What happens when BT damage your business?.....

NoviceAngel

Hi all,

I generally hang around the flight delay threads, helping where I can but I could do with a bit of help in another area, so I ended up here.

I run a small business, sole trader repairing Computer problems. I rely on directory based advertising for all my new business. On-line advertising doesn’t work for me, because of the obvious, PC not working no on-line access.

Earlier this year I Eco-Signed a Contract with BT for advertising in my local area directory, agreed the cost of the advert and the publication date. With the cost of the advert to be collected by direct debit upon publication over a 10 month period.

When the directory was delivered through the door, I was horrified to find no sign of my advert. I realised that I would be really struggling for new business over the next twelve months.

After months of letters and telephone debate with BT the following appears to have happened.

• The contract was Signed and BT received it.
• The contract needed to be added to the next stage ‘document tracker.’
• It wasn’t and the contract just sat in the sales advisors in box.
• The sales advisor left employment with BT shortly after and there my contract stayed.

Although BT are sorry, I’m asking them to pay compensation for my reasonable business losses due to their error.

I’ve received the following from BT.

BT rejects this claim in its entirety as such claims are excluded in accordance with clause 7.3 of the conditions of contract.

Clause 7.3 is as follows:-

7.3 BT is not liable to the Customer, either in contract, tort (including negligence) or otherwise for any direct or indirect loss of profits, revenue, business or business interruption, anticipated savings, opportunity, expenditure (including wasted or of employees’/agents’ time), data (including any destruction of data), contracts and goodwill. In addition, BT will not be liable to the Customer for any claim from third parties.

However, there are a few more interesting points….

7.5 Subject to clauses 7.2 and 7.3 BT accepts liability for reasonably foreseeable losses arising from BT’s failure to provide the Service up to a maximum of £5,000 where BT has mitigated the Customer’s losses by carrying out any of the steps detailed in clause 7.5 (a), (b) or (c).
(a) amended any Advertisement to correct any errors or omissions made by BT in the Advertising Media, excluding The Phone Book; or
(b) where BT has refunded (in part or total) the amount that has been paid by the Customer; or
(c) where BT has offered to republish the Advertisement in the same Advertising Media at no additional charge.
7.6 Each part of this clause operates separately. If any part of a clause is held by a Court to be unreasonable or inapplicable the rest of the clause will continue to apply.

In my case BT did offer to publish the advert next year free of charge. Which I refused saying I would like compensation. I wrote to BT saying the following..

Thank you for enclosing your terms and conditions and pointing out clause 7.3. It is my belief that this clause may be regarded as a ‘catch all’ clause, I believe that there is tantamount evidence and an admission of this in clause 7.6 . In any event I think clause 7.5 supersedes clause 7.3. It is my opinion that by offering to re-print the directory on a free of charge basis that you have, in fact, admitted liability and successfully restricted your liability to £5,000 as in clause 7.5(c).

I also note the actual contract was Ecosigned on the ******at the top the document states ‘One Year Contract’ at the bottom ‘The date this order form is signed and returned is the start date of your advertising contract with us’. The actual date and time the contract was returned is ******

I now have no option than to pursue legal action via small claims MCOL…

Can anybody offer some advice on the contract I signed with them?

Kind Regards,

NoviceAngel

Atidi

NoviceAngel wrote: »

Hi all,

I generally hang around the flight delay threads, helping where I can but I could do with a bit of help in another area, so I ended up here.

I run a small business, sole trader repairing Computer problems. I rely on directory based advertising for all my new business. On-line advertising doesn’t work for me, because of the obvious, PC not working no on-line access.

Earlier this year I Eco-Signed a Contract with BT for advertising in my local area directory, agreed the cost of the advert and the publication date. With the cost of the advert to be collected by direct debit upon publication over a 10 month period.

When the directory was delivered through the door, I was horrified to find no sign of my advert. I realised that I would be really struggling for new business over the next twelve months.

After months of letters and telephone debate with BT the following appears to have happened.

• The contract was Signed and BT received it.
• The contract needed to be added to the next stage ‘document tracker.’
• It wasn’t and the contract just sat in the sales advisors in box.
• The sales advisor left employment with BT shortly after and there my contract stayed.

Although BT are sorry, I’m asking them to pay compensation for my reasonable business losses due to their error.

I’ve received the following from BT.

Clause 7.3 is as follows:-

However, there are a few more interesting points….

In my case BT did offer to publish the advert next year free of charge. Which I refused saying I would like compensation. I wrote to BT saying the following..

I now have no option than to pursue legal action via small claims MCOL…

Can anybody offer some advice on the contract I signed with them?

Kind Regards,

NoviceAngel

I suggest you seek independent legal advice on this before going to court.

If you file a MCOL, I can almost guarantee it will be defended with the same answer as you have already received from BT.
(But perhaps not until you have wasted quite a few quid in court fees - some of these big establishments know how to play the system with those who are quick to file MCOL claims which they believe have no merit ... and have already told you so.

BT don't use barack room lawyers, in fact they probably don't bother with any lawyers ... they probably just go straight to their team of barristers even for the smallest court claim

NoviceAngel

Hi Atidi,

Thank you for your reply.

I know I'll be up against the weight of BT and probably little chance of success.

However, It seems just plain wrong that you are asked to sign a legally binding contract for advertising and you then have to go through with it with no get out clause for the advertiser, but BT can simply forget the contract altogether and walk away without the right of redress.

Regards,

NoviceAngel

Atidi

NoviceAngel wrote: »

Hi Atidi,

Thank you for your reply.

I know I'll be up against the weight of BT and probably little chance of success.

However, It seems just plain wrong that you are asked to sign a legally binding contract for advertising and you then have to go through with it with no get out clause for the advertiser, but BT can simply forget the contract altogether and walk away without the right of redress.

Regards,

NoviceAngel

BT cannot hold you to a contract that they have failed to deliver on.

You are entitled to a full refund (if you've already paid) or they have offered to insert the advert in the next issue.

What you can't expect is compo for direct or indirect loss of profit, especially when the contract you agreed to specifically excludes such thing.

NoviceAngel

Just thought I would re-visit this thread and say that 'BT settled out of Court' for a figure I can't say on here, it wasn't a huge amount but I was happy with the outcome. Thanks to Atidi for your input.

robatwork

Was this as a result of you pursuing your claim through MCOL or just writing to them?

NoviceAngel

As above they settled out of court, after commencement of MCOL proceedings

paddyrg

Blimey, congratulations! It could also have gone the other way, with them trying to push it to a higher track where they could starve you out! Well done on your victory

NoviceAngel

FOR THOSE INTERESTED I Think this made the difference, obviously I've had to hide some specifics of the case.

BT Legal
BT plc
EH3a Eldon House
Charter Row
Sheffield
S1 3EF

Dear xxxxx,

I write regarding our telephone conversation on the xxxxxxx whereby I wish to clarify my position and expand with further detail regarding my claim against BT plc.

I have advertised with BT Advertising over the last 7 years, first starting with our Leeds Directory then expanding our advertising with you to cover the Wakefield and York areas.

I normally complete all our advertising orders through your telesales team and we generally receive a phone call around April/May time asking us to renew our advertising contract with you for a further year. I am also contacted around this time by both Yellow Pages and Thomson Directories.

I decided not to advertise in the York Thomson directory as the response was exceptionally poor and our advertising with BT in the York area was doing reasonably well. I was looking at a straight repeat of our advertising with BT.

By the xxxx, I had not been contacted by BT and the advertising with your competitors had already been arranged so I made a telephone call to BT Advertising myself. I spoke to xxxxxx on the 6th June who apologised for not getting back to me, apparently xxxxxxx who had previously arranged our advertising no longer worked for BT and our account had not been re-allocated. xxxxx stated that it would not be a problem to repeat all three adverts in the Leeds, Wakefield and York directories and that she would arrange for the paperwork and documents to be EcoSigned that same day.



I was not only very disappointed that firstly our account had not been re-allocated, but secondly shocked with disbelief that a current advertiser in the BT York directory had not been contacted automatically to ask if they wanted to renew their advertising. To me this is nothing short of a desperate failing on your part. At this point I specifically asked if I was too late to advertise in the York directory as I was aware that it was due to be published the following month. xxxxx assured me in her words that “we have quite a few days left, so no problem”. With that I agreed to the advertising verbally and xxxx was to prepare the contract for signing that same day.

The following day, the contract had not been received by email as agreed, so I contacted xxxxx who apologised and said she got caught up in a meeting, but would attend to it immediately and later that day the documents came through for signing. Unfortunately the publication year was missing on her paperwork for the York directory and it had to be returned for xxxx to amend. This was done, and after a further amendment to my banking details the contract for BT Advertising was finally renewed by EcoSign on the xxxx

I received email confirmation of the signing and spoke to xxxx later that afternoon who confirmed that our advertising was now in place for the following year.

Over a month later on the 16th July I received a phone call from xxxxx at BT Advertising asking if I wanted to renew my adverts! I listened with total disbelief as xxxxx stated that they had no record of the contract I had signed the previous month. I was told that like xxxx before her, xxx no longer worked for BT.

I am now in a situation whereby I have no directory advertising in place for the York directory due to this error by BT. The financial implications of this error could well be catastrophic for my business.

I wrote to BT Advertising on the xxxxxx highlighting the above, asking for an explanation and to consider compensation for your failure to fulfil our contract.

The response I received was not as I had anticipated. I received a telephone call from xxxxxx and asked him to write to me with a more formal letter. He did and I was very disappointed with its contents and the general tone of the letter received.

I was somewhat confused with the heading of Mr xxxx’ letter namely ‘WITHOUT PREJUDICE’. I am aware that this term is often used as a precursor to legal action, and should contain an offer to settle the dispute, prior to legal proceedings commencing. Just to confirm at that stage I had not commenced any form of legal action against BT Directories. My letter to BT Advertising dated the 25th July was conciliatory in nature and ended with ‘I await your comments and suggestions on a way forward that some trust and professionalism can be restored to our business relationship’. In fact I believe that the term was incorrectly used on this occasion according to DTM Legal LLP, ‘the content of the communication must be a genuine attempt to settle the dispute.’ and ‘Simply including the words ‘Without Prejudice’ in a communication will not prevent the content from being admissible in Court if the document is not a genuine attempt to resolve the dispute.’ It is my assertion that xxxxx’ letter to me fails this test significantly and as such if this case continues to a full hearing it is my intention to include this letter in my court bundle.

It is my understanding that your failure to publish my York advertising Ecosigned contract was due to a failure to transfer the contract onto the document tracker system. xxxxx explained the process to me in that immediately a document has been Ecosigned, it is then transferred onto the document tracker system. If for any reason the advertising contract cannot be fulfilled then the contract would be returned to the advisor for discussion with the customer. xxxxxx disputes your series of events, I also would agree with xxxx for the following reasons:

i) the actual closing date for York was one day after my contract was signed. What would be the point in having a cut-off date for advertising if the actual cut-off date was 30 days prior to that? I cannot find reference to 30 days before a cut-off date in the BT Advertising terms and conditions.
ii) My contract did not necessitate any additional artwork, namely a straight repeat of all our advertising. I specifically asked if I was too late to advertise in the York directory as I was aware that it was due to be published the following month. xxxx assured me that ‘we have quite a few days left, so no problem’.
iii) There was never any sense of urgency surrounding my contact with xxxx about any potential cut-off dates approaching. It is my assertion that there was time, my contract was simply not loaded onto document tracker and that’s why it completely disappeared and I was not contacted concerning our contracts non-fulfillment.

Even if I were to believe and accept your assertion that there was not enough time for the advert to be published, then that further raises questions about why a contract was offered for signing when there was no real prospect of BT being able to fulfill it, given as you have stated that there was insufficient time. Surely, such an exercise would be a waste of your time and effort, and would only serve to generate a customer complaint from myself at a future date?

Mr Xxxxx also enclosed with his letter a copy of the terms and conditions this was the first time that your terms and conditions of advertising were brought to my attention.

When I signed your contract for advertising it states the following in rather small text above where a signature is required, ’The full Advertising Services Contract, including terms and conditions for Print can be viewed in the “Advertiser Information” section at the Phone Book website- www.thephonebook.bt.com. Terms and conditions for Search Marketing and Websites are available at www.websites.bt.com/terms. The date this order form is signed and returned is the start date for your advertising contract with us.”

As already previously pointed out, the actual contract between us was Ecosigned on the xxx. At the top the document it states ‘One Year Contract’. The actual date and time the contract was returned by email is xxxxxx It would be therefore logical to assume that this contract came into force between us at xxxxxxx

In view of the fact that BT are relying on these very contract terms to defend this claim, I question why a FULL copy of the advertising services contract was not included as a matter of course to the advertiser prior to signing what purports to be a ‘legally binding contract’? In fact there is no tick box for the advertiser to confirm that he/she has fully understood such terms, let alone actually read them.

Obviously I now have the opportunity to read the terms and conditions, specifically clause 7.3. It is my belief that this clause may be regarded as a ‘catch all’ clause, I believe that there is tantamount evidence and an admission of this in clause 7.6. I also believe that a contract should be fair to both parties and a basic underpinning of common law should exist. I find it strange how you rely on clause 7.3 and then start to talk about limiting your liability in clause 7.5. Why would you need to limit your liability in clause 7.5 if you have successfully negated any liability through clause 7.3? In any event I think clause 7.5 supersedes clause 7.3. It is my opinion that by offering to re-print the York directory on a free of charge basis that you have, in fact, admitted liability and successfully restricted your liability to £5,000 as in clause 7.5(c).

At this point in my case, I will have hoped to successfully proven to the District Judge that not only does a contract exist between us, but that you are liable for reasonable business losses suffered as a result of you not publishing my advertisement as agreed in our contract.

This moves me on to the amount of compensation that would be due. This, I admit, is the most difficult part of my claim. It is difficult to predict the amount of revenue that this advertisement would have generated had it been published as expected. One has to make generalised assumptions based upon past performance of the advertisement. This has taken many hours of calculations, but I offer to give an insight into how these losses have been calculated.

My first task was to work out an average job turnover of the last 50 jobs, at that point in time, which amounted to a gross figure of xxxx giving a xxxx average turnover per job. As a fair representation of fuel and wear & tear, I deducted the Inland Revenues’ mileage figure of 45p/mile fuel costs out of the equation, a 44 mile round trip to York reduces the profit by xxx to give xxxxx. Some jobs require parts to complete so I calculated an average parts cost over the same 50 jobs to be xxxx (replacement parts over the last 50 jobs equated to xxxx divided by the 50 jobs). This figure then deducted from the xxx gives an average net profit per job after transport and parts of xxxx

One would expect the same degree of response to our advert as in the previous year which is a very modest 24 jobs per year. Just two jobs attended per calendar month. So 24 jobs x xxxx to give the amount claimed as xxxx plus £80 court fee to a total of xxxxx . As the BT directory shrinks in size and many of our competitors either cease to trade or do not renew their advertising, I am finding that that in the other geographic areas we advertise with you, I am finding an uplift of 1 job per calendar month against the previous years figures, although I have not added this uplift to the York area, it is admitted that it would be difficult to prove a better than last year performance could have been obtained.

On a personal note, it is with deep regret that I take this action against BT and still wish you to work with me to achieve a mutually agreeable outcome for both parties, rather than a very ‘terms and conditions’ legal approach that has lead us to this litigation before the Courts. Indeed, after issuing Notice Before Action in accordance with Practice Directions 7.1 Pre-action conduct, I didn’t even receive an acknowledgement or reply. It should be noted that this NBA was emailed not only to xxxxx at BT Directories but also direct to the Chairmans’ Office and his secretary xxxxxx. This was at all times preferring an amicable settlement without the need for legal action. xxxx has never been taken to court by any of our customers, we have never needed to mark any letters ever sent with ‘Without Prejudice’ and we have only once needed to resort to legal action against one of our customers.

I share your desire for a quick and rapid settlement of my claim. The time taken to this point today has, in my mind, only strengthened my determination that I wish to recover the full amount claimed of xxxxx This I believe to be a very conservative and modest sum. Further time and letters between us only serves to drive our costs up in this matter, obviously more so on your side.

I hope I have injected some much needed clarity to my position today and hope you will fully review your position with your client and revert to me at your earliest convenience.

Kind regards,