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Originally Posted by Mick
You don't know that for sure - If you have a degree in law - I'd be happy to agree with you, but until then - I am sure ntl's legal team would of looked at all the avenues and would of advised ntl what is and what is unenforcable.
Regardless. the fact of the matter is - ntl have changed their minds on the downgrade charge, a change in decision that happened because I asked ntl to reconsider by highlighting the feedback posted on Cable Forum.  |
Mick, with all due respect, I do know that for sure.
As I stated - it is a proven fact of common & consumer law that late payment and penalty charges are legally unenforceable if they do not represent a genuine pre-estimate of liquidated losses.
"Changed their minds" is company legalese for "sorry, we thought we'd get away with it".
I'm not privy as to whether or not NTL's legal team were consulted during the drafting of the proposed new charges, I very much doubt it, but I can confirm that they were contacted by an individual at Director level from NTL on Feb 8th who asked them to review the legality of certain proposed charges "as published". As a result it appears that the downgrade charge is the first of these proposed charges that will eventually be disposed of / waived.
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Originally Posted by Handyman
£10 = 1 off dump of data not formatted at all.
£12 = 12 itemised bills posted seperatly.
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Under the current legislation any information provided under the 1998 DPA must be provided to the applicant in a "legible" and "understandable format". Additionally - the current retention period in the UK is such that any previous 12 month period of statements ought to be available in their "standard format" at the push of a button. Any data controller who would be stupid enough to give out an unformatted response is asking for trouble.
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Originally Posted by Handyman
I cannot see what you Are trying to say here
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What I'm saying is that NTL appear to think that it's entirely acceptable for them to charge you £12.00 for something as "a service" when it is available to you as "a right" under current law for £10.00. Multiply the £2.00 differential by the number of customers who are not aware of their rights under the DPA and, hey presto! some bean counter in business affairs has just generated millions in profits and got themselves a promotion.
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Originally Posted by Handyman
You assume that the computer automatically send a out a letter. What if as is more likely the case there is a collections department charged with contacting customers and chasing payments. Say the call with out usccess on 5 occassions then send a letter. What are the cost invloved by ntl in recovering that amount and do you think that people should be able to pay late?
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I'm assuming nothing. What you outline above is an interesting analogy, but a poor defence. In a technological environment such as NTL's the prerequisite for the issuing of "reminders" is a moot point. Generally speaking most people "get the message" when their services are cut off. If they want their services reinstated they know exactly what they have to do. No need for telephone calls or letters on the part of NTL. In their defence they could possibly state that they send out reminders as a "courtesy". This falls under the gambit of "services", not liquidated losses and, as such, is not chargeable beyond the agreed terms of the contract.
Additionally, NTL themselves make no mention of the need for telephone calls or letters but simply state
"If your bill is not paid in full when the subsequent bill is generated there will be a late payment fee of £10. These charges will become effective on 1st April 2006 and will appear as "Late Payment Fee" on your bill." This statement makes no distinction, where there quite obviously
is a distinction, between those who only part pay a bill and those who pay nothing at all. Are NTL asking consumers to believe that they incur the exact same losses in both scenarios?
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Originally Posted by Handyman
I welcome anyone to try take a £10 charge through the courts. I can't see it getting anywhere. What lawyer would do that? What court would accept the escalation of a £10 charge into £1000's legal fees?
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If it were a point of law then any court or lawyer would do it. There have been many thousands of cases where fixed penalty notices for sums varying from £10.00 and upwards have been contested in the courts at great expense (sometimes running into the tens of thousands). The fact of the matter remains that the law is there for everyone - irrespective of their financial standing. From a plaintiff's perspective they would need to be absolutely sure that the charge was legal. If a respondant felt that the charge was illegal it is then up to the courts to decide. As the current law stands late payment or penalty charges are illegal if they do not accurately reflect the liquidated losses of the party claiming them.
In light of this, and the fact that the previous quote from the NTL page makes no mention, whatsoever, of any attempt on their part to recover an outstanding balance or cost associated with doing so, then one can only assume that what they are proposing is that they were intent on charging customers ten pounds
just for noticing, not for recouping or attempting to recoup, a shortfall or non-payment of their account. That is entirely unenforceable.
The legal affairs people currently studying this are affording consideration to the "in terrorem" (in lay persons speak a "warning" or "deterrent") nature of the proposed charge as detailed above. In its current wording, and for the reasons outlined above, it is unenforceable.
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Originally Posted by Handyman
Ask your solicitor to write you a letter then try to attack whatever ntl charge for chasing late payments.
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Thankfully I won't have to do that.
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