Tmobile price increase
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http://www.thisismoney.co.uk/money/markets/article-2335933/The-right-EE-owners-list-telecoms-firm-London-Stock-Exchange-float-worth-9billion.html
If my "comment" is accepted the This Is Money article on the EE flotation should have a "Comment" which is the EE legal department admitting they gambled the companies future re anticipating RPI.0 -
RandomCurve wrote: »I thought CISAS were meant to rule on a case just on your facts if the company does not submit a defence? Very strange.
Well the (second) time period for their response passed today. Perhaps they only sent their reply to CISAS at 16:59 today so CISAS haven't had time to read or begin adjudicating yet. Who knows?
I would add, I'm playing this out but am still sceptical at getting a totally objective or impartial response, especially after T-Mobile somehow managed to get their 14 day limit stretched out to almost double that.
So, lets see what the next few days bring.====0 -
I received a response from Cicas earlier this morning:
"07 June 2013
Dear Mr stoney73
CISAS
Case No: ******* - stoney73 v T-Mobile (UK) Limited
We acknowledge receipt of the company’s response to claim, a copy of which is attached for the customer’s attention.
The customer is invited to submit comments on the response, within 7 days from the date of this letter, that is, on or before such/a/time
If you (the customer) provide comments, you must concentrate on the points made by the company. You cannot add new information that you forgot to mention earlier, as per the ‘Information for customer’ guide.
You may submit your comments in writing, by post, email or fax.
Upon receipt of the customer’s comments a copy will be sent to the company for their information, and the complete case file will be sent to the adjudicator for their consideration.
We will contact the parties again on receipt of the customer’s comments. Alternatively, if no comments are received, we will inform the parties of the name of the adjudicator appointed to consider this case.
Yours sincerely
Mr Jean-Marie Sadio Case Administrator "
T-mobile sent a copy of the terms and conditions version 58, dated 1/7/2010 attached here:
https://www.dropbox.com/s/o6wj314i16leo4f/CVN%2058%20-%20ServUpg%20-%201.7.10.pdf
T-mobiles defence:
"
1. The Respondent submits that the issue at the heart of the Claimant’s Claim relates to a business decision taken by the Respondent to increase its prices.
2. Rule 2(g) of the CISAS Scheme Rules (“the Rules”) provides that the CISAS Scheme (“the Scheme”) can be used to settle disputes about
i) bills and/or;
ii) communication services provided to the Respondent’s customers.
3. Rule 2(j) of the Rules provides that the dispute must not involve a complicated issue of law.
4. The Respondent submits that the cause of action pleaded by the Claimant is neither directly related to bills or communication services and therefore represents a dispute which falls outside the remit of Rule 2(g) and therefore is a matter which is not within the jurisdiction of the Scheme
5. Further the dispute, as pleaded, necessitates the consideration of the legal interpretation of clauses contained within the service agreement entered into between the Claimant and Respondent, applied as against facts, to ascertain whether a legal right of termination exists. The Respondent submits that such issues of legal interpretation and consideration requires evaluation and application of areas of law concerning contractual interpretation which are by their very nature complex and complicated.
6. Therefore, the Respondent respectfully submits that the Claimant’s claim as pleaded cannot be dealt with under the Scheme and that pursuant to the Rules an adjudicator is not therefore able to consider the Claimant’s claim.
7. The remainder of this Defence is pleaded without prejudice to the above.
RESPONDENT’S DEFENCE
8. The Respondent submits that the supporting document provided by the Claimant as part of his CISAS application relates not only to his account with the Respondent but also relates to several other customers of the Respondent which it appears he has obtained from various sources and research on the internet .
9. The Respondent denies that it is liable to the Claimant as pleaded or at all.
10. The Respondent is a mobile telecommunications network operator that enters into service agreements with its customers to enable its customers to access the services. The Claimant is one such customer of the Respondent.
11. Access to the Respondent’s network is granted to the customer by way of the issuance to the customer of SIM card which is issued subject to the Respondent’s then applicable conditions for telephone service.
12. The Claimant has been a customer with the Respondent since a while ago in respect to account number *******. The Claimant has two active mobile number being my number (“the First Mobile Number”) and her number (“the Second Mobile Number”). Collectively referred to hereinafter as the Mobile Numbers.
13. On a certain date the Claimant entered into the Service Agreements (“the Agreement”) in respect to the Mobile Numbers with the Respondent via an authorised third party retailer of the Respondent . The Claimant was provided with the terms and conditions applicable to the Agreement at the point of entering into the Agreement.
14. Attached hereto at Schedule 1 is an extract from the Respondent’s billing system which shows the information captured on the Respondent’s billing system at the point of sale in respect to the Mobile Numbers which states that the applicable terms and conditions applicable to the Agreements are Conditions Version Number 58 (“CVN 58”).
15. The Claimant refers to Conditions Version Number 59 (“CVN59”) within his supporting document (referred to in the document as POST OCT 2012 CONTRACTS) however as such terms are not applicable to the Agreements between the parties the Respondent’s defence will deal only with the applicable terms, being CVN58. The Claimant’s Agreement is not subject to CVN59 and therefore not applicable to the dispute between the parties.
16. At Schedule 2 attached hereto is a copy of CVN58 applicable to the Agreement entered into between the Claimant and the Respondent. The terms and conditions governing the Agreement contains amongst other things the following;-
(i) Clause 2.5.1 - Unless We agree otherwise, a new Minimum Term will apply. Once that Minimum Term is over this Agreement will continue until terminated;
(ii) Clause 7.1.4.- We can increase any Price Plan Charge. We will give You Written Notice 30 days before We do so. The change will then apply to You once that notice has run out;
(iii) Clause 7.2.2. You can only give Us notice to terminate this Agreement by calling customer services. Your Agreement will terminate 30 days from when We receive Your call, although You are free to change Your mind and call Us to withdraw Your notice of termination at any time during that period. You will be responsible for all Charges up to and including the date that this Agreement terminates;
(iv) Clause 7.2.3 - A Cancellation Charge won’t apply if You are within the Minimum Term and:
(a) Clause 7.2.3.3 - The change that We gave You Written Notice of in point 7.1.4 is an increase in Your Price Plan Charge (as a percentage) higher than any increase in the Retail Price Index (also calculated as a percentage) for the 12 months before the month in which We send You Written Notice and You give Us notice to immediately cancel this Agreement before the change takes effect.
17. Pursuant to Clause 7.1.4 on or about the 2-8 April 2013 the Respondent issued to the Claimant (together with all of its pay monthly customers) written notice (“the Written Notice”) advising of a 3.3% increase in price plan monthly charges that would take effect as from 10 May 2013. The Respondent submits that adequate Written Notice was provided to the Claimant for the purposes of Clause 7.1.4.
18. The Respondent denies that the price increase of 3.3% is an increase above the Retail Price Index (‘RPI’) (when calculated as a percentage) for the 12 months before the month in which the Respondent issued the Claimant with the Written Notice.
19. The Respondent further denies that such increase in charges is an increase which entitles the Claimant to terminate the Agreement without paying a cancellation charge.
20. As the Written Notice was issued in the month of April 2013 then the relevant month’s RPI figure for the purposes of Clause 7.2.3.3 of the Agreement is the RPI figure as published by the Office of National Statistics (“ONS”) representing March 2013; being the month before the month in which the Written Notice was issued. The March RPI figure, published by the ONS Statistics was 3.3%. By way of the Monthly Statistical Bulletin (“the Bulletin”) published by the ONS the following is stated:-
The RPI 12-month rate for March [2013] stood at 3.3%
The Bulletin is a lengthy document so has not annexed to this Defence but can be made available to CISAS upon request.
21. The following is a summary of the RPI figures issued by the ONS month by month for the period January 2013 to March 2013.
RPI Month RPI Percentage RPI Publication Date
December 2013 3.1% 15 January 2013
January 2013 3.3% 12 February 2013
February 2013 3.2% 19 March 2013
March 2013 3.3% 16 April 2013
22. As the increase in charges of 3.3% set out within the Written Notice is not higher than the RPI figure published for the month before the month in which the Written Notice was issued (March 2013) of 3.3% the Claimant, by way of Clause 7.2.3.3 or otherwise, is not entitled to cancel the Agreement without paying a cancellation charge.
23. The Respondent denies that it issued Written Notice to its customers on 1 March 2013. The Respondent submits that the press publication issued on 1 March 2013 referred to by the Claimant was merely an indication as to what the Respondent’s future intention may have been but that such did not constitute actual written notice for the purposes of Clause 7.1.4.
24. The Respondent denies that Clause 7.2.3.3, or any other Clause referred to above, is an unfair term in breach of the Unfair Terms in Consumer Contract Regulations 1999 or otherwise. The terms were clear and unambiguous and clearly stated within the Respondent’s Agreement. They were not hidden. Furthermore, the Claimant could have chosen to enter into an agreement for mobile phone services with an alternative service provider, he was not obligated to enter into the Agreement with the Respondent, he did so of his own free will and in doing so is therefore subject to the terms and conditions applicable to the Agreement. Furthermore, the Respondent denies that the terms and conditions set out within the Agreement are in breach of the OFT guidelines relating to plain and intelligible language.
25. The RPI figure of 3.2% published by the ONS on 19 March 2013 as referred to by the Claimant within his application relates to the RPI figure for February 2013. The RPI figure published by the ONS in a given month relates to the preceding month and not the actual month of publication. Therefore the figure referred to by the Claimant as published on 19 March 2013 is actually the RPI figure for February 2013 and not the RPI figure for March 2013. The Respondent is not seeking to rely upon the RPI figure for February 2013.
26. The Respondent avers that published RPI figure for March 2013 is the correct figure to use when applying the strict interpretation of Clause 7.2.3.3. Clause 7.2.3.3 specifically refers to the ‘Retail Price Index (also calculated as a percentage) for the 12 months before the month in which we send You Written Notice. (emphasis added). It follows, in line with the strict interpretation of Clause 7.2.3.3, that the Written Notice being issued in April 2013 relates to RPI figure for March 2013. Whilst the March RPI figure was not issued until after the date of the Written Notice such does not affect the construction and interpretation of the Clause 7.2.3.3.
27. It is denied that the fact that March 2013 RPI figure had not been published at the time the Written Notice was given restricts the Claimant’s ability to give notice to cancel as pleaded or at all. Clause 7.2.2.3 provided that notice to cancel (no such right being admitted) was required to be given prior to the new charge taking effect. The new charge was to take effect on 10 May 2013. March 2013 RPI figure was published on 16 April 2013. The Claimant therefore still had ample opportunity if the relevant RPI rate gave grounds to cancel (none being admitted) to give notice before the new charge took effect.
28. Whilst the Respondent acknowledges the Claimant’s request to terminate his Agreement within the minimum term period pursuant to Clause 7.2.2 the Respondent submits that in processing the termination the Claimant would be liable for the cancellation charge for the remainder of the minimum term period. As at today’s date such figure would be £a lot per each Mobile Number (being a total of £even more) reducing on a daily basis.
29. Pending the outcome of the Claimant’s claim the Respondent has not processed the Claimant’s request for termination; however it remains the Respondent’s view that in doing so the Claimant remains liable for the cancellation charge. The Respondent submits that in the event that the adjudicator finds in the Respondent’s favour and the Claimant does not elect subsequently to retract the termination request that it will process the Claimant’s request to terminate the Agreement and back date such request to 30 days from receipt of the notice, subject to the Claimant paying the cancellation charge.
The Respondent will also provide the Claimant with the requested Porting Authorisation Code (‘PAC’) to enable him to transfer the Mobile Numbers to another network provider. It should be noted that prior to receipt of the Claimant’s claim that the Claimant has not previously requested a PAC code and that his request for such on the application form is the first such request. The Respondent submits that it would however also accept the Claimant’s withdrawal of their request to terminate the Agreement, should she so wish to withdrawn such request.
30. The Respondent denies that it has breached its Agreement and/or breached its duty of care to the Claimant. The Respondent has provided a response to the Claimant in a timely fashion and that such response has been consistent. Whilst the Claimant’s appears to dislike the content of such response it does not follow that the Respondent has breached its duty of care to the Claimant.
31. The Respondent further denies that the Claimant is entitled to seek damages in the sum of £100 as per the supporting documents and/or £a little as per his application form. The Claimant has not provided any evidence in support of such purported losses and in any event the Respondent submits that such sums are disproportionate to the value of the claim.
32. The Respondent denies liability to the Claimant as pleaded or at all, either contractually or otherwise.
The Respondent believes that the facts stated in this form are true. I am duly authorised by the Respondent to sign this statement. "
Is it me or have T-mobile inserted a subtle threat in there regarding the cancellation/early termination charge?
Any help in forming a reply/adding comments would be greatly appreciated0 -
In my opinion you guys will win this by citing concrete evidence that T-mobile interpreted the very same clause differently in 2012 when they applied the price increases.
I.e. in 2012 t-mobile sent letters in early April & used the February figure for RPI (published in march).
However...
in 2013 t-mobile sent letters in early April & used the March figure for RPI (published later in April).
This misled customers, caused confusion and t-mobile cannot have it both ways. They set the precedent, they cannot expect customers to guess that they are changing their interpretation. Especially when the new interpretation makes absolutely no sense (predicting the future).
Can anyone help compile hard, fast proof of the above? (dates of letters, RPI publication etc. for 2012?0 -
Barnicle_Fiend wrote: »In my opinion you guys will win this by citing concrete evidence that T-mobile interpreted the very same clause differently in 2012 when they applied the price increases.
I.e. in 2012 t-mobile sent letters in early April & used the February figure for RPI (published in march).
However...
in 2013 t-mobile sent letters in early April & used the March figure for RPI (published later in April).
This misled customers, caused confusion and t-mobile cannot have it both ways. They set the precedent, they cannot expect customers to guess that they are changing their interpretation. Especially when the new interpretation makes absolutely no sense (predicting the future).
Can anyone help compile hard, fast proof of the above? (dates of letters, RPI publication etc. for 2012?
Such as this?
"1.In 2012 T-Mobile increased its prices, the relevant dates are as follows:1.Feb RPI published March 20th 2012
2.T-Mobile sends letters between 28th March and 3rd April (7-11Working days after publication (excluded weekends))
3.Price rise effective 9th May
2.In 2013 T-Mobile increase prices,1.As T-Mobile terms state an ANNUAL increase in inflation it is reasonable to assume that February is the intended RPI rate
2.Feb RPI published 20 March
3.The number of working days for TM to write to customers to apply the Feb 2013 RPI of 3.2% published on 19th March, TM would need to inform customers by 8th April this is 13 working days excluding Bank Holidays and weekends i.e. they had between 2 and 6 additional days over and above the time frame TM needed to send out price rise letters in 2012.
TM's actions during last year's increase (this is completely relevant because it proves TM's interpretation this year contradicts their interpretation last year, and it was the same set of t&c's in place last year
Reference to the current RPI rate in the written notice (the key document in bringing clause 7.2.3.3 into effect).
TM's amendment to clause 7.2.3.3 in the updated t&c's, which now explicitly states that the relevant RPI rate is the one published before the written notice is sent.
The fact that the clause allows for immediate cancellation of the contract, therefore if notice was given before 16 Apr, the March RPI rate has no relevance whatsoever to the contract.
TM's claim that they are referring to the March RPI means you have not been given the 30 days' notice required under the contract, as this rate wasn't known until 16 Apr.
TM's reference to an RPI rate that has yet to be published effectively renders the clause completely meaningless - the customer is left in the position of not knowing whether or not they are entitled to cancel.
I would have thought that all of the above arguements mean that TM are effectively stuffed, however because of the ambiguity over the clause (created by TM), it's possible a court would take into account the relevant consumer protection laws, whether these laws have been adhered to by TM, and whether the clause could be deemed unfair. I think it can only help our case to refer to this legislation, but make it clear that you don't consider the clause to be ambiguous (because of your arguements above), however TM's actions have created the ambiguity.
OFT's guidance on the provisions of the UTCCR's for unfair contract terms might be helpful:
http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311.pdf
Regulation 7 states that:
(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under Regulation 12.
Page 86 of the OFT guidance, relating to plain and intelligible language:
19.3 It follows that what is required is that terms are intelligible to ordinary members of the public, not just lawyers. They need to have a proper understanding of them for sensible and practical purposes. It is not sufficient for terms to be clear and precise for legal purposes, except in contracts normally entered only on legal advice.
19.6 Ambiguity. Where a term is ambiguous, a court may be able to find at least one fair meaning in it, and enforce it on that basis, rather than declaring it unfair and void by reason of lack of clarity. However, the Directive makes clear that the 'most favourable interpretation' rule is intended to benefit consumers in private disputes, not to give suppliers a defence against regulatory action – see Regulation 7(2). If a term's ambiguity could cause detriment to consumers it may be challenged as unfair even if one of its possible meanings is fair.
Also, Page 58 of the OFT guidance, relating to price variation clauses:
12.4 A degree of flexibility in pricing may be achieved fairly in the following ways.30
• Where the level and timing of any price increases are specified (within narrow limits if not precisely) they effectively form part of the agreed price. As such they are acceptable, provided the details are clearly and adequately drawn to the consumer's attention.
• Terms which permit increases linked to a relevant published price index such as the RPI are likely to be acceptable, as paragraph 2 of Schedule 2 to the Regulations indicates, subject to the same proviso.
• Any kind of variation clause may in principle be fair if consumers are free to escape its effects by ending the contract. To be genuinely free to cancel, they must not be left worse off for having entered the contract, whether by experiencing financial loss (for example, forfeiture of a prepayment) or serious inconvenience, or any other adverse consequences.31"
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Barnicle_Fiend wrote: »In my opinion you guys will win this by citing concrete evidence that T-mobile interpreted the very same clause differently in 2012 when they applied the price increases.
I.e. in 2012 t-mobile sent letters in early April & used the February figure for RPI (published in march).
However...
in 2013 t-mobile sent letters in early April & used the March figure for RPI (published later in April).
This misled customers, caused confusion and t-mobile cannot have it both ways. They set the precedent, they cannot expect customers to guess that they are changing their interpretation. Especially when the new interpretation makes absolutely no sense (predicting the future).
Can anyone help compile hard, fast proof of the above? (dates of letters, RPI publication etc. for 2012?
Good point. The pre Oct 2012 contract had the same clause last year and TM used Feb (3.7%) and not March (3.6%) so the interpretation year on year given the timing of the letter and the price rise are the same, and it is an ANNUAL rate then they must be interpreted the same - unless TM are using the ambiguity they have created to manipulate the rate it can use!0 -
I received a response from Cicas earlier this morning:
......
15. The Claimant refers to Conditions Version Number 59 (“CVN59”) within his supporting document (referred to in the document as POST OCT 2012 CONTRACTS) however as such terms are not applicable to the Agreements between the parties the Respondent’s defence will deal only with the applicable terms, being CVN58. The Claimant’s Agreement is not subject to CVN59 and therefore not applicable to the dispute between the parties.
I received the following from the Exec office on 6th May:
Please respond to executive.office@everythingeverywhere.com
Dear X,
Thank you for your further email today, 6 May 2013, I am writing to confirm the following.
The Pre and Post October 2012 contracts are subject to the same increase based on the same RPI. Should you remain unhappy with this you are free to seek alternate advice.
I trust the above is satisfactory.
Yours sincerely
Mandy Lowery
Executive Office, EE
So their T&Cs are different, but TM treat them as the same!
Also you can refer to V59 if you are showing that the word Published is missing from the V58 clause.0 -
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Stoney73
Some general bits
Para 20
See the 2012 timeline - challenge that last year they got it right - this year they got it WRONG
Para 23
Don't argue this point - otherwise they will say they gave notice of Jan 3.3% Rate!
Para 27
T&Cs do not state that they have to give you "ample time" they state they have to give a "minimum of 30 days" - it is also an Ofcom requirement -cite this as yet another example of TM being clever with words to try and confuse the issue
Para 28
Ask where in the T&Cs it states they can charge a cancellation charge for ISSUING a PAC code. The clue is in the title "Termination" the contract is NOT TERMINATED unless you use the code. Also if there is a processing cost associated with issuing a code that can not be the same cost as the full cancellation - so it is a penalty charge designed to scare customers away from challenging TM to assert their rights - another example of TM bullying behaviour
Para 29
If they back date the Termination charge than would you have not paid for some months twice - that is just plain illegal! Challenge that this this is another example of TMs bullying
Para 30
They have NOT been consistent. As late as 18th April they we were still being told they had referred to the January RPI. I think TC26 posted a copy of the letter they received a good long while back on the forum.
It is because of TM behaviour as evidence on Paras 27-30 that you are claiming damages.
Not sure if it worth refuting TM claim that CISAS can not look a this?0
This discussion has been closed.
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