Court Decision.

Episode 6

A (fast) moving story

Like all unfinished stories, you can never tell how they will continue, far less end. This one is no different. But there has been an important development: On Friday June 5th, I requested a copy of the document advising me that Ombudsman Services: Energy (OS) “…could not help [me] with my complaint” which BG had assured OS it had provided me (cf. Episode 4). Approximately four hours later, a BG agent responded to my enquiry thus:

“…[BG]  Is not able to locate the document you request but suggest that the Ombudsman might still retain a copy in their case file [sic].”

This is a very significant response to a request for a specific and important document. It is clearly important because BG could only suggest “…the Ombudsman might still retain a copy” if it had, in fact, provided OS with the document in the first place.

Of equal significance is BG’s tacit revelation that the functionality of its “data storage system” is less than 100% accurate: If BG considered the “document” to have been important enough to refer to it in an Appeal to OS - which was made with the stated purpose of having a formal Investigation stopped - it necessarily must have been important enough to file safely.

However, if BG’s position on this matter is “The document was fabricated by BG, and was forwarded to OS but cannot now be located”, that in itself would be of profound moment given Angus MacNeil MP’s assertion that over forty his constituents were refused access to its Sainsbury’s Energy tariff when they “called” BG to do so. Because BG’s response to that assertion by a sitting Member of Parliament was: “[It] could find no record of any of these calls.” This response, which was accepted, indeed relied upon, by Ofgem during a 2017 Investigation, clearly requires BG’s “data storage system” to be 100% reliable.  So If BG cannot “locate” a document as important as one which it used to support an Appeal to stop an OS Investigation, its claim to have found no record of any of Angus MacNeil’s constituents’ calling to access a more economic tariff cannot be deemed proof positive that no such calls were made. To do so would require separate interpretative logics to be applied to each case:

Case 1

 When no data relating to customer calls can be found, that signifies these calls were never made. (British Gas 2017

                                                        Case 2

When an important document British Gas produced and forwarded to OS cannot be found, that signifies the document is lost. (British Gas 2020)

…

So let’s recap: In March 2017, Angus Brendan MacNeil MP released a press statement which began thus:

“Between £600,000 and £1million a year has been overcharged on up to a thousand gas customers in Stornoway who have been wrongly denied access to the cheapest available tariff.”

That declamation was predicated on the MP’s claim that his constituents were being prevented from accessing the most economic BG tariffs which were available to mainland customers. Subsequent to the release of this statement, his office was, “inundated by calls from [his] constituents” complaining that when they had called BG to access the Sainsbury’s Energy deal, they too had been refused. Mr MacNeil informed Ofgem of the large number of his constituents who claimed to have been told by BG that, “Sainsbury’s Energy does not supply propane gas to Stornoway.” In response after having “investigated” the MP’s allegations, Ofgem apprised the MP thus:

“Our evidence review focused on customers who complained via your office that they had been denied the best tariff because of where they lived. However after listening to call recordings and reviewing contact notes held by Scottish Gas, we have not been able to identify any other instances of consumers requesting and being denied access to a Sainsbury’s Energy tariff…”

Ofgem’s “evidence review” as is implicitly revealed, depended on BG providing it with the call-recordings of the forty plus constituents who had contacted the MP. Not one single recording which BG provided Ofgem revealed any customer to have been denied access to a cheaper tariff.

The MP’s constituents, including those who chose not to contact him, but claimed they too had been denied access to BG’s cheapest tariffs, were not being truthful – because the calls which they claimed resulted in BG advising them that Sainsbury’s Energy did not “deliver propane gas to Stornoway” were never made. Had they been, BG would have “located” those call recordings.

Conclusion: It is no small matter that BG cannot produce information it should have in its “data storage system”. If BG forwards documentation to Ombudsman Services: Energy for the specified purpose of having an Investigation into an allegation that it was “withholding a certain tariff” from customers halted, that documentation is of consequential importance. Therefore, if in response to a request for a copy of that consequential document, BG states: “…[It] is not able to locate the document..” that raises legitimate questions as to its ability to “locate” any requested data. Including recordings of customer phone calls.

If BG, or any other company for that matter, can “lose” requested consequential data it would be simply outrageous if it (they) were allowed to dismiss that loss as unimportant whilst simultaneously claiming that its inability to find different, possibly incriminating, data is “proof” that it never existed. That would be the most explicit example one could ever find of “One rule for customers and a different rule for service providers”.

Addendum to Last Week’s Post following Newspaper Reports on Friday 12^th June:

As many of you will have seen in the Press & Journal and Daily Mail, the claims that British Gas had “won” a “court fight over blog posts.” What can I do but come clean? Completely clean too, so I have no choice but to reveal the extent of British Gas’ overwhelming victory by quoting Lady Poole’s Adjudication.   

What British Gas asked for:

“…The [British Gas] summons had originally been concerned with a blog post of 2 May and further posts entitled “Preface to Episode 1” and “Episode 1” posted on 10 May 2020 (together, the “initial blog posts”). Further blog posts were added by the minute of amendment: one entitled “Court Decision” posted on 14 May 2020, another entitled “Episode 2” posted on 17 May 2020 and a post entitled “Episode 3” posted on 24 May 2020 (together, the “new blog posts”).

[British Gas] sought an additional interim order for the removal of the initial blog posts and the new blog posts (my italics here and throughout).

What British Gas got:

Regarding the initial blog posts:

“In my opinion the pursuers would be likely to succeed after proof in their conclusion for an order of specific implement for the initial blog posts to be removed.

 I also find, narrowly, that the balance of convenience favours grant of the interim order for the removal of the initial blog posts”.

                                                

Regarding the new blog posts:

“…Are the pursuers likely to establish at proof that publication should not be allowed? It is to be noted that the order which the pursuers currently seek in relation to the new blog posts is for removal in their entirety. I do not consider that the pursuers would be likely to obtain that order after proof.”

…I have already noted the difference in character between the initial blog posts and the new blog posts. There is extensive text in the new blog posts which, in my opinion, and without prejudice to whatever may be decided by a judge after proof, is unlikely to be found to be unjustifiably defamatory…

…Accordingly I refused the order sought for interim removal of the new blog posts…”

                                                                                                            Lady Poole. 29 May 2020.

I have to admit, and I’m sure you, dear readers, will agree, British Gas’ overwhelming victory - as revealed above - is perhaps the greatest victory since Pyrrhus of Epirus “won” the Battle of Asculum nearly three hundred years before the birth of Christ.