@virginmedia VM - Voicemail was running unknown to me , lost jobs & contracts - what compo can i demand - they admit the error

[Neiltheman]

Hi all, I’m new to the forum and could use a little advise if anyone can help…

Last year virgin media put their voicemail service on my phone line without informing me, I only discovered the service was active after 3 months of it being on my line. A lot of events have occurred during my fight over this and I’m wanting to know how much compensation I should be requesting, please have a read of the complaint and advise if you can… many thanks

In april last year I was laid off from work without notice and got behind with bills, vm had restricted my services and when I spoke to them about my outstanding bill they suggested a repayment package, this would retain some of my services and give me a little longer to clear the balance. I spoke with the collections team, made the first payment in july and everything seemed fine.

A little later I started to wonder why I’d had no messages of my desktop answering machine but put it down to job applications being unsuccessful. However in early September my girlfriend had vm installed at her house and after telling me about the voicemail service she got the penny dropped. I called my house number and after only 5 rings I was met by virgin medias answering service asking me to leave a message. This meant this voicemail service had been answering my calls without my knowledge for as long as it had been active as my desktop answering machine only picks up after 8 rings.

I called vm immediately and the chap I spoke to confirmed this voicemail service had been put on my line in july when I started the repayment package. However he went on to question why it had been put on my line as I was on incoming calls only I wouldn’t have been able to access it. It took three calls to this chap over three days before he finally threw the towel in trying to access it and removed it from my line, thus loosing any messages that had been left on it.

I then had to cold call nearly every job application I had sent out the past few months to find out if anyone had left messages for me. I found I’d missed three interviews and more worrying I found a recruitment company had left three messages for me in august as they had a 12 week contract for me starting the following week, as I didn’t respond to their messages they gave the placement to someone else.

To try and cut the story short…. I lodged a complaint with vm, had to chase it up several times and after getting nowhere I wrote to the executives office. Got a call back from a chap there who told me he had proof I’d been advised of the voicemail service but he’d credit my account with £20 as a good will gesture. I told him I had not been advised about the voicemail service and that I had only found out it had been put on my line in September, and that the £20 was a joke as I now knew I’d lost out on a job that would have paid over £5000, plus three interviews that I knew of.

I escalated the complaint to cisas, and in their defence, vm provided a print out of the account notes entered on the day I made the first payment. The operator had put ‘customer has been advised of the terms and conditions of the agreement and a letter sent out’. I replied to ciasa saying I had not been advised of the voicemail service, the notes do not show that I’d been advised of the voicemail service and nowhere in the t&c’s is there any mention of the voicemail service, further more I had never received a letter and vm did not supply a copy of this alleged letter in their defence, plus they had not provided account notes for the three calls that took place when I discovered the voicemails service in september. Cisas sided with vm, saying that he account notes clearly show that I was advised of the service and that vm are basically free to do what they like. I emailed cisas and asked them to review this decision as it was clearly evident that the adjudicator had not reviewed the vast amount of evidence I had sent her but whilst they admitted that there were discrepancies in how the adjudicator had investigated my complaint I was advised they don’t do appeals.

I rejected the decision to give myself time to think things over, then on the advice of a friend I issued vm with a subject access request and asked for copies or transcripts of the calls that took place when I set the agreement up, the week when I discovered the service was on my line, all notes entered on my account for the three month period including times my account notes had been accessed, and a copy of this letter that was supposed to have been sent out to me. Thanks to the joys of the data protection act, three weeks and £10 later I received a nice large envelope from vm. I now have from virgin media’s data protection & privacy department; a letter advising that they can not find a copy or any details of this alleged letter that was supposed to advise me of the voicemails service, a transcript of the call when I set the agreement up that shows that the voicemail service was NOT even mentioned, account entries showing that I spoke to vm on all the occasions that I advised cisas of and not just the one occasion vm claimed in their defence, and full transcripts of two calls that took place on the week I discovered the voicemail service. These conversations document the attempts we made to try and access the voicemail service after discovering it, and the comments made by the operator questioning why it had been put on my line as I wouldn’t have been able to access it.

Armed with this evidence I emailed the chap at the executives office and requested he confirm receipt of my email, reassess my complaint and come back to me with a settlement offer. He didn’t reply to my email despite my email provider confirming it had been delivered. I then called his office 3 days later and was advised he was on holiday till the Monday but they would ensure it was brought to his attention first thing. By the Tuesday morning I had still not received a confirmation so I called his office and asked to speak to him but was advised he was on another call so I left a message with my name, my contact number and asked for him to be advised of the urgency to acknowledge my email. By the Friday I still hadn’t received a reply or confirmation so I issued vm with a letter before claim asking they pay a compensation sum that reflects the wages I had lost as their service had without my knowledge or consent, intercepted messages offering me paid work and interviews. I received a grovelling reply to my letter within three days and am waiting on a call back from their head of complaints early next week.

Given that the interception of my calls with out my knowledge has cost me a 12 week contract that would have paid £5280 before deductions, at least three other job interviews that I’m aware of plus the issue of employers not entertaining any future applications as I didn’t respond to their replies, the £10 cost of my subject access request and cost of recorded delivery postage on all letters, plus the general stress & inconvenience of having to fight vm to discover the truth…. Any ideas on what a suitable settlement figure would be?

Many thanks for taking the time to read this.

[citizenB]

Ouch. This is not good at all.

 

I will flag your thread for site team and I am sure that other caggers will be looking in over the weekend.

[andydd]

So what do you want to do ?

 

Clearly VM arent going to pay out a large sum to you.

 

Is court action a possibilty ?, it would appear that you would have some sort of case, although its not clear if you could get damages in the region of £5000, might it may be worth a shot.

 

I believe there have been similar cases, have you searched for any ?

 

Andy

[Neiltheman]

Hi Andy

Cheers for the reply… I think it would be extremely greedy of me to try for anything near £5000. When the complaint reached the executives office I asked for a settlement of £750 which I thought was extremely fair at the time given the circumstances.

Since then I’ve had to go through the process of filling a complaint with cisas only for their adjudicator to make a complete hash of the mediation, I’ve then had to go through the hassle of issuing the subject access request so I could obtain the proof I needed if it was to go to court. To be fair I’d rather settle the issue asap rather than have it drag on, the thought that I would have been back in work last august if they’d bother to tell me they’d put this voicemail service on my line cuts quite deep and it is quite tempting to roll the dice and see what a court would do but I know this will just drag the matter on even longer.

I run quite a few searches for similar cases but haven’t found anything alike. I think I’d have a strong case if it went to court as the evidence I’ve put together doesn’t look good for vm, the results of the sar show that I wasn’t told about the voicemail service being put on my line and there isn’t anything at all in the t&c’s about the requirement to have this placed on your line if you enter a repayment plan. One to add and this’ll probably make you laugh, the guy who I’d emailed and who set up the repayment plan last year actually left a message on my desktop answering machine only three days before vm felt it necessary in their words to ‘facilitate me with a voicemail service so I could be contacted when required’…. and yes I still have a recording of this message and took a video of the machine playing the message.

My problem is coming up with a reasonable and sensible settlement figure to present to them when they call this week, a figure that is fair and that they’re likely to go for without overdoing it and having the door closed on me and having to take it to court.

[andydd]

Well, there are cases where employment has been denied for some reason and damages have been awarded taking into account what the person could of earned, in injury cases for example.

 

Of course VM could argue that you shouldnt of relied upon the sole method of communication or should of checked sooner, etc

 

Whilst you may not want to goto court, you may need to put pressure on to settle this.

 

Perhaps follow the pre-action protocolc to show you are serious, http://www.justice.gov.uk/courts/procedure-rules/civil/protocol, normally we would recommend asking for an amount under £5000 to keep it on the small claims track, although many changes are made to small claims track in April, including raising limit to £10,000 and other measure reagrding mediation and costs, etc. I beluieve there is a sticky on this on the forum.

 

Andy

[Neiltheman]

Hi Andy… once again thanks for the reply. In their defence to cisas vm tried using the argument that I shouldn’t have solely relied on my house phone as a point of contact. I explained to cisas that following my lay off from work I chose not to renew my mobile contract which was due at the end of april, and this led to problems with my mobile company when it came to retaining my number onto a payg basis. I chose not to cause long term problems by listing a temporary payg mobile number on job applications and cv’s that may cease to be in use if I was to return to my old contract number, and instead chose to list my home number safe in the knowledge that even if I was out, a message could be left securely. To their credit whilst cisas made a balls up of investigating my complaint in general, this is one point they raised and even went onto note in the decision that they thought it quite wrong of vm to try and use this a defence as vm were the supplier of a service which I paid for.

As for the small claims track in court, I did quite a bit or research on this earlier this year. As I am unfortunately still out of work any initial fees would be waived and it wouldn’t cost me anything to start proceedings, a point I will make to the head of complaints if she calls. In my letter before claim I said I was asking for £750 but if the matter was to go to court and cost further time I would also asking the court to add additional damages. Checking my notes and letters last night I noticed this call I should have received from vm should have been received by yesterday, their letter of 15 march advised within two weeks. I have drafted a second letter which I will send Tuesday lunchtime failing any phone call or the postman delivering anything. I’ve put in the letter a reminder about the deadline of 28 days I advised them of, and added that as my complaint runs over the bank holiday weekend as a show of good faith I will give them an additional 7 days to address the matter but added that notes of this act of faith will be presented to the court should they still fail to address the complaint.

I don’t know how vm as a company deal with small complaints, if I list a fixed figure and vm don’t answer the summons I can ask the court to award that amount, however that leads me back to my problem for what to ask for. If I leave the amount unspecified and for the court to decide, if vm don’t answer the summons that could potentially drag the matter out even longer, hence my confusion of what to ask for

[Neiltheman]

anyone any advice on how much I should be asking for? I need to have a figure ready for this week and any advice would be gratefully received... thanks

[andydd]

That is a tricky situation. On one hand you dont want to be too OTT and ask for a silly amount and maybe leave it upto a Judge, on the other hand its good to show that you have suffered a definative loss and specify an exact amount (as you would do with showing lost wages).

 

Im not really an expert on damages, I had a claim against my Landlord for not repairing my driveway I calculated time I had spent on it and other losses at just over £5000 *, this was a mistake as it put my on fast track in court, but it was eventually settled out of court for £750, although as the condition didnt change I sued again (but this time just put amount 'not exceeding £1000', this too was settled out of court.

 

Its worth mentioning I was very confident in my case, both time, they clearly did not do the work and I had evidence, photos, witnesses, etc

 

* The small claims limit rises today I believe to £10000.

 

If I were you I think I'd go for the £5280 figure, but I'd suggest consulting a solicitor even for a quick half/1 hour session.

 

Andy

[Neiltheman]

Hi Andy, as expected I haven’t received the call from vm that they advised I would receive and there were no letters today so I have sent the follow up letter I drafted to the vm department who wrote to me, and sent a copy of it to their head office.

Calculating the loss is quite tricky, the simple fact is had I of known about the voicemail service I would have got the message about the job and baring any divine intervention I would have earned the £5280. I’ve calculated how much tax I would have paid on this amount and have then deducted the amount of benefits (jsa ect) I received for this 12 weeks period. I’ve also calculated the holiday entitlement I would have incurred and taxed this figure and when I add all these together it comes to about £2700. However this figure doesn’t include the cost of calls I incurred trying to contact every employer I had sent an application to asking if they’d tried to contact me, nor does it include a claim for compensation for the three missed interviews. There is the small amount (around £20) incurred sending the sar request and then the cost of recorded delivery letters.

If I was to take this to court could I claim for a specific amount explaining my calculations in relation to the missed work contract, but also add that if successful I’d like a judge to make an additional award for the missed interviews and time spent having to pursue this matter?

[andydd]

The more I think about it, the more im not convinced that suing for 'consequential loss' (thats what it is) is feasible, many contracts specifically say they wont be liable for any consequential loss, (and the VM contract may say that), a good parallel, is recent iPhone updates messed up the phones clock and people awoke to find the alarm hadnt gone off and thus were late for work, im unaware of anyone suing Apple for lost work time, etc.

 

Consequential loss normally involves a minor mistake leading to large losses, as is the case here.

 

We also had a case here where a someones train was late and they wanted to claim for all sorts of extras, large taxi fares, etc..but the general consensus (although not the OP) was that the claim would fail.

 

Andy

[Neiltheman]

Hi Andy, many thanks for the reply, any constructive arguments are always helpful.

 

Section N2A of Virgins t&c’s states ‘none of Virgin Media Ltd, Virgin Media Entertainment and Virgin Media Payments will be liable to you for any indirect loss or any loss which is not a reasonably foreseeable consequence of Virgin Media Ltd's, Virgin Media Entertainment's or Virgin Media Payments' negligence or breach of these agreements (including loss of profits, business, revenue, contracts or anticipated savings, wasted expenses or any other purely financial losses).

 

I think it’s fair to say it was reasonably foreseeable that placing a voicemail service on my line without informing me when it has been proven vm were already aware I had an answering machine, would cause problems as the service would clash with my present answering machine. And given that vm voicemail service picks up after 5 rings (a vm ploy to improve profit which is demonstrated by the fact you cannot delay the answer time unless you upgrade to the chargeable version) it intercepted calls to me and falsely represented to callers that they could leave messages for me.

 

Also a question to raise, is this actually a ‘business’ loss as termed in t&c’s?. My home number was being used as a point of contact for employers to contact me to offer employment, this is a widely recognised use of a residential number, much the same as the post office would not list my home as a business address if they were to deliver a letter offering employment. I am not using my number as a ‘business’ number and no challenge to how I was using my number was made by the chap who set up the payment agreement following my advisement I was using my home number as a contact number on applications prior to the repayment agreement being set up.

 

I appreciate the arguments about consequential losses, however in terms of the apple upgrades, there are options on the handset where the customer can choose to either let the phone update automatically, or be alerted when there is a download available. Also with the trains example it could be argued that it was an unforeseeable event and the customer was fully aware the train was already late so the customer had the opportunity to seek alternate transportation.

 

In my situation this voicemail service was put on my line without my knowledge or consent. I was not advised during the call that it was going to be put on my line (as vm tried claiming however proven to be a lie on receipt of the call transcript), I did not receive a letter advising me it had been put on my line (as vm claimed, again proven to be a lie as the sar request advises that no record of this letter can be found) and my bills do not detail the service so I not alerted to it or given the right to remove it in line with vm’s own t&c’s section H2 which states… virgin media ect retain the right to improve, modify or amend services but at the end of this text is states that you have the right to cancel these affected services if the changes are significant and directs you to section J5 which states If you were not notified of these changes in advance, you must give notice of cancellation of the services affected to Virgin Media Ltd and/or Virgin Media Entertainment (as applicable) within 30 days of receipt of your first bill following such increase in charges.

 

Vm should have received my last letter by today so we’ll see if they respond, I’ve given them an extra seven days to address the matter in light of it falling over the bank holiday weekend. If I don’t get a satisfactory response I’ll take the gamble and crack on with the small claims court, they’ve already failed to adhere to the practice direction on pre-action conduct so that alone will play in my favour.

[Neiltheman]

Quick update on this…. Virgin media failed to get in touch as they had advised they would when responding to my letter before claim. The day before the deadline I called their head office and after asking them to record the call, asked if they had any comment. They said they would not reply to my letter before claim as the matter had been dealt with by cisas, I told this chap that I had refused the cisas decision as I didn’t agree with it and that virgin will have already received notice of this from cisas well over three months before. I emailed the chap a copy of the rejection notice and he replied that they could not comment further and understood I intended on taking court action.

 

I filed my complaint and the day before the summons deadline vm sent an acknowledgment of the claim, giving them a further 14 days to submit a defence. I’ve not head back from the court yet but the 14 days in now nearly up.

 

I’ve never taken someone to court before, I feel I have a very valid case and am learning as I go, but would appreciate any help or advice the cag site team & members can offer… thanks

[renegadeimp]

Keep a close eye on the claim as they may well lut it through at the last minute. You must keep an eye on the claim so the second it ticks over and they havent replied, you click the button for enforcement etc. Do not give them 1 second to wriggle free.

[citizenB]

Quick update on this…. Virgin media failed to get in touch as they had advised they would when responding to my letter before claim. The day before the deadline I called their head office and after asking them to record the call, asked if they had any comment. They said they would not reply to my letter before claim as the matter had been dealt with by cisas, I told this chap that I had refused the cisas decision as I didn’t agree with it and that virgin will have already received notice of this from cisas well over three months before. I emailed the chap a copy of the rejection notice and he replied that they could not comment further and understood I intended on taking court action.

 

I filed my complaint and the day before the summons deadline vm sent an acknowledgment of the claim, giving them a further 14 days to submit a defence. I’ve not head back from the court yet but the 14 days in now nearly up.

 

I’ve never taken someone to court before, I feel I have a very valid case and am learning as I go, but would appreciate any help or advice the cag site team & members can offer… thanks

 

 

If they don't submit a defence by the due date then your judgment will be by default. If they do submit, then you will receive further instructions from the court.

 

Do bear in mind that Northampton is behind in its administration by about 5-10 days. So perhaps check with them first.

[Neiltheman]

If they don't submit a defence by the due date then your judgment will be by default. If they do submit, then you will receive further instructions from the court.

 

Do bear in mind that Northampton is behind in its administration by about 5-10 days. So perhaps check with them first.

 

Thanks for the feedback… when the 14 days of the summon expired I called the court the morning after the see if they had heard from vm, the lass on the phone said that their system wasn’t showing anything had been filed but advised, as you’ve said, that they sometimes run behind with their administration. I took a chance and filed out the bottom part of my notice of issue, requesting a judgement by default as vm had not filed an admission or defense to my claim. I sent this on the Thursday but then on Saturday morning I received the notice that the claim had been acknowledged thus giving vm an additional 14 days to submit their defense.

 

You’ve said that if they don't submit a defense by the due date then a judgment by default will be recorded, assuming vm haven’t filed a defense do I need to reapply for the judgement by default or will the court do it automatically as vm acknowledged the claim but then didn’t submit a defense in time? Thanks again

[Neiltheman]

Keep a close eye on the claim as they may well lut it through at the last minute. You must keep an eye on the claim so the second it ticks over and they havent replied, you click the button for enforcement etc. Do not give them 1 second to wriggle free.

 

Thanks for the feedback… when the 14 days of the summon expired I called the court the morning after the see if they had heard from vm, the lass on the phone said that their system wasn’t showing anything had been filed but advised, as you’ve said, that they sometimes run behind with their administration. I took a chance and filed out the bottom part of my notice of issue, requesting a judgement by default as vm had not filed an admission or defense to my claim. I sent this on the Thursday but then on Saturday morning I received the notice that the claim had been acknowledged thus giving vm an additional 14 days to submit their defense.

 

You’ve said that if they don't submit a defense by the due date then a judgment by default will be recorded, assuming vm haven’t filed a defense do I need to reapply for the judgement by default or will the court do it automatically as vm acknowledged the claim but then didn’t submit a defense in time? Thanks again

[Neiltheman]

Looking for a bit of advice if anyone can help…. The closing date for vm to submit their defence was 5 june, I called the court on 10 june and was told that their system was showing that vm had NOT submitted a defence. do I need to submit a request for judgement by default or will the court do it automatically as virgin acknowledged the claim? I haven’t done the claim online, I did it by post.

[ericsbrother]

no, you need to apply. There should be a button on the page if you are using MCOL.

[Neiltheman]

no, you need to apply. There should be a button on the page if you are using MCOL.

 

cheers for the feedback... i did the claim by post so i'll fire the form off in the morning

[citizenB]

You need to submit an N225 ( Request for judgment and reply to admission (specified amount)

[Neiltheman]

You need to submit an N225 ( Request for judgment and reply to admission (specified amount)

 

Thanks for the confirmation... I got the form off in the post this morning, I'll keep the thread updated with events.

[citizenB]

[Neiltheman]

Update… I received virgins defence yesterday, the court letter said the 12th but when I spoke to them on the 10th they said they hadn’t received anything?!?.

Anyhow… virgins defence document generally aggress with what I’ve said and says they’ll also rely on the t&c’s, however they say half way through the document that I was advised of the addition of the voicemail but they don’t say how they claim I was advised. I’ve already done the sar request and obtained a transcript of the call in question and at no point is the voicemail service even mentioned.

Virgin go on to say that I called to reported a fault on with the voicemail so must have known about it, again the sar request shows the full list of entrys on my account covering three calls over three days, not just the one, in which myself and virgin tried without vein to access the voicemail service. I’ve also got the transcript of the first call I made when I discovered the voicemail service was on my line.

I’m a bit lost here…. The argument basically boils down to whether they told me they were putting this service on my line, they say they did, but call transcripts and account entry’s shows they didn’t.

Help…I’m a bit lost understanding where virgin are going with their defence.