EE.T-Mob.Orange. Change T&C From 26th March 2014

baldyj wrote: »

They do have a defence for Orange pre Oct 2012, See post #626. For some reason though (probably admin error) they have not submitted it for sshariff.

baldyj wrote: »

Hope Random Curve is up for picking holes in the 'defence'

• Tactic 1
  
  • Don’t tell them about their right to cancel -95% of the damaged avoided right there!
• Tactic 2
  
  • Dress it up as if it is in their favour (aren’t we nice) – 95% of the residual damage gone!
• Tactic 3
  
  • If they write or phone us regarding T&Cs we say we have not changed the price so they can’t cancel – another chunk of damage avoided
• Tactic 4
  
  • Refuse CISAS reference – most will get bored and go away, and besides within 8 weeks the prices would have been increased and they won’t know what to fight – another group of complainers will give up.
• Tactic 5
  
  • Make it sound as complex as possible to scare CISAS off and stop prevent a response to the defence – hardly anyone will dare take this to the SCC
• Tactic 6 (yet to be implemented)
  
  • Settle out of court last minute if anyone does go to the SCC as that way there is no legal ruling, and so unlikely to get picked up by the media.
    Absolutely superb text book stuff, made possible courtesy of Ofcom!
    
    

• Complexity
• Right to amend the contract
• Interpretation of Material Detriment
• The change is to my benefit
• Reasons for compensation
  
  And will also refer to some specific points in EES defence by Paragraph number.
  
  Complexity
  Throughout their defence EE have tried to assert that this claim involves complex issues of law, however as the contract is a standard form contract with a consumer there is a requirement on EE to ensure that the contract is not complex, and if EE have made it complex then this is evidence of EE not acting in good faith.
  To determine this dispute the following is required:

• An understanding of EEs T&Cs “old” and “new”
• An appreciation of the Unfair Terms in Consumer Contracts Regulations (UTCCRs), and
• A knowledge of GC 9.6 and USD 20/22
  All of which will be within the knowledge of an adjudication service tasked with adjudicating on disputes involving telecommunication providers.
  
  
  Right to amend the contract
  EE have referenced their right to amend T&Cs and this is not being disputed, however EE will be aware that with a fixed term standard form contract there are numerous legislative and regulatory safeguards to protect the consumer and just because EE has included Terms that allow it to change “T&Cs for any good reason” does not mean that these are necessarily enforceable,. Additionally as a Mobile phone contract the source documentation of regulation is the USD 20/22 which clearly states that a change in T&Cs must give the consumer a corresponding right to withdraw from the contract penalty free.
  
  
  
  
  .
  What does material detriment mean
  EE have made much that CISAS cannot determine what Material Detriment means in relation to a change in T&Cs and go onto to state that GC9.6 is also unclear. EE are therefore admitting that the term is not written in plain and intelligible language. As EE openly admit that the term “material Detriment” is not clear in relation to a change in T&Cs then the protection offered to the consumer under the UTCCRs it is clear (UTCCRs XXXXXX) that in such case the interpretation most favourable to the consumer should prevail. I have offered several interpretations that are in my favour, which are also supported by regulation:

• As the consumer only I can determine what is of material detriment to me
• Any change that strengths EE ability to enforce a price rise is to my material detriment
• Any change that reduces my scope for either avoiding a price rise or avoiding the remainder of the contract is clearly of Material Detriment to me
• The clause change would allow EE to apply an increase 58.8% higher than would have been the case (based on February CPI and RPI rates)
• There is a clear interpretation of Material Detriment in USD 20/22 which is the source of GC 9.6. That is that ANY modification to the T&Cs during the fixed term of a contract gives rise to my right to a penalty free cancellation.
  Therefore there is no need as EE claim, for a long drawn out complex legal argument over the interpretation of Material Detriment, if EE have chosen to use an ambiguous terms which is not written in plain and intelligible language in a standard form contract then the UTCCRs are clear, on the remedy – the interpretation most advantageous to the consumer shall apply.
  At para XX it is simply untrue that I have not offers thean alternative inflation statistic and for note the February 2014 RPI and CPI figures were 2.7% and 1.7%respectively meaning that the application of an RPI increase would be 58.8% higher than CPI increase a 58.*% increase is material in any construction of the word.
  
  
  EE claim that changes are to my benefit
  In various places throughout the defence EE claim that the change is to my benefit as it makes the conditions in which I can cancel my contract without penalty clearer, however what EE have failed to state is the by making this clearer it is EE who benefit as it reduces the scope for me to avoid the contract should EE try to implement a price rise, and EE admit as much at paragraph 24 This clearly means that I am in a weaker position in opposing a price increase than I was before and this is to my material detriment as (by EEs own admission at para 24) I have :
  Reduced scope for enjoying a price rise free contract as the scope for dispute has been removed and
  Potentially if a rate higher than CPI is applied I may have been able to escape my contract altogether – and therefore by not being able to escape I am likely to suffer a material detriment under the new T&Cs
  
  
  Reasons for compensation
  
  At Para 38 EE have tried to deflect my claim for compensation by claiming that my dissatisfaction arises purely from the fact that EE have refused to allow me to cancel my contract without penalty –this s factually incorrect. It is clear from this that EE have deliberately ignored the well laid out reasoning for my compensation claim and have not tried to refute the reasoning on a point by point basis – this is indicative of the approach EE have taken from the outset of this matter:

• EEs response to my initial letter requesting cancellation due to a change in T&Cs was responded to by an email claiming that EE have not increased prices – I have asked them to explain why they referenced a price rise in their response and ignored the T7C change, but they have refused to do so.
• EE have yet to explain under what Ofcom guidance they have acted – I have highlighted the guidance in my claim which clearly shows that the benefit of the change actually falls to EE as it makes the price rise clause more likely to be enforceable, but EE have never outlined the benefits to them (and have not in their entire defence as that would clearly show that the change is to EEs benefit and therefore to my material detriment)
• EE have assumed the right to determine what is of Material detriment to me- which the UTCCRs specifically bar them from doing. Additionally EE have never explained to me the criteria they have used to conclude that this is not to my material detriment (and indeed their defence at paragraphs 35-35.4 try to prove that the issue is too complex for anybody to understand)
  I therefore request that the adjudicator notes the real reasons that I am seeking compensation on this matter and treats EE claims at paragraph 38 as further evidence of EEs attempts to cause frustration over this matter,
  
  Specific Matters:

EE LIMITED t/a ORANGE
(formerly EVERYTHING EVERYWHERE LIMITED)
Respondent
DEFENCE

1. The Respondent denies that it is liable to the Claimant as pleaded or at all.
2. The Respondent is a mobile telecommunications network operator that enters
into Service Agreements with its customers to enable its customers to access its
network. The Claimant is one such customer of the Respondent.
3. Access to the Respondent’s network is granted to the customer by way of the
issuance to the customer of a SIM card which is issued subject to the
Respondent’s then applicable conditions for telephone service.
4. The Claimant has been a customer of the Respondent since 13 November
2012. The Claimant is registered with the Respondent as a consumer and was
allocated account number ******** upon connection. The Respondent submits
that the Claimant has one active mobile telephone number on the above
account, being ***** ******** (“the Mobile Number”).
5. The Claimant entered into the Service Agreement (“the Agreement”) with the
Respondent in respect of the Mobile Number via one of the Respondent’s
authorised retailers. The Claimant was provided with the terms and conditions
applicable to the Agreement at the point of entering into the Agreement.
6. The Respondent maintains a paperless environment with regards to Service
Agreements entered into with its customers but does not retain a copy.
However, the Respondent maintains a record of the applicable terms and
conditions that govern each Service Agreement entered into.
7. At Schedule 1 attached hereto is a copy of the Terms and Conditions for the
Supply of Orange Network Services – LEG300v15. The Respondent submits
that such terms and conditions relate to the original terms and conditions to the
Agreement.
8. At Schedule 2 attached hereto is a copy of the amended terms and conditions –
Terms and Conditions for the Supply of Orange Network Services –
LEG300v15A, to be subject to the Agreement and take effect as of the 26th
March 2014.
9. The Respondent submits that this dispute, as per the Claimant’s application,
arises from the Respondent’s amendment of the terms of the Agreement
between the Claimant and Respondent. The amendment changed the
circumstances in which a price rise gives the Claimant an automatic right to
terminate the Agreement, without paying a cancellation charge. The
amendment was introduced in light of recent Ofcom comments with the
intention of increasing certainty for consumers and is to the Claimant’s benefit.
10. As to the substance of this complaint, the Respondent’s position is that it has a
general right to change the terms of the Agreement, as per the terms and
conditions exhibited at Schedule 1. That right is subject to the right of the
Claimant under the terms of the Agreement and the regulatory scheme to
terminate the Agreement if the change is of material detriment to the Claimant.
However, in the present case, the change is not of detriment to the Claimant at
all, alternatively any detriment is marginal and not material. On the contrary, it
is to the Claimant’s benefit, and accordingly there is no right of termination.
11. The Respondent submits that they also consider that this dispute falls outside
CISAS’ remit on the grounds that (i) it does not fall within CISAS rule 2a;
and/or (ii) it falls within CISAS rule 2b.
12. This response addresses below:
a) The change to the Agreement;
b) The Respondent’s right to change the terms of the Agreement;
c) The Claimant’s right to terminate following a change if the change is
of material detriment;
d) Why the change is not of material detriment to the Claimant;
e) Why the dispute falls outside CISAS’ remit and/or is not
appropriately resolved by CISAS.
THE CHANGE TO THE AGREEMENT
13. The Agreement provides for a specific right for the Respondent to vary its
charges for services provided under the Agreement. The change about which
complaint is made concerns the terms which provide for when increases to the
Claimant’s £20.50 price plan (the main recurring monthly charge) gives a right
to terminate without paying a cancellation charge.
14. The Respondent confirms that between the 29th January 2014 and 14th February
2014 the Claimant was notified by SMS as to the amendment of the original
terms and conditions (at Schedule 1) to the amended terms and conditions (at
Schedule 2) (“the Written Notice”). Following the 14th February 2014 the
SMS delivery data was then analysed by the Respondent and letters confirming
the amendments were then sent out to the registered addresses of any customers
whose notification SMS had either failed or not been delivered. The
Respondent confirms that the sending of the above said notification letters to
the remaining un-notified customers was completed by the 21st February 2014.
The Respondent submits that this entire process was of course in compliance
with the relevant notice requirement as per point 19.11 which provides as
follows:-
19.11 All notices to be served in accordance with your Contract must be
served by post or facsimile. We can in addition serve notice to you by
voicemail, email, text or other form of electronic message, such as
notice through Your Account. They will be deemed served 48 hours
after they are sent, or on earlier proof of delivery. We may also send
you „over the air‟ updates to your Device which may make some minor
adjustments to the functionality or display on your Device. You’ll need
to accept these changes which may include doing anything reasonable
we request. All invoices and notices served by post will be sent to the
address given by you on Registration unless you notify us of a change to
this address. Any waiver, concession or extra time we may allow you is
limited to the specific circumstances in which it is given and does not
affect our rights in any other way.
The Agreement prior to the Change
15. The Respondent refers to the terms and conditions at Schedule 1.
16. Prior to the changes in question, Point 15.1 of the Agreement provided:
15.1 We acknowledge that if we give you written notice to increase
the Charges, or introduce new mandatory Charges, and such a change
is to your material detriment you may terminate your Contract in
accordance with Condition 4.3. If you do not give notice within one
month of our notifying you of any change(s), you will be taken to have
accepted the change(s).
17. The Agreement further provided that the Claimant has a right to terminate the
Agreement without paying a cancellation charge where a price increase notified
was of material detriment to the Claimant or exceeded the rate of inflation
(Point 4.3).
4.3 You may also terminate your Contract if we give you
written notice to vary its terms, resulting in an increase in the
Charges or changes that alter your rights under this Contract to your
material detriment. In such cases you would need to give us at least
14 days written notice prior to your Billing Date (and within one
month of us giving you written notice about the changes). However
this option does not apply if:
4.3.1 we give you written notice to increase the Charges (as a
percentage) by an amount equal to or less than the percentage
increase in the All Items Index of Retail Prices or any other
statistical measure of inflation published by any government body
authorised to publish measures of inflation from time to time, and
published on a date as close as reasonably possible before the date
on which we send you written notice
18. Point 4.3 above is referred to below as “the Old Term”.
19. The effect of point 4.3 and 4.3.1 was that the Claimant would only have a right
to terminate the Agreement if the price increase was higher than the retail price
index (“RPI”) or another statistical measure of inflation selected by the
Respondent. The purpose of including reference to another measure of
inflation was that, at the time of the drafting of this term, it was understood that
the Office for National Statistics was intending to cease publication of RPI.
20. It was considered that the term was insufficiently clear in two respects in that it
allowed the Respondent to select both the measure of inflation to be used and to
select any measure of inflation within a reasonable period prior to the
notification of the price increase.
21. It is not clear whether the Claimant contends that the Old Term allowed the
Claimant to cancel if the price increase notified was less than RPI but higher
than some other statistical measure of inflation. If and to the extent that the
Claimant does make such a contention, the Respondent’s position is that, on its
proper construction, point 4.3.1 allowed them to select the measure of inflation
which was to be used. Moreover, it would now be for the Claimant to identify
the statistical measure of inflation which it is said should apply under point
4.3.1.
The Agreement after the Change
22. The Respondent refers to the terms and conditions as at Schedule 2.
23. The revised terms provides as follows:
4.3 You may also terminate your Contract if we give you
written notice to vary its terms, resulting in an increase in the
Charges or changes that alter your rights under this Contract to your
material detriment. In such cases you would need to give us at least
14 days written notice prior to your Billing Date (and within one
month of us giving you written notice about the changes). However
this option does not apply if:
4.3.1 the increase in the Charges (as a percentage) is equal to or
lower than the annual percentage increase in the Retail Price Index
(RPI) published by the Office for National Statistics (calculated using
the most recently published RPI figure before we give you Written
Notice under 4.3)
24. The effect of this term (“the New Term”) is that the Claimant has a right to
terminate the Agreement if the price increase is higher than RPI, calculated
using the most recently published RPI figures.
25. This change increases certainty for customers and reduces the scope for
disputes regarding whether a price change gives rise to a right to cancellation.
The Respondent’s right to change the terms of the Agreement
26. The Respondent is entitled to revise its terms pursuant to Point 15.1 of the
Agreement as set out above.
The Claimant has a right to terminate only if the change is of material detriment
27. The Agreement further provides that where a change notified under Point 15.1
is of material detriment to the Claimant, the Claimant has a right to terminate
the Agreement in accordance with Point 4.3 without paying a cancellation
charge. However, if the change notified is not of material detriment and the
Claimant is within their minimum term, the Claimant does not have such right
of termination.
28. Points 4.3 and 15.1 provide (so far as material) as follows:
4.3 You may also terminate your Contract if we give you
written notice to vary its terms, resulting in an increase in
the Charges or changes that alter your rights under this
Contract to your material detriment. In such cases you
would need to give us at least 14 days written notice prior
to your Billing Date (and within one month of us giving
you written notice about the changes). However this
option does not apply if:
15.1 We acknowledge that if we give you written notice to
increase the Charges, or introduce new mandatory
Charges, and such a change is to your material detriment
you may terminate your Contract in accordance with
Condition 4.3. If you do not give notice within one month
of our notifying you of any change(s), you will be taken to
have accepted the change(s).
29. The Written Notice provided to the Claimant implements General Condition
9.6, imposed by Ofcom on Communications Providers under s.45 of the
Communications Act 2003, which provides for Communications Providers to
give subscribers one month’s notice of “any modifications likely to be of
material detriment” and to allow subscribers to withdraw from the Agreement
without penalty.
The Change is not of material Detriment
30. The Change is not of material detriment for the following reasons.
31. Under both the Old Term and the New Term, the Claimant may cancel, without
incurring a cancellation charge, if the price increase notified by the Respondent
exceeds the rate of inflation as measured by RPI. In substance, the Claimant’s
rights of cancellation have therefore not been affected and the Claimant has
suffered no detriment whatsoever.
32. On the contrary, the effect of the changes is to benefit the Claimant. The
changes make clear and certain the specific published measure of inflation
which may be used for the purposes of this comparison. Out of date and
potentially confusing references to other statistical measures of inflation have
been removed. The changes therefore will enable the Claimant to identify when
a right of cancellation arises.
33. Alternatively, if and to the extent that the Claimant has suffered any marginal
detriment, such detriment is not material.
33.1. The only circumstance in which it could be said that the Claimant has
suffered detriment would be if it were established that the Old Term
allowed the Claimant to terminate, without incurring a cancellation
charge, in circumstances where the price rise notified was less than RPI,
but higher than some other statistical measure of inflation.
33.2. In order to demonstrate that the change was of material detriment, the
Claimant would need to (i) identify such other statistical measure of
inflation which it is said would qualify under the Old Term; (ii) identify
the difference over the period of the Claimant’s minimum term between
price rises which would be calculated according to RPI and price rises
which would be calculated according to the alternative measure of
inflation and (iii) establish that the difference between such price rises
qualifies as material detriment under Point 4.3.
33.3. The Claimant has not identified such an alternative measure of inflation.
33.4. Further or alternatively, it is submitted that the difference, over the course
of the Claimant’s minimum term between any two measures of inflation
which would qualify under Point 4.3 is not sufficient to be material.
THE DISPUTE FALLS OUTSIDE CISAS’ REMIT
34. The dispute cannot be settled by CISAS under Rule 2 of the CISAS Rules insofar
as it concerns whether the Claimant is entitled to cancel the Agreement by reason
of the Respondent’s amendments to terms 4.3 and/or 15.1 on the grounds that those
amendments are modifications likely to be of material detriment to the Claimant.
The material detriment issue does not relate to any of the matters set out in Rule 2a
and/or involves a complicated issue of law.
35. The Material Detriment Issue does not relate to any of the matters set out in Rule
2a.
35.1. Bills: It does not relate to any bill issued by the Respondent to the
Claimant.
35.2. Customer Service: It does not relate to the quality of customer service
provided by the Respondent to the Claimant.
35.3. Communications Services: For the reasons further set out below, the
reference in Rule 2a to “Communications services provided to customers”
relates to the physical provision of electronic communications services
and/or does not relate to regulatory issues such as the material detriment
issue. Rule 2a is intended to implement General Condition 14.5 (“GC
14.5”) which requires the Respondent to “implement and comply with a
Dispute Resolution Scheme, … for the resolution of disputes …in relation
to the provision of Public Electronic Communications Services.”
Electronic Communications Services are defined in s.32 of the
Communications Act 2003 to mean “a service consisting in, or having as
its principal feature, the conveyance by means of an electronic
communications network of signals”. That indicates that the focus of the
dispute resolution scheme is on the service actually provided to
customers.
36. Further or alternatively, the material detriment issue constitutes a complicated
issue of law.
36.1. A proper resolution of the case would require CISAS to consider (i) the
proper construction of the Old Term, as a matter of contract; (ii) the
proper construction of the New Term, as a matter of contract; (iii) the
proper construction of the term “material detriment”; and (iv) whether, in
light of those matters, the change from the Old Term to the New Term
was of such material detriment. Each of points (i), (iii) and (iv) involves
complicated issues of law.
36.2. As noted above the proper construction of the Old Term may not be easy
to establish. It does not make clear which statistical measures of inflation
may be used for the purposes of comparison.
36.3. Further, the meaning of material detriment needs to be established both as
a matter of contractual construction and by reference to the regulatory
context. The term is not defined explicitly in the Agreement or in GC9.6.
The fact that Ofcom has recently published guidance on the issue of
material detriment in respect of price change Points indicates that absent
such guidance, the issue of material detriment is unclear; and that the
considerations applicable to determining material detriment can be
complicated.
36.4. The application of the material detriment test to the change of terms is
doubly complex. It is not sufficient simply that it is theoretically possible
that the change could be of some detriment to the customer. Rather it is
necessary that the Claimant identify the degree to which the Old and New
Terms would differ, if applied to him, and to establish that that difference
is material.
37. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether contractually or otherwise, to terminate his Agreement without
charge, either for the reasons as indicated within his application or any other such
reason. Therefore, the Respondent submits that the Claimant is subject to the
standard contractual termination points as per the applicable terms and
conditions.
38. The Respondent notes that the Claimant has made no complaint as to customer
services or any other issues and in any event, the Respondent submits that the
Claimant was provided with a good level of customer services at all times and
that any dissatisfaction on the part of the Claimant simply stems from the fact
that he was unhappy with the information provided to him regarding the change
to the Respondent’s terms and conditions and the Respondent’s confirmation to
the Claimant that he would not be able to cancel the Agreement without payment
of a cancellation charge, which is a remedy to which he is not entitled due to the
change to the terms of the Agreement.
39. The Respondent submits that it will provide a Port Authorisation Code (“PAC”)
to the Claimant upon request, however it is the Respondent’s position that the
Claimant will remain liable for a cancellation charge in accordance with Points
4.2 and 4.3 of the Agreement. The applicable cancellation fee would be the sum
of £133.52, reducing on a daily basis for which the Claimant remains liable.
Remedies Sought by the Claimant
40. As set out above, the Respondent denies that it is liable to cancel the Agreement
without payment of the relevant cancellation charge for the reasons set out
above. A PAC code can be provided to the Claimant however he will remain
liable for the cancellation charge as set out above.
41. The Respondent submits that handsets sold on the Respondent’s network are
‘locked’ for use solely on the Respondent’s network by the manufacturers of the
handsets. The Respondent avers that the unlocking codes which will ‘unlock’
most handsets from the Respondent’s mobile network, to enable the handset to
be used on any other applicable mobile network, are provided by the
manufacturer of the handsets and not by the Respondent. The Respondent
submits that such is standard practice for all mobile network operators and
denies, if such is alleged, that such practice is in breach of Agreement, statute or
otherwise.
42. Whilst in accordance with Clause 14 the Device falls outside of the Agreement,
and notwithstanding the above, the Respondent submits that it can request from
the manufacturers the unlocking codes. The Respondent submits that it does not
offer a guarantee that that all handsets can be unlocked as such is outside of the
Respondent’s control or knowledge as unlocking codes are unique to each
individual IMEI number of a particular handset and information regarding
whether or not a particular handset can be unlocked can only be provided by the
manufacturer.
43. The Respondent confirms that it has no record of any request from the Claimant
for the provision of an unlocking code at any time or at all. The Respondent
confirms that there is no contractual or legal obligation to provide a handset
unlocking code and the Claimant is therefore put to strict proof as to his
contention in relation to this remedy sought. The Respondent denies, if such is
pleaded, that any failure to provide an unlock code is a contractual breach of the
Agreement or that such renders the Handset inoperable and the Claimant is
hereby put to strict proof.
44. The Respondent submits in any event that the Claimant has provided no evidence
which confirms that a handset would be unlocked at a later date and therefore,
the Claimant has no grounds to his claim.
45. The Claimant claims the sum of *** in compensation. The Respondent denies
that the Claimant is entitled to compensation in the sum of £***as pleaded or at
all. If the Claimant had suffered actual loss he would have pleaded that damage
as a quantified sum and furthermore provided evidence to support such a claim.
The Claimant has not done so and as a consequence is not entitled to any
compensation. The Claimant is hereby put to strict proof as to his purported loss.
46. The Respondent denies that it is liable to the Claimant as pleaded or at all in
respect of this matter and submits that the Claimant’s claim should be dismissed
in its entirety.
The Respondent believes that the facts stated in this form are true. I am duly
authorised by the Respondent to sign this statement.