Thank you for your email dated 26 Jun 09 and for the letter from Ms xxxxxxxxxxxx dated 21 Jun 09, contents of both are noted.
Ms xxxxxxxxxx letter was very informative and full of salient contractual points, however there is one too many shoulds in her response and not enough here is the proof that these things were sent and received.
If there was a letter sent that informed me of my credit limit please provide me with a copy of said. She states also that the credit limit is stated on the 2nd page of my bill, this presupposes that I had been informed that there was a credit limit, which I wasn’t, and therefore would not naturally have looked for this term.
She has also requested that I call and discuss this issue with a posse of people before you send out your complaint procedure, I’m afraid once asked for Virgin are obliged to send said, not apply conditions before they action the request.
She says that you do not offer the facility to pay by Standing Order; if this is true, I’d revise this process as it’s prohibited under European Law. It is not for the supplier to dictate how they will accept payments rather its up to the consumer; you are allowed, however, to make a charge ‘sufficient’ to recover your costs of such an customer request.
Please provide me with details requested so that I can set up a standing order once ooe dispute is resolved
Onto your email;
Money has been debited from your account as per the terms and conditions of the contract for the services that we’ve provided you with.
I maintain I was not directed to these terms and Conditions when I applied for this account and request again for Virgin to prove that this occurred.
I understand that you asked for no money to be debited whilst you are in dispute with us however we’ve previously received rulings from our Ombudsman to say that customers in dispute should continue to pay their bills and shouldn’t use the option of cancelling their Direct Debit.
If this is truly the case then the Ombudsmans’ advice is in conflict with the Office of Fair Trading (OFT664) Guidance (Final guidance on unfair business practices) July 2003 (updated December 2006)), applicable to all organisations who hold a credit licence.
Deceptive and/or unfair methods (pg 6)
i.Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed.
k.Not ceasing collection activity whilst investigating a reasonably queried or disputed debt.
I fully appreciate that you believe we should put a hold on the amounts until the dispute is resolved however we have no current process for doing this for customers and I need to check the legalities of it with our Legal Team. They have been offsite today so I’ll be checking this with them first thing on Monday morning.
Its not what I believe that is important but what the Office of Fair Trading has directed as guidance in matters of disputes between consumers and organisations offering financial or other services to the public.
All of our contracts and sim only deals are provided with terms and conditions of service and it’s information held within these that explain how you can spend more than the advertised monthly amount and also explain about how the credit limit works.
You have not proven that I was directed to these terms or conditions when I took out the contract. As stated previously, my expectation when I applied for a ‘fixed call and text deal’ was that it would do what it said on the tin, the key word here is ‘fixed’.
In my view it’s a deception that allows people to overspend without a direct request from the consumer for an Extn of their talk or text time. My point is that unless they are aware that overspending is possible, the consumer has no choice, by default Virgin allows this practice to continue as it’s to their benefit.
I hope you can appreciate that when we advertise contracts we try to keep the information as simple as possible as it would be unrealistic to expect all of the info held in the terms and conditions to be included in the advertisement although there will always be links to this information if you’re looking online.
The fact that the advertised ‘fixed’ isn’t actually true, is surely a salient and important term that needs defining when informing consumers what they are in the process of signing up to.
Office of Fair Trading guidance; Communication (pg3)
2.2 Examples of unfair practices are as follows:
b.Leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge.
I also believe it would be unreasonable to expect a Sales agent to go through all of this info during a sales call. For this reason the terms and conditions are provided to you when the contract is delivered and you have a 28 day satisfaction guarantee in which you can cancel the contract if you’re not happy with it.
It’s not unreasonable to have your sales agents to explain fully the extent of the contract being entered into. Using the, I’m afraid ‘you should have read the contract’ excuse is no longer a guarantee of success.
It is my assertion that Virgin should direct consumers to areas of the contract that require special attention i.e. the definition of the term ‘fixed’ and the conditions where the term ‘fixed’ no longer applies. This direction did not occur during the sales call nor did it occur in any correspondence.
I maintain that the product as advertised was misleading and did not allow me, the consumer, to fully assess the impact of entering into this contract prior to delivery and initial use of the product.
As the contract wasn’t cancelled under the terms of our guarantee, you are deemed to have accepted the terms and conditions which clearly explain usage outside of your monthly allowance and how it will be charged for. This is the fundamental reason that we disagree with your view.
I am not a legal expert and neither does consumer law state that I should be, instead it makes clear that the burden of communicating contractual facts falls with the vendor, it’s not an unreasonable expectation for Virgin to have told or directed me to the definition of the term ‘fixed’ as it is a key service the contract will deliver.
Assuming that the terms and conditions of a contract are read and understood is not sufficient evidence of agreement of the contract. It falls to you the vendor to ensure that all contractual terms are understood prior to use of a product or service.
Virgin should not have allowed me to use the product until they had received a signed agreement of their terms and conditions.
What I require to resolve this dispute is a full refund of the disputed monies removed from my account without my express permission. I will continue to lawfully with hold payment until such time as our dispute is resolved.
I look forward to your response once you have consulted with your ‘wandering’ legal section and without being disrespectful may I request that we continue to discuss this issue in writing over email.