I believe that in this case the complaints mechanism has been exhausted. @parvathyl has even approached the ombudsman, but of course they have no jurisdiction in these cases.
Legal action should always be a last resort. The pre-action protocols will ensure that giffgaff get a further opportunity to put things right before having to defend their position in the County Court.
However, there is an important point of principle here. If giffgaff assure members that they have put a system in place to prevent fraud, and members believe they have been defrauded as a result of a failure of that system, giffgaff have a duty to investigate properly.
I was particularly angered by this claim:
_kara_ We have done some investigations and have not been able to find any wrongdoing on the part of Wapstar from the cases that were referred to us.
It's a rather vague statement. If giffgaff didn't find a problem, how hard did they look? Did they see logs of the subscription process? Was there evidence that a PIN had been supplied and had been responded to?
If giffgaff has proof that the rules they introduced in May were followed in these cases (and that therefore the resulting charges are lawful), why was the evidence (of two factor authorisation ) not communicated to the complainants? This has not happened in any of the cases the payforitsucks website has dealt with.
It is simply not fair to members to force them to go to court to obtain this evidence (and the court will take a very dim view of this failure to disclose evidence).
There is a further reason for forcing giffgaff to disclose this information. There was a large cluster of complaints about this "service" in September and October this year. Try searching the forum for Wapstar and putting the results in date order. No other service has produced similar complaints since the new rules were introduced in May. Suspicion is also raised by the fact that this company has previously been fined for defrauding consumers. I believe that there is more than sufficient evidence to show that, on the balance of probabilities, giffgaff failed to enforce its own rules.
Was this company simply ignoring the rules? Or have they found a way of defeating the new rules? If it is the latter, then we need to find out what the mechanism was so that it cannot be used in the future, on giffgaff or any other network.
It has taken more than two years to reduce the flood of complaints about these Payforit scams from a flood to a trickle. We don't want the fraudsters to get the upper hand again!
It is unfortunate that the Payforit system offers no recourse to consumers, other than to pursue a case through the Small Claims procedure. There is no ombudsman or mediation service to consider these disputes, and the fraudsters take advantage of consumers fears of pursuing legal action.
However, in the experience of payforitsucks.co.uk, the Small Claims procedure is the best and fastest way for consumers to dispute the existence of a contract for a Payforit "service". It puts the burden of proof where it belongs in law. It avoids the suggestion that victims of fraud need to "prove they didn't agree to a contract". It isn't for them to prove anything. It is for the company to prove that the charges were taken as a result of lawful contract, freely entered in to by the consumer.
90% of such cases are settled when a letter before action is sent. Most of the remainder are settled once court papers are served. Very few cases ever go to a hearing.
As has happened here, companies often try to encourage consumers to follow protracted processes which offer little realistic hope of a resolution. They often do this in the hope that they will just give up, as many victims of this scam have. Three months is far too long!