You CAN submit a claim against TiVo (UK) Ltd for loss of service

Discussion in 'TiVo Series 1 - UK' started by rwtomkins, May 9, 2011.

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  1. Heuer

    Heuer New Member

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    Mar 15, 2004
    Nottinghamshire

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    That is the really big flaw in rwtomkins action - you can't seek compensation for the threat of loss some indeterminate time in the future. You have to suffer a loss and then proceed to court.

    If TiVo Inc were to send out a system message saying they were changing their EPG provider to AltEPG with a link and instructions I am guessing that would weaken any action even further. They may even upload the new dial prefix when there are enough lines and modems and could be the reason they have not yet discontinued the service. If that happens there are going to be large slices of humble pie to be eaten by some!
     
  2. orangeboy

    orangeboy yes, I AM orangeboy!

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    I don't see that happening. Any action on TiVo's part to alter the dial prefix to use AltEPG would seem to go against the VM agreement where VM would be the exclusive provider of the "official" TiVo Service. An action by TiVo to change the dial prefix may be construed as an "official" TiVo act. TiVo looking the other way and allowing the AltEPG project to exist in an "unofficial" capacity seems pretty generous on TiVo's part. I just don't see TiVo endorsing AltEPG, or even publicly acknowledging it's existence.
     
  3. rwtomkins

    rwtomkins New Member

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    Jul 14, 2003
    Lots of good points here but just quickly on this one:

    It may sound fanciful but the way I see it is that it's a case of asymmetric risk. I've spent almost no time or money on this and have nothing to lose by going to court except my time, which I wouldn't count as a cost because I'd enjoy it, and the very small court fee that I've already paid. TiVo on the other hand can lose a lot: in a worst case scenario it could be ordered to pay this claim and could then face other claims and/or the possibility of a claim on behalf of all UK lifetime subscribers who I believe numbered 12,000 as of last September (source: BSkyB.). That is just a worst case scenario and the risk of it occurring may not be high but nevertheless you would think that TiVo would probably need to take legal advice on ways of limiting or eliminating that risk and that in itself will represent a cost in legal fees that will be far greater than mine. The asymmetry arises from the fact that it matters to me relatively little whether I win or lose this claim but it could matter to TiVo quite a lot.

    On the other points: yes, I would think my case would look pretty weak if TiVo were still operating the service but then I'd just renew the claim the moment they withdrew it. If they changed their minds and undertook to continue the service, then obviously I'd have no claim at all and would be absolutely delighted! The same applies if they formally moved us over to another provider but I wouldn't count an unofficial service that was just being done for fun by hobbyists and that could disappear overnight even assuming it was legitimate and worked properly. (No offence to AltEPG intended - I haven't looked into AltEPG and don't know anything about it.)

    Oh yes, and LarryDavid, was there no one in when the letter arrived? Good point but I did check and TiVo UK's registered address is a firm of lawyers who handle all communications on the company's behalf. They can't ALL have been hiding behind the sofa when the postman arrived!

    I'm really baffled as to what TiVo will do. They can't risk losing this claim but they certainly won't want to be dragged into court to defend it. So I think, if those highly-paid lawyers are going to earn their fees, they will have to pull something unexpected out of the hat - contesting the court's jurisdiction, maybe?
     
  4. Trinitron

    Trinitron New Member

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    I would go for ignoring you as favourite, they could always appeal if the court came up with a possible precedent in your favour. Look at the meanderings of the bank charge challenges - some banks just ignored early cases because it was cheaper to pay up.

    Jurisdiction could well be the next likely challenge, but that is very shaky given that the original agreements were under E&W law and it was only changed to California later. The problem there would be how easy it is to challenge correctly without proper legal representation.
     
  5. Pete77

    Pete77 New Member

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    If a matter is handled in the County Court as a Small Claim then if you lose your claim you only lose your application fee and do not have to bear the other side's costs.

    I do however think it would have been wise not to file the claim until Tivo had actually discontinued Lifetime Service, although we don't know for sure that the Service being discontinued is not directly due to this claim being filed.
     
  6. rwtomkins

    rwtomkins New Member

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    Agreed, though in your last sentence, I'm not sure if you mean the problem for them, or whether you mean the problem for me would be challenging their challenge (!) without proper representation.

    Yes, it would have been a lot clearer if I'd said that! Thank you.

    That's certainly true, but I couldn't have known they weren't going to end the service on the promised date and I wanted to get the claim going while this forum still had an audience.

    I suppose it's a very remote possibility but honestly, I think the most likely reasons have already been explained in other threads.
     
  7. martink0646

    martink0646 New Member

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    Hi Guys,

    You're all overthinking this. They will do absolutely nothing!!! AIUI & IANAL, the plaintiff will be awarded the amount he claimed for & then it's up to him to chase it. TiVo UK will then be sent a letter from the court & given a set time to respond, 28 days I think. If they do not respond within this time frame a county court judgement will be issued against them. The plaintiff will then have a judgement in his favour & this will enable him/her to chase the money, usually by sending letters, from himself and/or from a solicitors giving TiVo UK a reasonable time to pay the money.

    If they don't respond within the time laid out, the next step will be to appoint bailiffs to recover the money. The bailiffs will turn up at the registered address & try to gain entry. If no-one is there then that is that! Full stop! The next step would be to use a solicitor to issue a winding up petition but it will never get that far due to the enormous cost.

    The main reason TiVo UK will do nothing is because when the judgement is entered it isn't entered as any form of precedent allowing 'all' the other TiVo users to sue, it will be entered as a no contest judgement. Every claim starts at zero. The only time any precedents will be set is if TiVo UK DO respond. That is why, IMO, they won't.

    I used to be in a position to see Credit Records including CCJ's of all incorporated companies. You wouldn't believe how many judgements companies like BT have registered against them........hundreds! Unlike you & me, a CCJ means very little to larger companies because their credit score is decided by ratings agencies & they are not going to be downgraded for any number of small judgements against them. Anyone who is particularly tenacious will quietly have the judgement paid but a lot of them, I am sure, do not.

    Martin
     
  8. martink0646

    martink0646 New Member

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    Hi Stuart,

    I'm pretty sure that the court won't 'decide' i.e. look at the facts & make a judgement. If TiVo UK don't respond, a no contest judgement will be entered & the full amount of the claim awarded. The plaintiff then has the problem of collecting (see my previous post).

    Martin
     
  9. shwru980r

    shwru980r Well-Known Member

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    If the court does consider the facts, then they will have to define the duration of 'lifetime'. I doubt the court will decide that lifetime means forever. Since the major point of failure on a Tivo is the hard drive, the court could look for literature from the hard drive manufacturers that details the life expectancy of a hard drive from the period your Tivo was manufactured. The court could easily say that the lifetime of your Tivo has expired.
     
  10. TCM2007

    TCM2007 New Member

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    Thanks Martin, I didn't realise that.
     
  11. rwtomkins

    rwtomkins New Member

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    Jul 14, 2003
    Very interesting post. However, as you say, if I ask for a warrant of execution the bailiffs will be sent to the registered address to collect. You say "If no one is there..." but someone is there - it's a firm of lawyers who represent the company. While I suppose they could simply refuse to pay up they would be getting themselves deeper and deeper into a situation where many people would consider they were in danger of looking disreputable. This is only hypothetical of course since hopefully it won't come to this.

    It's interesting to compare the case of BSkyB. Initially I made my claim against BSkyB because I didn't know TiVo (UK) Ltd was still a registered company in the UK. BSkyB evidently believed it had a strong defence against the claim and accordingly entered a defence in which it denied liability. A date for the court hearing was set and no doubt BSkyB would have attended and argued its case. But then I discovered that TiVo (UK) Ltd was still a registered company in the UK and dropped the claim against BSkyB to claim against TiVo (UK) Ltd instead.

    The point is, if a company thinks a claim is unjustified and is confident that it can show this to be so, you would expect it to do as BSkyB did and defend the claim. Just ignoring a claim may not be quite the same as an admission of liability but it certainly carries that implication.

    For both these reasons, I think there's still a possibility they may fight this. But they have expensive lawyers and I don't, so it's still a hard one to call.
     
  12. Superdon

    Superdon New Member

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    Jun 25, 2004
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    I'm not professing any knowledge other than what I just googled.

    From the government's own website about bailiff's rights, it seems they can force entry for an unpaid magistrates' court fines but as a last resort (doesn't say what they can or have to do beforehand).

    Link to Government Website

    I would guess though that the bailiffs can't force entry to the solicitors' offices as the debt is nothing to do with the solicitors. Presumably TiVo UK has nothing but a "brass plaque" on the front door and no office space, so nothing to enter and nothing to take away.

    As posted earlier, TiVo UK will just have an unpaid CCJ against its name.
     
  13. Steve_K

    Steve_K Member

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    May 5, 2001
    Sussex, UK
    Well now that they have cut off the service, at least that uncertainty has been removed from your claim rw

    To me the best hope now is they don't defend, don't appeal within the (14 day?) limit, then realise just what a winding up order would do to their share price on the Nasdaq, cough up, realise too late that word spreads on t'internet and get really worried.
     
  14. Trinitron

    Trinitron New Member

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    If anyone is serious about wanting to get some answers from TiVo, Inc. they should buy some shares (one is enough) and get over to the next shareholders meeting.
     
  15. martink0646

    martink0646 New Member

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    The bailiffs will have a warrant to enforce against TiVo UK, not, a firm of solicitors. They will just say "it's not us" & there won't be a thing they, or you can do about it sadly. It's not that they will refuse to pay, they will just do nothing about it! The solicitors will send the letters off to Alviso (probably charging them more for that legal service than your claim) where it will be filed in all likelihood in the bin.

    They won't be getting themselves "deeper & deeper" into anything as it will be a total non-issue for them. The only way they could look disreputable is if someone (probably you) can get it publicised, but I really don't think there enough interest out there. As I mentioned in my previous post, v.well known companies such as BT who are very much in the public spotlight have plenty of ccj's against them & their reputation doesn't suffer.

    It doesn't really matter whether they feel the claim is unjustified or not. In this case they actually have more to lose by contesting it. If they do contest it then they have the possibility (probability?) of losing. If they don't contest they lose nothing. let's not forget, this is for all intents & purposes a shelf company that's doing the minimum possible as per the regulations to stay incorporated. They could wind it up at the drop of a hat with no loss to them.

    As above, don't hold your breath. I will be absolutely amazed if they contest this. It will be a coin toss as to whether they ignore it completely or just pay you off. If they pay you off within the set timescale (28 days?) the judgement isn't even entered against them.

    I actually think that if they do contest it you will probably be awarded your claim. I am not getting into the argument over the rights & wrongs, I just think the local magistrate would probably award your claim. Let's be honest, TiVo aren't going to send any expensive lawyers to contest anything in small claims court. They'll send a written defence & the magistrate will decide one way or the other.

    From reading your previous posts I am assuming that this action is more about the principle than the money. Unfortunately for you, the route you have taken in using the small claims court means that you are unlikely to get satisfaction i.e. your day in court. The way to ensure that was to claim an amount large enough that they couldn't ignore, but that would be next to impossible because in the UK 'Exemplary Damages' (Punitive Damages) "cannot be awarded in respect of breach of contract in any circumstances" http://legal-directory.net/english-law/contemptuous-aggravated-and-exemplary-damages.htm

    I hope you get some satisfaction from all of this, just don't spend too long chasing it. Good luck.

    Martin
     
  16. rwtomkins

    rwtomkins New Member

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    Jul 14, 2003
    Well, prepare to be amazed because today there's been the first big development - they have issued an acknowledgment of service! This apparently means they are actually going to contest the claim and have asked for more time to prepare their defence. In effect they get another two weeks by the end of which they are required to either "file a defence or contest the court's jurisdiction," according to the letter I received from the court.

    So now we're back into waiting mode again. By all means try to guess what will happen next. However, I'm going to be even more cautious about discussing the case from now on - I know it's only a small claim but I don't know whether the sub judice rules apply and I'm not going to take the chance.

    Thanks very much, Martin, I really appreciate that. Don't worry - the only thing that's taken any time at all so far is writing these posts!
     
  17. TCM2007

    TCM2007 New Member

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    Sub judice comes in once a court date is set, however it's hard to see how anything you post here could be prejudicial to the court hearing.
     
  18. CouchPotato

    CouchPotato Edible Starchy Tuber

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    I think this is actually good news as it means hopefully the issue gets settled once and for all. And I also think you summarised it quite well in an earlier post. The terms of service quite clearly stated that Tivo could end service at any time. From what i gather you don't dispute this:

    First point I'd make is that to me it's not obvious (on any legal basis) why there's a need for compensation. No such was mentioned in the TOS which we all agreed to.

    However, even if compensation is payable, then surely the amount must be decided by comparison with what you would have paid for comparable service in monthly subscription mode. Any purchaser of Tivo was making a decision - do I pay £200 up-front and hope that the company doesn't go out of business; or do I pay £10 a month for as long as it remains in business.

    [Full disclosure - I chose the latter and have paid my £10/month since late 2002 (and the corresponding $10/month when I lived in CA prior to that)]

    So,if you've had more than 20 months' worth of service then you're not entitled to anything if and when the company decided to cease service (which you agree they're entitled to do).

    Seriously, you made a bet and you won - congratulations! I'm really struggling to see what you're so upset about...

    (And please don't take this the wrong way - I'm not having a go at you, just really struggling to see why you feel hard done by and what you feel entitled to...)

    cp
     
  19. martink0646

    martink0646 New Member

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    I am actually very surprised. I think it's a bit of a daft move on their part but good news for you, you'll now be able to get the satisfaction of an answer. I still don't see them actually sending solicitors to court but it would be fun to see if they do!

    I'm not going to get into the rights & wrongs of this as I have a foot in both camps, i.e. I think TiVo have served us incredibly well down the years & I don't think they have done anything wrong legally & it seems a bit of a shame for them that it has ended up with them being sued. But f*** me, they could have handled it sooooo much better with a few simple e-mails & forum posts, explaining the whys & wherefores. I almost want to see them lose in court because of the incredibly amateurish way they have handled their PR.

    Speculation Alert


    I'm going into Pete77 mode a bit here but I can think of a couple of reasons why they would contest this; there have been quite a few claims made or it may be something of a dry run for stopping S1 service in the US. Again, please don't bite it's pure speculation.

    Martin
     
  20. Trinitron

    Trinitron New Member

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    You're entitled to your say (and FWIW I agree with you) but everything you have said has been debated ad nauseum in this and other threads. I suggest you read them then sit back and wait for the next step in the court action.

    I for one don't want to wade through pages of arguments again from both sides!
     
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