Here is a template for a letter before action. This letter assumes that you are seeking a refund from the Service provider (for example SB7 Mobile Ltd). It should not be used if you are pursuing your network or the level 1 provider for your losses.
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.
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.
There are numerous reports of consumers becoming subscribed to these “services” as a result of clickjacking and iFraming exploits. BBC Watchdog recently demonstrated how this can happen. As I never intentionally “interacted” with your “service”, I maintain that this is probably what has happened. Any interaction cannot therefore be taken to represent legal consent to charge.
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 would like to see the following:
I would like to see your evidence of consent, including:
- Screenshots of the subscription workflow where you allege I have signed up for this service.
- A description of what the service I am supposed to have subscribed to provides? Is this a newsletter, access to a web portal?
- Any evidence that after allegedly signing up for your service I subsequently used it
- [If your charges continued for more than about 20 weeks, include the following ] The reason why the Payforit 120 Day rule was not applied to these charges.
- The complete web server log of the subscription, including the User Agent strings containing all device details (browser, device type, device IP address) together with dates and times.
- Full company details of the company operating the service, country of registration, full name of company, company number and registered company address.
- Details of any ADR scheme I can refer the matter to in the event that you refuse a FULL refund.
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 [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.