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Where should I go from here?

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  • Where should I go from here?

    Hi all, and thank you for taking the time to view this. I’m one of the lucky ones still able to work, but it can’t be done at home so please anticipate delays in me replying.

    The case is still currently residing with the ombudsman and I am in a position to appeal, or go straight to litigation, which is why I’m here.

    Last year (06/XX/20) I took out a 2 year contract through a Third Party reseller who supplied the handset. The airtime was through a Network Provider. I cancelled the contract within 14 days through the third party, and returned the handset to them as per their t&c’s.

    I received a text about a month later from the NP stating my account was overdue to the sum of ~£800.00. The TP said it would adjust when the systems updated. I received no further requests from the NP and nothing in writing. Some weeks later I requested a credit for unused airtime, at which point I was informed of the alleged debt, which I have vehemently objected to. The NP also notified me of a default they applied to my account.

    After going nowhere with the NP, and solicitors telling me I need £2k+ to even review my case, I reluctantly made a complaint to the ombudsman. Before they had completed their investigation, it seems the NP had already removed the default. I say this because its no longer showing, and it takes at least a month to update, my decision was a week ago!

    The NP claim that they were not informed by the TP until the contract had entered its minimum period, as the handset was not returned to them or they were not informed of the return, and so “the system automatically applied early termination fees”.

    The decision by the ombudsman was that the fault lies squarely with the TP, and the NP were fair and reasonable in levying the fees. They have also permitted the NP to introduce terms that are not in either agreements; for example, making the handset return to the NP a requirement to terminate. Despite the ombudsman confirming back to me what you will read below, they have sided with the NP.

    The number was ported out on day 13 of the cooling off period. The network confirmed this by telling the ombudsman that the “number was ported out on 18/XX/20 and the account closed”. They further confirm this by stating that as of 02/XX/20 date (15 days later), “Mr. XXXXXXX had already ported out the number, disconnecting the service”. I feel this confirms that a ported out number, closes an account AND disconnects a service. The NP continues by saying that after a month, no notification was received by the TP, or me, and no handset had been returned. Yet coincidently, a final bill was produced on that very day, despite no-one requesting it!?
    Even if the NP has no record of the termination request, is it not somewhat immaterial as its evident they already knew and had processed it?

    My dispute is that it is quite evident that the NP was indeed aware of the request, and that they actually auctioned it by ‘closing the account’ and ‘disconnecting’ the service. For whatever reason, network and billing did not communicate, hence the fees. As part of their t&c’s they offer services: ‘to the quality of service generally expected of a competent mobile telecommunications provider, using its reasonable care and skill’. They do not clarify what ‘services’ are, but I expect functional network and billing services to be part of this ‘service’. They also do not limit their liability in their t&c’s…..
    I believe the fault lies at the NP’s feet and they have demonstrated this. The early termination fees were a breach of contract and the default was a breach of GDPR/DPA.

    In August of last year our house was sold (my partners), and we were due to apply for a joint mortgage which I had to withdraw from due to the default. I notified the ombudsman at this time that I had needed to withdraw from the application. This was the only negative mark on an otherwise excellent report. We must now move into rented accommodation for 6 months or face collapsing a chain, and the claims that may bring.

    I have asked my accountant to estimate the loss caused by the temporary rental, and the loss of the increase in equity – this is something that we will continue to lose for the rest of our lives at a compound rate. I am not for a moment suggesting I will attempt to claim anywhere near the total loss, but would intend to cap it at a fair and reasonable figure.
    I am permitted to appeal, however I do not feel I will receive sufficient damages should I even be successful. And I don’t really want the NP to know of my method of attack in case I litigate. Would it be detrimental to a court if I don’t, as I feel my case is that strong should I not continue with the ombudsman first?

    Or, am I just trying to push string up a hill!?

    Appreciate your time, many thanks.
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