Pheonix business debt - Small claims query

[cococo]

Yet another victim here!

I'm stuck in a contract with this company,

 

after paying the marketing fee,

 

being told by the salesman that the money was fully refundable after 6 months

(no mention of 2 months notice period), a

 

nd no mention of the £3000 fee if you cancel.

 

He also didn't mention that the £6k fee was subject to VAT.

 

Have just emailed Trading Standards about them.

 

Would like to know how to get out of this contract if it's possible?

 

TIA.

[Conniff]

This is just me, but I would tell them to get stuffed and take me to court.

[brisbs]

Hi cococo

 

Trading standards will not get involved as this business to business,

and they don’t cover so to speak.

 

You should write to your local councillor demanding new laws to protect small businesses

from getting ripped off by rouge companies.

 

Let them know what’s going on.As for phoenix, stay calm and don’t panic. Been there and it is quite a scary place, feeling so helpless. The good news, after lost of research, I have found no information that they will take court action. They took one business to court and lost, and they were over £1500 out of pocket in court fees.So calmly state you are happy to take this matter to court, and let a judge determine whether their contract would be upheld by law. They will negotiate with you to pay half, they will act as they are doing you a favour, and being reasonable.State the fact in a previous court case, the judge ruled the fee you have been invoiced for was seen as a “penalty charge” and not a genuine pre-estimate of loss and therefore unenforceable by law. Wait and listen as they squirm, enjoy. Be assertive, don’t feel pressured, its like you’re talking to pushy sells people who wont take no for an answer. But the law is the law.Keep us posted. brisbs

[cococo]

Thanks brisbs!

Would you recommend getting advice from a solicitor?

I'm still in the contract with them and on the verge of trying to end it. Would be nice to have some proper legal back-up to show them before ending it and refusing the pay.

[brisbs]

Evening cococo

I'm sure the contract would not stand up in court. I told them endleesly i wanted to go to court and it was as though they never heard me say it. They will try and scare you as much possible to take as much money from you before you find out too much. If you get some legal advice they may back off sooner.

Good luck

 

Brisbs

[cococo]

Update:

I took legal advice on the matter and have now ended my contract with Phoenix. Of course they've sent the £3000 + VAT invoice which I won't be paying.

 

Here are some legal details which may help others:

 

Under the Misrepresentation Act 1967, a representation is something that you were told by the trader, or the trader's representative, that led you to agree to entering into a contract. If you later find out that what you were told was false, you may be able to seek damages or rescission (rescission is the cancellation of the contract so that you are put back into the position you were in prior to the contract taking place).

A consumer can look to make a claim under the Unfair Terms in Consumer Contracts Regulations 1999 if they feel any term and condition is unreasonable or unclear.

The majority of unfair terms would come under one of the following types:

1. Limiting your rights against the trader if they do not provide the service (i.e. stating you can only claim up to a certain figure, even if the real amount owed is higher).

2. Making the contract binding on you but not the trader (one example would be saying they can stop providing the service at any time, but you must keep paying).

3. Making excessively high charges for non-payment.

4. Automatically extending a contract without giving the customer a reasonable chance to prevent this.

5. Enabling the trader to change to the terms & conditions without giving the customer the choice of agreeing (or not) to the new terms.

6. Enabling the trader to change the goods and/or services provided without a valid reason and without giving the customer a choice.

7. Increasing the price significantly without giving the customer a choice to cancel.

8. Limiting the trader's responsibility for actions and statements made by their agents (one example would be saying they are not responsible for promises made by reps).

9. Limiting your rights under the law.

[cococo]

I also made a formal complaint to the Office of Fair Trading, here's part of their reply-

 

The mission of the Office of Fair Trading (OFT) is to make markets work well for

consumers. We achieve this by promoting and protecting consumer interests throughout

the UK, while ensuring that businesses are fair and competitive. Our primary duties include

the enforcement of competition law and certain consumer protection laws. However, the

OFT has no power to intervene in individual disputes or seek redress on behalf of

consumers, and therefore we are unable to assist you directly in this matter.

 

The OFT shares its consumer enforcement powers with a range of enforcement bodies

including local authority Trading Standards Services (TSS). We work closely with TSS to

identify priority national issues, develop strategies for dealing with them, and agree who is

best placed to tackle them whether individually or in partnership. The OFT will generally

take action to address the most serious national consumer problems.

 

In most cases we would expect the TSS to be best placed in the first instance to consider

the issues raised by consumers and decide what, if any, further action is warranted. This

may involve the TSS using their enforcement powers or more informal means, such as

offering guidance, advice or warning the trader.

 

I note from your email that you have already referred the matter to your local authority

TSS. We would suggest that you be guided by their advice on this matter.

 

Alternatively, you may wish to take independent legal advice.

 

I hope the information we have provided is helpful. We are grateful to you for bringing

your concerns to our attention. The OFT is keen to ensure that markets work well for

consumers. The complaints we receive are used as intelligence to inform us about

markets, and the activities of companies within those markets. They also assist us to

decide our enforcement priorities so that we can focus our interventions on issues that

pose the greatest threat to competitive and well-functioning markets. In this context, the

details of your complaint have been logged on our database and we will incorporate your

concerns when considering areas for future investigation or study.

 

 

I tried reporting to Trading Standards in Oxford but they said they don't take direct referrals. This was their reply-

 

This service does not provide self-help advice to consumers/businesses on the type of matter you have raised. We work in partnership with Citizens Advice who provide initial advice on matters of this type and then refer to us (or your local Trading Standards) complex cases, cases requiring additional support or cases requiring investigation. We also have access to all consumer cases reported to Citizens Advice so any report of a problem business to Citizens Advice will be accessible to this Service.

You can obtain advice through the Citizens Advice Consumer Service (CACS) either by phone or on-line. The CACS website contains a web based form to request advice which is specific to your issue. If there are any issues which need to be disseminated to other agencies, they will do this on our behalf.

You can also use Citizens Advice Consumer Service to report issues such as scams, unfair or illegal trading activities. To contact them by telephone call 08454 040506.

 

I've gone through the CACS now and they are reporting the company to Trading Standards.

 

So I would strogly advise anyone affected by Phoenix to register a complaint with both the CACS and OFT. The more people that complain, the greater chance there is of getting this company stopped!

[cococo]

Brisbs, just curious to know what happened with your case in the end?

[cococo]

Some good news - I contacted Rip Off Britain TV programme & got a reply straight away saying they're doing a piece on Phoenix in September

[cococo]

Although Trading Standards are limited in what they can do because it's business to business, mine is being very helpful and has put in a report to ScamBusters, which I understand is a government agency and are able to prosecute if necessary. They are also liaising with Oxford Trading Standards who apparently have had a large number of complaints about this company.

[cococo]

An extract from the latest letter they've sent me, giving me less than 1 week to cough up the £3600 they say I owe them:

 

"Unless we hear from you by 4:30pm on 5th September, 2012 with your full remittance in settlement of your account in the total sum of £3,600 we shall regrettably be left with no alternative but to issue proceedings against you without further notice.

 

You will appreciate that legal proceedings can involve you in costs over and above the amount of the debt and that, if judgement is given against you, it may prejudice any future application for credit."

 

Just another of their scare tactics. Not surprising that some people cough up and give them the money. I'm not one of those people though

If they do take me to court I'm not sure there's a judge in this land that would rule in their favour. I've collected a good amount of evidence, and once they've been exposed on national TV in the next few weeks everyone will know what sort of company they are.

[cococo]

Rip Off Britain featured an expose on Phoenix this morning. The show is available for a limited time on iPlayer - http://www.bbc.co.uk/iplayer/episode/b01mmrpl/Rip_Off_Britain_Series_4_Episode_5/

[cococo]

Rip Off Britain featured an expose on Phoenix this morning. The show is available for a limited time on iPlayer - http://www.bbc.co.uk/iplayer/episode...s_4_Episode_5/

[baran855]

same here can someone help please

[honeybee13]

same here can someone help please

 

Hello there.

 

What do you need help with please, can you give us some more details?

 

My best, HB

[baran85]

i have sent my merchant statement which show daily credit debit card transactions so thats the poof of the shop were open on the days and i sent a cancellation letter yesterday so i want to make myself ready for any incoming court

 

help please

[citizenB]

Documents in post #67 have now been edited correctly and reapproved.

[baran85]

i have now recieved a letter saying i need to pay £3.000 because of cancellation charge this is rip off they have done nothing to ask £3.000 can some one help pleasee

 

thanks

[baran85]

The contract is the same as the one posted in the first post and when this went to court the matter of signing as a private individual made no change to the fact that it is a business contract. I tried to use consumer protection and the judge dismissed this within the first 10 minutes of the hearing as the claimants solicitor provided case law to establish that the selling of a business is not covered by consumer regulations even if you sign as an individual. The judge stated that the £1000 paid upfront was the cost of administration and marketing as it says in your contract. He therefore said that the £3000 was a penalty and unenforcable in law as it was not a genuine pre estimate of loss. It cannot be the loss suffered as the £1000 is a payment for marketing - so what have they lost. In my view you will have lost the £1000 but the £3000 is a penalty and unrecoverable in law. If your £1000 had been a deposit they would be on stronger ground but it states that it is a marketing fee. I may be wrong on the loss of the £1000 but in the case at court that I attended the judge dismissed the counter claim for the £1000.

 

i have sign a contract with phoenix in July to sell business after month got a letter saying 1 of their client told them that he is been to my business address and business was closed and no machines or equipment when i read it i was shock because my business was open all the time and never moved any equipment at all.

 

i have call them up i said this is incorrect my business was open all the times send someone to check it i have all the receipt of cash and carry invoices and end of the day banking report of card machine but they did not send anyone now i got a letter from solicitors i need to pay £8000 because i have breach the contract because i have closed the business if i dont pay it they will take me to court this is rip-off they only called me few time made a appointment to buyers view the shop but only 1 of them came and the others never turn up.

 

i have sent my merchant statement which show daily credit debit card transactions so thats the poof of the shop were open on the days and i sent a cancellation letter yesterday so i want to make myself ready for any incoming court

i have now recieved a letter saying i need to pay £3.000 because of cancellation charge this is rip off they have done nothing to ask £3.000 can some one help pleasee

Edited February 6, 2013 by Conniff

[baran85]

Hello there.

 

What do you need help with please, can you give us some more details?

 

My best, HB

i have sign a contract with phoenix in July to sell business after month got a letter saying 1 of their client told them that he is been to my business address and business was closed and no machines or equipment when i read it i was shock because my business was open all the time and never moved any equipment at all.

 

i have call them up i said this is incorrect my business was open all the times send someone to check it i have all the receipt of cash and carry invoices and end of the day banking report of card machine but they did not send anyone now i got a letter from solicitors i need to pay £8000 because i have breach the contract because i have closed the business if i dont pay it they will take me to court this is rip-off they only called me few time made a appointment to buyers view the shop but only 1 of them came and the others never turn up.

 

i have sent my merchant statement which show daily credit debit card transactions so thats the poof of the shop were open on the days and i sent a cancellation letter yesterday so i want to make myself ready for any incoming court

i have now recieved a letter saying i need to pay £3.000 because of cancellation charge this is rip off they have done nothing to ask £3.000 can some one help pleasee

[cococo]

Been informed this last week that Phoenix are taking me to court. I will of course be putting in a counterclaim and have got together very strong defence and lots of evidence. But if anyone else can help, especially if you've been to court with them yourselves, or have any evidence I can use, please post here

 

Thanks

Edited April 13, 2013 by ims21
Invitation to PM and link removed

[cococo]

Been informed this last week that Phoenix are taking me to court. I will of course be putting in a counterclaim and have got together very strong defence and lots of evidence. But if anyone else can help, especially if you've been to court with them yourselves, or have any evidence I can use, please post here.

 

Thanks

Edited April 13, 2013 by honeybee13
Removed invitation to PM or email.

[testament1uk]

I have previously posted on the subject of Pheonix and have been to court and successfully defended a claim.

 

 

PheonixBusiness Agents v S Wynn (2012) CASE No. 1SE02571 - Walsall County Court

 

 

I must point out that it is not a good idea to try and defend this on the basis of any consumer laws as these do not apply in the case of Pheonix contracts.

 

As was made clear in the case I defended,

all contracts are not between a business and a consumer,

as in every case both parties to the contract are in fact a business.

 

Therefore the contract is made between two parties on an equal footing.

 

The judge in my case stated very clealry that when two equals enter a contract they may give away their rights within the terms of the contract

and therefore tests of fairness do not apply.

 

The only good defence is the same defence used in "Private Parking Ticket" cases.

 

I used the same defence supplied by some great members of consumer action group to win this case.

 

That a charge for breach of contract must be a "GENUINE PRE-ESTIMATE OF LOSS"

 

If IT IS NOT it becomes a penalty and is uneforceable in law.

 

I am not a solicitor - Pheonix came with a solicitor who in private chambers told me I didn't have a chance.

BUT using the following case, the judge threw out the Pheonix claim:

 

"OB Services V ThurlowWorcester Combined Court 10 February 2011".

[cococo]

Thanks, that's great

[Machine67]

Hi cococo

What happened at court ?