Firstly, it could be (and has been) asked why we didn't simply register with the Telephone Preference Service who maintain a list of numbers which spam callers are not supposed to call. To put it bluntly we simply couldn't see the point. The basic fact is that making automated recorded calls is illegal, so anyone who sets up a company specifically to commit an illegal act, is highly unlikely to be dissuaded from calling us by the fact that our number is on some list or other. Of course it "may" be an idea to at least try the TPS system, although we didn't bother as we didn't want to put our details onto a system which is actually funded by the very companies who we don't want to know our details.
You must note that we are ski instructors not a lawyers, so what we say about this topic may be correct or not. We would strongly advise that you take legal advice (from a qualified solicitor, not just an internet blog) before you jump into any legal action.
We would say this process will work for anyone who is able to enter into a contract.
An individual (adult)
To date we have received payments from all 7 companies we have invoiced for making spam calls to our office. We have also won every time it has ended up in court.
A spam call is simply is any call which you don't want (and you didn't ask for or agree to receive) during which the caller try's to sell you something.
There are two main types of Spam Calls:
- Your number is dialled by a computer. If you answer a short recorded message tries to get you interested and, if you are, you are asked to press another number to continue. These types of calls (in the UK) are totally illegal.
- A person will call you and leap right into their sales pitch. We have done quite a bit of research on this and honestly can't find any way of you getting paid for receiving these calls as they are not illegal, they are just a pain. There may be a method, but we haven't found one (yet).
If the call originates outside the UK we would suggest just hanging up and trying to block the number. for example see here.
We have not dealt specifically with how to stop automated calls although charging them will normally do the trick.
Let’s say you are (like we were) being inundated by automated marketing calls and you:
Want them to stop
Want paying for your services (e.g. your time, use of telephone equipment, etc)
As said above this blog isn't about getting these calls to stop, but stopping a company calling you is an indirect result of you charging them. Let's face it if a company knows that they will have to pay you £30, £40, £50, £100 ? each time they call you, they will (if they have any sense) stop.
The steps you'll need to take:
Record your incoming calls
- The absolute first thing you will need to do is to have some method of recording your incoming calls. Without a recording of the offending call it will be just your word against theirs, and you can guarantee that they will have records to show that the conversation you have just had with them never happened?
- There are loads of cheap telephone call recording systems out there so it's worth buying one. For mobile phones, I Pads, etc, see here. For mobiles phones there are many others which you can download from Google Play, etc.
Send them an invoice
- This should give “precise” details of the time, date and duration of the call. Plus it should itemise what it is you are charging for and, of course, how much you are charging.
- Keep sending a new invoice for each and every call you receive.
- In some case we have had a cheque, by return post for invoices we have sent out to spamming companies. In other cases we received quite aggressive letters from their solicitors claiming this was a scam and their client would never do such a thing, etc - a emailed copy of the call recording has always stopped these types of rather dubious legal tactics.
Send a statement
- If you don’t get a payment send a statement listing all the invoices which are unpaid.
Send a letter – very important
- If the invoices and statements have not induced the calling company to pay you then send a “polite” letter explaining that if payment is not received within 21 days you will take further action.
Send a “Letter Before Action” – very important
- If you still haven’t received a payment then you need to send an LBA. You should attach copies of each invoice, statement and other letters. Basically this LBA will tell the other side why you think they owe you money and what will happen (you'll take them to court) if they don't pay. For an example, see here.
If all else fails, you'll have to issue a claim in the small claims court. This can be done on line or by post. The simplest method is to use the Ministry of Justice's on line claim form. There is a fee to pay of £35 (this may change. For details of fees see here)********************
The UK has a legal system which has been set up to speedily resolve simple cases such as this. IF YOU DON’T STICK TO THE RULES YOU WILL NEVER SUCCEED. The rules are a set of procedures which you will need to follow and, if you don't, regardless of the validity of your case, it could be thrown out. As an example, if you are sent a form by the court and asked to complete and return it by a certain date then you simply must complete it and return it by the due date.
To make a claim using the on line system see here
To make a postal claim download the PDF form from here
For an example of a completed postal form see here
Note that in the example I have signed it as myself. If you choose to use a solicitor to do this for you it may end up costing you more in legal fees that you are claiming from the spamming company.
The court will then send you back a copy of claim you have made and also send a copy to the defendant. They will be asked to either admit the debt or add their defence. You will be sent a copy of their defence, if they make one.
Now you are in the system.
It's worth saying this again. You MUST complete any forms that you are sent and send them back before the due date. If you don't your case will be thrown out.
Now it just a matter of waiting for your day in court (well more likely about an hour).
So, with all this said I need to talk now not about HOW to make a claim but, more importantly from a legal perspective, WHY you can make a claim in the first place.
As mentioned above making automated phone calls is illegal in the UK.
The Privacy and Electronic Communications (EC Directive) Regulations 2003 S19
1. A person shall neither transmit, nor instigate the transmission of, communications comprising recorded matter for direct marketing purposes by means of an automated calling system.
So why is this important?
Well it means that you are more likely to get paid as in addition to invoicing the spamming company, you should also personally invoice it's company directors.
The reason for this is that a limited company in the UK must be run according to what is laid out in it's Articles of Association. You can get a copy of any company's AoA from Companies House. The AoA's of a company can not contain anything which allows it to act illegally, such as making automated phone calls. If the company is undertaking illegal activities then it is not acting legally and so a person must be responsible - as a company does not have a will of it's own.
So who is responsible for a company's illegal activities, the simple answer is that, unless proved otherwise, it's the company's directors. It doesn't matter in the slightest if a company director claims not to have known what was going on - they should have.
For example if we look at the judgement in the famous case of (Re. Barings Bank Plc) Secretary of State for Trade and Industry -v- Baker (No 5); ChD 1998. This is what was said by Judge Parker and this opinion was upheld in the appeal court by Lord Justices Morritt, Waller and Mummery (and if they all say something about the law, I think we can assume it's correct).
"Whilst directors are entitled (subject to the articles of association of the company) to delegate particular functions to those below them in the management chain, and to trust their competence and integrity to a reasonable extent, the exercise of the power of delegation does not absolve a director from the duty to supervise the discharge of the delegated functions."
Of course company directors are normally protected from personal claims, but not in the case of illegal activities.
Companies Act 2006, 232 (1) - Any provision that purports to exempt a director of a company (to any extent) from any liability that would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company is void.
So when you send you invoices you should always send another personally to the company directors - you can get their home address from companies house.
That's "how" to make a claim, now we can look at "why", under UK contract law, you are entitled to be paid.
A contract is usually a written document which lays out what the parties to the contract have agreed to. The written contract may also contain other agreements such as what would happen in certain eventualities.
A contract will normally include:
- An offer
- This is just promise to do (or not) to do something. As an example
you could offer to repair someone’s car.
- In our case this could be an offer to “Press 5" (or another number) to continue.
- This is just promise to do (or not) to do something. As an example you could offer to repair someone’s car.
- Once the offer is taken up then you (or the other side) can be said
to have accepted the offer. For example you could allow your car to be
- In our case we could accept the offer by pressing a button on our telephone, or refuse the offer by not pressing the button..
- Once the offer is taken up then you (or the other side) can be said to have accepted the offer. For example you could allow your car to be repaired
- This is (to put it in non legal terms) what
the parties to the contract get from it. For
example you car was repaired and the mechanic
- In our case the company making the call has the use of your telephone equipment, a part of the amount that you paid to your line supplier (e.g. BT, O2) etc, you will, if you choose to, need send them an invoice so you can get paid for your time, reimbursed for the use of equipment, etc
- This is (to put it in non legal terms) what the parties to the contract get from it. For example you car was repaired and the mechanic got paid.
- Of course there must be the intention to
enter into a contract. You would not be bound to
pay a mechanic who simply started work on your
car just because they felt it needed servicing.
- In our case it is obvious that the company which called you wanted to have the use of your telephone equipment, for your time to answer the call, etc (any other argument would be just ridiculous). From your side you could have decided not to press the button on your phone (and so rejected the offer) but if you decide to carry on, this is an obvious intention to undertake the work asked for (press the button) in the offer.
- Of course there must be the intention to enter into a contract. You would not be bound to pay a mechanic who simply started work on your car just because they felt it needed servicing.
- You must be able to enter into a contract.
If a mechanic serviced your car as they were
asked to by your 5 year old child there would be
- In our case the only person in a company who can decide to install an automated dialling system, allocate staff and recourse, etc would be a director of the company – who has the capacity to enter into contract on behalf of the company. You also have the capacity to enter into this contract.
- You must be able to enter into a contract. If a mechanic serviced your car as they were asked to by your 5 year old child there would be no contract.
But a contract does not have to be written down, it can be formed by the actions of the parties involved.
In the case of marketing phone calls.
- When you receive an unwanted call you could consider this an offer A company initiated a call to you which contained an invitation to perform an action if you wished to proceed (i.e. Press 5 to continue).
- The spamming company may claim that it is not an offer but rather an Invitation to Treat, I have discussed this in more detail in the Sample Skelton Argument - link at the end of this blog.
- You then accepted the offer and performed the actions as invited to (you presses 5)
- The company which called you received the use of your phone equipment, your times, etc. so having done the work you should issued an invoice for services rendered.
- I would suggest that it would be impossible for a company who calls you to argue that they did not intend to use the services of your phone system, your time, etc.
- As the making of of automated calls requires a large amount of organisation, money (to buy equipment), etc only a company director can authorise this and you (assuming you are over 18) are the one who decided to Press 5 to continue. So both parties had the capacity to enter the contract.
Last but not least
What if the marketing company doesn’t know you will charge them to receive their call? Do you have to tell them beforehand that you’ll charge? The simple answer is no. In fact it is utterly irrelevant in this case whether they knew you would charge. They should have asked first. It is not your responsibility to tell them, it’s is theirs to ask.
This topic is a little more complex that it may seem so I have prepared a sample Legal Skeleton Argument which explains it in more detail.
Sample Legal Argument for claiming money for receiving spam phone calls from a company and it's director(s) see here.