You can cancel your Orange contract!

DamePeggy

RandomCurve wrote: »

Received EEs defence yesterday.

They are admitting I am on the old contract and are admitting that the clause refers to a government body that no longer exists, but are claiming the body issuing the stats is irrelevant. l will respond that it is entirely relevant -otherwise why have the T&Cs been updated?

Also claiming that their actions are "not to my detriment". My response will be that if the directors have to act for the benefit of EE then the price rise must be of benefit to EE and therefore by definition is of detriment to me!
.

If their response is like the one they made to me, they will have conspicuously ommitted to mention that the name of the document is stated too. An agency can merge, but I can't see how a document can.

Also don't forget to point out that the term 'material detriment' doesn't appear anywhere in the V14A terms. If EE want to use it, then they should have updated them properly. Best of luck!

DamePeggy

RandomCurve wrote: »

Also claiming that their actions are "not to my detriment".

Sorry, just re-read your post. Surely any price-rise at all has to be to your detriment. In their defence to me they used the slippery 'material detriment' defence.

ryan92

Just received the following reply from Orange regarding my ts and cs

Hi Ryan,
Thanks for your reply.
Your agreement started on 28/03/2012.
As terms and conditions can be updated or changed, please refer to the latest ones available to view.
Kind Regards

So it appears i now have written confirmation that I am indeed on a different set of terms than the ones I have signed. What is my next step? CISAS?

RandomCurve

ryan92 wrote: »

Just received the following reply from Orange regarding my ts and cs

Hi Ryan,
Thanks for your reply.
Your agreement started on 28/03/2012.
As terms and conditions can be updated or changed, please refer to the latest ones available to view.
Kind Regards

So it appears i now have written confirmation that I am indeed on a different set of terms than the ones I have signed. What is my next step? CISAS?

I'd be careful here. If you accept what is said above as your T&Cs have changed then they may also argue that you must also accept that the method of communicating the change (just updating the website) is acceptable to you. Then it follows that they changed the website over 30 days ago - and you are out of time to complain.

I would respond that they have yet to inform you of the change and ask if their Email is the confirmation? If they say yes then you can reject as within the 14 or 30 day limit. If they so you have already been informed then you would have to argue that you were not informed etc etc.

ryan92

Orange replied to me today with this ;

Hi Ryan,
Our terms and conditions are subject to change, so by agreeing a contract, you are agreeing to our terms.
You will only be notified if there are any changes to the prices that we charge.
Perhaps you could let us know, what has changed for yourself, so we can explain the matter further.
Kind regards

RandomCurve

ryan92 wrote: »

Orange replied to me today with this ;

Hi Ryan,
Our terms and conditions are subject to change, so by agreeing a contract, you are agreeing to our terms.
You will only be notified if there are any changes to the prices that we charge.
Perhaps you could let us know, what has changed for yourself, so we can explain the matter further.
Kind regards

I really would not advise going down the route of trying to determine which T&Cs you are on.



Simply:

1. Write to Orange and tell them they have put in a price rise that is higher than that allowed as the CSO has not published any Stats.
2. They will write back quoting the new terms,
3. You write back and say but contract says CSO not ONS
4. They write back saying it does not matter "which body" publish the stat
5. You take it to CISAS.

When Orange defend the case they will say which contract you are on (it will be the old one if the dates are correct). Their defence will be (it is what they used on me) as follows:

The Respondent admits that the Central Statistical Office (“the CSO”) is no longer in existence. The CSO has merged with the Office of Population Censuses and Surveys to form the current Office of National Statistics (‘ONS’). The Respondent submits that RPI figures continue to be published, and have at all relevant times been published, on a month by month basis by the Government. The only change which has occurred is the
name of the Governmental Department from which the monthly RPI figure has been released. The Respondent denies that a change in the name of the Governmental body from which published RPI data is issued invalidates or otherwise affects the enforceability of Clause 4.3.1 of the Agreement. The
Respondent submits that the reference in Clause 4.3.1 to the CSO is no more than a reference to the Governmental body authorised to issue monthly RPI data. It is averred that on the proper construction of Clause 4.3.1 a change in the name of the Governmental body responsible for publication of RPI data does not change the effect of the clause. Although the name of the Governmental body publishing the official RPI data has changed, the meaning of the clause is still clear in the circumstances and so the Court should give effect to the manifest intention of the parties.

My defence to the above (it will be 3 weeks today before I know if I have been successful) was:


EE defence point 18

Clause 4.3.1 in my contract is clear and unambiguous and clearly states which statistic must be referenced and which body must publish that statistic for a price rise to be referenced against.

The term as it stands is complaint with the first part ofthe OFT guidance (endorsed by Ofcom) re Para 12.4:



12.4 A degree of flexibility in pricing may be achieved fairly in the following ways.

• Where the level and timing of any price increases are specified (within narrow limits if notprecisely) they effectively form part of the agreed price. As such …..”



i.e the level is currently specified precisely “All Prices Index of Retail Prices published by the Central Statistical Office…..”, therefore as the clause is both in a business to consumer contract and is compliant with OFT guidance para 12.4 only a strict interpretation should be allowed.



EEs claim that these clauses are merely a “reference” and can be altered at EEs whim (if upheld) immediately introduces ambiguity into the clause and the term is no longer compliant with the opening part of OFT12.4 as above. Note that while in their defence EE only mention the change of the Government body, the statistic referenced has also been changed from the“All Prices Index” to the “RPI”.



This is a business to consumer contract and (since receiving the price rise letter) I have read and understood the term and should not be expected to try and interpret what EEs “manifest intentions” were. EE had sole responsibility for drawing up the contract; there was no negotiation on either the wording or the terms of the contract, therefore the onus is on EE to be clear and I should not be required to try and interpret any “manifest intention” EE may or may not have had, but should be allowed to accept the contract as written and at face value. Indeed the OFT guidance para 19.3 (endorsed by Ofcom) states:

“It follows that what is required is that terms are intelligible to ordinary members of the public, not just lawyers.”

Without prejudice I would argue that the manifest intentions of the parties was not, as EE suggest, to allow a price rise regardless of “who publishes a statistic and what statistic they publish”, but rather the manifest intention of the parties was to have a clear and unambiguous clause on which to operate the contract and which is compliant with OFT guideline 19.3 - and that is exactly what clause 4.3.1 is as it stands with no need for additional post contract interpretations.



I also note that EE refer to the “manifest intentions of the parties”, but EE are not asking you to interpret “the parties” manifest intentions,but only the manifest intentions that EE now claim to have had when they drafted the contract (EE were the sole creators of the T&Cs). I have already given you my interpretation of the true manifest intentions of the parties above.



EE have effectively admitted that this clause is unenforceable- as I have stated in my claim (Appendix 1) - as the newer version of theT&Cs has been revised to allow a much wider range of statistics and publishing bodies to be used, “….published by any government body.” I note EE have not referenced their rationale for the need to have updated theirT&Cs in their defence.

DamePeggy

It looks like RC has received almost verbatim the same defence from EE to Clause 4.3.1 as I did - except that my response was chopped off before the 'manifest intention of the parties' line. As RC points out, I can't see how 'the parties' could be assumed here - when it is the one party who produces the contract.

RC - is there any reason why you've not mentioned that it's not just the agency and the index, but also the publication (The Monthly Digest) that is included in 4.3.1?

RandomCurve

DamePeggy wrote: »

It looks like RC has received almost verbatim the same defence from EE to Clause 4.3.1 as I did - except that my response was chopped off before the 'manifest intention of the parties' line. As RC points out, I can't see how 'the parties' could be assumed here - when it is the one party who produces the contract.

RC - is there any reason why you've not mentioned that it's not just the agency and the index, but also the publication (The Monthly Digest) that is included in 4.3.1?

I just forgot to add that point in when I was preparing the case, but as Orange were kind enough to mention it in their defence I thought I'd use it too in my response.

RandomCurve

One thing I forgot to say - if you follow the approach in my post #118 then when you put your claim to CISAS also claim £50 for "Breach of a duty of care" as Orange have only quoted you the wrong T&Cs and clauses in their response to your letters/emails.

Even if you lose the right to cancellation there is a fair chance you will get the compensation -another reason to just go with it and not try and tie Orange down re the T&Cs.

powerful_Rogue

Submitted claim to CISAS last night for the missus. Just got to sit and wait now! Amazing how difficult it it to condense these things down into 750 words!