Taking Experian to court for refund of statutory fee (£2)?

Poten

Thrugelmir wrote: »

My comments have nothing to do with losing. The simple fact of the taking the matter to court is sufficient.

Err... no. You seem to be suggesting that a judge would dismiss my claim because it is simply of small value. The line has to be drawn somewhere and you can see from the MCOL process its at £1. Any amount above that can be the subject of an action. To say that a claim worth £1000 is more deserving of a courts time than a claim worth £2 is to misunderstand what the judiciaries role is.

Thrugelmir wrote: »

In other words you'll happily ignore anything that you don't think applies to you. Not the basis of a legal argument.

My argument is there but so far not a single person has actually provided a counter point to the fact that extra stipulations were added AFTER the formation of the contract.

The bit you have quoted makes no sense. It actually makes my argument stronger to rely on or press that distinction (unable vs unwilling to provide information). I believe it is irrelevant because regardless of why the information isnt provided by myself the key point is that the request for information was made after the formation of contract.

Poten

Rainbowgirl84 wrote: »

Taken from Experian website:-


The cost to order your statutory credit report online is £2 and this is non-refundable.


You've paid to order it. You cannot supply the information required for Experian to complete the contract therefore the £2 fee is due.

This is a somewhat fair point at first glance but I think its a misinterpretation. But consider this - when you place an order on eBay or Amazon or whatever other site... do you think they can just not deliver the goods and keep the money (provided they said it was non refundable)?

Contracts need consideration. You can definitely pay for a 'chance' to do something so its not a bad argument for them to say I paid £2 for the chance to possibly maybe get my credit report at some later stage. But I think its a fairly weak one. Contracts are a meeting of minds... people placing 'orders' expect to receive the items they order - so its fair to say most consumer contracts are for the actual good themselves and not the preliminary order.

With exceptions of some weird contexts like right to bid in an auction or something where everything is explained.

Poten

camelot1971 wrote: »

The CRA has completed their service.

Disagree. The contract is for the credit report. See post above this. This has not been provided.

camelot1971 wrote: »

At the bottom of this page it says it is NON-REFUNDABLE! before you even hit apply.

This would absolutely be the case if it wasnt for the fact that extra conditions have been imposed afterwards which can not be checked prior to engaging in the contract. Go ahead and check, there is no list on the page about what ID may be required prior to ordering. It simply says we may require extra information.

My argument is that these extra conditions make this 'non refundable' clause an unfair contract term and therefore void. If you believe that you are bound by every clause in the Ts&Cs in a contract then please dont bother to reply as you don't know enough about contract law.

camelot1971 wrote: »

You don't have a bank statement? Or passport? Or driving license?

I have a passport and I now have a bank statement (I did not intially have this as my statements were paperless but had it changed to have one sent out to me). I have no CCs, no other bank accounts, am not on any utility bills at the property as I pay rent all inclusive of bills. The problem is they ask you to produce at least 3 pieces of information. I have 2.

Poten

daytona0 wrote: »

Really? You don't strike me as a mathematician....

Oh, really.....

daytona0 wrote: »

So that's 13 years give or take

Now.... your 10,000 = £20,000 and divide that by 13...

Zero chance that a data set relying on use of internet and large databases has a linear distribution over the last 13 years.

daytona0 wrote: »

By all means pursue it, but you have no mathematical foundation for your assertion that 10,000 people are in the same boat as you.

I'm not sure why you wrote a wall of text when I conceded this earlier.

daytona0 wrote: »

WOW, Experian! I can't believe that you've hypothetically earned an extra £1530 a year! Criminal! Seems like such a drop in the ocean compared to their hypothetical maximum of (10million * £2) £1.5 million per year Not counting other sources of revenue which are NOT attached to consumer reports and this £2 report stuff.

For a big company an extra £1530 a year is peanuts. They'll have hundreds of people on their books and that barely pays for ONE person ONE month of wages.

Lets be clear, it doesn't matter whether its £20,000 per year, £1530 per year or £2 per year. Why does it matter how big they are? Are we supposed to be grateful because they could try and scam people out of hundreds of thousands but its only a few k so we can let them off? Why does it matter what fraction of an employee that will cover?

None of that matters. If the non refundable fee was £1530 instead of £2 the law behind this decision would be the same.

daytona0 wrote: »

You've ordered a report so they owe you a report. You probably do have a case about being refunded, not going to lie. But then again it is *likely* your fault for not reading their terms of use and acknowledging the possibility that documentation is needed.

Contracts aren't formed on the basis of Ts&Cs that nobody ever reads. "Because the Ts&Cs say so" or "because its our policy" are fob off lines that have no basis in law designed to deal with the majority of complaints. Absence of bargaining power and statute (consumer law ie. Unfair contract terms) override.

daytona0 wrote: »

Plus, how easy would it be to get your address details and other personal information (easily obtained), then put in a fraudulent request for a report? So don't knock them on DPA issues because it is just keeping your data safe!

Im not knocking on them at all. They have an express right in legislation to request extra documentation.

BUT they do not provide a list of what this documentation may be and therefore a consumer has no way of knowing whether he can comply with this prior to entering in to the contract. If the list was there I would not have paid the fee because I would have known I could not comply with the documentation request.

andyfromotley

Poten wrote: »

Let's rephrase this to make it clearer: I offer you a brand new Aston Martin for the sum of £200. Then, after you have paid me (because this is a bargain) I tell you I need to see the original birth certificates of all 8 of your great grandparents. If you can't produce them, sorry the fee is unrefundable as it's my 'policy.'

.

The price is a red herring. Your credit check isnt a bargain its the price which i suspect is set by the regulatory body.

However back to your example, your request would be deemed unreasonable by anyone looking at it. The credits companies request isnt unreasonable and is in fact just prudent and enables them to comply with their legal responsibilities.

For this reason i think your argument is fatally flawed. But meh - whatever.

andyfromotley

Ps. is this a problem set for you upcoming contract tutorial per chance? ;-)

Poten

andyfromotley wrote: »

However back to your example, your request would be deemed unreasonable by anyone looking at it. The credits companies request isnt unreasonable and is in fact just prudent and enables them to comply with their legal responsibilities.

For this reason i think your argument is fatally flawed. But meh - whatever.

Thank you for a decent point. I have gone and looked at the requirements of the Consumer Rights Act (CRA) 2015.

Their request is indeed perfectly reasonable and compliance with DPA is likely to be a valid reason for them to request documentation. However, 'reasonableness' is not a direct part of the CRA in order to determine whether a term is fair or unfair. If a term is drafted so as that it is unfair then it is not reworded to be fair, nor is it 'subject to reasonableness' it is simply unenforceable.

Their request creates an imbalance in the rights of the parties because my fee is 'non-refundable' so it gives me a choice between complying or losing my prepayment. Consumer Rights Act 2015, Schedule 2 lists types of clauses that are under suspicion of being unfair. Relevant ones to my situation include, Para (10):

A term which has the object or effect of irrevocably binding the
consumer to terms with which the consumer has had no real
opportunity of becoming acquainted before the conclusion of the
contract.

Government guidance on this states:

Terms whose purpose is to subject consumers to obligations of which they can have no knowledge at the time of contracting are open to serious objection.

I could not have known the types of ID they would need as they did not provide a list. Note especially that there is no qualification of reasonableness or valid reason in this clause of the act.

Para (11) states:

A term which has the object or effect of enabling the trader to
alter the terms of the contract unilaterally without a valid reason
which is specified in the contract.

On the face of it this would appear to work against me since complying with regulatory legislation (DPA) gives them a way out. BUT in government guidance it states:

[Fairness] may be achieved through transparency – that is where the contract sets out the circumstances, method and reasons for use of the right of variation in an appropriately clear and specific way. [...] the CJEU has strongly emphasised the need for this kind of full transparency in the use of variation clauses, so that consumers entering contracts are able to foresee the changes that can be made and understand the implications for them.

Since they did not provide the list of documents that could potentially be asked for, and they did not set out guidance indicating how likely this would be to be requested, they have failed the requirement for transparency.

I could go on and pick out other paragraphs of the schedule and government guidance, but last one on para (13):

Rights to cancel. Where circumstances could prevent the supply of the goods, digital content or services agreed (or a version of them that the consumer has indicated is acceptable) then fairness is likely to require that the consumer should have a genuine right to cancel the contract, 109 and receive a refund of any prepayments

Poten

andyfromotley wrote: »

Ps. is this a problem set for you upcoming contract tutorial per chance? ;-)

I graduated 10 years ago. The problem sets in contract tutorials were far easier than this. Trying to narrow down the best arguments to use from the CRA is hard.

unforeseen

It is rather pointless. Any win only applies to you.
Being a Small Claim the judgement would set no precedence. It could happen that the same judge in a case following yours with exactly the same argument and evidence decides the opposite.

It doesn't help anybody apart from yourself, and TBH, for £2 plus the court costs they probably wouldn't even bother to defend the same that happens in a lot of no win no fee cases.

AndyPix

BUT they do not provide a list of what this documentation may be and therefore a consumer has no way of knowing whether he can comply with this prior to entering in to the contract

Apart from phoning them and asking them of course ..


But that would waste 10 minutes of your time


Oh - wait ....