Mobile Rainbow (cashback rating)

Quentin

Letter Before Action

If you haven't got the contract, then how can you show the court it's been breached?

You will have an indefensible case as long as you can prove you obeyed the ts + cs - maybe worth asking if anyone has a copy who bought their phone at the same time you did.

Neillgb

nicole136 wrote: »

went to court today, got a judgement against them, for immediate payment within 14 days. The judge said that i was wrong to claim for the remaining 2 cashbacks up front because they were not due,

I explained about the fundamental breach in their terms and conditions meant i was able to but she disagreed.

Luckily, they have become overdue since so i got the whole lot, but ive read here lots of times about the fundamental breach thing.
Also, i was not allowed to claim for my half a days leave i had to take to attend court, i was told cos i was the claiment, i had to allow for incidental losses, why should I? Ive lost £50 now in Annual leave time. yet they granted me my travelling costs to the court! all £3 of it.

Still at least its done now and all it involved was sitting in a room with a lady, MSOLS obviously did not turn up and she added up the amount they owed me.

Please keep us updated re the bailiffs as that will prob be my next step

I think and hope that the Magistrate was wrong with regard to the 'fundamental breach' issue. If this is not the case all cash back companies have been given license to delay payments and maximise inconvenience in claiming any money owed.

I think I am right in saying that a Magistrate does not have to have been a lawyer or indeed have any legal training. Legal details are dealt with by the Court Clerk I think. A Magistrate has to have been in 'good standing' in the community and probably a life long member of the local Constitutional Club:rolleyes:.

nicole136

None of the above (post details of your situation in the thread)

Strange, I did not have to submit any docs to the court prior to the hearing. And i brought my T+Cs with me but I did not get asked to show them, I typed out in simple terms the dates that the cashbacks were due to be paid and thats what she calculated my interest from. (reluctantly,

Funny enough the only proof she asked for was a recorded delivery receipt that I claimed for my postage for the LBA!!! all £2 of it.

MSOLS wont turn up to any hearing im sure, so it wont be that difficult to win judgement, The biggest annoyance is not being able to claim my half days pay from work

Quentin

You have to submit all docs you intend using to the other side prior to a hearing.

When costs are being considered, you can claim loss of wages (max £50) as well as travel and overnight exs.

She wouldn't allow you a loss of wage claim as you were on paid leave, and thus didn't lose any wages by attending.

Quentin

Neillgb wrote: »

I think and hope that the Magistrate was wrong with regard to the 'fundamental breach' issue.

County Court hearings aren't dealt with by magistrates. (Usually a District Judge deals with tihem).

There are no legal precedents set by District Judges (they aren't high enough).

Fundamental breach has been used successfully by many of us who have posted here after suing Mobile Outlet, e2save etc.

Were it wrong to pursue a claim for fundamental breach, then we can be fairly certain the CPW group solicitors (who are getting sued lots as e2save) would be defending this. In fact many of us have won the full amount from cpw.

As far as the retailer side of these contracts is concerned, all that is involved for them to do is pay the customer their cashback.

So once they fail to do that, then a fundamental breach has ocurred, meaning that the injured party can consider the contract ended, and claim all that would have been due to them had the contract progressed correctly.

A claimant needs to state that a fundamental breach has ocurred in the Claim, and demonstrate how if it comes to a hearing.

It seems that in this hearing the Judge wasn't shown the contract, so how could she correctly determine whether or not any breach was "fundamental"?

nicole136

None of the above (post details of your situation in the thread)

In my case she did not wish to see the contract as all the cash back had since become overdue, but she definately said i was wrong to have originally claimed for future cashbacks. I do think she was wrong, and did not really know the law as it relates to breach of contract. As all the other companies would not have paid if it were wrong, i just think some district judges are not aware of this. If i had a solicitor im sure they would have spelled it out for me.

Also, she did not know i had taken leave, I just said i needed to claim for half a days wages to come here and she said that claiments are not entitled to that unless you are being called as a witness, as you have to allow for incidental losses. I do beleive she was wrong to have said that, cos i have still lost money even though it was leave as if i want to take that half day back i have to take it without pay.

I was never asked to submit anything to the court, but maybe as we had had mediation first, and they admitted the full amount was due they did not need any evidence from me?

Im still annoyed about the wages thing though, but probably wont get anything anyway so i should let go!!!!!

Quentin

Looks like you got Judge Grumpy!

What she said (about only witnesses being allowed to claim loss of wages) is definitely wrong.

This is from HM Courts Service leaflet (EX307) about the small claims court:

What other costs might I be able to claim if I win?

Other costs you may be allowed include: ..............................................

• an amount of not more than £50 per day each for you, and any witness you may have for loss of earnings due to attending the court hearing; and
• any additional travelling and overnight expenses.

It might be worth you reading up on this, and contacting the court to see if there is anything that can be done to appeal the Judge's "mistake".

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex307.pdf

Neillgb

Quentin wrote: »

County Court hearings aren't dealt with by magistrates. (Usually a District Judge deals with tihem).

There are no legal precedents set by District Judges (they aren't high enough).

Fundamental breach has been used successfully by many of us who have posted here after suing Mobile Outlet, e2save etc.

Were it wrong to pursue a claim for fundamental breach, then we can be fairly certain the CPW group solicitors (who are getting sued lots as e2save) would be defending this. In fact many of us have won the full amount from cpw.

As far as the retailer side of these contracts is concerned, all that is involved for them to do is pay the customer their cashback.

So once they fail to do that, then a fundamental breach has ocurred, meaning that the injured party can consider the contract ended, and claim all that would have been due to them had the contract progressed correctly.

A claimant needs to state that a fundamental breach has ocurred in the Claim, and demonstrate how if it comes to a hearing.

It seems that in this hearing the Judge wasn't shown the contract, so how could she correctly determine whether or not any breach was "fundamental"?

Thanks for that.

Looking at the performance of the judge in this case perhaps it is just as well they can't create precedents. Not funny really.

I was concerned as i am about to go down the 'fundamental breach' route with onestopphoneshop and wanted to be sure. I doubt there is any difference but can you recall anybody being successful with a fundamental breach - full cash back claim based on 'auto' cashback being late? My OH did actually mess up on 2 out of 3 of the 'redemption' cashbacks. A little concerned that they might argue that 'auto' and 'redemption' were entirely seperate despite being in the same contract.

Pretty sure i will be ok but if they have paid up before i might be able to save myself the MCOL hassle with a few letters knowing for sure where i stand.

bun_2

Thanks again Quentin!!

I emailled to let them know I would be taking legal action.

I think I have a print out of the t&c from June 2007 and I still have the original letter from my first contract (ended May 2007)which stated what is needed for Cashback.

Other than that I have merely written down what they told me on the phone was required for each cash back.

They have admitted they owe two of the cashbacks and I also have an email verifying this.

If anyone does have a copy of the t&c from last year, please could they let me know, i'm happy to pay postage/copy costs if it is hard copy.

Many thanks

bun_2

I've just found that Mobile Rainbow do have a copy of their T&C on their website, including one for orders prior to 1st June 2007.

Quentin, as long as I have complied with these T&C and can prove that then should I be okay?

I do not have a LBA as I had informed them by email I would be taking legal action if payment was not made and also verbally.

Can I also ask, I understand that the T&C require proof of delivery for any cashback claims, is electronic proof of delivery sufficient for this - obtainable from the Royal Mail website or does it need to be the Proof of Delivery Certificate - Nicole136, which one did you have?

Thanks