Human Safety (Public Confidence) Case Reference 04292

CliveA made this Environmental Information Regulations request to Phone-paid Services Authority
This authority is not subject to FOI law, so is not legally obliged to respond (details).

The request was partially successful.

RE: Fine Imposed against Starcomm Limited in 2012 Case Reference 827372

Dear PhonepayPlus Limited,

I will be most grateful if PhonePayPlus Limited can explain to the public why it proceeded with a full tribunal case and issued further fines and penalties against Starcomm Limited after cashing a £3,945.90p cheque from Starcomm Limited made in "full and final settlement of this case". In addition it is a matter of public interest that PhonePayPlus Limited does not advertise that it regulates the "offending" number ranges beginning 07(the number range Starcomm was fined upon) on its website. (see[http://www.phonepayplus.org.uk/for-busin...)

We also seek disclosure of public documents which protect PhonePayPlus Limited from a Freedom of Information Act request with the reasons clearly stated. Can PhonePayPlus Limited also clarify if PhonePayPlus Limited employees are all or part Civil Servants. If they are Civil Servants can PhonePayPlus confirm that ALL civil servants are bound by a duty of care towards members of the public which includes the directors and employees of Starcomm Limited and that they must follow English Law in conducting or ending tribunal cases fairly and justly.

In this case after PhonePayPlus Limited accepted the sum of £3,945.90p(cashed on 17th April 2012) in full and final settlement of these tribunal proceedings, rather than ending those tribunal proceedings immediately, PhonePayPlus Limited continued to unfairly conduct the tribunal proceeding against Starcomm Limited as if no such payment had been accepted. Indeed it ignored all Starcomm's protests on that point claiming that it made no difference to them!

At the end of that Tribunal Fines of £25,000, together with the oral hearing costs of £37,596.00 and withheld amount of £3,945.90 and a £500 fine in respect of case 844739 were imposed upon Starcomm Limited. A total sum of £67,041.90p was demanded under threat of Winding Up Petition from Starcomm Limited. See admission in tribunal notes at: http://www.phonepayplus.org.uk/~/media/F....

Starcomm now seeks repayment of the excess funds in the sum of £63,096.00p + statutory interest which appear to Starcomm as having being collected by unlawful means.

Can PhonePayPlus Limited also explain why it operates as a Private Limited Company and not as a Regulator of telecommunications services (e.g. OFCOM) and confirm that Starcomm Limited suffered two losses by paying the fleeing customer "Mr Singh" and being fined by PhonePayPlus Limited the same sum of money which appears to fly in the face of the protection of promisor from double liability afforded by the Contracts (Rights of Third Parties) Act 1999.

Starcomm Limited seeks to discover ALL documentary evidence to explain why English Law in relation to "full and final payments" does not apply to PhonePayPlus Limited as a matter of public interest. It also seeks to discover if PhonePayPlus Limited considers itself as having a contract with Starcomm Limited and if so could a copy of that signed contract be provided to Starcomm Limited.

Yours faithfully,

CliveA

Kelly German,

Dear Sir,


Thank you for your information request dated 1 September 2016, which has been passed to me for consideration.

You have requested the following information:

1. Why PhonepayPlus proceeded with a full tribunal case and issued further fines and penalties against Starcomm Limited after cashing a £3,945.90p cheque from Starcomm Limited made in "full and final settlement of this case".

2. Disclosure of public documents which protect PhonePayPlus Limited from a Freedom of Information Act request with the reasons clearly stated.

3. Clarification if PhonePayPlus Limited employees are all or part Civil Servants. If they are Civil Servants can PhonePayPlus confirm that ALL civil servants are bound by a duty of care towards members of the public which includes the directors and employees of Starcomm Limited and that they must follow English Law in conducting or ending tribunal cases fairly and justly.

4. An explanation of why PhonePayPlus Limited operates as a Private Limited Company and not as a Regulator of telecommunications services (e.g. OFCOM) and confirm that Starcomm Limited suffered two losses by paying the fleeing customer "Mr Singh" and being fined by PhonePayPlus Limited the same sum of money which appears to fly in the face of the protection of promisor from double liability afforded by the Contracts (Rights of Third Parties) Act 1999.

5. All documentary evidence to explain why English Law in relation to "full and final payments" does not apply to PhonePayPlus Limited as a matter of public interest.

6. Whether PhonePayPlus Limited considers itself as having a contract with Starcomm Limited and if so a copy of that signed contract"

The information you have requested is not "environmental information" as defined by Regulation 2(1) of the Environmental Information Regulations and therefore it is not disclosable under those Regulations.

Under the Freedom of Information Act 2000 (‘FOIA’), PhonepayPlus is not a “public authority”. Thus the provisions of the FOIA do not apply to this organisation and we are not obliged to respond to general requests for information. As such PhonepayPlus reserves the right to refuse a request for information at its discretion (and without the need to apply exemptions contained in the Act). In the spirit of goodwill and helpfulness, however, we generally attempt to respond to requests for information, where appropriate. PhonepayPlus seeks to apply the FOIA to the extent that it is both reasonable and practical to do so.

We will now consider your request and revert to you within the next 20 working days.

Kind regards,

Kelly German
In-house Counsel/ Freedom of Information Officer

show quoted sections

Kelly German,

Dear Sir,

We refer to your information request dated 1 September 2016, received by us on 5th September 2016.

As I explained in my previous correspondence dated 5th September, under the Freedom of Information Act 2000 (‘FOIA’), PhonepayPlus is not a “public authority”. Thus the provisions of the FOIA do not apply to this organisation and we are not obliged to respond to general requests for information. As such PhonepayPlus reserves the right to refuse a request for information at its discretion (and without the need to apply exemptions contained within the Act). In the spirit of goodwill and helpfulness, however, we generally attempt to respond to requests for information, where appropriate.

You requested the following information:

1. Why PhonepayPlus proceeded with a full tribunal case and issued further fines and penalties against Starcomm Limited after cashing a £3,945.90p cheque from Starcomm Limited made in "full and final settlement of this case".

2. Disclosure of public documents which protect PhonePayPlus Limited from a Freedom of Information Act request with the reasons clearly stated.

3. Clarification if PhonePayPlus Limited employees are all or part Civil Servants. If they are Civil Servants can PhonePayPlus confirm that ALL civil servants are bound by a duty of care towards members of the public which includes the directors and employees of Starcomm Limited and that they must follow English Law in conducting or ending tribunal cases fairly and justly.

4. An explanation of why PhonePayPlus Limited operates as a Private Limited Company and not as a Regulator of telecommunications services (e.g. OFCOM) and confirm that Starcomm Limited suffered two losses by paying the fleeing customer "Mr Singh" and being fined by PhonePayPlus Limited the same sum of money which appears to fly in the face of the protection of promisor from double liability afforded by the Contracts (Rights of Third Parties) Act 1999.

5. All documentary evidence to explain why English Law in relation to "full and final payments" does not apply to PhonePayPlus Limited as a matter of public interest.

6. Whether PhonePayPlus Limited considers itself as having a contract with Starcomm Limited and if so a copy of that signed contract"

In response to your query, I can advise as follows.

1. In respect of point 1, the full details of the PhonepayPlus Adjudications in respect of Starcomm limited can be found on the PhonepayPlus website (case references 844739, 827372 and 04292). In respect of the cheque from Starcomm Limited made in "full and final settlement" of the case, to which your information request refers, the Tribunal decision (case reference 04292) states:

"Starcomm provided a cheque for the withhold amount (£3,945.90) on the day of the Tribunal hearing on 29 March 2012. The cheque could not be accepted by PhonepayPlus because Starcomm had written on the reverse of the cheque "in full and final settlement of all invoices" (or words to that effect). The Tribunal considered that this was an attempt to circumvent the regulatory regime."

In respect of the BACS payment made to PhonepayPlus on 17 April 2012 in the same amount, PhonepayPlus' position in respect of this payment was outlined in full in email correspondence dated 10 May 2012 and 16 May 2012 and in a letter from Bates, Wells and Braithwaite solicitors dated 25 May 2012, copies of which you already have.

2. In respect of point 2 of your request, this is not information held by PhonepayPlus. I can confirm however that the provisions of the Freedom of Information Act only apply to "Public authorities" as defined in section 3 of the Freedom of Information Act. "Public authorities" are those bodies that are either listed in Schedule 1 to the Act or designated by an order made under section 5 of the Act, or are a "publicly-owned company" as defined by section 6 of the Act. PhonepayPlus does not fall into any of these definitions.

3. In respect of point 3 of your request, I can confirm that no employees of PhonepayPlus Limited are civil servants.

4. In respect of point 4 of your request, details of PhonepayPlus's relationship with Ofcom as per sections 120 and 121 of the Communications Act 2003 can be found here: https://www.phonepayplus.org.uk/~/media/....

The further information requested at point 4, namely "confirm that Starcomm Limited suffered two losses by paying the fleeing customer "Mr Singh" and being fined by PhonePayPlus Limited the same sum of money which appears to fly in the face of the protection of promisor from double liability afforded by the Contracts (Rights of Third Parties) Act 1999" is not information held by PhonepayPlus.

5. In respect of point 5 of your request, this is not information held by PhonepayPlus.

6. In respect of point 6 of your request, this is not information held by PhonepayPlus.

Finally, I note that in your information request dated 1 September you also stated that: "Starcomm now seeks repayment of the excess funds in the sum of £63,096.00p + statutory interest which appear to Starcomm as having being collected by unlawful means." I have not treated this as a request for information under the Freedom of Information Act. However, if Starcomm Limited wishes to pursue this matter, please be advised that it should proceed via the proper legal protocol.

If you are dissatisfied with the handling of your request for information, you have the right to ask for an internal review. Internal review requests should be submitted within two months and should be addressed to:

Joanne Prowse
Chief Executive
PhonepayPlus
25th Floor
40 Bank Street
London
E14 5NR

Kind regards,

Kelly German

In house Counsel/Freedom of Information Officer

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