Legal position on satellite provider?

Hello, I'm wondering where people may think I stand with regard to a Satellite service that has consistently failed to provide me with what I pay for.

I originally had another product and became frustrated with congestion, so I went through further expense and upheaval to move providers, being told that no way would this service suffer the same congestion issues due to a decision NOT to over subscribe.

Since then, (12 months) they have been as bad if not worse. Speeds are advertised a 'up to' 20mb - and for a Satellite service they should be somewhere near. I get about 0.5mb sometimes more but only at obscure times. I check their site and it CONSTANTLY says "congested. Speeds will be reduced".

On the phone I get all sorts of rubbish, such as - oh its the kids on half term using all the bandwidth. Or 'we're updating some software and it should be fixed' etc etc. The thing is, nothing changes.

So I may as well go with a 0.5mb ADSL and cancel. I was wondering if I could make any kind of claim against them for being 'mis-sold'?

Many thanks

Sorry I can't answer your question, but can I ask which provider?? I am just about to sign the dotted line with SES as we live so rurally. Do I need to think again?????? (PLEASE say no,lol)

woody

In reply to a post by trumpet272:

....being told that no way would this service suffer the same congestion issues due to a decision NOT to over subscribe.

In reply to a post by trumpet272:

I check their site and it CONSTANTLY says "congested. Speeds will be reduced".

In reply to a post by trumpet272:

I was wondering if I could make any kind of claim against them for being 'mis-sold'?

I'd say, if you have records of the above first two quotes, you have a very good case.

In reply to a post by Stevenage_Neil:

In reply to a post by trumpet272:

....being told that no way would this service suffer the same congestion issues due to a decision NOT to over subscribe.

In reply to a post by trumpet272:

I check their site and it CONSTANTLY says "congested. Speeds will be reduced".

In reply to a post by trumpet272:

I was wondering if I could make any kind of claim against them for being 'mis-sold'?

I'd say, if you have records of the above first two quotes, you have a very good case.

I'd have thought it was doubtful unless they've been employing fools for solicitors. The OP should check the T&C. What they were 'told' is unlikely to have much legal standing. I'm pretty sure that the T&C will have something along the lines of 'stuff happens, sorry'. That's standard practice in any service contract and something the law happily accepts. The concept of 'must be fit for the purpose' does not apply to services. Services are always provided on a 'best efforts' basis and if it gets to court you'll have to prove that your current provider is failing in their duty of care and that probably means proving that their service is significantly worse than their competitors. Their competitors won't want to get involved so will likely decline to comment.

And of course you're unlikely to get anything more from legal action than your expenses and the value of your subscription. In most cases it's just not worth the time and money.

However I do think the OP should try and ask for a refund and should certainly have any termination charges waived. It's always worth trying in these cases because a lot of companies will cave in anyway rather than risk their reputation or a protracted and costly exchange of letters.

Edited by Andrue (Mon 10-Nov-14 10:06:47)

In reply to a post by Andrue:

What they were 'told' is unlikely to have much legal standing. I'm pretty sure that the T&C will have something along the lines of 'stuff happens, sorry'.

I'm no "legal beagle" but when I read of the mis-sold endowment policies and PPI, the "rules" seem to go more by what the customer was not told, and the fact he was told "..that no way would this service suffer the same congestion issues due to a decision NOT to over subscribe" would appear to be mis-representation.

Also, the customer, had informed them of his requirements from day one.

Edited by deleted (Mon 10-Nov-14 11:17:25)

In reply to a post by Stevenage_Neil:

In reply to a post by Andrue:

What they were 'told' is unlikely to have much legal standing. I'm pretty sure that the T&C will have something along the lines of 'stuff happens, sorry'.

I'm no "legal beagle" but when I read of the mis-sold endowment policies and PPI, the "rules" seem to go more by what the customer was not told, and the fact he was told "..that no way would this service suffer the same congestion issues due to a decision NOT to over subscribe" would appear to be mis-representation.

That's probably be because they are financial services and have special rules. If you win a case against a financial provider you can get genuine compensation. All you're likely to get if you win a case against an ISP is your subscription charges refunded.

I would certainly expect the law to treat a mis-sold financial product differently to a mis-sold internet connection.

There's not a straightforward answer to this from a legal perspective.


Andrue is correct to say that there is no implied term of fitness for purpose in relation to services - that only applies to goods.

There is a requirement that services supplied in the course of a business are supplied with reasonable care and skill (s. 13 Supply of Goods and Services Act 1982), though showing unreasonable care and skill requires establishing the existence of a duty of care and a breach of that duty of care in the same way as in a negligence claim. Those matters are not something I can summarise in a forum post, not least because it may require some research to find any relevant case law.


Andrue is correct to point out that the redress available for mis-sold financial products relates to the regulated nature of those products. This satellite contract does not have any of those rights attached.


Stevenage_Neil has suggested the statements made about the service might be misrepresentation. I think those statements are more likely to be explicit terms of the contract rather than representations, though it depends on the precise details of the contract formation.

The problem I can see is that the statement about not over subscribing the service does not bind the provider to sticking with that decision in the future. It therefore seems a weak basis to argue for breach of contract.


I'd go to the core terms of the contract - a connection of up to a given speed, which implies a certain quality of service, when the true service is extremely slow. If the service is describes as 'broadband', that bolsters the case that the service contracted for has a minimum acceptable quality of service.

If an implied term about a minimum acceptable quality of service for the majority of time exists, it is likely to be what is known as an innominate term. Breach of an innominate term that deprives the innocent party of substantially the whole benefit of the contract gives the innocent party is entitled to terminate the contract (Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962] 2 QB 26).

You could bolster this claim by arguing that the argument that the s. 13 Supply of Goods and Services Act 1982 requirement to deliver the service with reasonable care and skill is not being met considering the repeated excuses for an unacceptable and unusable quality of service. In negotiations with a company, it is unlikely to matter that you have not demonstrated the existence of a duty of care and breach of that duty to the standard required in court. The term implied by s. 13 SGSA 1982 is also innominate, with the accompanying right to contract termination if the breach deprives the innocent party of substantially the whole benefit of the contract.


If there are exclusion or limitation clauses in the small print that appear to prevent this sort of claim, they are not necessarily operational. What exclusion clauses the provider can rely on is, again, not a straightforward matter of contract law.


As can be seen, suspected breaches contracts for services are rarely as clear cut as breaches of contract for supply of goods.

If you were quoted 20mbit down, then the provider is Eutelsat via KA-SAT at 9E.

You could be buying from any reseller, Tooway, Avonline, or many others.

KA-SAT has 4 beams on the UK, and these beams have an absolute total bandwidth, of somewhere in the region of 1.2GBit per beam. There is contention on a couple of the beams, and switching between eutelsat providers isn't going to help you.

Hylas 1 and Hylas 2 from Avanti are not as congested but the allowances tend to be smaller and the downstream bandwidth is 15mbit not 20.

That's not true. It is fundamental to consumer law in this country that what statements made by the seller's agents are fundamental parts of the contract. They cannot simply be undermined by contradictory terms embedded deep in the contract. Indeed, we've had the whole issue with banks being help liable for the miss-selling of PPI.

Of course, proving what you've been told is another thing. Ultimately it can be considered breach of contract and it would be a court that would decide the outcome on the merits of the case. In the case of a service like this, it's unlikely that you'd be awarded anything much more than a refund (possibly partial) of payments and the ability to end the contract early.

Of course, it would also be necessary to furnish evidence that the company is consistently, rather than occasionally, failing to meet it's commitments. The law is rarely black-and-white, but a matter of judgement.

Miss-selling is not confined to the financial business

http://www.adviceguide.org.uk/england/consumer_e/pho...

*** edited *** original pointed to the Scottish version of the page. The English version is identical to all intents and purposes.

Edited by deleted (Wed 26-Nov-14 16:06:53)

This may be helpful

http://www.adviceguide.org.uk/scotland/consumer_s/ph...

"If the statement made by the sales person is false and it influenced your decision to buy the service, this is called misrepresentation. If this is the case, you can cancel your contract without charges and may be able to take legal action for compensation. A false statement which influenced your decision to enter into a contract is also an example of an unfair commercial practice. If you've been misled, you can take action under the Consumer Protection from Unfair Trading Regulations 2008. "

In reply to a post by TheEulerID:

That's not true. It is fundamental to consumer law in this country that what statements made by the seller's agents are fundamental parts of the contract. They cannot simply be undermined by contradictory terms embedded deep in the contract. Indeed, we've had the whole issue with banks being help liable for the miss-selling of PPI.

What is your source for this remarkable statement? Your statement potentially privileges pre-contractual statements, which might have no legal force whatsoever, over the express terms of the contract.

As has already been said several times, there are specific legal requirements to do with the selling of regulated financial products like insurance. These requirements and their associated remedies do not apply to general contracts, so mention of PPI is unhelpful.


The terms of the contract are what a reasonable independent person would conclude the accepting party had agreed to be bound to when entering into a contract by accepting the other party's offer (Smith v Hughes (1871) LR 6 QB 597).


Pre-contractual statements might be an invitation to negotiate with no legal force, such as a price displayed on an item in a shop - these known as an invitation to treat.

Pre-contractual statements might be a representation that induced you to enter into the contract which, in some cases, will give rise to remedies under the law of misrepresentation. Misrepresentation is not as simple as "you told me that, I relied on it, so you must cancel the contract".


Ultimately, it is only those terms expressly or implicitly included in the contract that have any contractual force. There is a fairly rich vein of contract law about what terms are incorporated into a contract.


As I said in my earlier reply, exclusion clauses may or may not be valid - that's a very rich area of contract law. If contradictory terms exist, it would ultimately be for a court to determine the true position, for which the starting point is Smith v Hughes.


The link you posted about misrepresentation is from the Scottish part of Citizen's Advice's web site. I'm assuming the law of England and Wales, which is the subject of my legal training. Scots law is different in various ways.

In reply to a post by TheEulerID:

"If the statement made by the sales person is false and it influenced your decision to buy the service, this is called misrepresentation. If this is the case, you can cancel your contract without charges and may be able to take legal action for compensation. A false statement which influenced your decision to enter into a contract is also an example of an unfair commercial practice. If you've been misled, you can take action under the Consumer Protection from Unfair Trading Regulations 2008. "

The first part of this statement is broadly correct, but the law on misrepresentation contains many detailed stipulations. For example, the original poster discovered the problem 12 months ago, which may well amount to too much of a delay between discovering any misrepresentation and seeking rescission (reversal of the contract, including a refund of charges) for rescission to be available.

As I've already said, I'm unclear whether the statement about no oversubscription is a representation or a term of any contract.


I find the statement "you can take action under the Consumer Protection from Unfair Trading Regulations 2008" puzzling. CPUTR 2008 creates various criminal offences, but these are typically for Trading Standards to pursue. The individual consumer is unlikely to bring a private prosecution for breach of CPUTR 2008, especially as the offences typically relate to groups of consumers, not individuals.

Edited by deleted (Wed 26-Nov-14 16:25:19)

The criminal stuff is as you say. More to do with trading standards. However, I don't think there's any issue about the time it took about any obscure clause to start becoming evident. Fundamentally it comes down as to whether the purchase decision was made on a misrepresentation. I think if it can be shown that this was material in the decision, then the contract has been broken. In this case I think it's moot, as it seems issues arose quite soon. Also, it can easily be argued the supplier was given ample opportunities to fix it.

nb. that's not to say whether it's worth pursuing or not. It's clearly a small claims court type issue which means the downside is known against which you can balance getting most, if not all or 12 months' payments refunded plus any costs of the case.

Edited by deleted (Wed 26-Nov-14 16:38:06)

In reply to a post by TheEulerID:

The criminal stuff is as you say. More to do with trading standards. However, I don't think there's any issue about the time it took about any obscure clause to start becoming evident. Fundamentally it comes down as to whether the purchase decision was made on a misrepresentation. I think if it can be shown that this was material in the decision, then the contract has been broken. In this case I think it's moot, as it seems issues arose quite soon.

You're still mixing up two different fundamental concepts: breach of contract and misrepresentation. Indeed, you appear to be trying to do law by assertion - law isn't a matter of logic.


Misrepresentation is about statements inducing a party to enter into the contract that do not form part of the contract.

Breach of contract is about breaking an express or implied term of the contract.


Rescission on the grounds of misrepresentation is an equitable remedy (the court doing what is just) based on the circumstances in which the contract was entered into.

Undue delay in seeking rescission for misrepresentation is well recognised in case law as grounds to deny rescission. See, for example, Leaf v International Galleries [1950] 2 KB 85, where a buyer of a fake Constable painting was denied rescission because of a delay of five years - the court felt in the circumstances, maybe a little optimistically, that a few days was sufficient to inspect the painting and establish the misrepresentation).

As the original poster continued to pay for and use the service after any misrepresentation on speed became reasonably apparent, a court may determine these actions amounted to implicit affirmation of the contract. Once a contract is affirmed, the right to rescission has been permanently lost.


Even in the small claims track of the County Court, you have to argue your case based on legal and/or equitable rights, not "this seems wrong and I want recompense".

The original poster is likely to be better off putting their complaint in writing to the provider, then using the independent dispute resolution provider if they are not happy with the provider's response. The dispute resolution provider has reasonably wide discretion to do what seems right.

OK - if you prefer it, the initial contract was null and void because the conditions were incompatible with what the salesperson said.

In any event, there's another point. When I did a bit of contract law at college (admittedly 35 years ago) , it was made plain that a contract does not have to be fully, or even partially written. Contract terms can be verbal too, and that includes any promises judgement) made by anybody who you can reasonably expect to have that authority (to what that extent low grade sales staff are included is, of course, subject to . Also, unfair terms are null and void too. So you can have a contract, yet certain conditions are deemed unfair. In this case. Is something is sold as having low contention levels, then any clause in the fine print that contradicts this can been deemed ineffective.

In any event, it's irrelevant to the outcome. Whether it's breach of the terms (implied or explicit), or misrepresentation, compensation may be due (as the citizen's advice bureau says). There is no requirement for there to have been an actual conviction for misrepresentation. To invite that sort of action would probably require something rather more significant that this case.

As far as this particular case goes, there is very possibly something that can be taken to a small claims court, but whether or not its worth the trouble, and quite what evidence would have to be provided is something else entirely.

In reply to a post by TheEulerID:

OK - if you prefer it, the initial contract was null and void because the conditions were incompatible with what the salesperson said.

That's still not correct. In some situations, misrepresentation prior to creation of a contract gives grounds for the equitable remedy of rescission, where a contract that may well be perfectly valid is unwound entirely because the court feels that it would be unjust to hold the party to a contract they were misled into entering.

Describing the contract as null and void would imply no contract was ever formed, which is unlikely to be the case here.

In reply to a post by TheEulerID:

In any event, there's another point. When I did a bit of contract law at college (admittedly 35 years ago) , it was made plain that a contract does not have to be fully, or even partially written. Contract terms can be verbal too, and that includes any promises judgement) made by anybody who you can reasonably expect to have that authority (to what that extent low grade sales staff are included is, of course, subject to . Also, unfair terms are null and void too. So you can have a contract, yet certain conditions are deemed unfair. In this case. Is something is sold as having low contention levels, then any clause in the fine print that contradicts this can been deemed ineffective.

Contracts can indeed be partly or wholly verbal. In some circumstances, you can even grant a legal lease on a property verbally.

Any promises made prior to formation of the contract might be incorporated into the contract, might be a representation inducing someone to enter into the contract (which, if a misrepresentation, gives rise to remedies), or might not speak to the contract at all. As I said in an earlier reply, the terms of the contract are what the parties agreed on, viewed from an independent objective standpoint (Smith v Hughes).

Unfair terms are not ipso facto null and void. A court will not grant you a remedy just because you made a bad bargain. In some cases, an unfair term might be rendered unenforceable by legislation (notably the Unfair Terms in Consumer Contracts Regulations 1999) or by case law (for example if sufficient attention was not drawn to a particularly onerous term - Interfoto Picture Library v Stiletto Visual Programmes [1989] QB 433). However, all this is a long way from "this contention ratio is awful - I have the right to leave the contract".

In reply to a post by TheEulerID:

In any event, it's irrelevant to the outcome. Whether it's breach of the terms (implied or explicit), or misrepresentation, compensation may be due (as the citizen's advice bureau says). There is no requirement for there to have been an actual conviction for misrepresentation. To invite that sort of action would probably require something rather more significant that this case.

The precise scenario is crucial in determining the remedies available. For example, in most cases damages for misrepresentation are awarded on tortious principles rather than contractual principles, which would usually preclude an award of compensation without an ability to demonstrate actual loss.

In reply to a post by TheEulerID:

As far as this particular case goes, there is very possibly something that can be taken to a small claims court, but whether or not its worth the trouble, and quite what evidence would have to be provided is something else entirely.

As I said in an earlier reply, there are other steps that can be be taken before going to court. Indeed, it is a requirement to take reasonable steps to settle a dispute before recourse to the courts (CPR 1.3 and 1.4).

While it may be very entertaining to discuss the finer details of consumer law, this is largely a red herring. Under the regulatory provisions of the Telecommunications Act every CP (Communications Provider) providing services to consumers is required to subscribe to an Independent Dispute Resolution (IDR) mechanism.

You need to go through a formal dispute process (details available on the Ofcom website) and if your dispute is not resolved by the CP then you can take it to IDR. This will not cost you anything but it will cost the CP quite a lot, so typically they don't want to pursue the matter. You are unlikely to get much compensation under any legal procedure - at most a partial or full refund of your subscription fees - but you are likely to be released from your contract without any further obligation.

It is much better to pursue this route than court litigation - even in the small claims court.

In reply to a post by gah789:

While it may be very entertaining to discuss the finer details of consumer law, this is largely a red herring. Under the regulatory provisions of the Telecommunications Act every CP (Communications Provider) providing services to consumers is required to subscribe to an Independent Dispute Resolution (IDR) mechanism.

You need to go through a formal dispute process (details available on the Ofcom website) and if your dispute is not resolved by the CP then you can take it to IDR. This will not cost you anything but it will cost the CP quite a lot, so typically they don't want to pursue the matter. You are unlikely to get much compensation under any legal procedure - at most a partial or full refund of your subscription fees - but you are likely to be released from your contract without any further obligation.

It is much better to pursue this route than court litigation - even in the small claims court.

I suggested a complaint and, if necessary, dispute resolution further up the thread and agree wholeheartedly with your conclusions.

A court is unlikely to look favourably on a claim being brought without exhausting all other remedies.


I tried very hard to provide a concise summary of the legal position in the hope that this post made it clear how unwise it would be to take legal action. The correct route is to complain and, if necessary, use the dispute resolution process where the IDR provider has some discretion to do what is just.

I've cited authorities for my legal commentary that anyone with a modest amount of legal experience should be able to check.

Thanks for your feedback, as way of an update - you're right there's absolutely no point in taking a legal route, despite the fact they wrote and and accepted I had been 'misled' on the phone. They have added three months supply to compensate for this.

He made the point that with ANY ISP speeds will be affected by usage at certain times. This I understand, but my complaint is that from 4pm Mon-Friday and ALL weekends, these speeds aren't just reduced, they are non existent. (20-50 kbps) and unusable.

So, here comes the second part of the story!

I cancelled the satellite service and ordered a 0.5 - 0.75mpbs BT ADSL. To give me the greatest chance of achieving a usable product I paid £130 for the master socket to be moved to the most suitable spot. Guess what, after 6 hours of an engineer doing his best, the ADSL product didn't work either. He said I'm too far (8m!) from the exchange for a stable connection. So now I'm in a row with BT too, as I'm not happy with paying the fee to move the MS.

So the upshot of ALL this... I now have no BB at all!

Frying ... Fire springs to mind.

In your position it seems you are stuck with satellite warts and all.

Are there any wireless providers in your area?

Alas no. One south of me, (Wessex) And one north of me (Cotswold Wireless)

Annoyingly I get a decent, stable 4G signal about 50 feet away in my field!!

One other query. Is it, as the engineer said, completely IMPOSSIBLE to be fed from a different cabinet? Mine is 2.5 miles away, yet another one servicing neighbours is about 100m down the road. I'd gladly pay thousands if necessary, as the situation is crippling my business - but it's difficult trying to explain that to a Mumbai call centre. So frustrating, meanwhile those around me who already get very decent broadband are about to be given yet higher speeds...


Thanks again

External 4G antenna with 4G router maybe?

Or point to point wireless from one of the 100 m area neighbours.

Get a line installed at your neighbours premises. Then spend run Ethernet with an in-line repeater back to your house?

Or who owns the land between you and the cabinet? If you do, why not build a shed in close proximity and have a phone line installed in that, with the proviso it is fed from the close by cabinet?

As for Mumbai - why? If this is a business need then you should talk to BT Business who are UK based for sales and support.

Thanks again - my simplest options seem to be:

1. 4G - No idea yet how I do this, but will investigate the kit required. However aren't 4G plans only useful for occasional data? Ie usage only seems to be up to a few GB a month, which won't cut it. I need 30+

2. Keep battling and try YET ANOTHER satellite provider. I've tried Tooway and SES now. Avanti Next.

3. Concurrently, keep exploring ADSL and fight my way as far up BT management as possible, switch to a business account. The CAB I'm currently served by is due for 80mbps fibre in the Spring. I really thought my problems would be solved when I heard this - until the OR engineer said that it will be down to nothing again by the time it reaches me.

4. FTTP?! I got nowhere when I enquired to BT about this one.

If it is important enough and you have enough money then Leased Line would be an option - but it isn't cheap for decent bandwidth.

FTTP on Demand is what I presume you mean by FTTP and will only be a consideration once cabinet is live.

Costs £200 to £250 per month and a couple of thousand to install.

4G EE do have some 50GB packages, but price is not cheap, but no voice line rental to pay.

Network regeneration is a possible solution, i.e. move copper line to other cabinet, but you'd have to foot the full bill and as its custom work which is something Openreach tends not to do you will find them not keen to do it. It can cause complications beyond just moving your line and needs to be done right to avoid issues later.

One might say it maybe worth moving house, if the business case for your internet requirements are so high?

Hmm, That's a bit like saying if you can't get clean drinking water you should sell up and move closer to another tap.

I come from the point of view that basic Broadband should be a right, not a privilege in 2015. I'm 50 mins from Central London and my business is not e-commerce or anything so dependent, but suffers like any business would if I can't use email.

Thanks again for the suggestions - I'm exploring 4g next.

In reply to a post by trumpet272:

I come from the point of view that basic Broadband should be a right, not a privilege in 2015. I'm 50 mins from Central London and my business is not e-commerce or anything so dependent, but suffers like any business would if I can't use email.

Unfortunately your view doesn't match current reality - at present there is no right to broadband - the only thing you have to be provided is a 28.8Kbps analogue connection. Believing anything else is just kidding yourself I'm afraid.

Saying that, leased lines are available nearly everywhere, as I said above - you just need enough cash to be able to fund them.

You seem to have ignored two questions above, which could lead to a reasonable solution.

I come from the point of view that basic Broadband should be a right, not a privilege in 2015

And who do you suggest should pay for this? Yourself or someone else?

Not sure where I said I expected someone else to pay? I'd be delighted to pay.

Perhaps I should have said "I come from the point of view that a BASIC Broadband should, in 2015, be made available to everyone in the UK who wishes to pay for it"

I thought this was the view of most people these days but perhaps not.

Anyway, Leased line seems a viable option now - awaiting quotes,

Thanks

Not sure where I said I expected someone else to pay?

You didn't hence my question.

I'd be delighted to pay.

That puts you into a small select group as many posting here appear to expect to contribute little or nothing towards the costs of providing fast broadband. I wish you all the best with your plans to get a leased line. In our case a group of us on EO lines in Lambeth have agreed to pay BT over £15K plus VAT to provide FTTC to our homes. This works out at around £250 a property which is no doubt much less than you will be asked to pay.

Well a ballpark quote just in - of c. £800 per month over a 3 year contract for 10mbps. So it's a lot!

Did say it wasn't cheap, although even so I think that is a little pricey - I would expect the install costs to have been pretty high as well (or have they flattened the install over the contract which might explain high monthly costs)?

That 10 Mbps should be symmetric and not slow down at peak times and should also carry other service guarantees too.

Guaranteed bandwidth is not cheap, the consumer FTTC variants will not get close to that guarantee, in the Openreach segment they may be higher, but you are probably getting a budget of 200 Kbps to 1 Mbps at peak times and ISP relying on not everyone streaming at the same time.

Agreed but I would have expected more around the £400 per month as a starting point for 10Mbps symmetric? Been a while since I have been involved in leased line purchases.

EDIT: Quick google shows a Virgin Internet lease line from £325 per month. Costs could be due to OP's location though.

Edited by ian72 (Thu 04-Dec-14 09:42:22)