CCC O2/Lowell debt: witness statement

[Cat_Lady]

Hi there,

First of all I'd like to say thanks to everyone on the forum; it's been an invaluable source of support and advice to me over the last year. Until now, I've been able to find the answers I needed by reading other people's threads on the site - but I'm starting a new thread today because I'm not sure what to do next.

I've tried to keep this as brief as possible (!!) but I wanted to give information that might be helpful to other people too. Hopefully anyone reading this will think twice about taking out a mobile phone contract a) in person (because there is no 'cooling off' period), and b)via an intermediary (such as Carphone Warehouse).

The claim relates to a mobile phone contract I entered into with O2 in 2012 and then upgraded in 2015 at Carphone Warehouse. The new phone didn't work properly (it could send & receive calls and texts but not mobile internet data). Customer services from both companies insisted it was the other company's responsibility to either resolve the issue or cancel the contract. Eventually Carphone Warehouse told me that if I returned the handset to them, they would refund my upgrade so that O2 could cancel my contract. After returning the handset, O2 still refused to cancel the contract (insisting it was Carphone Warehouse's responsibility to do so). I was eventually billed for services that I was unable to use (having returned the handset) plus an early termination fee. Further attempts to resolve the issue (including writing to the O2 Ombudsman) were unsuccessful.

O2 sold the debt to Wescott who sent threatening letters, then Lowell bought the debt and started sending the letters. After about a year they made the CC claim against me.

I sent a CPR 31.14 request; Lowell Solicitors replied to say that as this is a telecommunication account, it is not regulated by the CCA and therefore they are not obliged to provide a copy of the agreement or default notice.

I filed my defence outlining the facts above. I received notice of proposed allocation to the small claims track, and returned the Small Claims Directions Questionnaire agreeing to mediation and requesting that the claim be heard in the county court closest to my home address.

Please could someone advise me on what the next step is? Specifically, do I now need to prepare a witness statement? How would you advise I prepare this, without access to any of the documents mentioned in the claim? And what else, if anything, do I need to prepare for the hearing, if mediation is unsuccessful?

Many, many thanks in advance for your time and suggestions.

[charitynjw]

Re: CCC O2/Lowell debt: witness statement

Hi Cat_Lady

I'll give [MENTION=99495]slainte caragh[/MENTION] a nudge on this for possible inside info on O2.

Regards the ongoing court case, you should hear from Mediation Service in a short while.
They will ask you a few questions (eg have you received all/any disclosure evidence requested from the Claimant) & they will asess whether the case is suitable for mediation.
If not, they will refer it back to the court for allocation (Venue, etc.)
Normally the court then sends a notice of allocation & directs both parties to exchange documentary evidence & gives the Claimant a deadline by which to pay the hearing fee.
It is wise to submit a Witness Statement at this point. A WS is basically a factual account of the events surrounding the claim; it is not really the correct place to go into legal argument.

[charitynjw]

Re: CCC O2/Lowell debt: witness statement

Hi Cat_Lady

I'll give @slainte caragh a nudge on this for possible inside info on O2.

Regards the ongoing court case, you should hear from Mediation Service in a short while.
They will ask you a few questions (eg have you received all/any disclosure evidence requested from the Claimant) & they will asess whether the case is suitable for mediation.
If not, they will refer it back to the court for allocation (Venue, etc.)
Normally the court then sends a notice of allocation & directs both parties to exchange documentary evidence & gives the Claimant a deadline by which to pay the hearing fee.
It is wise to submit a Witness Statement at this point. A WS is basically a factual account of the events surrounding the claim; it is not really the correct place to go into legal argument.

http://legalbeagles.info/forums/show...ness-Statement

[slainte caragh]

Re: CCC O2/Lowell debt: witness statement

Thanks [MENTION=5553]charitynjw[/MENTION]

This is a little bit of a tricky one, and if I am honest the pain in my backside for a number of years... and I am not saying this to be awkward..

O2 are in the right. They are not responsible for the free of charge termination of the contract, Carphone Warehouse are.

Imagine if you will the brand KFC (stay with me guys, I might be tired but there is method to my madness). Each individual shop is in fact a franchise and complaints are dealt with at that shop. Same goes with O2, the shops you see in shopping centres etc are franchises and have differing offers in each one. Hence upstairs you can get phone A for £25 and downstairs its £19. One is a specialist in business contracts the other consumer.. but that's by the by!

Now imagine Costco, a humungous warehouse which buy a shedload of products for peanuts and sell them on at a discount... same thing goes with CPW. They buy up a huge amount of phones from the providers at a discount, find the deals and sell them on to the consumer at their own rates, for example 02 offering phone A at £25 per month, carphone warehouse offering more minutes and texts but selling it at £19 per month.

The agreement is, O2 allow the discounts and provide the customer services. Any issues with prices, contracts and handset issues goes back to where it came from (i.e CPW) as for O2 to interviene would be a breach of the their contract with CPW.

O2 deal with any network issues only, if they were to terminate your contract they would have to pay CPW a vast amount of compensation.

Personally I would be asking CPW the following questions

Why did you accept the phone (and I am guessing the sim) but not cancel the contract (the important part.. DO NOT forget the next bit) AS PER YOUR FRANCHISE AGREEMENT AS AN INTERMEDEARY (forgive spelling I have had 4 hours sleep in 24 hours, I don't even know my name at the moment!)

Why did they not abide by the Sales of Goods and Services Act which states if goods are not fit for purpose the contract should be terminated without charges (other that actual usage). This would be CPW's responsibly as per the franchise agreement as an intermediary.

How much compensation are they offering.

From the contract side of things, 02 are within their rights to sell the debt on, it is up to CPW to put this right

[Cat_Lady]

Re: CCC O2/Lowell debt: witness statement

Thanks for all this info. Some more details which I think somewhat absolve CPW and implicate O2:
CPW were keen to demonstrate that the fault was a network issue. The sales rep put the new O2 SIM card in other handsets in their store, and the internet data still did not work, which they said proved the fault was with the SIM card. This sounded like a reasonable assumption, however O2 initially refused to consider the problem was with the SIM, saying it was far more likely to be the handset. O2 said that they would only replace the SIM if CPW replaced the handset first; so CPW replaced the handset (which made no difference), and then O2 replaced the SIM (which made no difference either). It seems convincing to assume that if the fault were a hardware issue, replacing the handset would have resolved the issue (it didn't). It seems less convincing to assume that if the fault were a network issue, replacing the SIM would have resolved the issue (as O2 claimed). I returned the handset to CPW but they did not accept the SIM (saying it belonged to O2).

[slainte caragh]

Re: CCC O2/Lowell debt: witness statement

unfortunately, O2 can still say this is nothing to do with them. If they cancel the contract without CPW permission they are breaking contract law with CPW.

They do provide the network, but all the contract side of it is pure CPW. When I worked there we could not actually see contracts held by CPW, that side was kept in the CPW customer services and we weren't sent any details. I believe this has changed since I left, but the contract side of it still remains.

The reason for this is the new Refresh contracts have a CCJ but CPW cannot issue these so only provide standard contracts. If CPW have accepted the phone they are also accepting that under their franchise agreement they are responsible so I am afraid that you will have to speak to them about the contractual side of it. O2 will charge you termination fees and bill you for your package unless CPW contact them directly to say this has been agreed!

The Ombudsman is aware of this agreement and will I am sorry to say take O2's side due to O2 not doing anything wrong, I believe there is a clause in the T&Cs saying they cannot gaurentee a data service and as you were able to send and receive texts you were (until the return of the handset) receiving a service.

I would contact CPW and advise them as they have failed to uphold their franchise agreement with O2 you have been threatened with court action, the ideal situation would have been for cpw to contact O2 and say "Ok, we are doing XYZ can you please do ABC!"

I have had these sort of calls, and yes it DOES happen all the time, as soon as CPW advise O2 the contract is null and void 02 can act.

[slainte caragh]

Re: CCC O2/Lowell debt: witness statement

just noticed in my tiredness and stupidity I put CCJ when I meant CCA, my apologies

[Cat_Lady]

Re: CCC O2/Lowell debt: witness statement

Thank you. Before I draft this letter to CPW can I ask, do I need to a) request that CPW interject with O2 at this stage, so that O2 can cancel the debt OR b) request compensation from CPW should the current court action lead to a verdict against me? I suppose I could also do both in the same letter...
Can O2 still cancel the debt now, even though it’s been sold on twice?
Would an acceptance of responsibility by CPW affect the current course case and hearing?
Is it worth bringing CPW into the mediation process to pay Lowell directly?