PPL PRS/Pannone - claimform - unpaid auto rolled music performance licence for online Zumba Classes that closed months before rollover. *Claim Dismissed**

[Racer_Bod]

Take the win, agree to drop the CClaim if they drop their claim. I’m not sure on the timings but could there still be the possibility of a chargeback or Section 75 claim for the previous years?  Mainly due to them being unable to provide the service you have paid them for?

[AndyOrch]

All the points you raise a very true its a scam  with a scam working model which renders results and profit in  the main......now if your daughter can get versed up in contract law and be able to successfully argue those points in court probably against a Solicitor or possibly a Barrister then go for it. (just be aware that if they bring a Barrister in to represent their claim your looking at costs in the region of 5K for the hour.

But then again they wont with draw until she does....that's their offer.

[Beesnees]

@Racer_Bod - They have 'previous' on this. Their MO (as per several Trustpilot reviews) is to tell their hapless victims who challenge their fake invoices "pay it for now, then we can refund you later after the query has been resolved."

They never do, of course. They rely on their victims who fall for that ruse not having the stomach for a fight. So no, only legal recourse will force them to cough up. Half-cocked measures won't work with this outfit.

@Andyorch - I doubt my d'r is up for that, but what if I take it up on her behalf? Ie, she stays out of it completely - no court appearance. Just a statement from her that I read out in court?

I hear ya about costs, but even if I lost the c/claim, how likely is it that the judge will award them costs? Based on the evidence in our favour, a decision that goes against her on the c/claim must be, at worst, by the narrowest possible margin.

If I'm right, isn't it just as likely that the judge will direct that we pay our own costs? 

It's been a while since I studied contract law (it was a module in my AAT), but I reckon it wouldn't take me that long to get back into the swing of things. And yes, I fancy my chances even against a barista. But £5k an hour for making me coffee?

C'mon now. 

[AndyOrch]

2 hours ago, Beesnees said:

I hear ya about costs, but even if I lost the c/claim, how likely is it that the judge will award them costs?  Very likely loser pays the succeeding parties costs Based on the evidence in our favour, a decision that goes against her on the c/claim must be, at worst, by the narrowest possible margin. Judge either decides in the favour of the claimant claim or the defendants CC, he could dismiss the whole claim./CC ??

If I'm right, isn't it just as likely that the judge will direct that we pay our own costs?  Yes plus theirs if you lose.

Andy

[Beesnees]

@Andyorch - "Very likely loser pays the succeeding parties costs."

Hmm ... You sure about that Andy?

Quote

Costs orders for a losing party to pay the winning party's legal costs are therefore very unusual. On the Small Claims Track, parties are expected to bear their own costs, even if they pursue a successful claim.

and ...

Quote

The general rule in small claims track cases is that no costs may be awarded against the losing party, except for the fixed costs which the successful party has had to pay for issuing the claim and other court fees.

Comments?

Here's my problem. Letting them off the hook that easily after what they did to her doesn't sit so well with me. Our c/claim is a lot bigger than their spurious claim, so there is no quid pro quo here. So what if I made a counter offer? We'll drop our c/claim on payment of:

1. The overpayments she made under duress after multiple threats of litigation, and

2. We'll reduce our claim for the stress, etc., from £1k to £500.

Failing which, see them in court.

And why the apparent pessimism about our chances of success? Doesn't their own June '21 unilateral abrogation of what is, at best, little more than an implied contract sink their claim without a trace?

No signed contract 

No letter of claim

No response (to date) to my CPR31.14/15 request.

Over 200 independent on-line reviews (incl. one from a solicitor) that excoriate them and their reprehensible MO.

Seriously, how much more evidence do I need? Tell me I'm wrong, and on a hiding to nothing.

[AndyOrch]

2 hours ago, Beesnees said:

Hmm ... You sure about that Andy?

Positive take a look at other topics we have lost in the SCT in the financial legal Issues forum. Costs can be awarded in SCT at the court discretion.

Under Part 27 of the Civil Procedure Rules that govern civil disputes, the court will rarely make an order for the losing party to pay sums in respect of the winning party’s ‘costs, fees and expenses’, e.g. legal fees.

There are exceptions to the general rule however which allow the court discretion to make an award for:

The fixed costs attributable to issuing the claim;

Court fees paid by the issuing party;

Travel and accommodation expenses which a witness reasonably incurs in attending a hearing;

Fees incurred in the instruction of an expert to attend the hearing (limited to £200).

To assist the judge in calculating awards of costs, Part 45 of the Civil Procedure Rules sets out a number of tables detailing what costs can be recovered by a successful party litigating on the Small Claims Track. These tables can be found on the justice.gov.uk website and vary according to the status, judgment and enforcement of the claim.

As a caveat to the general rules on costs, it must be stated that if a party brings an unreasonable small claim that obviously fails, or defends a claim by acting unreasonably and subsequently loses, the court has discretion to make a punitive order for that party to pay the other side’s costs.

Having said that I wish in no way to deter you from trying to negotiate a settlement say if they would be prepared to offer your CC fee and partial refund of subscriptions paid then you would be happy to drop the CC...negotiate see what transpires.

[Beesnees]

@dx100uk

Quote

they've not a chance i hell they'll win with no proof any classes were taking place after xxx date. the fact it rolls over in their T&C's is useless and not enforceable. [Emphasis mine].

QUOTE:

"Is agreeing to terms and conditions legally binding?

Yes they are. Terms and conditions on a website are another form of legally enforceable contract. Traditionally, terms and conditions were agreed to with a signature. Online terms and conditions are generally agreed to through the consumer actively clicking a button stating they agree to the terms and conditions."

 

There appears to be some difference of opinion here about the enforceability of T's&C's. Any comments in light of the above quote?

 

I have received a long, rambling e-mail from their paralegal that still attempts to justify their ludicrous claim against my d'r. I'm assuming you guys don't need to see it before I reply. 

 

 

[dx100uk]

this very forum would not exist if it were not for the mass bank penalty reclaiming era from 2006.

whereby in their T&C's banks stated they would levy £xx penalty fee each time a customer went over limit or failed to pay the minimum sum due.

People enmasse launched pers claims directly to the banks for reclaiming and even court claims and won £3bn+ from banks.

likewise, the mass  PPI reclaiming Era would not have ever happened if T&C's were enforceable and fair.

dx

 

[Beesnees]

Fair enough dx, but are those examples comparable to a situation where a licence fee is paid, and the subscriber is obliged to chk a box that asks for agreement to the vendor's T's&C's in order to complete the transaction?

[dx100uk]

yes exactly the same.

T&C are not necessarily enforceable by default in law. they can be questioned and litigated against their fairness to a consumer/customer. 

as i said if they were enforceable by default there would never had been any PPI nor bank charges reclaiming. as an example.

 

[Beesnees]

OK, thx.

Is there any specific legislation about this I can cite?

[Ethel Street]

14 hours ago, Beesnees said:

 

QUOTE: they've not a chance i hell they'll win with no proof any classes were taking place after xxx date. the fact it rolls over in their T&C's is useless and not enforceable. [Emphasis mine].

QUOTE:

"Is agreeing to terms and conditions legally binding?

Yes they are. Terms and conditions on a website are another form of legally enforceable contract. Traditionally, terms and conditions were agreed to with a signature. Online terms and conditions are generally agreed to through the consumer actively clicking a button stating they agree to the terms and conditions."

 

There appears to be some difference of opinion here about the enforceability of T's&C's. Any comments in light of the above quote?

I'm quoting you in full to highlight something @Beesnees

The reason for the apparent discrepancy is the difference between whether a contract is legally valid and whether a contract is enforceable. They are not the same thing although unsurprisingly the lawyers for PRS are not going to point this out to you as they aren't advising you on your rights. 

Contract law requires certain formalities to be complied with before the law says an agreement is considered to be potentially enforeable in court.  Offer and acceptance for example - a quick search for basics of contract law in England will bring up plenty of explanations.  The lawyers are correct to say a contract can be formed online when you accept the T&C offered by clicking a box, acceptance doesn't have to be by signing a piece of paper.

But just because a contract formed online meets the formalities for being a contract doesn't mean that particular contract is enforceable in court. If all contracts in a valid format were automatically enforeable lawyers would go out of business!

There are many reasons why a judge might decide the contract can't be enforced. In consumer contracts perhaps the most important is that courts won't enforce contracts that are considered by the court to be "unfair" on the consumer. The Consumer Rights Act 2015 is a key bit of law about this, but not the only bit.

The only caution I have about that though is whether this is a consumer contract or whether a court would decide it is a Business-to-Business contract. Either way the lawyer's assertion that online contracts are in general  enforceable in court is not the same as saying that their specific contract is enforceable in full. It might be, or it might not, it's for the judge to decide if some bits aren't enforceable.