Cashback companies beware-Major defeat in County Court

[Guest Unfair Terms Regs Rule OK]

District Judge Christopher Lethem ruled today in Tunbridge Wells County Court that part of Phones 2U Direct's Terms And Conditions are in breach of The Unfair Terms In Consumer Contracts Regulations 1999. I would have considered this to be a hugely significant victory for the consumer even without the bonus of Phones 2U's representative telling the court that it could have an effect on many hundreds of other claims and that he wanted permission to appeal. This was refused of course by the formidable and impressive District Judge Lethem whose ruling took 42 minutes to deliver and contained a thorough analysis of the law in this area. Congratulations also to the brave claimant who took on the big boys at Phones2U Direct and won- She had no legal training and relied on her honesty and integrity. The District Judge described her evidence as "highly impressive" and he had no reason to doubt her contention that the appropriate documentation had been sent to Phones2U Direct.

District Judge Lethem relied on UTICCR '99 Regulation 5:

Unfair Terms

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

and Schedule 2 (n)

INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

1. Terms which have the object or effect of-

(n) limiting the seller's or supplier's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

During oral argument he told the Phones2U Direct representative:

" You created a scheme whereby the consumer cannot retrieve the situation and cannot even check within the designated period whether you have received the documentation. I am not comfortable with that"

and in his judgment, the District Judge ruled:

"The difficulty I have with this clause [in Phones 2U direct's T + Cs regarding the onus being placed on the consumer to post it but without the means to verify whether it has been done] is the rigour and the inflexibility of the requirements...There is no opportunity for a customer to provide duplicated authenticated documentation from the provider. If the letter is lost or destroyed, the consumer has lost any chance of rectifying the situation"

The clause was struck down and declared unlawful and the consumer obtained her whole 12 months' Cashback plus costs.

One final word on this matter-The District Judge refused to hear any evidence regarding postings on this or other sites. Imagine how damning his judgment would have been if he knew just how unprincipled and devious Phones2U Direct are when dealing with complaints. I shall be contacting the OFT to provide them with copies of the judgment and my transcript of the hearing.