Template for Letter before Action (Network)
The template below can be used to provide a basis for your letter before action. It will, of course, need to be modified to your own particular 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. You have told me that this money was paid to a Third Party, namely [name of service].
You have told me that I consented to this money being paid, but I repudiate any suggestion that I ever entered into a lawful contract with this company. You had no authority to make this payment without my consent.
I maintain that you were negligent in paying my money to this company without my consent. I insist on the return of the £xx.xx taken from my account and that you provide evidence of my supposed consent to this payment.
You have failed to meet your obligations to me under the Payforit rules. As you re one of the networks responsible for drafting these rules, you failure to follow them yourselves is in itself negligent. The rules state, among other things:
“Your network has added value in terms of access, search, the Payforit scheme and the charging mechanism and you can escalate any dispute between you and the seller to your network for them to take a decision as long as you have discussed the dispute with the seller and can provide evidence of that discussion to your network.”
I have repeatedly attempted to get you to accept escalation of this matter, but you have failed to meet your obligations in this respect.
Furthermore, the Mobile Operators Code of Practice for the Operation and management of PFI (Payforit) states:
“Each mobile operator will take responsibility for ensuring that customer queries and complaints are dealt with in accordance with their regulatory obligations under General Condition 14. This includes resolving complaints directly or ensuring that the API or merchant clients resolve them in accordance with its internal processes and contractual obligations. 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.”
You have failed to meet your obligations to me under this code in your handling of this case. I do not believe that {name of company} has properly dealt with my complaint and have repeatedly asked you to secure resolution of it.
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.
You should be well aware of these exploits and I am of the view that your failure to protect your customers from them amounts to negligence.
They will also be used to provide evidence that you should have been well aware that this company was defauding your customers and have taken action to protect them from such fraud.
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 of such consent.
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 the “service” I was fraudulently subscribed to 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 this service costs less than £4.50 per week, they are not in breach of the regulations, but are not following the PSA recommendation which is designed to prevent fraudulent subscriptions. In these circumstances I would have expected you to have taken more precautions to protect your customers, such as the two factor authorisation now required by the EE network.
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 me and the third party you paid my money to. 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 consider the use of Alternative Dispute Resolution to resolve this matter.
If I do not receive a satisfactory response from you by [date], 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
