Yet, now I am suing for breach of that agreement they say that I could not have accepted that offer, so how could we have come to an agreement.
Bear in mind that offer, which was supposedly not capable of acceptance asked me to accept it, clearly indicating that they were going to finalise the matter (releasing payment) that very day.
They now state in the defence that we could not come to an agreement.
At the moment we have an arbitration call later this month on the original case, where I will explain that we already have a settlement agreement which I am enforcing. We'll see how the arbitrator copes with that.
I am also in discussions with the ICO to formally clarify that as A&A are a provider of public electronic communications services, and as I personally have a contract with A&A that makes me a subscriber for email covering the email address to which Huxley originally emailed, that it is definitely covered by the regulations.
Also, for some reason, they are changing the defendant to S Three Staffing UK Ltd. The offer to settle was made on S Three plc letterhead so I'll advise the court that they are the defendant. [update: re-reading, S Three plc made the offer on behalf of S Three Staff UK Ltd, so maybe that is right]
Should be fun.
They seem to be going to a heck of a lot of effort to avoid paying a small settlement.
ReplyDeleteI guess it sets a precedent so they dont want to start the avalanche
DeleteI don't think so, in county court small claims track. it think, in my opinion, they are just incompetent.
DeleteI wouldn't be surprised if they're doing this with in-house legal - they're paying the lawyers anyway, so you might as well have them do real legal work, with a real judge to argue in front of, and see what happens.
DeleteBest case for them, they win in court. Next best, RevK gives up, as it's a lot of work. Worst case, RevK wins, and they're out the small amount of the original settlement, plus costs (limited as it's small claims), but they've given their legal team some valuable training including time in a courtroom.
Not a binding precedent as such, but being able to point to something like "RevK sued in identical circumstances and got £30" would be quite persuasive in subsequent cases, particularly in arbitration. I suspect the actual money is trivial to them - they've probably spent far more than the claim is worth anyway - but they will be terrified of losing this case and the next thousand like it. Which, of course, is exactly what we want - not to get a few quid, but to destroy the spammer business model.
DeleteIn all this I think it's fair to actually tell the story of Oracle.
ReplyDeleteI got spam from them (UCE, they're not into Viagra, but it was effectively unwanted), and the only way they could have obtained that email address was by unauthorised use of the email address during some correspondence. I am very careful always opting out from marketing - it's a default action when I provide an email address, and if I cannot find an IMMEDIATE opt-out I will not continue (if you are clever enough to create a form to receive email from me, you damn well be clever enough to include an opt-out option there and then). But OK, it could be my mistake, so I unsubscribed. And got another email the next month anyway. Hmm.
Me being me, I asked them how they got my email address and if they could tell me at what point I had opted in (I stated I actively went out of my way to opt out) - but I didn't send it to customer services, I punted it into their lawyers.. As all big companies go out of their way to hide any useful address from client contact I lobbed it into their copyright department.
Much to my astonishment I got an almost immediate reply from someone who subsequently took an aggressive role in digging out what had happened. The person confessed he didn't like spam either, and seemed to take it almost as a personal affront that Oracle had engaged in this.
Cutting a long story short, I received in short order:
- an apology from the Oracle people managing the subscriptions (which were contacted out);
- a confirmation I was indeed on the "do not email list"; and..
- a few weeks later a formal explanation of what had happened: their subcontractor had an error in their download of the opt-out list, and so my opting out had never been received, a process now corrected.
- a confirmation they fully removed my email address from their marketing database to prevent any further mistakes.
Basically, I have never seen a really big company (and certainly a US one) go so aggressively to town on an accidental spam, and I think it serves to highlight that there is indeed sometimes scope for starting with simply given a company a heads up first. They managed to impress me.