know how to make you accept that when you just don't want to hear it. I took to court First National Motor Finance, which had been swallowed whole by Abbey years previous, and Abbey duly paid out. As previously stated (and conveniently ignored by you), if you have a claim against Citicards these days, you will be dealt with by the Barclaycard legal team... There are exceptions as in with everything, but by and large, and certainly in the case of NTL/TW/VM, the winning company both gets the benefit of taking on the consumer base and that also confers obligations in the other direction. I'm not sure why it seems so difficult to comprehend.

 

As for Martin, it really takes a peculiar mindset to treat the fact that he won against VM so often as an unsatisfactory outcome.

[fergal71]

Buzby is very much glass half empty, but does have some very valid opinions and really brings some reality to many situations, however I think his knowledge would be best served giving more positive comments as so many do on here... I am sure there will be a response to this... but which ever way you look at this buzby many millions have been returned to consumers that in the eyes of the law so far had no chance of reclaiming.... people on here are here to fight against the balance of power. Sometimes right and wrong differ depending on whose eyes are looking. Sometimes signing professionally prepared agreements by any compnay are difficult to dissect when we face problems and individuals pick up on anything to try and challenge the companys..... but as I have said many times ...... IF I was to prepare an agreement staing in small print on the back of page 25 that if you dont pay I can punch you in the face until you do" it does not mean that if you sign and dont pay I can carry out the punching laid out on the back of page 25 does it.... Many on here are just fighting against the years of ambiguity and support by regulators and courts..... We may well lose many but at least many rockets have been thrust up the rears of so many who believed they could do what they wanted to us..... I believe as you do that more direct action is needed but I also believe that the more of us that challenge these b***ards the greater the benefits to all..... reduction in bank charges and millions of complaints with FOS is just an example..... Credit Reference agencies are my main bug bare as they are not protected by anyone other than the regulators.... I think maybe you should find a new project within CAG like putting your knowledge into defeating the CRA's and leaving your views on comms companies to others with a more positive spin....

 

only my opinion and I hope you take it as it is intended... I have appreciated our banter but believe your knowledge should be put to better use...... what do you think!!!!!!!!!

[echowitch]

Sorry for the delay its been a hectic few days with hospital trips for various family members. (Nothing too serious thankfully)

 

Under the Experts section, can I use the Consumer Action Group as experts ? Specifically for an Experts Report ?

 

And under the other section, is where I put details disputing VM's defence claims yes ??