You may be unable to use the Small Claims procedure against the Service provider if
- The Service provider has no UK presence
- The Service provider has failed to communicate with you
- The Service provider seems unlikely to have the resources to pay your claim
This letter can be used in those circumstances, but will need to be tailored to your individual circumstances.
Dear Sir or Madam
Letter Before Action
You took £xx.xx from my phone account 07nnn nnnnnn on various dates between [date] and [date] without my permission. I enclose evidence of these deductions. These payments were purportedy in payment for a subscription service called xxxxxxxxx provided by a company called xxxxxxxxxxx.
I repudiate any suggestion that I ever entered into a lawful contract with you or with the company providing the service I was supposedly subscribed to. I insist on the return of the £xx.xx taken from my account or that you provide irrefutable proof of my consent to such a contract.
[I am unable to pursue the matter with xxxxxxxxxxx because they have failed to identify their legal identity in England and Wales nor an address where notices can be served.]
or
[xxxxxxxxxx has failed to provide a refund or to provide the required evidence of my consent to these charges]
I also enclose copies of reports on internet forums, between the dates of [date] and [date], 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 the 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 [date, allow at least 2 weeks], 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.
Yours faithfully
