I’ve followed your advice, but the company have refused a refund
If you have sought a refund from the company which has taken your money and have either received no refund, or only a partial refund has been offered, you will need to consider your options. Whatever you do, make sure you have followed the process which your network asked you to. You may be reluctant to communicate directly with the people who robbed you, but as the law stands that is the process. Failure follow the process will weaken your case should the matter go to an Ombudsman, to ADR or to court.
1 . Accept the situation and any partial refund on offer and walk away.
Let’s be honest, pursuing a legal action for the sake of a few quid can be more trouble than it’s worth. That’s exactly the way the scammers want you to think and most of the time, sadly, this is what happens.
Be under no illusion, pursuing the matter further will be time consuming, and you may need to spend money on court fees, usually £25 (which you will get back if/when you win your case). However you should get your money back and will have the satisfaction of having driven one small nail into the coffin of these outrageous scams.
2. Pursue the network through the Communications Ombudsman.
This has the advantage that it should be cost free, but it is untried and untested. As far as I know this approach has not been used before. Cases have been taken to the Ombudsman and rejected because they are within the remit of the Phone-paid Services Authority. However these have been complaints about the ‘Payforit’ charges. If your network has failed to follow it’s own published procedure, or has failed to follow the Mobile Operators Code of Practice for the management and operation of PFI, then you can go to the Ombudsman on the basis that the network has not followed proper procedures in dealing with your complaint.
In 2012, the networks gave assurances to OfCom concerning their handling of ‘Payforit’ complaints. I have reproduced the document here. The original report containing this document is here: https://www.ofcom.org.uk/__data/assets/pdf_file/0019/46513/statement.pdf. In it they undertake that if there is an allegation that an API or merchant is not properly dealing with the complaint, a mobile operator will secure resolution of that complaint directly.
The major networks also produced documents detailing their own policies and procedures for dealing with ‘payforit’ issues. In some cases it may be useful to refer to these. For example the Three statement includes the following:
On a second contact from a customer to Three’s Customer Services, or if the customer is expressing dissatisfaction, the issue is escalated to the Payment Services department for detailed investigation. Based on the outcome of the investigation, Payment Services department will contact the customer with the findings from the investigation and one of three outcomes is possible;
• The customer is offered a full refund
• The customer is offered a good will gesture
• The customer is advised in detail how they engaged with the service and accepted the terms of the service as they passed through the payment pages and that the investigation did not find anything incorrect with the service.
Any customers dissatisfied with the outcome of the investigation (very rare) will be advised of their current ADR options.
Full procedures for each of the big 4 networks are linked below.
If your network has no published procedure of its own, you can use the Code of Practice which applies to all networks.
Draw your mobile network’s attention to this document and tell them that, in your view, the complaint has not been dealt with properly. It’s best to use this precise wording, so that there can be no subsequent dispute about your position. Look up the correct procedure for making an official complaint to your network and make sure you stick to that procedure. Make it clear that this is an official complaint and record the date on which it was made. Ask them what they intend to do. If the answer is nothing, ask for a deadlock letter. If they do something you will need to decide whether you will accept any offer made, or whether to decline and ask for a deadlock letter.
Assuming that you have a deadlock letter, or that 8 weeks have elapsed since you initially asked the network to deal with your complaint, you need to go to the Ombudsman. You need to be clear that you are not complaining that you have been scammed (the Ombudsman has no jurisdiction over this) , but that the network has failed to follow its published policy and procedures.
Complaints can be initiated on the Ombudsman’s website https://www.ombudsman-services.org/sectors/communications.
3. Pursue legal action against the scamming company through Moneyclaim Online.
This is a more technical process, and if you go down this route you need to keep careful records and make sure that you follow procedures to the letter. However it is not unduly complex, and in any event it is unlikely that the case will ever get to court.
You need to decide who to pursue for your money, the scamming company, or the network, or both. Legally, your claim against the scamming company is easier to prove. They claim that a contract existed between them and you, and you say it did not. Faced with legal action they either have to produce evidence of the contract, or refund you in full and pay your costs.
Whoever you decide to go after, the first step is to collect as much evidence as you can to support your position. Make sure that you can substantiate your loss using bills or ‘Payforit’ receipt texts. Also collect evidence of cases similar to yours, involving the same company. The company will claim that you willingly gave consent to the charges, you need to prove ‘on the balance of probabilities’ that you didn’t. The more other similar cases you can locate, the less likely it becomes that all those consumers willingly agreed to charges and then claimed that they didn’t.
Also say that you never used the service (provided this is true) and say that the fact that you never used the service makes it very unlikely you would want to pay for it.
Include reference to Para 6.78 of the Ofcom 2012 review of PRS services which states:
6.78 This scam demonstrates how a fragmented supply chain, with separation between the service provider and the billing party, can be exploited in an (unlawfully) opportunistic way. The greater transparency of PFI services would not prevent this harm. Rogue software can be embedded in such a way as to circumvent any verifiable method of consumer consent to charges (like a PFI checkout).
This will cover the situation where malware on your phone has sent what appears to be a valid consent. These cases are increasingly common.
Also make reference to the fact that the regulator in its guidance on subscription services advises the use of a double opt-in for all subscription services, but only mandates it for services costing more than £4.50 per week. The scam ‘services’ take advantage of this exemption but this will put them at a disadvantage in any legal action.
In the letter before action you need to present the evidence that you have to support your claim. You need to ask the company for the evidence that they will use to support their position (i.e. any evidence they have of your consent, or any evidence they have that you actually used the ‘service’ you were paying for). Remind them that the courts take a dim view of evidence produced in court that was not made available to the other side prior to the commencement of legal action.
Offer to go to ADR (Alternative Dispute Resolution) instead of court and ask them to nominate an independent ADR provider for this purpose. They are unlikely to take up this option and you are not required to accept it if is offered, but it will strengthen your case if they refuse ADR.
Give them a reasonable period of time in which to respond, at least three weeks, but be clear that no further warning will be given prior to the commencement of legal action.
Some people like to take things a stage further and go to the MoneyClaim Online website and complete a claim form. Don’t pay the fee, but print off a copy of the form and enclose it with your letter before action.
You can try sending your letter before action by email. Ask for a delivery receipt and a read receipt. If you don’t get a response within a few days you will need to send it by signed for post. It is essential that you are able to prove that the letter was sent and that a reasonable time was provided for the company to respond. If there is any doubt as to where to send the letter, check the record at Companies House and send it to the company’s registered address.
Dear Sir or Madam
Letter Before Action
You took £xx.xxfrom my phone account 0788n nnnnnn on various dates between 1st September and 31st October 2017 without my permission. I enclose evidence of these deductions.
I repudiate any suggestion that I ever entered into a lawful contract with you. I insist on the return of the £xx.xx taken from my account and that you explain how you came to have my phone number in order to claim such a payment.
I also enclose copies of reports on internet forums, between the dates of 1st August and 30th September, showing that large numbers of consumers experienced the same unauthorised deductions as me. These will be presented to the court to establish that it is highly improbable that I entered into a contract with you other than as a result of a fraudulent website or a fraudulent App.
Should the matter go to court, I will introduce evidence to refute any suggestion that I consented to these charges, regardless of any ‘evidence’ you may have.
Para 6.78 of the Ofcom 2012 review of PRS services states:
6.78 This scam demonstrates how a fragmented supply chain, with separation between the service provider and the billing party, can be exploited in an (unlawfully) opportunistic way. The greater transparency of PFI services would not prevent this harm.
Rogue software can be embedded in such a way as to circumvent any verifiable method of consumer consent to charges (like a PFI checkout).
Furthermore, I will introduce as evidence reports from reputable antivirus companies, highlighting the fact that these subscriptions can be started by Android malware without any awareness of the user.
I note that your service fails to use the two step authorisation with PIN which is required by the Phone-paid Services Authority for all services costing more than £4.50 per week, and recommended for all subscription services. As your service costs less than £4.50 per week, you are not in breach of the regulations, but you are not following the PSA recommendation which is designed to prevent fraudulent subscriptions.
I maintain that I never used the service you have charged me for and would like to see any evidence you can provide that I did.
I would like a reply as soon as possible so that I know you have received this letter. A simple acknowledgement will suffice, if you wish to take few days to consider your position. If you don’t agree to the refund, could you please then send me a detailed response, saying why you don’t agree, and provide evidence of the contract which you claim existed between us and evidence of my usage of your service. Failure to provide this evidence at this stage will be brought to the attention of the court should I decide to proceed with this action.
To avoid taking court action, I am willing to use Alternative Dispute Resolution to resolve this matter.
If I do not receive a satisfactory response from you by 11th December 2017, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs.
I refer you to the Practice Direction on pre-action conduct under the Civil Procedure Rules, and in particular to paragraph 4 which sets out the sanctions the court may impose if you fail to comply with the Practice Direction.
I look forward to your acknowledgement.
Pursuing the network will be more difficult as you will need to show negligence on their part. If you are dealing with one of the prolific scammers, about which there were numerous complaints prior to yours, it will be easier. If the company have allowed further money to be taken from your account, after you informed them that the deductions were unauthorised, you will be in an even stronger position.
The process will essentially be the same, except that you will be seeking to show not only that there was no valid contract, but that the network should have been aware that a number of its customers were disputing the existence of a contract, and that payments continued to be made despite this. If the network continued to make payments from your account after you notified them of the dispute an have failed to refund these payments you should draw attention to this fact.
At the time of writing, we are only aware of two cases which were not settled at the ‘letter before action’ stage. In both of these cases a full refund of both the amount originally claimed and the court fees was obtained after an action was started. No case has yet gone to court as far as we know.
Taking Legal Action
Although these cases are usually settled out of court, other outcomes are possible:
- The scamming company fail to engage with you and do not respond to your letter before action. In this case you can be fairly confident that court action will be successful. However, check as far as possible, that the company is still operating. If they are insolvent, you might win the case but be unable to get your money.
- The scamming company provides ‘evidence’ of your consent to the charges. Don’t accept vague statements, ask for the specific details which would be required by the regulator. If they have this, all is not lost, but you will need to point to evidence that this signup may have been the result of a malicious App or webpage.
If the letter before action doesn’t get you a refund, you will need to go to the Small Claims Court. The procedure is designed to be simple, and you won’t need a solicitor to represent you. If you get to this point, please contact us here, and we will provide free personal help with the preparation of your case.