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Alice H
Alice H, Solicitor/Partner
Category: Law
Satisfied Customers: 2850
Experience:  Partner in national law firm
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My husband and I both work from home using the internet. When

Resolved Question:

My husband and I both work from home using the internet. When we ordered a Sky Package (including Superfast Fibre Broadband) on the 6th January 2014 they confirmed that it would be installed on the 28th. Despite escalation there have been a series of delays (each of which we were promised would be resolved in a few days) culminating until 2 weeks ago when they finally said that they could not provide us with Broadband but only ADSL at 0.4 mb - the actual rate is around 0.1 mb - and that nearly 4 months after the agreed date. This has made it impossible for either of us to work or generate income. Sky has said that it is BT Open reach's fault and that they only provide a domestic service; which it states in their T&Cs online. The T&Cs were not provided to me either verbally or in writing and naturally I could not access their T&Cs online. I also made it very clear upon ordering and during future complaints that we were running businesses that were dependant upon the internet. Therefore my question is can we a) claim for loss of earnings b) claim for inconvenience (as we haven't been able to access financial statements, emails, websites to administer etc etc etc) c) claim for costs of items that we have had to pay for but been unable to utilise (eg Website administration, accountants). The offer they have made is that we do not have to pay for the months we have been without service and a bunch of flowers.
Submitted: 3 years ago.
Category: Law
Expert:  Alice H replied 3 years ago.
My name isXXXXX and I'm happy to help with your question today. I need to ask you some preliminary questions to be able to help you.

Did you have any form of internet pre-January which you were using for work? Have you actually been paying for the service even though no broadband was set up?
Customer: replied 3 years ago.

Hi Alex, Prior to January we were living at a different address (had full BT internet access that we used for work) we subsequently moved to a converted barn that previously had no access to the internet - however I explained this upon ordering and was assured that it was not an issue. I can prove via company accounts that I was earning £500 per day as a Senior Business Analyst. My husbands is a bit more difficult to ascertain as he only started his on line sales business last year. It was growing and earning about £1300 per month but obviously he has now lost his customer base. Additionally thought I should add that the Sky Exec Customer Care agent suggested that there was no point in me contacting the Ombudsman as it was already escalated to the highest level.


Thanks for looking at this case.


Deborah

Expert:  Alice H replied 3 years ago.
Ok, understood. I will need a little time to write up an answer and will come back to you a little later. There is no need to respond in the meantime.
Customer: replied 3 years ago.

Sorry Alex realised that I hadn't answered the second part of your question. We were previously Sky TV customers paying £35.75 pm. The new package with TV, Phone and Internet would have been £49pm. Up until (incl) March we continued to pay the £35.75 (for TV that was installed on the 16th Jan). In April they gave us a free month due to the inconvenience and this month they have taken £13.54 (no idea why this amount). Please note that up until 2 weeks ago neither phone nor internet was working.


Kind Regards


Deborah.

Expert:  Alice H replied 3 years ago.
Many thanks.

Can I just clarify - did you make it clear to Sky that you needed broadband for work purposes and you were losing money as a result of the delays?
Customer: replied 3 years ago.

Yes, I made it clear upon ordering (when they initially said that installation could not take place until the 28th Jan when I wanted it for the 16th Jan I stated that this wasn't acceptable as we both ran businesses from home but they explained that they were dependant on a BT slot that wouldn't be available until 28th). Subsequently when complaining I said that we were losing money and upon trying to cancel towards the end of Jan were informed that Sky wouldn't compensate as they only run a domestic service and that due to Data Privacy if we tried using anyone else that we would be back at square one (implication at that time was that it would only be a few days before we were online). Informed CEOs of Sky and BT Openreach in emails that we were losing money and mentioned it several times to the Exec Customer Complaints Agents - who empathised but at no time did not mention that Sky was domestic only.


Hope this helps and thanks for your thoroughness.


Deborah

Expert:  Alice H replied 3 years ago.
Thanks for the additional information.

The usual position is that where a party is in breach of contract e.g. failing to fulfill his side of the agreement, the losing party can claim compensation which is based on the principles set out in a case called Hadley v Baxendale. This would ordinarily have been my advice in your case but looking at the Sky terms and conditions they appear to exclude liability especially where domestic broadband is being used for commercial use. Presumably Sky don't want to expose themselves to huge claims when customers can't work when their domestic broadband service goes down. In light of the terms and conditions I think you will have a struggle on your hands in claiming compensation. I suggest that you have a look at the T&C's you were sent when you ordered the package to see what is and what is not excluded. If the T&C's are as set out below (especially para 9(i) - loss of contracts and profits), and you have signed up to them, then in my view Sky have excluded liability and you will not be able to make a claim.

...

9. What we are not liable for
We will not be liable under this Contract to you, or any other person who you allow to use Sky Broadband, for:
(a) any fault in your Wireless Router, cabling or network equipment caused by tampering or negligence (unless caused by us) or by the failure to follow our reasonable instructions, these Conditions or the Usage Policies;
(b) any use made of Sky Broadband, nor for any content which is accessed, sent or received using the service, nor for any charges incurred with any third party or for any transactions entered into through Sky Broadband or Sky Broadband Extras, unless caused by us;
(c) use of your Wireless Router or network equipment to access any other internet service;
(d) the act of suspending Sky Broadband or ending this Contract in accordance with Condition 11;
(e) any delay or failure by us to provide any element of Sky Broadband or part of it where such delay or failure is caused by events outside our reasonable control. Matters outside our reasonable control include (but are not limited to) severe weather conditions, epidemic, civil disorder, terrorist activity, war and government action;
(f) any loss or damage caused by your use of Sky Broadband, your Wireless Router, your network equipment, us, or any of our respective officers, employees, sub-contractors or agents in circumstances where:
(i) there is no breach of a contractual obligation or legal duty of care by us or any of our respective officers, employees, sub-contractors or agents; or
(ii) such loss or damage is not a reasonably foreseeable result of any such breach.
(g) any loss or damage caused by Sky Broadband, your Wireless Router, your network equipment, us, or any of our respective officers, employees, sub-contractors or agents to the extent that such loss or damage results from any breach by you of these Conditions and, in particular not limited to the Acceptable Use Policy;
(h) any loss or damage caused by viruses or unauthorised use of, or attempts to access, Sky Broadband or your computer;
(i) any loss or corruption of data, or any loss of business, contracts, profits, anticipated savings, reputation, or revenue;
(j) any failure of monitored safety, security or other alarm systems due to incompatibility with Sky Broadband, or due to the restriction or ending of Sky Broadband, or any other reason which is not due to our fault or neglect;
(k) your use of any modem, wireless router or any other equipment that we have not supplied to you in order to access Sky Broadband; and
(l) any special, consequential or indirect losses

...
Customer: replied 3 years ago.

Hi Alex,


I appreciate the answer but bearing in mind that the T&Cs were not given to me orally at time of order or any other time, nor were they sent, nor was I asked to agree to them (and only subsequently were we told that they were on the website (that we could not access due to Sky not having provided us with access to the internet) I cannot see how we could be perceived as having agreed to the T&Cs. We have certainly never signed up to or been asked if we agree to T&Cs. I assume that this can be proven by requesting Subject Access Request for all phone calls / correspondence (although in fairness am not sure whether recordings are covered by SARs).


Deborah

Expert:  Alice H replied 3 years ago.
The point you're making is a valid one. How was the service ordered? By telephone or internet? Did you sign an order form? Was any confirmation sent of your order? What I'm wondering is how Sky accepted the order without your acceptance of their T&C's.
Customer: replied 3 years ago.

Hi Alex, The order was placed by phone (where I was not asked to agree T&Cs) and I received a single page confirmation of order (without T&Cs) and I was not asked to sign any form. Additionally if you still feel that it would be difficult to claim loss of earning what about the breach of contract / inconvenience.


Thanks


Deborah

Expert:  Alice H replied 3 years ago.
The lack of T&C's certainky helps your cause.

It would be difficult to rely on exclusions clauses when such clauses are not brought to your attention.

But looking at Sky's website they seem to go to great lengths to avoid being sued - they seem to suggest that nothing is their fault even if it is!

I do think this is a breach of contract situation - apart from anything else, the Supply of Goods and Services Act 1982 says that the contractor should exercise reasonable skill and care is providing a service which Sky seems to have failed to do on this occasion.

There is no harm in complaining and even suing for breach of contract and trying to seek compensation. But for the reasons I explained earlier this could be difficult especially as Sky will have far greater resources available to defend a claim.

I'm sorry to sound negative but I am trying to give you an objective and honest opinion based on the information that I have available.
Customer: replied 3 years ago.

Hi Alex, Totally appreciate what you are objectively saying (ie I as an individual do not have the resources to beat the big boys - even if I did have a legally defensible case). Therefore can you advise on what I as an individual (not business) could claim due to inconvenience (waiting in for over 25 non attended appointments, not being able to access financial information or being able to conduct 21st century life in general could request & of course stress).


Many Thanks


Deborah

Expert:  Alice H replied 3 years ago.
There is no hard and fast rule about the value of lost time and inconvenience - any calculation that you put forward should be 'reasonable' and justifiable. Ultimately if you do sue you can ask the court to decide the amount.
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