Carphone Warehouse Plc., Apology under Duress…

Eiusdem

Hello,

I'm trying to ascertain my current legal standing following this situation. Two months ago or thereabouts I paid to top-up a mobile swipe card, it failed (they presumed inactive). The acting manager printed a voucher which I rejected. They contacted the mobile operator in a bid to activate the account, they were unable or unwilling to do so. Carphone Warehouse refused to issue a refund for the voucher.

In principle they've [now] agreed a refund, after conveniently losing my letters. However their notion of creating an account to issue a refund… are they trying to create a contract of sale (in the legal sense) after retaining my monies? I get the sense to cover their own backs? Since no contract had been formed.

Can I claim damages (consequential loss) under the 2008 OFT rules or any other piece of statutory legislation?


Many thanks

---
Their letter to me


Dear Mr XXX,

Thank you for your email regarding your £10 top up which failed to get added to your T-Mobile pay as you go account. We received your email on 2 September 2013.

I'm very sorry to learn that your £10 Top Up failed and that our store staff advised that you were unable to get a refund. In recognition of your dissatisfaction, I've recorded your complaint under reference number: JEC078XXXXX Please keep a copy of this reference number for your records and be sure to quote it in any future correspondence you may send to us in relation to this complaint.

I'm very sorry that your previous attempts to have your complaint acknowledged were unsuccessful. I have searched our systems and have been unable to locate any previous emails from you. I apologise for any inconvenience caused to you and would like to reassure you that once received, we take all complaints very seriously.

Our staff are right in that Carphone Warehouse does not usually refund top ups. This is because, once paid, the top up is usually made available on your pay as you go SIM Card straight away and is then managed by your chosen network.

In this instance, your Top Up failed and was never applied to your SIM Card and I offer my sincere apologies to you for this.

As your top up has failed, we can arrange to refund this money to you. To do this, we need to set up a Carphone Warehouse account on which we can apply a credit. Once a credit has been applied, we can arrange to refund this money to a credit or debit card, send you a cheque or you can use the voucher to buy another top up for your pay as you go SIM Card.

I need to obtain your permission to set up a Carphone Warehouse account because your personal details (Name and Address) will be added to our systems and will remain on our systems once the refund has been organised.

Please let me know if we have your permission to proceed in resolving your complaint in the way I've mentioned above and we can arrange to resolve your complaint as quickly as possible.

I look forward to hearing from you soon.



Kind Regards…

powerful_Rogue

Cant see what the issue is myself.

They have agreed to refund the £10. As the letter says, an account will be created and then the £10 refunded to your credit/debit card or via cheque.

I think your reading far too much into the matter.

Can I claim damages (consequential loss) under the 2008 OFT rules or any other piece of statutory legislation?

Explain what and how much damages you think you are entitled too.?

balletshoes

seriously? damages? its a £10 payg top-up.

NFH

Eiusdem wrote: »

Can I claim damages (consequential loss) under the 2008 OFT rules or any other piece of statutory legislation?

What consequential losses have you suffered?

Eiusdem

Hello, thanks for the prompt replies,
I mentioned in my original letter the sum of £30.00 to put a notional amount on the sequence of events that flows from their illegal act(s) and omissions. It's a restorative action as per LIVINGSTONE v. RAWYARDS COAL CO (1880) 5 App Cas 25.

powerful_Rogue

Eiusdem wrote: »

Hello, thanks for the prompt replies,
I mentioned in my original letter the sum of £30.00 to put a notional amount on the sequence of events that flows from their illegal act(s) and omissions. It's a restorative action as per LIVINGSTONE v. RAWYARDS COAL CO (1880) 5 App Cas 25.

Are you for real?! What illegal act are you talking about?

As far as I can tell, you went into the CPW and asked for a £10 top up. Due to your top up card not working for whatever reason, they printed out an electronic top up voucher. You didn't want this voucher and asked for a refund that they refused.

Why didn't you want the top up voucher? Whats the difference in them applying it to your top up card and you taking the voucher home and doing it?

You complained, they apologised and are going to refund your £10.

Why do you think you deserve £30 compensation?!

As for Livingstone V Rawyards:

[the damage would be] that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation’.

1) How have you suffered because of this?
2) They have refunded you £10
3) I still can believe this is real!

MissKeith

Well, I suppose god loves a trier...

Eiusdem

Hello, thanks again for the response.

My apologies I meant 'unlawful' (act) rather than 'illegal'.
Silly 'ol me, I oughta include my original letter… pretty much cc'ed, de-emphasized in some areas.

Dear Complaints,

First and foremost I am writing to better understand your (the ‘Carphone Warehouse Ltd’) internal policy in relation to (de)centralized managerial powers in respect of proper ‘sales codes 
of conduct’ relative to my own personal experience with your unfair customer service, and to 
bring resolution to this matter which led to (my) financial and consequential loss. For purposes ‘of relevance and transparency’ since much of this dispute falls within the recent statutory laws regarding consumer protection concordant with ‘Consumer Protection from Unfair Trading Regulations, 2008’ [2008 SI #1277] or CPRs using BERRs definitional abbreviation. Concordant with the CPRs the arguments herein can appreciably be understood in terms of the general narrative and ‘Acts’ (actions) and ‘Omissions.’ To note the terms to which I ascribe ‘their, your, his or her’ is with reference to the Carphone Warehouse Ltd.


On Thursday 20th June, at 11.00 a.m or therabouts I arrived at Carphone Warehouse Ltd. (town, County [postal address]) to credit a new T-Mobile E top-up swipe card by £5 (designated #07*** ******). I was told it was £10 minimum to which in good faith I agreed handing over the cash equivalent, the E top-up card was scanned ‘however’ its validity [or authorization] failed, the sales staff asked her supervisor for advise. The presiding manager ‘pseudonym’ pressed the subordinate to print a phone voucher which I “rejected” relative to my particular purpose (explained later) since it was assumed inactive (assumed on reason and belief the E top-up cards electronic authorization failed and on ‘your’ inspection, the mobiles’ SIM was found ‘searching’). On this assumption, the sales representative telephoned T-Mobile in a bid to (re)activate the account, however for reasons unknown T-Mobile were either unable or unwilling to do so.


“rejected” is meant in the sense of the contravention of “acceptance” as per ‘Sale and Supply of Goods Act, 1994,’ Section 2, (1), (a). 
“service” refers to the general definitional meaning of the term e.g., as per ‘Enterprise Act, 2002,’ Section 234, (3). 
For purposes relevant to understanding, since the voucher is representative of a service, unlike the T-Mobile E top-up it also exists as 
a physical entity (a product) that’s wholly re-sellable (un-exhausted), and its intended use thereof provides an exhaustible service.

Naturally I asked for my money back the sum of £10 (on the 20th & 22nd June) only to be told 
“we do not give refunds, it’s against company policy to refund vouchers” or words to that effect, presumably a blanket policy given presumed use and customer benefit, if not perishability? To 
be clear, this letters ‘raison être’ is the (if but for…) consequence of actions in issuing a printed voucher for an inactive account rather than returns policy per se and I believe it legally unfair.


Acts and Omissions

CPRs S.I/ 2008/1277: Section 3, (3), (a) surely if an account were found inactive a reasonably diligent person would not ordinarily order a voucher for a service that cannot be used in the knowledge of clear conflicts of financial interest in printing phone vouchers that are apparently non-refundable. It was established that the aforementioned ‘particular purpose’ or my motive was primarily to receive calls on the number-encoded T-Mobile SIM (distributed among friends and family as a point of contact) where there exists an element of ‘fitness’ (fit for purpose) given its implied meaning of the term as per Sale of Goods Act, 1979 Section 14; 1 (3) or Supply of Goods and Services Act, 1982. Section 4, (5). Notwithstanding, for any commercial ‘business to consumer’ company to take a unilateral decision to order a product (or service) substitute on behalf of the customer without consent, consultation or ratification significantly impairs if not removes choice by ‘fait accompli,’ whose conduct I aver to be highly questionable, particularly so in light of intangible rights, in particular cancellation rights or apparent “no-refund” policies.


Hitherto, to reiterate my position. I rejected the voucher in-store for the aforementioned reason, i.e,. or in the legal definition of meaning I rejected that a ‘contract of sale’ had been formed since in was not something I agreed to [as per ‘Sale of Goods Act, 1893; section i (i)]. Acknowledging the implied term (“buyer,” means a person who buys or agrees to buy goods) as per Section 61, (1) of the Sale of Goods Act, 1979. n.b. the voucher has not left the store.


Figure 1. Source: T-Mobile pay as you go, Welcome pack.

Getting started:

1 Put the SIM in your phone

2 Charge your Battery

3 Top-up your account

4 Register your phone on t-mobile.co.uk/myt-mobile

*To note: the E top-up card is not a debit, credit or identity card, or a voucher of any kind.



Analyzing the ‘causal-chain’ that flows from your omissions in view of providing (sufficient) ‘material information’ relative to making informed transactional decisions in consideration of ‘risks’ and ‘rights,‘ that would “materially distort economic behaviour” as defined by CPRs S.I/ 2008/1277: Section 2 (5), (b). In hindsight had I known or had reason to suspect in the eventuality a SIM/ E top-up swipe card were found to be inactive following correct procedure (see figure 1, above) that a non-refundable voucher will be printed as if by mandate, as it unfairly exposes me to consequential risk. Given the ad-hoc solution(s) upon my immediate rejection of the voucher was to [A] present a new SIM with which the voucher would work or to sell the voucher 
in-store on my behalf. Irrespective of legal redress, neither downstream option was volunteered prior to me paying for the T-Mobile E top-up ‘if in the unanticipated event of…’ That if this ‘omission’ had been explicit, with prudent insight into your ‘commercial practice’ relative to 
my own threshold for risk, since both consequential options are not fit for particular purpose,
this would undoubtably have prejudiced the nature of decision-making to an extent that the propositional intent to purchase from Carphone Warehouse Ltd., would never had taken place.



Remedies



For posterity, on Wednesday 26th June outlining my statutory concerns in letter to presiding manager ‘pseudonym.’ I was offered a counter-proposal on Thursday 27th June, however ‘their resolution’ inconsiderate of my consequential loss would also bind me to a condition whose realisation depends on his (or her) own will alone, i.e., the proposed undertaking of restorative action at an indiscriminate future point in time. The prima facie of the ‘manner of offer,’ if not wholly the offer itself given ‘your’ past conduct would suggest this to be unreasonable, the assumption of congeniality relative to the commitment to act in a timely manner, if at all. Whereas I aver, if not recognised in the sense of statutory provisions for redress, the ‘sine qua non’ of any resolution has to built on foundations of fairness as well as mutual acceptability.



Since I believe these unfair acts and omissions to be in breach of statutory duties of care owed to a consumer under law of tort, if not delict of negligence, and/or the position on “non-refundable” goods, my proposal for settlement is both fair and proportionate. Pending a full refund or restorative compensation, the sum of £10, plus consequential loss the sum of £30 incurred for return visits thereof (dated; the 22th, 26th and 27th of June) also in lieu of phone calls and of writing this letter, together with the promissory undertaking to review the ambiguity clouding internal policies and commercial disclaimers connected to these particular concerns.

I trust this will be handled expeditiously to bring timely resolution to this matter.



Kind Regards,

Anoneemoose

:eek::eek:

balletshoes

back under the bridge with you OP .

Earthworm

I have to say I find your reaction to the situation massively overblown. In Carphone's shoes it is easier to just pay you £30 than deal with you. The effort you have put in to cramming your letter full of "big words" seems excessive given your issue and IMO doesn't seem worth £10 topup especially when they have already offered you a refund. I still don't get why you think you are owed more than £10.