T-mobile change in T&C

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Scheduled: 25/11/2009, 1000, District Judge Hayes

Chronology and Summary:
1. On 7 April 2009 the Claimant took out an 18-month contract for mobile telephone number 07984 xxxxxx;
2. The contract was sold to the Claimant by the Defendant’s agent, BuyMobilePhones.net of Alfreton, Derbyshire, Company Registration number 05747550;
3. The contract was on the Combi 30 + web ‘n’ walk tariff;
4. The ‘What it costs’ document for Combi plans + web ‘n’ walk current on 7 April 2009 stated that it cost 30 pence per minute to ring 0845 and 0870 telephone numbers (Schedule E);
5. The Claimant had neither knowledge nor forewarning of any plan on T-mobile’s part to increase the cost of dialling 0845 and 0870 telephone numbers on the Combi 30 + web ‘n’ Walk contract before 30 April 2009;
6. On 30/4/2009 the Claimant received a text message from T-mobile stating that call charges to 0845 and 0870 telephone numbers would be increasing by more than 33%, from 30 pence to 40 pence per minute;
7. The Claimant reiterates that this was the first time he had any notice that T-mobile planned to increase the cost of 0845 and 0870 calls on the Combi tariff and that the Claimant took out the contract in good faith;
8. The Claimant believed that notice of only one day of the increase in charges, provided less than one month into an eighteen month contract, was unreasonable and in breach of both his contractual and consumer rights;
9. The Claimant contacted the Defendant via email to express his unhappiness at the increase and the lack of notice and gave notice to end the contract given that the Defendant had broken the terms of their agreement and was acting in breach of consumer law;
10. The Defendant replied to Claimant’s request to leave by demanding £492.75 if the Claimant left T-mobile, in breach of the Claimant’s contractual and consumer rights;

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11. Point 7.1.4 of the Defendant’s Terms and Conditions (Defence Schedule 1) states that one calendar month’s notice must be given before any Price Plan Charge increase;
12. The Claimant only received one day’s notice - i.e. text message received on 30 April 2009 for an increase taking place on 1 May 2009;

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Defendant in breach of contract – refusal to allow the Claimant to leave without penalty despite increase in charges:
13. Point 7.2.5.2 of the T-mobile Terms and Conditions states that the cancellation charge will not apply if ‘You are a Consumer and the change that We gave you Written Notice of in point 2.11.2 or 7.1.4 above is of material detriment to You and You give Us notice to immediately cancel this Agreement before the change takes effect’;
14. The increased 0845 and 0870 call charges from 30 pence to 40 pence per minute are to the material detriment of the Claimant and this is not disputed by the Defendant;
15. The Claimant gave notice to cancel the Agreement on 30 April 2009, immediately upon learning of the proposed increase by text message, and prior to the increase on 1 May 2009;
16. Point 7.1.4 states that ‘We can increase any Price Plan Charge. We will give You Written Notice one calendar month before We do so. The change will then apply to You once that notice has run out’;
17. ‘Price Plan Charge’ is undefined as a phrase in the Definitions;
18. ‘Price Plan Charges’ is defined as ‘charges for the Price Plan Services which comprise the Monthly Charge for the Price Plan and the charges for Services once any Allowance is used up’;
19. Hence, ‘Price Plan Charges’ in the singular is ‘a charge for the Price Plan Services which comprise the Monthly Charge for the Price Plan and the charges for Services once any Allowance is used up’;
20. ‘Services’ is defined as ‘services provided to You by Us including the Price Plan Services and Additional Services’;
21. ‘Price Plan Services’ are defined as ‘inclusive Services supplied with Your Price Plan, the charges and terms and conditions for which are set out in the ‘What it Costs’ booklet for that Price Plan’;
22. The cost for 0870 and 0845 calls are set out in the ‘What it Costs’ booklet for Combi 30 + web ‘n’ walk Price Plan and hence is a ‘Price Plan Service’ and 7.2.5.2 applies;

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Defendant in breach of contract – refusal to allow the Claimant to leave without penalty despite unilaterally increasing charges by greater than the Retail Price Index (RPI):
23. Point 7.2.5.3 of the T-mobile Terms and Conditions states that the cancellation charge will not apply if ‘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’;
24. The RPI for March 2009, released on 21/4/2009, was minus 0.4%;
25. The proposed increase to 0845 and 0870 numbers was 33.33% (from 30 pence to 40 pence per minute);
26. ‘Price Plan Charge’ is undefined as a phrase in the Definitions;
27. ‘Price Plan Charges’ is defined as ‘charges for the Price Plan Services which comprise the Monthly Charge for the Price Plan and the charges for Services once any Allowance is used up’;
28. Hence, ‘Price Plan Charges’ in the singular is ‘a charge for the Price Plan Services which comprise the Monthly Charge for the Price Plan and the charges for Services once any Allowance is used up’;
29. ‘Services’ is defined as ‘services provided to You by Us including the Price Plan Services and Additional Services’;
30. ‘Price Plan Services’ are defined as ‘inclusive Services supplied with Your Price Plan, the charges and terms and conditions for which are set out in the ‘What it Costs’ booklet for that Price Plan;
31. The cost for 0870 and 0845 calls are set out in the ‘What it Costs’ booklet for Combi 30 + web ‘n’ walk Price Plan and hence is a ‘Price Plan Service’ and 7.2.5.3 applies;

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Defendant has already paid damages to another consumer in near identical circumstances, case 9Q??????:
32. Subsequent to starting this claim, the Claimant learnt through the internet that T-mobile had paid compensation to Mr X (Schedule A and Schedule B);
33. Mr X received a cheque from Legal Services at T-Mobile for £198.52;

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Defendant’s refusal to allow the Claimant to leave without penalty is in breach of consumer protection legislation:
34. The Defendant’s unilateral increase offends §(i)-(l) inclusive of Schedule 2 and §5 of the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 (1)”(l) …allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;..”;

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Defendant’s refusal to allow the Claimant to leave without penalty is ‘objectionable’ according to OFT guidance on Unfair Contract Terms:
35. The Defendant’s unilateral increase offends §12.2, of http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311.pdf (Schedule C, p. 57) which states that ‘Any purely discretionary right to set or vary a price after the consumer has become bound to pay is obviously objectionable. ..It also applies to rights to increase payments under continuing contracts where consumers are 'captive' – that is, they have no penalty-free right to cancel..... .. such a clause is particularly open to abuse, because consumers can have no reasonable certainty that the increases imposed on them actually match net cost increases’;
36. OFT states that ‘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.” (Schedule C, p. 58);

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Defendant is in breach of Ofcom’s General Conditions of Entitlement under the General Authorisation, NOTIFICATION UNDER SECTION 48(1) OF THE COMMUNICATIONS ACT 2003, Notification setting general conditions under section 45 of the Communications Act 2003, Condition 9 and 9.3, by which the Defendant is bound:
37. Ofcom’s General Conditions of Entitlement under the General Authorisation can be found at http://www.ofcom.org.uk/static/archive/oftel/publications/eu_directives/2003/cond_final0703.pdf (Schedule D);
38. “9.3 Where the Communications Provider intends to modify a condition in a contract with a Consumer which is likely to be of material detriment to the Consumer, the Communications Provider shall: (a) provide the Consumer with at least one month‘s notice of its intention detailing the proposed modification; and (b) inform the Consumer of the ability to terminate the contract without penalty if the proposed modification is not acceptable to the Consumer.” (Schedule D, p. 22);

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Defendant’s claim attempting to define 0845 and 0870 call charges as ‘Additional Charges’ and thus not covered by 7.2.5.2 or 7.2.5.3:
39. The Defendant claims that the calling of 0845 and 0870 telephone numbers is not covered by 7.2.5.3 since they are ‘Additional Services’;
40. ‘Additional Services’ are defined as ‘optional/extra Services which can be added to Your Account, the charges and terms and conditions for which are set out in Our “What It Costs “Non Standard Charges” booklet and Our customer literature’;
41. Firstly, ‘Services’ includes ‘Additional Services’ in its definition and thus 7.2.5.2 and 7.2.5.3 apply;
42. Secondly, the cost of 0845 and 0870 calls is defined in the ‘What It Costs’ document and the ‘What It Costs (Non-Standard Charges)’ document. Hence the Defendant defines these calls as both Services and Additional Services. Hence, again, 7.2.5.2 and 7.2.5.3 apply;

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Sum claimed:
43. The Defendant claims that the Claimant has not cancelled the Agreement, despite the request to cancel sent on 30 April 2009 (Schedule F);
44. The Defendant has refused to acknowledge the Claimant’s right to terminate the contract with the Defendant without penalty;
45. The Defendant demanded £492.75 to end the contract on 30 April 2009;
46. The Claimant has continued to be billed by the Defendant in spite of the Claimant’s written notice to terminate the contract;
47. The Claimant maintains he should have been able to leave without penalty on 30 April 2009;
48. Given that the Defendant refuses to acknowledge the Claimants right to cancel without penalty, the Claimant claims the £492.75 demanded by the Defendant to leave. This sum can then be used to restore the Claimant’s rightful position under both contract and consumer law and pay the cancellation charge demanded by the Defendant and compensate the Claimant for the period since 30 April 2009, during which he has been forced to pay for a service he neither wants nor is legally obliged to pay for;
The Claimant believes that the facts stated in this form are true.
Dated the 9 day of November 2009.

MR X

Address


Claimant