Public Counsel in Landmark Case: Kimone Phillips v Courts (Bdos) Ltd.

Well! Well! Well!

Barry Carrington, Attornet-at-Law, The Original Public Counsel!

Stand up! Raise yuh hand!

Consumers, you have something to shout about and a man to thank for his tireless work as Public Counsel. Though Barry has moved on up, he has left a legacy of cases before the Consumer Claims Tribunal, over a four year period of championing the cause of Consumers; a well kept public secret.

Imagine that Barry took Mrs. Ram before the Tribunal ten times between 2004 & 2005 and won all. Not only that, after the tenth time, Mrs. Ram like she decide that she ain't coming back (brought her to her knees) to the Tribunal because there are no entries with any of her companies since then, so she got to be settling everything before it get there. A serious victory for consumers.

Moreover, just prior to his departure, Barry successfully argued a landmark case fitting for a good send off and for a job well done. This is Case No. 87: Kimone Phillips v Courts (Bdos) Ltd. where the facts of purchase or arrangement are not in dispute since Courts agreed to give a refund. The matter in question is, "What is a refund?"

What makes this a Landmark Case?
First, the Tribunal's record states, "At the commencement of the hearing in this matter, we were alerted to the fact that many of the local commercial enterprises and their representative body, the Barbados Chamber of Commerce and Industry, were anxiously awaiting its outcome. This is not surprising. The hire-purchase transaction, the subject matter of the dispute in this case, is a popular means of the acquisition of consumer durables in Barbados, and the enterprises which engage in such transactions are anxious for an exposition of the impact of the Consumer Guarantees Act 2002."

Second, the findings of the Tribunal States..." We are mindful of the advice of both counsel to the Tribunal that we should not seek to make law and, indeed, we are diametrically opposed to doing such. However, there are, strictly speaking, two senses in which we may speak of making law, and while we are not competent to make law, in the sense of passing a law (constitutionally a matter for Parliament alone); nevertheless, we are called upon in this case to make law in the sense of declaring, for the first time, what the law is in relation to the true nature of a refund after goods have been rejected in a hire-purchase transaction. We do so by seeking to ascertain the intention of Parliament as best we can."

Having only just got the website I will go through it to see if there are any cases which can serve as a precedent for some of the issues raised in this blog. The facts of this particular case are as follows:

The Facts
According to the complaint, Ms Kimone Phillips’s mother, Arlene, purchased on October 27, 2005, one (1) HP DV-1325 LA Notebook on behalf of the Complainant from the Respondent on hire-purchase terms. A deposit of $230.00 was paid immediately and it was agreed in writing that there would be thirty-five (35) further monthly payments of $193.00 and a final payment of $170.91. The total hire-purchase price, inclusive of the Courts Supa-Shield, was $7,155.91.

Sometime during August or September 2006, the laptop computer malfunctioned and, when it was taken to Courts’ Service Centre, Ms. Phillips was informed that the screen needed to be replaced. However, subsequent attempts by Courts to source a screen proved futile and Ms. Phillips was then instructed by the Respondent to return the computer accessories and to choose a replacement notebook.

When she attempted to do this, she was told further that if she took the replacement she had an option of 2 payment plans:(i) to complete the payment of the hire-purchase price over three (3) years; or(ii) to complete the payment in ten (10) months.Neither of these arrangements found favour with Ms. Phillips who then, in her words, “opted for a refund”.

The Respondent agreed to this, but insisted that a sum of only $1967.19 would be refunded out of the total sum paid to that date of $3729.52. The remainder, Courts told her, would be payment for the use she had enjoyed of the computer for the period of its retention.

Unwilling to accept this, Ms. Phillips reported the matter to the Office of Public Counsel where she was advised that “a refund is a refund of any money paid”. All reasonable efforts to obtain redress for her complaint having failed, the matter came on before the Consumer Claims Tribunal for a resolution.

The Decision
After arguments on both sides the Tribunal gave its decision in favour of Ms. Phillips. I leave you to imbibe the decision:

DECISION: It is the decision of the Tribunal that under the Consumers Guarantee Act 2002 there is no difference in the nature of the refund to the consumer on a rejection of goods which have substantially failed to comply with a guarantee whether these goods were acquired by means of hire-purchase or by direct sale.

We so hold for the following reasons in this case:
(i) We accept the statement of Gault on Commercial Law that there is nothing in the Act to suggest that there should be a pro-rating of the refund in hire-purchase transactions when goods are rejected.
(ii) We do not accept that the decision in Stephens v. Chevron Motor Court Ltd. compels us to conclude that the nature of the refund in hire-purchase transactions on the rejection of the goods is identical to that in direct sales transactions.
(iii) It is our view that Parliament had in contemplation the hire-purchase transaction at the time of the passage of the Act, given the definitions of “acquire”, “supplier” and “supply” in the Act and the presence of the provision in section 52 which stipulates a particular method for the assessment of damages in hire-purchase transactions.
(iv) While we recognize that grave injustice might result in certain cases if the literal and plain meaning of the refund provision was to be applied, such cases must from their very nature be rare, given the lapse of time between acquisition and appearance of the defect. This lapse might suffice to cause a loss of the right to reject or to present a difficulty for the consumer in establishing a causal link between the defect and the supply of the goods.
(v) In those cases where the lapse of time is not substantial, it might still be argued, as it was in this case, that the result of a full refund is unfair to the supplier. However, given our earlier stated view that Parliament must have considered the possibility of such a result and chose to abstain from statutory intervention, we would be patently guilty of attempting to do what Parliament was itself loath to do. This is not permitted to us. Parliament will have to be persuaded to change its apparent mind.
(vi) Based on the above, there is no argument which persuades us to deny the clear words of the provision and to hold that a refund in hire-purchase transactions differs in any way from the refund as defined in section 24(2).We ORDER therefore that the Respondent Courts (B’dos) Ltd. refund to the Complainant, Ms. Kimone Phillips, all those sums which she had paid to the Respondent in respect of the hire-purchase of the computer from the date of the transaction.
J. Cumberbatch (Chairman (ag.), Fay Lucas, Antoine Williams.

http://www.commerce.gov.bb/cct/cases02.asp?c=111

Barbados Consumers Watch - update

Hi All,

Last evening Annette and I produced a programme to update everyone about the developments at Barbados Consumers Watch - your blog making a difference to the lives of Barbadian consumers. The programme ran for 45 minutes and is recorded at http://www.ustream.tv/caritel
Look for the first programme - CARITEL TV - Consumers and BCW and click to view.
You are invited to email us your comments via
bdosconsumers@gmail.com
Consumers are responding, consumer agencies are responding ... get involved. Let's hear from you.

Hallam Hope

Some Issues with the Bank

Ever notice how when you owe the bank they just take it out of your account before they even give you notice? It could cause you some embarassment, but let's deal with the issue.

The issue is that nobody has a right to just take your money from your account. From my humble viewpoint, that is breaking and entering. It is like somebody breaking in your bedroom and finding your money and taking it because you owe them money. It does not work that way.

This is causing a lot of problems for people trying to use the banking system to conduct business. First, I find it difficult to understand why it should take three clear days to clear a cheque when the banks exchange cheques every morning at 8 a.m. at the Central Bank?

What makes it worse is that the bank will tell you three days but they will not tell you that they are not counting the day of the deposit, so when you check carefully it really takes five days. Yet by the morning after your deposit and at the latest the morning following that, the bank has your money, but would make you wait three extra days to collect it.

It gets even worser, if by chance one of your cheques reaches your bank on the fourth day, when for sure they have your money, they would charge you a Not Sufficient Funds (NSF) Fee or overdraft fee ($25 - $30) if you are depending on your deposit to clear that cheque you wrote two days after making the deposit, which somehow managed to get from another bank to your bank in a day.

So how it could take five days to clear for me but when I write a cheque to a supermarket that is going to deposit it in a bank that night, it only takes them a day to clear on your account? Actually, by the time you write the cheque on the third day, the bank already has your money but because the cheque came in before the dawn of the fifth day, you are penalised.

Worst of all, for that one thing you are penalised twice. First by the bank. Then the business to whom you wrote the cheque puts on up to fifty dollars; even more. But look how the bank gains; the bank put charges on you that wrote the cheque (after bouncing it for you) and then turns around and charges the business that deposit the cheque you wrote. So they induce a bounce and then dip their hands in their customers accounts.

I declare that the money in the bank in your account is "sacro sanctum" and should not be touched by anybody except the account holder and that every transaction which incurs a cost or "penalty" should come to the attention of the customer and he/she should sanction its withdrawal by signature before the financial institution can remove any funds from the customer's account.

Any business sends a bill and gives you time to pay. Why should it be any different with the banks? In the case of penalties, I have always argued that penalties should be paid into the consolidated fund. This is illegal from many perspectives, even if the banks want to declare that it is standard practice. In modern times when the probability of theft is always around the corner, it has to be illegal for anybody to just dip their hands into your money. It is not transparent and it offends the integrity of the security of your money.

Finally, anybody caught dipping their hands in your money should be reported to the police, charged and if convicted made to serve the same time and pay the same penalties as a person convicted of breaking and entering with the intention of theft. It is no different.

PLEASE FIND BELOW A PRESS RELEASE FROM THE FAIR TRADING COMMISSION DETAILING THE CORRECT PROCEDURE RELATING TO THE RETURNING OF BOTTLES.

MONEY FOR YOUR BOTTLES

The Fair Trading Commission has had to recently address a number of complaints from consumers relating to their ability to recover the deposit paid on drink bottles or “returnable containers” as the law properly definesstyles them.

At some point in time most consumers have had the experience of visiting a few of the various bottle return centres that provide the service of accepting returnable containers. The advent of these bottle return centres, have been associated with a number of different policies with respect to the return of beverage containers. For example, while some bottle return centres pay cash when consumers redeem bottles, others prohibit cash refunds and onlytherefore issue vouchers that contains terms that limit the time for its redemption. In any event, many consumers are in a quandary as to their rights when they return beverage containers.

The redemption of returnable containers is governed by the Returnable Containers Act Cap.295. The Returnable Containers Act applies to ‘redeemers’ who are the persons who demands the refund value of returnable bottles. The definition of ‘redeemer” comports well with the definition of ‘consumer’, therefore, a redeemer would be deemed to be a consumer under the Consumer Protection Act Cap. 326D.

The Returnable Containers Act requires every person, firm or corporation who engages in the sale of beverage containers to a consumer for off premises consumption in Barbados defined by the said Act as a “dealer” to pay to a redeemer, the refund value of a returnable container of the type and brand sold by that dealer. The only circumstances therefore in which a dealer can refuse to accept a returnable bottle is where they do not sell the type of container which the redeemer seeks to return, the container is decomposed, cut up, contains a significant amount of foreign material or if it is a container for which no refund value is fixed by the act.

Bottle return centres are also required to give to redeemers refunds for returnable containers under the Returnable Containers Act which states that

A dealer shall accept at his place of business from a redeemer any
empty beverage containers of the design, shape, size, colour,
composition and brand sold by the dealer, and shall pay to
the redeemer the refund value of each such beverage container.

The Act states that the refund value of each beverage container is twenty cents for every glass container and ten cents for any other type of container. Therefore, in the circumstances where a consumer requests to have the refund value of the returnable container in cash and the dealer refusesd to do so or to give the refund in any form other than cash, that centre would be acting in contravention of the Consumer Protection Act for misleading consumers of their entitlement to a cash refund with respect to returnable containers.

Additionally, the Act imposes no time limits on the redemption of refunds. Therefore, it would appear that an attempt by a dealer to limit the time for the redemption of refunds may amount to a contravention of the Consumer Protection Act as this may amount to an unfair contract term,. Also, tThis conduct may be likely to or may mislead or deceive consumers that they have a limited time in which they can redeem the vouchers for returnable bottles.

So with this A prpractice of giving a redeemable voucher instead of a cash refund, some has sprung up where certain bottle return centres do not pay cash but give the redeemer a voucher redeemable at a named business place. Bbottle return centres benefit from issuing vouchers because they determine the time frame where the vouchers are redeemable. In such casesAdditionally, dealers benefit every time a consumers loses their deposit as a result of the expiry of the time limitation. Therefore, these facts suggest that there is a significant imbalance in the rights of the supplier and the consumer to the detriment of the consumer.

Under the Returnable Containers Act bottle return centres are required to pay cash to redeemers when they return containers. If they fail to do so, they infringe the Returnable Containers Act as well as the Consumer Protection Act. It should be noted that the Ministry of Environment is responsible for the specific enforcement of the Returnable Containers Act. The Consumer Protection Act can however address the return of beverage containers because Part II and III of the Act this Act is are infringed whenever the scenarios outlined above, occur.

Persons who infringe the Returnable Bottles Act and the Consumer Protection Act may be liable to a fine, imprisonment or both. Consumers should mindful of their rights when seeking to redeem returnable bottles and in the event that they suspect or believe that there has been an infringement of the Act, they should contact the Commission with any questions or queries that they may have. If you have any comments or queries regarding this or any other matter relating to utility regulation, consumer protection, or fair competition, please contact us at 424-0260,421-2382 or email: info@ ftc.gov.bb,

Budget and ICT policy

Friends,

Information and Communications Technology Policy has been recognised by governments globally as beng fundamental to addressing the world's most pressing challenges. For example, poverty (and jobs) are among the priorities identified by the Millennium Development Goals and ICT policy is regarded to have an underpinning role in tackling poverty etc.
I might have missed it.
But did ICT Policy appear once in Monday's Budget presentation?
It is out of ignorance, I submit, that ICT Policy is regarded by some, even those would should know better, as a back-burner to "more pressing issues" such as education, tourism and agriculture.
Rather, it seems to me that inherent in any failure to recognise the real value of ICT Policy is a lack of understanding of the subject. It's about jobs not computers, about more modern ways of delivering education, and yes it is also inextricably tied to tourism, agriculture and the hgh cost of living.
So did I miss the word and reference to ICT Policy in the Budget?
Publicly and privately it was raised with specific recommendations at the highest levels prior to the Budget presentation.

Hands off Pre-Paid Accounts

The National Budget provision to collect $4.00 from each cell phone should exclude pre-paid accounts. Pre-paid customers pay a higher rate than post paid, even though paying in advance.
Paying in advance is a premium to providers because it helps them with their cash flows, whereas they have to wait for payment from post-paid customers.

These premium customers are not treated with any hospitality. In most business practices the premium customers are the ones that get the discounts. Why is it the opposite for the Premium customers of the cell phone providers; i.e. the ones that pay in advance? Furthermore, when their debits expire they are abruptly cut off even if on a call.

The household survey published by BANGO in November 2007, http://www.igloo.org/bangoonline/download-nocache/Library/telecomm/survey1spe, found that 97% of the low income community have pre-paid accounts. A look at the market summary below will show that pre-paid customers are already saddled with 57% more charges than post paid customers for the same unit of time.

Market Summary – Cell phone rates

Average daytime rate
Pre-paid - 0.55 cents
Post-paid - 0.35 cents

Average early mornings & Evenings
Pre-paid - 0.50 cents
Post-paid - 0.35 cents

Late nights & Weekends
Pre-paid - 0.45 cents
Post-paid - 0.35 cents

Considering this extra burden on pre-paid accounts, it is only fair that any levies on cell phones for pre-paid accounts should be placed on the cell providers, since, seemingly, they are already collecting largesse from pre-paid accounts.

CELL PHONE CHARGES AS PER BUDGET

I am concerned. Can someone please tell me how the $4.00 charge will be imposed. Are we as customers to depend on Cable and Wireless to tinker in some way with the minutes available?

I hope not and will be keeping an eagle eye out to hear. I became even more concerned when I read in today's paper the below comment from a Cable & Wireless official:

"In terms of pre-paid, our engineers will have to look at how we can make adjustments and programming on our pre-paid platforms and in terms of having settlements," she noted.

Do we as consumers comprehend this statement. Lets talk about it and work out the possible reactions we as consumers should make to such an event.

Telephone Rates

It is an uncontestable point that the new way of charging consumers for telephone service should take account of Cable & Wireless' productivity. The Fair Trading Commission recognises this.
So why has the FTC neglected to do so in the sensitive area of residential telephone service in both the last ruling as well as the new ruling?
The productivity factor is used by the FTC for other services and yet there is no explanation why it has been excluded for residential services which affect the lowest income consumers.
Consumer advocates made a lot of noise about productivity when our views were invited prior to the new decision on rates. We complained that the original 7 per cent price control in the first decision was not transparent, had not been explained and was unjustified. In short, a nonsense which only served to shackle ordinary citizens with unjustifiably high rates.
The experts tell us that when a regulator such as the FTC is preparing rates under a Price Cap model "The proper choice of an X-factor (productivity factor) is critical for the long-term viability of any price cap plan."
So, for example, the use of a productivity consideration can result in price "reductions".
What usually happens is that if a company can increase its productivity beyond inflation then the consumer may benefit from lower rates.
So my concern is if the FTC can use prductivity as a factor in other services under the new Price Cap why can't it do so for residential service? Certainly every citizen would be pleased in these hard times to know that at least their basic monthly telephone bill is lower than previous years. If we read the new decision carefully the FTC agrees that the company's productivity gains were higher than anticipated.
Would this not suggest that the compounded 22.5 per cent increase in rates over the past three years was a bad decision?
The FTC has never explained why it chose seven per cent and after the initial period of a freeze in the new rates Cable & Wireles can charge a maximum of 4.5 per cent annually. Again, no explanation for this figure although we believe it is related to projected inflation rates.
The overall decision suggests that a lot of work has been done by the FTC and its consultants.
What is in question is whether in the case of residential rates the consumers are getting a fair deal.
What do you think?
Hallam Hope

Public Counsel is a Public Consumer Advocate

I would encourage readers to take a good look at the office of Public Counsel. We have been advocating for the staff of Public Counsel to be increased so that it could handle a larger work load.

The office of public counsel is outfitted with an attorney-at-law; an investigating arm; and within its mandate is the responsibility to educate the public.

Consumer Protection: The role of the Office of Public Counsel in consumer protection matters includes:(a) advising and educating consumers generally on matters relating to the proposed Consumer Guarantees Act; and(b) representing individual consumers bringing civil claims under the Consumer Guarantees Act before the Fair Trading Tribunal where Public Counsel deems this necessary or desirable.

Where a consumer believes that a right that he has under the Act has been breached he may refer the matter to the Office of Public Counsel who may, mediate on his behalf with the person whom he believes has breached those rights. If no settlement has been reached the matter may be referred to the Consumer Claims Tribunal and Public Counsel may also represent the consumer before the Tribunal.

Public Counsel is the only Pulic advocate that exists.

Compenstion in a vehicle repair dispute

Most mechanics I have come across are honest. But there are always those who would aspire to making a quick dollar at our expense.
I was approached recently by a lady who has just lost her husand and believes she is the victim of a scam. It appears she had paid a mechanic to buy and install a part on her car which he never did but attempted to get the vehicle partially overhauled. The bottom line is that the car broke down and had to be returned. So she paid 1,500 dollars for a job and then had to look for more money to pay this dishonest chap.
Is this a Fair Trading Commission matter or a dispute for the Office of Public Counsel?
In either case she is taking the correct route of going with an other mechanic to see if she can get back her money before taking it further.
My advice to her was that in the event of a small claims disoute which she and the mechanic cannot resolve her option probably would be the Office of Public Counsel. But that she should check with the Fair Trading Commmission to confirm this.
If there is a positive spin to this it is that she is prepared to see to it that her rights are not trampled on.

Hallam

Roaming Charges

One of the key tools to enjoying the benefits of free trade is the ability to communicate in its many forms. It would seem to me that everything is being done to undermine any benefits that may accrue to us as part of the global village.

Although I was swept away when I found out that roaming is as much as $2.94 per minute, I was not surprised because it is true to form; a fleecing of the Caribbean people. Slavery ain't done! They make you sweat for it and then take it with ease, making super-profits.

This price is nearly six times the cost of an international call by card. Why? These carriers are terminating their calls on their own networks for which they already earn the profit at $0.60 per minute. Yet, in the USA, which can hold the Caribbean from end to end many times over, roaming is free. What does this say about how these providers see us? In return for consumer patronage, what are they giving to regional integration? I see, they are targeting the foolish ones who don't check their phone bills and even those who do check but are so affluent-minded that they pay nevertheless.

To tell the truth, guys, you affluent have a duty to those less fortunate to object to such high charges and to yourself that would allow you to save and have a bit more that allows you to give more to the poor. Have a heart, all we ask you to do is complain. Give back to the communities where you came from and left the most unfortunate.

Re: Consumer Question

Here is a letter received from a consumer and the answers from Consumer Watch are in Red

On Wed, Jul 2, 2008 at 12:33 AM, Bajan Habab wrote:

I have a couple questions..

I enter a supermarket and purchase a bottled drink for $2.00 at the cashier I am reminded that there is a $0.25 deposit on the bottle, which I pay, search for a bottle opener drink the beverage and take my medication. I then approach the cashier to return the empty bottle and collect my deposit. I am told I will have to carry it to the bottle place outside the next day, this is confirmed by the supervisor/manager in charge.

1) Why am I required to pay a deposit on the bottle?

This is part of the cost of the drink. The cost of the drink should include the deposit. If it does not then there should be a sign in the store indicating that the cost of the deposit on drink bottles is x cents.

2) Why having paid the deposit to A, should I be required sell the bottle to B to get some money back?

You are not . According to the laws of Barbados , the establishment is required to refund you the deposit.

3) If B purchases my bottle for 20cents, and not the 25cents deposit which A forced me to pay, can I force either A or B to pay me the 5 cents difference?

No. What ever is the stated cost of the deposit by the manufacturer is the legal cost of the deposit. However, this is if the refund is done at a retail outlet and not one of the "Bottle Companies" that can be found in some parts of Barbados. A bottle company being a company that deals in bottles i.e. the company does not sell the product.

4) Is A not breaking some sort of agreement with me or some law by refusing to give me back my deposit?

Yes , A is breaking the law

I know it seems small but if the corner shop charges me 25cents deposit and I consume the drink and return the bottle they give me back my deposit.

5) How is a supermarket different? What rules if any apply to the corner-shop that don't to the big boy?

A supermarket is not different. The law stipulates that as long as the establisment sells the particular product, then that business house is required to refund the bottle deposit.

If I visited the same establishment with a bottle, purchased the same beverage and present the bottle which I brought with me to the cashier when the deposit is requested.

6) Would they be correct to refuse to accept the bottle, Must I pay the deposit?

If they are charging the deposit for the drink, then if you take the bottle then you don't pay the deposit.
As a matter of fact , the practise that some supermarkets and retail outlets have of indicating that they cannot give you cash, they can give you a credit note or that you have to purchase items equivalent to the refund is also illegal,

The fact that this happened struck me as odd, so I'm seeking some clarification


Hope that the information was helpful ..Spoke to an officer at FTC and she was extremely helpful..The answers from Consumer Watch are in red ink.

Cheers

Bdos Consumer Watch