I am shocked.
I do not know what to say.
They are ignoring FACTS such as the customer asking to keep the service going after May.
They are considering and acting on matters that post date the date of the claim itself so cannot be part of the complaint that is being considered.
They are refusing to provide the details actually sent by the claimant.
They are insisting on a £500 "good will" payment.
It makes no sense. It is wrong. Simple as that.
I have asked what they do to enforce this - if it involves going in front of a real court and considering this case.
We took longer than anyone expected to install a service for a customer, but met the deadline they asked for, having not guaranteed a delivery date.
The ombudsman AGREE we are NOT in breach of contract - that ALONE is reason to dismiss this case.
Oh, and they don't like me putting this on a public forum!
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Are they afraid the public will see the process for the farce it appears to be?!
ReplyDeleteI don't know! i am more than happy to put my hands up to any mistakes we made. I know that lines too a long time to install, and I am even prepared to accept that we did not answer every email promptly.
DeleteWhat I don't accept is that any of this causes compensation. After all, we did even meet the customers deadline!
I would be happy for the decision to be published, but I would have to ask them.
I would so like this to be handled by a court.
What's the process to appeal - Ofcom / MP / ... There must be a way to appeal (daft) decisions, surely...
DeleteThere is no appeal!!!!!
DeleteThat's bonkers! I think I'd be on the phone to my MP by now!
DeleteUnfortunately for them I don't see you stopping putting it on a public forum. However, why would they like it being on a public forum when they're being this idiotic.
ReplyDeleteI for one, like it being out in the public to show just how stupid this system is that you're forced to use, it proves a point that these things are against the smaller companies and only really think of the "big dogs" that don't have a service as good as A&A's. I think it's completely ridiculous that they ignore facts and contracts, if they're going to do that, what's the point in having the contracts in the first place.
Absolutely. We now have new terms. I will be putting on a letter with the invoices. The key one is, on limits of liability "You agree that these limits apply even if you take a case to alternative dispute resolution and you will not accept any award in excess of these limits."
DeleteThat way, if this happens again, we simple sue the claimant for a refund. Job done.
Just to clarify - yes we have to have ADR - and yes we have to abide by the decision (if made in accordance with the terms of reference) but the customer does not - in fact it is specifically the case that the customer does not. So a customer can legitimately agree that they will not accept an excessive award.
DeleteI am more than happy for a case to go to ADR and us lose and have to pay, if we have screwed up and not resolved it. I cannot see how it can legitimately happen. If we billed someone for something and we were wrong to and did not credit it, then fine - ADR can award and make us repay it.
But they can't do compensation in excess of the limits the customer has agreed when buying the service.
That term is likely to be struck down as a unfair contract term however Adrian, though there's nothing to lose by trying it.
DeleteThat term is likely to be struck down as a unfair contract term however Adrian, though there's nothing to lose by trying it.
DeleteInterestingly they say we will be in breach of contract with them (the ombudsman) if we do not comply.
ReplyDeleteSo what? They sue for breach of contract? What losses do they have because we breached the contract?
Anyway, as long as it involved a real court looking at it, and especially the "not in breach of contract" bit, then that will be good.
Can't see how they can sue you for breach of contract since they clearly haven't kept to their side of it.
DeletePlus as there's no appeals process you could argue that the contract is inherently unfair - the only way to 'appeal' is to breach the contract.
They would have to show a monetary loss as a result of your breach of contract, otherwise it becomes a penalty clause and would be unenforceable...
DeleteI bet complaints to CISAS have more than doubled since your highlighting of the scheme and how (seemingly) easy it is to troll the system.
ReplyDeleteSince your highlighting of how unfair the system is I have seen increased threats to go to ADR on the ISP forum that I spend most of my time on (even if they have not even bothered complaining via the providers normal complaint channels first!).
In the previous 3 or 4 I don't think I even saw one threat.
This is Otello not CISAS, but both may have.
DeleteBut anything highlighting the farce is good I think. And if we can get any real ruling on this - like "no you cannot force someone to have good will", that will be a win.
Sorry to other ISPs suffering threats. Lets get the system, fixed if we can.
A system to allow complaints to be resolved it good - a farce like this is bad for everyone. We need something fair.
As an ISP we are barely over their definition of "small business", the very people they "protect", yet we 9and hence myself personally) get stung with this.
This award comes out of *my* pocket.
"In the previous 3 or 4 I don't think I even saw one threat.
Delete"
should read
"In the previous 3 or 4 YEARS I don't think I even saw one threat."
Put it like this - I have some money in my mortgage reserve account - enough to fight this in a real court and to start a judicial review if needs be. We will see what happens.
ReplyDeleteNobody, and I mean nobody, should be able to *force* someone to make a "good will" payment. Full stop.
Just sent them:-
ReplyDeleteSimple question - I hope you feel like replying.
Is you decision something we are permitted to publish?
Yes or no.
If not, what law prohibits us from doing so?
The fact you cannot cope with lots of emails in response to your letters is clearly a serious shortfall in your service, by the way.
Their report would likely be their intellectual property, and therefore the law that would prevent you publishing it in it's entirety would be copyright law. That might not prevent you from publishing quotes from it under the fair use provisions if you can justify it.
DeleteIs the ADR's lack of a timely response to your emails a breech of service? ;)
DeleteI seriously doubt it - any more than our lack of response to emails to our customer is breach of service. My point is that both are not breach of contract, but that clearly the ombudsman thinks that it justifies compensation regardless.
DeleteI bet they wouldn't be quite so unhappy about this being on a public forum if they weren't acting incorrectly and you were in a position to be able to praise their service for reasonableness and so on. this brings their service into deserved disrepute.
ReplyDeleteWhat's the point of an alternative dispute resolution service if they are just going to ignore the facts and make things up with as you say out of contract judgements and no sensible appeals process? Strikes me as being entirely unfair and very much on the ridiculous side of things.
If they have made a 'just' decision, why would they object to it being on a public forum? If they are in any way embarrased or feel awkward about hte ruling, then perhaps they should review their decision.
ReplyDeleteAdrian,
ReplyDeleteYou need to calm down.
Your latest addition to the contract terms is both unreasonable and unconscionable.
The point of ADR is to protect us, the customers, from companies with unfair T&Cs. You are turning A&A into one of those companies.
PLEASE stop, calm down and don't drag A&A down in a fit of rage.
You are missing the point - I am saying that ADR is fully valid and allowed in accordance with the agreed contract.
DeleteYou can, and should, claim, via ADR, any amount due under the contract which we have not resolved.
It is not at all unfair that you should do so.
Why would it be unfair to expect the contract between us and our customer not to actually apply?
I am more than happy to be proved wrong on this - so please, explain.
Seriously - what you are saying suggests you do not agree to the contract we have - if that is the case - leave.
DeleteIf you agree the contract, as we have had all along, which includes *LIMITING* our liability - then why would you not agree to that contract continuing to apply if a court of ADR looks at it?
Why would you consider that not applying?
If the revised contract terms mean some people who agree to the contract deciding that they no longer agree to the contract - fine - they can leave!
DeleteWe offer a service and we offer that with limits of liability.
Nothing has changed - except for the chance to break the contract and get compensation exceeding the agreed limit of liability.
If someone is unhappy that they are no longer allowed to break the contract by using ADR, then tough! That is the whole point of a contract.
the new contract term is not a change, contractually. It is simply that you agree the contractual agreement applies.
DeleteHow the hell can that not be acceptable?
"I am saying that ADR is fully valid and allowed in accordance with the agreed contract."
ReplyDeleteYour contract has nothing to do with "allowing" it. ADR compliance is required BY LAW. Just like Distance Selling regs usurp aspects of contracts that retailers might present.
What irks me is that you are reacting to this one ADR ruling by shovelling more and more terms into your contracts. ADR *is a good thing* in general. You took a bloody nose on this one, that's a shame. But don't condemn the process without looking at it as a customer.
I agreed to your contract terms that your liability is restricted to the cost of service provision because (1) you won't accept my over-riding terms (2) you won't let me strike that clause and (3) I know that ADR can over-rule it.
Finish this quote:
"Those who fight monsters..."
The contract is what matters - I am simply expecting the contract to apply.
DeleteSaying if the contract is "unfair" or not, is another matter. ADR does not rule on "contract" matters.
If you agree to the limit in liability in the contract, then fine, the new terms are a non issue - they simply apply that agreement.
The idea that we could be forced to make a "good will" payment is not something I am prepared to contract. Simple as that.
Basically, you either agree the contract terms (which we try not to hide in any way), or not.
DeleteIf you agree them, then do not expect some magic third party to override them and award hundreds of pounds not agreed in the contract terms.
After all, if fairness, if the ADR fairy is available to you, why not to us - why not some magic way that random annoying customers have to pay us hundreds of pounds.
Clearly unfair - we expect - from both sides - contractual certainty - the other party doing what was agreed. Simples.
"If you agree to the limit in liability in the contract, then fine, the new terms are a non issue - they simply apply that agreement."
DeleteExcept the ADR has proved they don't take into account contracts when awarding 'goodwill' payments, so that won't work..
OK, But I am not asking ADR to agree the new terms, I am asking my customers, a change that makes no difference to the contract. The customer can agree to limit ADR to the contract. Logically, they do that anyway - accepting an award more than agreed limit of liability is, in my opinion, already a breach of contract as you agreed a limit and then broke that agreement by accepting more. But this just makes it that much clearer.
DeleteBasically, anyone not happy that the agreed contract terms apply as agreed and as always agreed, then they are welcome to leave. Sorry.
ReplyDeleteAs to breach of contract with OS, consider that you're not bound by a manifestly wrong decision:
ReplyDelete7.9. ...the Final Decision shall, save in the event of fraud or manifest error, be binding on the complainant and the relevant Participating Company.
11.1(e). ...comply with any Final Decision (including any Remedy and Award) which, in accordance with these Terms of Reference, is made by the Ombudsman against it and is duly accepted by the Complainant and which is binding on it and the relevant complainant under these Terms of Reference;
As to limiting your customer's right to accept an ADR decision, since ADR is a legally binding alternative to court, it's no better than asking your customer to relinquish his right to accept a court award which you consider excessive. If you want to think of it in contract terms, by doing business in a regulated field you implicitly insert terms in accordance with those regulations, i.e. "Customer may use ADR according to Ofcom/ADR terms." Your beef now is with the ADR scheme (i.e. Ofcom) or the ADR provider, not with the customer.
As to judicial review, in principle you:
(i) read the primary Parliamentary legislation which allows Ofcom to regulate you;
(ii) check whether Ofcom's regulations fit in with (i);
(iii) check whether Ofcom's choice of O-S fits in with (ii) (term 6.6(e) reflects this);
(iv) check whether O-S is following its terms.
Judicial review is on matters of law, so you will not be tackling the merits of this particular case. It certainly came as a surprise to me when I first found out how many decisions without a "proper" court hearing can be made without recourse to appeal on matters of fact! For example, the First-Tier Tribunal covering various regulatory matters allows further appeal only on points of law to the Upper Tribunal and then Court of Appeal. Financial services companies occasionally go for judicial review of FOS decisions, but it's not easy because it's assumed that the FOS will have determined the facts correctly.
Looking at (iv), focus on:
1. Non-compliance with the procedural terms already in this and earlier threads;
2. The magic words in 6.6(b):
"to make reasoned decisions in accordance with what is fair and reasonable in all the circumstances having regard to principles of law, good practice, equitable conduct and good administration."
The FOS makes banks pay compensation for "upset" or "inconvenience" all the time and there is no precise formula - check whether the regulations similarly permit O-S to require you to make an "I'm sorry" payment (might it matter that they call it a "goodwill" payment?). If so, what "good practice, equitable conduct" should be involved in deciding the amount of such a payment?
Just some random thoughts.
OK really good details, thanks.
DeleteThe new term is not changing anything contractually - contractually people already agree to the contract, obviously. All this means this they agree ADR cannot over step that - something ADR claim not to do in their terms of reference anyway - so only if ADr overstep their remit and exceed that agreed in contract does the new term apply.
Basically, we are only prepared to enter in to a (fair and reasonable) contract with customers where the agreed contract terms actually apply, and not otherwise.
ReplyDeleteI understand what you're saying, but consider the two possibilities before adding this term:
ReplyDeleteEITHER the ADR was carried out correctly, in which case the customer has a right to whatever it awards;
OR the ADR was not carried out correctly, in which case the customer does not have a right to whatever it awards.
Now, who decides whether the ADR was carried out correctly? Well, it's like asking, "who decides whether a court did its job properly"? On fact, for certain matters, the court itself decides - and that's that. On law, a higher court can decide, if an appeal is made.
If a higher authority decides that a lower authority's decision is wrong, the decision is probably set aside: it is as if the decision was never made, so the customer has no right to any award. But if the higher authority decides that it has no reason to override the lower authority's decision then the lower authority's decision is "correct".
* * *
After adding your new term, in the case where some appeal determines that the original award is wrong, the customer not going to be getting it anyway, and nothing's changed.
But in the case where any appeal fails or is not made, OS's decision is correct. Either all correct ADR awards are within the limits you think reasonable, in which case your term has no meaning, or they are not, in which case you are usurping the authority of the ADR process. It's like saying, "If the court is wrong then you agree to ignore the court to the extent that it's wrong." It's only an appeal which can decide that it was wrong.
I can see what you are saying here, but there are a couple of key points to bear in mind. (1) A court would not make an award against us having determined that we are not in breach of contract, and (2) we have no appeal against ADR decision.
DeleteThe whole point of agreeing limits of liability is to avoid payments which exceed them. It is valid in contract law to agree limits of liability, which is why we do it. The new term does not change the limits has been AGREED by the customer - it simply clarifies what that agreement means. It means you AGREE not to *take* more than that limit.
Your comment "It's only an appeal which can decide that it was wrong." is quite correct, and the fact ADR allows no appeal to a real court is an issue. By adding this clarification we are giving ourselves that right of appeal in effect.
DeleteAlso please don't think I agree with the ADR process (and I have no opinion on the outcome)! I think government pushing for ADR in general is an excuse not to allocate sufficient resources to the legal system. If the belief is that the courts are too adversarial then a real alternative would be mediation. This is encouraged and sometimes even funded e.g. for family or workplace disputes but why not for people suffering disagreements with legal consequences in general? People shouldn't end up having to hate each other :-). Nite.
ReplyDeleteI understand the points you are making. In this case the customers stated clearly that he would be happy if we released him from contract with no penalty, and we said that was fine by us - so agreement reached. Even so, the ombudsman ignored the resolution the customer proposed and we agreed and decided to force a good will payment as well, which makes no sense.
DeleteJust to remind the ombudsman service - if you are reading this you are in breach of copyright simply by downloading it to your computer to view it.
ReplyDeleteThanks for everyone's comments, including ztora, I am slightly calmer now.
ReplyDeleteI am expecting a call from someone that can offer some legal advice later today anyway. We'll see what they say.
Considering this from the customers point of view is a good idea. But bear in mind that ADR is meant to be there to "resolve a dispute". It is specifically not there to consider or change the terms of contract. It is specifically not there to punish us for making mistakes and has terms outlawing punitive awards.
If the dispute is "I think you own me money, but i agreed that you don't have to pay me any because you did not break the contract" then the "resolution" is "sorry, tough, you agreed".
The whole area of whether a contract with limited liabilities like this is "fair" is something I am happy to debate. But that is not for the ombudsman to decide. I think it is fair, especially where we provide very cheap services and even free services. I also think it is fair as people have a choice - we are very "up front" about the limit of liabilities and people don't have to buy from us. If everyone thinks we are unfair we have to change the terms to stay in business.
The idea that, in a free market, someone can offer different levels of service guarantee to customers, is generally good. Someone could offer broadband with huge payouts for even seconds of downtime - if they charged enough for the service. We have chosen a level at which we will offer the service, largely because we understand some of the limitations of the providers we use for parts of that service. We don't hide that or mis-sell the service.
Nothing in the ADR terms allows them to undermine our contract terms like this.
It is also interesting the points on fraud and mistakes of fact. We are going through the emails later this morning. But the customer clearly stated they wanted to continue the service and the ombudsman says there is nothing to show that the customer put that line in their email. This means they are, in effect, accusing us or the customer of fraud. So we'll be writing to them on that point, asking if they are accusing us of fraud or not.
If ADR was there to punish us for poor customer service, then that would be fine, but it is not. It is clearly not. It is there to resolve disputes. Given that it has failed to find an agreed solution (and failed to even try to) they have failed to do what we have paid them to do. They are a company, not a court, and they are paid to resolve disputes, by us.
As I think I've mentioned to you in #a&a, based on your experiences with the ADR process as a service provider, we are initiating the ADR process with our former L2TP supplier due to some pretty flagrant breaches of the agreed contract over the course of the last 12 months.
ReplyDeleteI'll make no bones about the fact that if you hadn't been hit with this frivolous ADR claim (and lost), I wouldn't be doing this - my logic is that if a fair-dealing *decent* provider such as A&A can be found to have failed in the eyes of the arbitrator, they shouldn't have any problem dishing out some punishment to a company which has personally frustrated me for the last couple of years and has been providing a patently broken service since April 2011.
I will be happy to fill you in with all the gory details at the forthcoming AAISPISSUP and I'm sure you will be pleased to hear that your wholesale L2TP service is loved by me, my chaps in the office and all of our end users who loyally stuck with us from the migration between 'old provider' and A&A.
It will be interesting to hear. The fact you use the word "punishment" is part of the problem though - ADR should not be about "punishment" and that is specifically excluded from their terms. It should be about resolving a dispute. Where the company is in breach of terms, then they should pay the costs incurred, obviously. If you find ADR a useful alternative to the courts then I wish you luck.
DeleteCrikey... that was a quick response RevK!
DeleteMaybe 'punishment' is a harsh term to use... the only reason I use that word is because I feel like I have been punished myself for choosing them as a supplier in the first place.
One of the issues we will be raising with the ADR is that they were regularly overcharging us for bandwidth not used (and at double the published BT Wholesale IPSC rates per Mbit/s it soon adds up) and as we logged our traffic on a per-line basis, switchport basis *and* router interface basis at three different points of measurement (RADIUS server, SNMP to switch and SNMP to router respectively), all three of our figures matched.
However, they didn't match against theirs.
Cue lots of e-mails exchanged, we check, double-check and triple-check our figures for accuracy and they come back and say, "No issue at our end... invoice still stands!" - we push further, many many months go by and then we finally, nearly one year later, get a response, "Oh yes, we were adding up each individual VLAN interface plus sticking the bytecount for the actual port on there as well... k thx bye!".
My beef is that we spent many many man hours diagnosing a problem with *their* infrastructure, effectively accused of falsifying our figures and then we didn't get an apology nor any kind of recompense for helping them fix a bug in their backend systems.
The problem was that if we didn't spend the time/effort to do this, we would have had no way of arguing against their overcharging (therefore allowing them to defraud us - charging for services not supplied is fraud, yes ?) and the alternative was to do what we did and expend time and effort in diagnosing their error - which also cost us money (in the form of man hours) to resolve.
Plus, they were still invoicing us in November/December for tails migrated out from them to A&A in October :-)
The only thing which this company can do exceedingly well is extract money from bank accounts while failing to provide any kind of usable service or competent support - this doesn't even go into the failings at the NOC level... although that can wait for AAISPISSUP methinks when I can disclose stuff which I'd rather not do in a public forum such as your blog.
I would also like to point out that as you have repeatedly stated:
Delete"A&A has NOT been found in breach of contract with 'your favourite customer'"
Therefore, how can this ADR ruling be seen as anything else *but* a punishment ?
I do find it mildly amusing that other ISPs report more threats of ADR now, but we are getting lots of "I promise not to take you to ADR" comments :-)
ReplyDeleteI follow your blog daily. I also own an ISP and your days seems a mirror of mine... Constantly battling pure stupidity from Favourite Telco etc. I was sure your ADR issue was going to get overturned because no one can be that Biased against the facts. After I read your recent posting I got so angry... just pure stupidity!!. So my conclusion is the ADR provider is setup to service US (The ISP) we decide which one to contract to and in turn they are supposed to be Unbiased and work with the facts. Clearly whoever is overlooking your case knows nothing about the industry or is so far removed from the current daily battle us ISP's have to go through with favourite Telco just to provide some kind of customer service .. It would be interesting to find out more about previous ADR cases to see if the industry is being let down by the current providers. But on a personal note the industry is behind you and watching this case carefully.
ReplyDeleteI have been keeping an eye on this from the beginning. I'm just amazed how many comments there are based on something that no one has even seen!
ReplyDeleteUnless I've missed something the finding has not been published for us to see. I can't help but think that all these comments are totally pointless unless they are based on seeing the finding in full.
Can we please see the finding in full and have some sensible debate based on what is says?
I seriously doubt AA would be able to publish the text in full, since it would identify the complainant. At least not without the say so of a *really* good lawyer.
DeleteA resonable summary was posted at http://revk.www.me.uk/2012/03/shortfalls.html
btw. Personally I trust RevK - he's not the kind of person to hide facts or make himself look better than he is.. if AA screwed up that would have been on of the first posts, but it looks like (apart from missing some emails) they did everything right.
Hello again,
DeleteI'm glad you found my comments useful, in some manner.
My concern is that you are so upset and obsessed with this one ruling that you are unilaterally shovelling reactive terms into your contracts. Terms that alienate your customers and degrade the "fair" image of A&A.
Threatening to claw-back ADR awards is unreasonable. Don't you realise that customers incur direct costs dealing with your company when there is a fault? Phone calls to your office, man hours. Simply refunding the "missing" cost of service is not redress.
The more unreasonable terms you include, the more opportunity a court has to strike them or an executive agency has to over-rule. Yes, they can do that. Contract law is not final, it can be over-ruled by statute.
I'm glad you're following the OFCOM channel now. I think that is a more productive opportunity.
Hello again,
ReplyDeleteI'm glad you found my comments useful, in some manner.
My concern is that you are so upset and obsessed with this one ruling that you are unilaterally shovelling reactive terms into your contracts. Terms that alienate your customers and degrade the "fair" image of A&A.
Threatening to claw-back ADR awards is unreasonable. Don't you realise that customers incur direct costs dealing with your company when there is a fault? Phone calls to your office, man hours. Simply refunding the "missing" cost of service is not redress.
The more unreasonable terms you include, the more opportunity a court has to strike them or an executive agency has to over-rule. Yes, they can do that. Contract law is not final, it can be over-ruled by legislation.
I'm glad you're following the OFCOM channel now. I think that is a more productive
Hello again,
ReplyDeleteI'm glad you found my comments useful, in some manner.
My concern is that you are so upset and obsessed with this one ruling that you are unilaterally shovelling reactive terms into your contracts. Terms that alienate your customers and degrade the "fair" image of A&A.
Threatening to claw-back ADR awards is unreasonable. Don't you realise that customers incur direct costs dealing with your company when there is a fault? Phone calls to your office, man hours. Simply refunding the "missing" cost of service is not redress.
The more unreasonable terms you include, the more opportunity a court has to strike them or an executive agency has to over-rule. Yes, they can do that. Contract law is not final, it can be over-ruled by statute.
I'm glad you're following the OFCOM channel now. I think that is a more productive opportunity.
Hello again,
ReplyDeleteI'm glad you found my comments useful, in some manner.
My concern is that you are so upset and obsessed with this one ruling that you are unilaterally shovelling reactive terms into your contracts. Terms that alienate your customers and degrade the "fair" image of A&A.
Threatening to claw-back ADR awards is unreasonable. Don't you realise that customers incur direct costs dealing with your company when there is a fault? Phone calls to your office, man hours. Simply refunding the "missing" cost of service is not redress.
The more unreasonable terms you include, the more opportunity a court has to strike them or an executive agency has to over-rule. Yes, they can do that. Contract law is not final, it can be over-ruled by statute.
I'm glad you're following the OFCOM channel now. I think that is a more productive opportunity.
Hello again,
ReplyDeleteI'm glad you found my comments useful, in some manner.
My concern is that you are so upset and obsessed with this one ruling that you are unilaterally shovelling reactive terms into your contracts. Terms that alienate your customers and degrade the "fair" image of A&A.
Threatening to claw-back ADR awards is unreasonable. Don't you realise that customers incur direct costs dealing with your company when there is a fault? Phone calls to your office, man hours. Simply refunding the "missing" cost of service is not redress.
The more unreasonable terms you include, the more opportunity a court has to strike them or an executive agency has to over-rule. Yes, they can do that. Contract law is not final, it can be over-ruled by statute.
I'm glad you're following the OFCOM channel now. I think that is a more productive opportunity.
Seems to me that the people that should be paying up are Otello and not A&A or the Customer. It's the ADR people that have cocked up, it would seem?
ReplyDelete