A small claim that fell out the window

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The Independent Online
THIS IS a very odd story of nuisance calls, the small claims court and the erratic behaviour of a small part of one of the biggest companies in Britain.

The company is the Bowater group, which has a subsidiary called Zenith Windows, and the victim is Brian Potts from Norwich - although victim is really the wrong word.

Mr Potts, a single parent who works as a psychiatric nurse, is well used to standing up for his rights. But this time, through no fault of his own, he lost out.

The one thing Mr Potts does not need is double-glazing; he had his house completely double-glazed only two years ago. So when a local company called Zenith Windows phoned him up out of the blue last Easter and asked if he was interested in buying double-glazing, Mr Potts said no.

Zenith did not give up. Over the next few weeks its representatives continued to call Mr Potts, even though he asked them not to. Eventually, he warned Zenith that if its representatives persisted in contacting him, he would charge the company pounds 25 per call.

Unfortunately, this seemed to make little difference. So when he received another Zenith call, he sent the company an invoice for pounds 25 along with a letter explaining that his charges had now increased to pounds 100 a call.

This did produce a response: Rodney Dalwyn-Jones, Zenith's marketing promotions manager, wrote back and apologised for the unwanted calls and promised that the company had taken 'positive steps' to ensure he was not contacted again. Two weeks later, he got another call.

Mr Potts then decided to carry out his threat. He sent a small claims court summons to Zenith for the pounds 25 he felt it now owed him. Mr Dalwyn-Jones replied to the summons, disputed the claim and said that Mr Potts's details 'have been removed from our records'. A few weeks later, there was yet another Zenith call.

And so, on 16 November, Mr Potts and Mr Dalwyn-Jones turned up at Norwich County Court to contest the case. The small-claims hearing lasted about 30 minutes. But just as the judge started summing up ('very much in my favour', according to Mr Potts), Mr Dalwyn-Jones intervened. He said the summons should not have been sent to him at Zenith Windows in Norwich - but to Bowater Windows in Solihull.

Zenith, Mr Dalwyn-Jones said, was just a trading name for Bowater Windows and he was not authorised to accept judgment on behalf of Bowater.

The judge ruled that the summons would have to be sent out again and the case heard again. And then something even stranger happened. Mr Dalwyn-Jones vanished off the scene, to be replaced by a group of solicitors acting on behalf of Bowater Windows.

They applied to the court with a request that the case be heard not at the small claims level but in the full county court. This was necessary, they said, because it involved a 'complex and novel area of law' with far-reaching implications for businesses such as Bowater. The judge who heard this application agreed with Bowater's solicitors: the case should be heard in the full county court.

For Mr Potts, this meant the end of his case, as he would be at a serious disadvantage in the county court without a solicitor. And if he lost, he could be liable for all Bowater Windows' legal costs.

So two weeks ago Mr Potts abandoned his action, though not before trying to find out exactly why Zenith's Mr Dalwyn-Jones had been leading him up the garden path.

This was when he discovered that despite writing Mr Potts several letters and turning up in court, Rodney Dalwyn-Jones does not exist.

As Bowater and Zenith eventually admitted, Rodney Dalwyn-Jones is a 'creation of the marketing department . . . It is normal in a marketing situation not to use real names to keep continuity and to personalise the marketing department. The procedure is used by many well-known companies'.

They added that 'there was no intention to deceive Mr Potts or Norwich county court'.

Perhaps not. But it is certainly very odd behaviour for a substantial company.

Mr Potts feels he has been badly treated by Zenith and Bowater. They told the BBC's Watchdog programme that they were sorry about what happened, though they refused to pay Mr Potts the pounds 125 he claims he is owed.

The irony is that they are probably right in law, if not in customer relations.

Keith Richards, a barrister at the Consumers' Association, thinks Mr Potts would have lost in the county court.

'It is very difficult for you to argue that you have a contract with a company just because you tell them you are going to charge them for ringing you up. There was no evidence that the company intended to enter into a contract for Mr Potts's services.'

People in Mr Potts's position should threaten a cold-caller not with the law of contract, but the law of nuisance. 'Then, if they phone again, take them to court, but do not put a figure on how much they owe you. It is entirely up to a court to decide the level of compensation you get.'

David Berry works for Watchdog.

(Photograph omitted)