Optical Express holding on to my money.

[BlunderCity]

Hello everyone,

 

I am currently locked in a dispute with my optician and I cannot believe how badly I am being treated. So far I have not found a single person able to firmly tell me where the law stands with regard to this matter.

 

I had a contract with Optical Express, one of the largest optician firm in Europe, for contact lenses costing £14.95/month. I had been with them for years and I paid via direct debit every month.

 

When my eye test was due they stopped sending me lenses. I was under the impression that the contract had run out but in fact they kept accepting the money for 2½ years without ever notifying me that was the case. I continued to purchase solution for another member of my household so I did not find strange to find them on my bank statements. They also changed their billing name which added to the confusion.

 

When I realised I had been charged for services I did not receive I called my branch in London, told them there had been a mistake and requested a refund. The lady told me she would phone the Head Office in Scotland for me but I got no reply for a while. When I got in contact with them again, the lady at the branch told me the finance department was refusing to refund any money. She said she had hit “a brick wall”.

 

I then decided to contact the head office myself but they refused repeatedly. Their customer service is appalling and the people I had on the phone were arrogant and very unhelpful.

 

The bottom line is, Optical Express is refusing to refund any money and are only offering vouchers which by me is unacceptable. I offered to meet them halfway, half the amount in a cash refund, half in vouchers. Of course they refused!!

 

They claim I was in breach of contract by not getting an eye test and their T&Cs state that “all monies received shall be non-refundable”. Hang on, I was in breach of contract but they still charged me every month for more than 2 years without notifying me?? To date I have received nothing and Optical Express has never returned my calls to resolve this matter. They even refuse to connect me to the customer service manager on the phone (the person I wrote to to complain). I can only speak to person with no authority relaying the same “niet” message from the management.

 

Since then they have simply been ignoring the situation. Does anyone know what I can do to? I would also like to know if I can charge them a reasonable rate of interest for having hold on to my cash for 4 years!! Any advise would be very appreciated.

 

Many thanks

 

BlunderCity

[blacksheep1979]

Did you pay by direct debit? if so you may be covered by the direct debit guarantee - best bet is to speak to your bank and say it was unauthorised charges.

 

If they are not willing to play ball its a simple case for the small claims court as they have charged you for a product/service that you haven't received. Write to them (recorded delivery) giving them 14 days to refund your money or you will begin legal proceedings to claim back your money. If they respond saying no or ignore you write one last time giving 7 days or you will begin proceedings with no further warning. You can claim 8% interest (not compound) on the money - there is a nice spreadsheet here which will work out the interest for you. The court docs are easy to fill out and there will be plenty of help here for you (if it gets that far).

 

Good Luck.

[BlunderCity]

Hey Blacksheep,

 

Yes I did pay by Direct Debit but they are using the Direct Debit agreement T&C to defend themselves. This is what they wrote:

 

"Paragraph 6 of the Credit Agreement outlines the right reserved by us to stop supplying lenses if relevant sight test requirements are not met. Furthermore Paragraph 8 outlines our right to continue to debit your account until one month written notification of termination is provided either by ourselves, or alternatively by you and will continue to be debited until such termination notifiation, from either party is provided".

 

"Furthermore, Paragraph 5 states "that all monies received in accordance with this agreement shall be non-refundable. Your statutory rights are not affected". I have enclosed a copy of our Credit Agreement overleaf for you perusal".

 

Now a mod at another forum told me I could challenge the terms under the Unfair Terms In Consumer Contracts Regulations Act 1999. Indeed it does seems they are using the T&C in an abusive way. Offering me gift vouchers is the equivalent of asking me to pay for more than 2½ years worth of contact lenses in advance. This is clearmy unreaonable.

 

Optical Express has repeatedly refused me a refund but I never threatened them with court action apart from on the phone. But considering this has been 4 years I'm wondering whether I can ask for interest to be added to the amount they owe me before taking them to court. I'm a bit ****ed off because this whole time I was charged stupid amount of money by my bank. Even if they were to pay me 8% interest I would still be out of money but of course I would settle for 8%.

 

On the other hand I don't want that to jeopardise my chances of winning in court eventhough I view charging this modest rate of interest as the least I can ask.

 

Any ideas?

[blacksheep1979]

See if your bank will give you the money back under the direct debit scheme and then it will be up to Optical Express to chase you.

[rosiecotton]

I agree that this is an unfair term.

 

They're basically saying that they can stop the service but continue charging you. What?! This makes no sense whatsoever and I'd love to see them try to defend this in court.

 

Opticians are prevented by law from sending out contact lenses unless the customer's eye tests/checks are up to date, there was new legislation brought in to cover this I believe (as a contact lens wearer I have to have regular check ups). So they can reasonably include in their terms that you must have one of these tests.

 

If you are in breach of contract by not getting an eye test, they are able to claim reasonable damages - but this would be restricted to any losses they suffer, which frankly would not be much other than any loss of profit for the original duration of the contract.

 

If I were you I would notify your local Trading Standards too so they can pass this on to the Home Authority for Optical Express (or the OFT Unfair Terms bods) for further investigation as it doesn't seem right to me.

 

Incidentally I had this exact same issue with Specsavers, although it didn't go on so long, and although they are crap at most things they got me refunded pretty fast on this occasion.

[BlunderCity]

Hey Rosie,

 

Thanks for your reply.

 

They do include in their T&Cs that you have to have an eye test every year and that failure to do so wil result in your lenses not being sent. But of course you don't read the small print every time you buy something on the high street.

 

But this is irrelevanf as it sounds reasonable in itself but accepting money at the same time knowing that you cannot provide the service isn't.

 

I did phone the Trading Standards Agency but the woman I had on the phone was totally dumb. All she wanted to talk about was how I was in breach of the contract for missing the eye test. When I asked her what were my chances of recovering the money in court she said "how can I possibly tell you, it's like winning the lottery, I don't know which numbers are gonna be drawn!!"

 

Naturally it's not the same at all. The merit of a court case can be examined and assessed whereas the lottery is purely random. I then realised I was talking to a person with an intellect even inferior to mine (meaning she is really dumb) I said goodbye and never contacted them again.

 

Finally they would not have suffered any loss of profit for two reasons: 1- I can cancel the contract at any time. 2- I voluntarily came back to them and bought contact lenses thinking as an existing customer I would be in a stronger bargaining position. But obviously they don't care about their customers.

 

The amazing thing is that if they had refunded my money straightaway I would still be one of their paying customer right now and by now they would have received more money from me.

[rosiecotton]

If you were entitled to cancel the contract at any time then agreed they would suffer no loss of profit and their claim could be nil.

 

I'm quite amazed at the conversation you had with Trading Standards - was it TS or Consumer Direct? - either way, it seems very odd indeed.

 

Yes they can hold you in breach of contract for not having an eye test, but since you could cancel that contract at any time what would their losses be? Negligible.

 

It still doesn't give them the right to bill you in full for goods they are not providing.

 

In my opinion, the contract was breached at the time you didn't have your eye test and therefore they can't really argue that the contract is now continuing, if you see what I mean.

 

TS and other advisers never like to give guarantees about court cases as they can be unpredictable at times - but it's definitely not like a lottery, you can see if someone has a strong case and there's no harm in saying "I feel you have a strong case but be aware that there are always risks in taking court action".

 

I can see their argument would be that you have never actually physically cancelled the contract, but your argument in return would be that indeed you did breach the contract by not getting an eye test and you accept that you were in breach at that time, however you believe the contract did not continue after your breach and therefore they cannot continue to charge for goods that they have no intention of supplying to you.

 

Yes there are two sides, but I know who I would put my money on in court.

[Movingon]

...so with that in mind, you should take the earlier advice and send them a "Letter before Action" giving them 14 days to pay back the entirety of the charges you paid them since your last pair of lenses arrived, after which you will raise a court action without further notice. Your court action will include a request for interest pursuant to the Civil Procedure Rules at a rate of 8% per annum.

 

I suspect that either on receipt of this, or soon after your claim is raised, they will cough.

[BlunderCity]

OK thanks to everyone who posted.

 

14 days have now passed since writing the letter and I got no reply from my optician. As incredible as this may sound I'm not all that surprised since they have only made the effort to contact me once (their refusal letter) in more than 2 years this dispute has been running... and I phoned them more than 10 times last year but they have never (ever) returned a single call. It's fair to say they couldn't care less about their customers and I wonder how they are still in business.

 

So what do I do next? Submit my claim tomorrow or give them an extra 7 days to comply?

 

Regarding the rate of interest do I have to stick to the 8% or can I claim what it really cost me, ie my credit card rate of interest. I paid 18% the whole time they hang on to my money but do I have to settle for 8%? That's a difference of about £300 (£916 instead of £614).

 

Also does anyone find the paperwork for issuing the claim hard to deal with? Any tricks?

 

Many thanks

 

Vincent

[Movingon]

OK... points in order:

 

1. What to do now depends upon what your last letter said. Was it headed "Letter before action", and did it give them 14 days to pay or you'll take them to court? If NEITHER of these is true, write a Letter Before Action (headed as such) and give them 14 days to pay up or you will take court action without further notice. If it contained only the last part (14 days to pay or you take them to court) then you can go ahead and raise your claim in the courts now.

 

 

The interest is easy. You are entitled to claim what it cost you. You are then entitled to charge 8% interest at the court's discretion in accordance with Civil Procedure Rules.

 

In other words, if it genuinely cost you the full credit card rate on every single payment, THEN CLAIM IT. Then, also ask for 8% at the court's discretion. You're ENTITLED to it, basically because that money COULD have been in a bank EARNING you interest.

 

As to the Court paperwork, you have to state a few things in there quite clearly. I give some ideas below; others may add to them.

 

You had a contract with OE for them to supply you with Contact Lenses costing you per month. followed leading you to believe that the contract was forfeit. However, unnoticed by yourself, OE continued to debit your account for the fees. You received no service from them during this period. You noticed this on and immediately challenged their right to charge. They have since been extremely difficult to have a dialogue with and any time you have been able to talk to them they have referred to their terms and conditions and denied that you have any right to a refund.

 

It is your contention that the term in their contract to which they refer is unfair pursuant to the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999 in that it allows OE to unduly enrich themselves at your expense. Further you believe that the contract was terminated and that therefore they had no right to charge you at all for any service as no service was being provided.

 

You claim the price of the lenses paid between and , the interest charged on those payments at your credit card provider's rate of , and interest pursuant to Civil Procedure Rules at a rate of 8% or such a rate as deemed appropriate by the Court.

 

Hope this helps!

[Movingon]

By the way; address the Letter Before Action and the court claim to their Head Office. Any other office with which you have been dealing so far is now an utter irrelevance and you need not deal with them again.

[BlunderCity]

Hi everyone,

 

OK the process has been delayed a little since I received a letter from Optical Express informing me that they had made a mistake calculating the "credit value" and that it is £45 less. I have obviously no way to confirm that. They can check when the last dispatch was, I can't remember when I last received anything (since I didn't know at the time it would be the last time I receive goods from them).

 

Interestingly they have now softens their stance. They are now offering me a cheque for £200 and the remaining value in vouchers (as a gesture of goodwill). They refused that same partial settlement 2 years ago when I duggested it to them. They must know they have little chance to win in court.

 

So the question is should I send them another LBA with the correct amount or should I press ahead with my court claim since they have refused what I request, ie a full settlement? (note: I received the letter about 3 days past the 14 day delay an it is dated from the day of the 14 day delay).

 

Also I did not mention to them I was planning to charge credit card rate of interest (since this is what it actually costed me). Do you have to do this in your LBA and add it up to the amount you're asking them or is it only at the court stage?

 

Vincent

[Movingon]

Negotiate with them - court is a last resort. If their offer is acceptable, take it. If you want the interest as well, and they won't pay it even after negotiation, serve your claim with the correct amount (no need for a new LBA) and include the interest in your court claim.