Thursday 25 February 2010

OFT vs Foxtons High Court ruling regards unfair terms

In July 2009, the Office of Fair Trading welcomed a landmark ruling that the use of unfair terms that Foxtons Limited (letting agents) in their contracts with landlords.

OFT v Foxtons

David Rhodes of Horizon Business Agents writes about the case on his blog "In my opinion the agreement that the seller should avoid is the one where there is both an upfront fee and a severance/cancellation fee, especially where the agent is operating under a sole selling rights agreement. There are agents such as RTA Business Consultants who operate such an agreement."

It seems that those of us caught out by RTAs unfair agreements must raise our profile.

Perhaps all of those business owners with a story to tell should contact the Trading Standards Office local to RTA in Stockport?  Details below.

Stockport Metropolitan Borough Council
Trading Standards Service
Environment & Economic Development Division
Stopford House
Piccadilly
Stockport
SK1 3XE
Telephone: 0845 644 4301
Fax: (0161) 474 4369
E-mail: trading.standards@stockport.gov.uk
Stockport Trading Standards

RTA cold calling methods making business owners unhappy

The whocallsme website has been inundated with updates about RTA's unsolicited calling and their use of autodiallers.

Some call receivers have requested that RTA remove their telephone numbers from their lists as many as 17 times!

Are you, perhaps, becoming a nuisance Mr O'Reilly?

http://whocallsme.com/Phone-Number.aspx/08450510598

Federation of Small Businesses list RTA as a 'scam'

The Federation of Small Businesses appear to be warning their members about using RTA (Business Consultants) Limited - they have RTA listed in their 'scams library'!!

RTA Business Transfer Agents


It is claimed that small businesses are losing large sums of money by attempting to sell their businesses through RTA (Business Consultants) Ltd. In some cases small businesses are paying thousands of pounds. After a time period as agreed with RTA, e.g. 5 months, small businesses are finding that they have had no potential buyers and that they are entitled to no refund.
 
 
UPDATE : 29th March 2010
 
Peter Scargill of the FSB has confirmed that they removed the listing 'for now' from their website following correspondence from RTA.  Is this another action of bullying and the threat of legal action by RTA?

Wednesday 24 February 2010

The RTA Sales Pitch - Penman & Sommerlad investigation

The Mirror investigators, Penman and Sommerlad, went undercover to record the RTA sales pitch given by the RTA rep Andy Dearing.

You can read the article here - http://blogs.mirror.co.uk/investigations/2009/12/we-nail-that-rta-sales-pitch.html

Tuesday 23 February 2010

Consumer protection regulations

Gill Drapers case concludes that, as this is a contract not associated with your normal business-as-usual practice it is therefore a consumer contract and not a commercial contract.  Therefore consumer contract law should apply.

Amongst other things, the Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987 apply to a contract made:-
    during an unsolicited visit by a trader-
          a) to the consumer's home or to the home of another person; or
          b) to the consumer's place of work

So, like a lot of our circumstances, where RTA contacted us via telephone out of the blue and then set up an appointment for their sales representative, this constitutes an unsolicited visit by a trader.

The Regulations state:-
"No contract to which these Regulations apply shall be enforceable against the consumer unless the trader has delivered to the consumer notice in writing in accordance with paragraphs (3) and (4) indicating the right of the consumer to cancel the contract within the period of 7 days"

This means, if RTA did not give you notice in writing of your right to cancel then they cannot enforce the contract.

The 'contra proferentem' rule

Contra proferentem is a rule of contractual interpretation which provides that an ambiguous term will be construed against the party that imposed its inclusion in the contract – or, more accurately, against (the interests of) the party who imposed it. The interpretation will therefore favor the party that did not insist on its inclusion. The rule applies only if, and to the extent that, the clause was included at the unilateral insistence of one party without having been subject to negotiation by the counter-party. Additionally, the rule applies only if a court determines the term to be ambiguous, which often forms the substance of a contractual dispute.

What this means is, where RTA (or any other entity issuing a consumer contract) rely on a clause which is deemed ambiguous (ie they think it says one thing but it can be read as something else) then the clause will be deemed to read in the favour of the other party (ie against RTA)

The case of Draper v RTA at Huntingdon Court

On 16th September, RTA went to court with Gill Draper (see Gill's Story by clicking on the link under Information in the left hand menu) after initially claiming £20,000 + VAT in 'lost commission' due to Gill withdrawing from the signed agreement and then deciding to reduce this to £5000 in order to use the Small Claims Court.

Gill's barrister, Tim Williams, put forward the case that, as Gill was not in business to buy and sell businesses she was, therefore, not working in her normal business-as-usual manner and that made the contract a consumer contract rather than a commercial contract - and therefore subject to consumer contract regulations.

The Consumer Contract Regulations 1999 prevents terms which cause significant imbalance in the parties rights and intentions.  As RTA intend to get paid, regardless of their performance or delivery, this shows a significant imbalance of rights.

Gill won her case.

RTA appealed and went back to court on 28th October 2009 at Peterborough County Court but the appeal was dismissed.