A father and son have successfully won a legal battle against Apple after it refused to refund a £540 charge for a gaming app that described itself as free.
John Greenwood, 56, a magazine editor from Dulwich, southeast London, faced legal threats from the tech giant’s lawyers after realising that he had been charged £6.99-a-week for a shooting game app between July 2018 and March 2020.
John had lent his iPhone 7 Plus to his son Lukas, who was then 12, to pass the time in a waiting room. Lukas, a maths scholar who knows he is not allowed to play games that cost money, downloaded an app called Sniper Shooter.
Sniper Shooter is still live on the App Store
It was advertised on Apple’s App Store by a company called Fun Games For Free.
The App Store requires a login through John’s iTunes account, which is in turn linked to his NatWest current account. Sniper Shooter, which is still live on the App Store, said on its description page that users could “enjoy hours of fun for free”, and there was no upfront charge for downloading the app. Lower down, on the same description page, it says that Sniper Shooter has a VIP subscription that gives access to multiplayer matches. The game promised that players could accomplish extreme missions and mini puzzles. Lukas downloaded the app and, at some point while playing, triggered a £6.99-a-week subscription service to Sniper Shooter VIP. John was sent an email confirmation and Sniper Shooter’s weekly charges appeared on his account as a £6.99 bill described as an Apple invoice. John says the bank account had other outgoings on it of a similar value. “The invoices went into a Hotmail account I barely look at,” says John. “I have three online bank accounts that are clogged up with bills. I didn’t notice the charge. My son knows not to download anything that costs money.” John complained to Apple via its online chat in March and says he was told that although the app was free, customers were charged for a subscription within it. He says Apple admitted that charges might not be mentioned in the app, but would be included on the description page of the App Store. It explained that without the subscription you would not be able to use the game within the app. The US tech giant offered John a refund of £62.91 of the £540.73 that John said had been taken from his bank account. At that point John decided to sue Apple, which has offices in the UK but also subsidiaries based in Ireland and the Netherlands. John asked for a contact for a legal representative in the UK, but was directed to Apple Distribution Limited, based in Cork, Ireland, because that was where their legal department was based. This created a complication. It is normally possible to make what is known as a money claim. This is a specific small claims court service that looks at contractual consumer problems worth redress of up to £100,000, but the company’s address has to be in England or Wales. The cost of filing a claim online starts at £25 and increases in line with the size of the amount being claimed; a claim for £100,000 would cost £4,500. Filing a small claim in Scotland costs up to £5,000 and up to £3,000 in Northern Ireland. You get these costs back if you win your case and you do not have to pay the defendant’s legal fees if you lose, unless it can be proven that you were behaving unreasonably, such as by pursuing a clearly spurious claim. The downside is that you cannot claim other costs, such as for time spent dealing with the case or for stress. Because Apple Distribution was based in Ireland, John was forced to file a full court case, which was heard at Wandsworth county court, over the phone owing to coronavirus restrictions. Apple’s legal representative, SCS Law, which specialises in debt collection and is based in Canary Wharf, London, wrote to John in April, saying that his legal claim was “doomed to fail”, adding: “You (or your son) were made aware of the subscription service before using the app and went on to download and use it.” John contested this. He said: “I was clearly lured into a contract without my knowledge, and the way the Apple Store is set up allowed me to unknowingly hand over my money. I’m not sure how many other parents have been caught out by this scam, but Apple’s threats would surely put most people off challenging the charges through the courts.” Apple argued that John had been sent 77 invoices and that he would have seen a pop-up inviting him to start a three-day free trial subscription, which would then automatically renew into a weekly paid subscription. UK law requires onerous contract terms to be brought expressly to a consumer’s attention. Such terms may include very high charges for a small service. John argued that the £6.99 weekly charge wasn’t made clear to him when his son downloaded the app, even though Apple later sent him email invoices. Crucially Apple also admitted it did not keep a copy of the contracts because a log of the invoices was deleted after 25 days. Under UK law contracts have to be kept for six years. The day before the case, on November 17, Apple emailed the court, copying in John, with a £1,038.34 bill covering legal fees, complete with a timesheet for one of its lawyers, charging £165 an hour, excluding VAT. Apple did not say in the email that John would be liable for the costs. However, in the letter sent to John the previous April, Apple had threatened to pursue John for costs if he went ahead with the case, saying: “We invite you to discontinue your claim [...] if this is done, no application for costs can be made.” At a phone hearing on November 18, the deputy district judge decided Apple should refund the £540.73 and pay £140 in court costs. Apple has now paid the sum to John. Apple relied on there being a legally binding contract between the company and John, but it was up to the court to decide whether it was fair to make him pay, explained Liam Waine, a consumer contracts expert at the law firm Stephensons.“If things go wrong, firstly try to agree a refund with the company,” he said. If an agreement is not reached between the parties, a court would need to decide whether a contract existed in the first place, and if so, whether it had been breached by either person. “You would need to show why the term was unfair, for instance, was it transparent and prominent and brought to your attention before you entered into the contract?” he said. The Consumer Rights Act was introduced in 2015 to include digital content, such as gaming apps, while people are also protected by the 2008 Consumer Protection from Unfair Trading Regulations, which give added rights against misleading and aggressive practices. The case highlights a gulf in consumer law, however, that makes it all too easy for internet companies to take money from people’s bank accounts without them noticing, said Martyn James, a consumer expert from the complaints resolution company Resolver. Apple said the decision was disappointing and that charges were made clear to customers when they download an app, as well as in invoices on email. It said that invoices are not contracts, so would not need to be kept for six years.