You can cancel your Orange contract!

RandomCurve

ryan92 wrote: »

Therefore, they are not willing to clarify which Terms I am on whatsoever so they are really trying to confuse me and keep me in the dark. Duty of Care? To quote Jim Royle.... my a£!e

Send a short email to Ofcom stating that Orange will not confirm to you which set of T&Cs you are on even after X calls and X letters to them. State that they should consider EEs behaviour in conjunction with case reference 1-232302417

Address the email to:
[EMAIL="graham.howell@ofcom.org.uk"]graham.howell@ofcom.org.uk[/EMAIL]
[EMAIL="Lynn.Parker@ofcom.org.uk"]Lynn.Parker@ofcom.org.uk[/EMAIL]

powerful_Rogue

My partner has just received her defence through from Orange. Seems like the bog standard defence everyone else has had, however point 18 is more like DamePeggys then your RC.

1. 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 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 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 affect or prejudice the underlying purpose for which the clause was created, being the intention that where Charges are increased the effects on termination rights need to be considered as against the relevant RPI rate. It is irrelevant for the purpose of the clause as to the name of the Governmental body publishing the official RPI data

.

My concern is that is dosent mention manifest intentions - could that be because they are no longer using that argument or because like DP for some reason it has been cut off.

As DP lost her claim on the manifest intentions part, should I just include something about manifest intentions in my reply to be on the safe side?

DamePeggy

powerful_Rogue wrote: »

My concern is that is dosent mention manifest intentions - could that be because they are no longer using that argument or because like DP for some reason it has been cut off.

As DP lost her claim on the manifest intentions part, should I just include something about manifest intentions in my reply to be on the safe side?

It does seem to be a little different, but I’m not sure that the concepts of ‘manifest intention’ or ‘‘underlying purpose…being the intention that…” differ that much – they still require a level of interpretation and inference that shouldn’t be necessary for a business to consumer contract.

I’m preparing a CISAS complaint for my partner that basically follows RC’s case – that OFT guidelines demand a strict interpretation of the clause, that there was no negotiation, and that we have the right to take the clause as read, at face value, and request the specific document it unequivocally names. EE should not be relying on the 'underlying', but the explicit in such contracts.

But, if they really feel that they must consider the ‘intentions of the clause’, without prejudice, I’d first again ram home that the purpose of the clause is to state explicitly not just what statistic is required against which to test clause 4.3.1, but in which publication it must be provided and by whom (other wise what the eckedyeck are those references doing there?).

If they still really, really want to accept EE’s assertion that these are only references to the official government body that publishes the stats, then the most reasonable interpretation of ‘the underlying purpose/intention of the clause’, was not, as EE state, to reference the current RPI, but to test the price rise against the accepted National Statistic of retail price inflation.

Back in 1996, when the CSO and Monthly Digest existed, this was the All Item Index of Retail Prices’. Since then the RPI’s status as a ‘national statistic’ has been removed by the ONS and replaced by the CPI – which stood at 2.7% in January (see RC’s posts earier).
On the balance of probabilities then, was it really the intention of the parties for the clause to allow price increases regardless of whether or not that statistic in question was considered defunct (which is essentiall ywhat the ONS think of the RPI nowadays).

powerful_Rogue

Thanks Dame Peggy. You would not believe how helpful yours and RandomCurves post are in this thread for helping me put together my response to Orange.

I think ive finished - 6 pages long and hopefully covering everything Orange have tried to throw! Will probably leave it until after the weekend to make sure I dont think of anything else!

RandomCurve

The wait is over – I received my CISAS decision thismorning!



My claim was based on two separate arguments as follows:

1. CSO does not exist etc (the main thrust of thisthread), and

2. The price rise clause is unenforceable as it isnot complaint with Office of Fair Trading (OFT) rules 12.4 – “price rise termsmust be clearly and adequately drawn to a consumers attention.”



I also put in a claim for compensation.



The good news is that I won on point 2, however as theterm is unenforceable the adjudicator ruled that that does NOT give a right tocancellation, but does mean that Orange can not increase my price during the 24month fixed term! The ruling was a follows:



Therefore, my decision is that that this claimsucceeds in part. I direct that the company should apply sufficient credit tothe customer’s account to keep the service charge at the figure of £26.00 forthe duration of the 24 month contract. I also direct the company to pay thecustomer the sum of £50 in compensation.



Note that the £50 compensation was for Orange misleadingme in the welcome letter they sent with the phone.





Now don’t shoot the messenger.

On the CSO issue the ruling was exactly the same as inDPs case (it was the same adjudicator). He accepted Oranges’ argument that theCSO is now the ONS and that is irrelevant which body publishes the statistic,and he sided with Orange over the “manifest intentions” of the parties. My realdisappointment on this judgement is that he did not address my claim that theRPI is no longer a National Statistic (a fact) and that if anything Orangeshould be using CPI (which was 2.7% not 3.3%). He also had this to say aboutOrange quoting the wrong T&Cs (my bolding):



I note in the correspondence that by a letterdated 29 April 2013 the company misquoted their terms and conditions. In myview the misquoting of conditions might only constitute a breach of duty ofcare if it was done to deliberatelymislead the customer. There is no evidence that this was the case and Itherefore find that there was no breach of duty of care.



I guess I should have quoted some of you here in relationto trying to obtain the correct T&Cs!



So the bad news is it does not look like we are going toget out of our contracts due to CSO. The GOOD NEWS is that a breach of OFT 12.4is NOT time bound by 30 days (I think itis time bound by 6 years) so if you all write to Orange claiming breach of OFT 12.4 (I’ll put up a template) and then goto CISAS it won’t be long (costs Orange a few hundred pound for each case)before Orange will have to just cancel this (and previous) price rises foreveryone as the cost of going to CISAS will be too much for them!. The onecaveat here is that Orange made no defence to my arguments regarding OFT 12.4and potentially they may find a counter argument if they think about it hardenough! But when you see the judgement I don’t think that would be likely!

RandomCurve

The adjudicators decision.
What ever defence Orange put up they are unlikely to be able to defeat the breach of the UTCCRs given all of the bullet points under "j" even if you do not have the welcome letter to produce as evidence! - OFCOM where are you?

The first part of the claim concerns the validity of the price variation clauses in the contract. Although the customer asserts that the variation clause is clause 4.3 I note in fact it is clause15(1) a that reserves the company’s right to vary the contract subject under clause 15(1)b to the protection given to the customer by Clause 4.3. It is clause 15(1) that the company relies on as entitling it to raise its prices and it is this clause whose validity I must consider.

g. The issue in dispute is therefore whether clause 15(1) is unfair and therefore unenforceable. The OFT state that flexibility in pricing can be achieved if price increases are specified so that they effectively form part of the agreed price provided the details are clearly and adequately drawn to the consumer’s attention. I agree with the OFT’s interpretation of the Regulations and the requirements of good faith mean that price variation clauses should be clear and intelligible and should be brought to the customer’s attention.

h. I have also noted that Ofcom in their report entitled “Ofcom Price Rises in Fixed Term Contracts” have expressed the view that there “must be a high level of transparency of prices, price terms and any variability in those prices”.

i. The customer in his submissions places much reliance on the company’s welcome letter as evidencing that the price variation clause was not brought to his attention. The customer also submits that the location of the clause and its difficult wording means the clause is unfair. The company has not fully dealt with these arguments in its defence but has simply asserted its contractual right to increase prices.

j. On the evidence submitted to me I am not satisfied that clause 15(1) has met the requirements of good faith in that it is poorly drafted and was not adequately drawn to the customer’s attention. In particular I note that:

· The welcome letter makes no mention of any price increase clause.The summary of key terms suggests a fixed price over the term;

• Clause 15(1) is buried on pages 9 and 10 of a 12 page contract;

· The wording of clause 15(1)a refers to the right to vary the terms of the contract at the end of a unconnected long sentence which deals with the customer’s right to change his service plan;

· The structure and meaning of clause 15(1) is confusing, opaque and hard to understand. It is not plain and intelligible;

· There is no direct reference to price increases in clause 15(1)a instead only a general right to vary terms. It is only in reading clause 15(1)b that reference is made to possible changes in prices; and

· On the overall reading of the contract it is by no means clear that the company can change the price mid-term and only on very careful scrutiny is the entitlement apparent.

k. I therefore find that clause 15(1) is unfair under the Regulations. However, as explained above this does not entitle the customer to terminate the contract. It means the term cannot be relied upon bythe company to increase the price of the contract. The customer is entitled to be charged the monthly plan of £26.00 as agreed at the start of the contract. I therefore direct that thecompany should apply sufficient credit to the customer’s account to keep the service charge at the figure of £26.00 for the duration of the 24 month contract.

powerful_Rogue

Disapointed to hear about another loss. Are you going to leave it here RC or go to the small claims court?

Just hoping when the missus submits her final comments, she gets a different adjudicator to what you and DP had.

DamePeggy

RandomCurve wrote: »

The wait is over – I received my CISAS decision thismorning!
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Well that's pretty much the classic good news, bad news story I suppose. If you could word something proforma for people to submit to CISAS that would be good. I'm busy this weekend, but next week I'll do something about Orange reading the wrong Ts&Cs and hiding the old set of terms to highlight that it all looks pretty deliberate.


I'm still going to go ahead with the other CISAS claim - as the Tmobile case shows, different adjudicators can make a huge difference and I'm still a bit suspicious that he'd back himself into a corner with the decision on my case before he saw your better supported claim.

Can you post his reasoning for the 'intention of the parties' decision? It might help me word the new claim. Cheers. I definitely don't think it was the intention of the parties for the clause to refer to a defunct national statistic too.

RandomCurve

powerful_Rogue wrote: »

Disapointed to hear about another loss. Are you going to leave it here RC or go to the small claims court?

Just hoping when the missus submits her final comments, she gets a different adjudicator to what you and DP had.

I'm dropping this part of the claim now.

My Initial letter to Orange stated that I did not believe that the price rise was legal and that Orange should leave my contract at the agreed price for the fixed term, which is what I now have plus £50 compensation . The contract cancellation would have been a bonus, but was never a main objective.

That does not mean that this is the end of my involvement as I have a number of objectives I wanted to achieve as follows:

1. Have my T-Mobile contract terminated penalty free
   1. Achieved
2. Help as many as others as possible to also have their T-Mobile contracts terminated penalty free
   1. On-going, but mainly achieved
3. Get Ofcom to rule that T-Mobile price rise breaches T&Cs and force T-Mobile to write to all customers offering them a penalty free cancellation - or a discount on their contract to remain with T-Mobile .
   1. On-going. Ofcom are on the back foot and have admitted errors and are reconsidering if action should be taken - I have also managed to engage my MP in the matter, who was horrified at ofcoms woeful lack of action on this matter.
4. Have the Orange price rise clause deemed unenforceable
   1. Achieved with the most comprehensive of reasons why it is unenforceable on so may levels
5. My ultimate objective - Get Ofcom to rule that ALL Mid term price hikes are unenforceable and rule that ALL mobile phone companies have to repay the sums taken from their customers under these unfair terms
   1. This is a big ask, but again Ofcom are on the back foot, my MP is also supporting me and by achieving objective 4 above puts Ofcom on some decidedly dodgy ground!

What I (and all of us) really need is some media attention to focus Ofcom on its consumer protection role, and with my contact with the press so far it seem they are more likely to take a story which exposes Ofcom than they are on a story that exposes EE, however if we can get them to pick up on Ofcom that will automatically lead to EE! I'm sending stories to various media organisations on an almost weekly basis.

So on this particular issue - I'm at the end of the road (but I think that a different adjudicator may not be so willing to interpret the manifest intentions parties in the same way, or rule that the RPI is the index referred to).

RandomCurve

DamePeggy wrote: »

Can you post his reasoning for the 'intention of the parties' decision? It might help me word the new claim. Cheers. I definitely don't think it was the intention of the parties for the clause to refer to a defunct national statistic too.

Reasoning below - he made no reference as to why he thinks the clause relates to the RPI - and one thing I never pushed in my claim was that at the time the contract was entered into the CSO did not exists (not sure if that would help or hinder the case)

The customer’s second argument concerns the application of clause 4.3 and 4.3.1. Clause 4.3 provides protection to the customer if the contract is varied to his detriment by allowing the customer to terminate the contract in these circumstances. If the price increase is equal to or less than the RPI the customer under Clause 4.3.1 does not have a right to terminate. In light of my decision above to disallow the price variation clause it follows that I need not assess the applicability of clause 4.3 and clause 4.3.1 which become irrelevant.

m. The customer has however made lengthy submissions regarding clause 4.3 and 4.3.1. Accordingly, for completeness and without affecting my primary finding that the price
increase clause is unfair I have considered the application of clause 4.3 and clause 4.3.1.

n. I note that the precise wording of Clause 4.3 is as follows:
“You may also terminate your Contract if we vary its terms, resulting in an excessive increase in the Charges or changes that alter your rights under this Contract to your detriment.”

o. The customer has argued that any increase in the contract price entitles him to terminate. The wording of clause 4.3 provides for a right to terminate if there is an excessive increase in charges or changes that alter the customer’s right to his detriment. I note that the company admit that they increased their prices by 3.3% which equated to the published RPI figure for January 2013. The company however deny that the increase was such as to allow the customer to terminate the contract under clause 4.3 or alternatively that clause 4.3.1 would apply since the price increase was equal to or not
less than the RPI. In my view any price increase would be detrimental to the customer. I therefore find in the circumstances of this case the customer would be entitled to
terminate the contract under clause 4.3 unless clause 4.3.1 applies.

p. The validity and application of clause 4.3.1 is therefore the key point and in particular the precise interpretation to be given to the clause. I note that the wording of the clause is very specific. Reference is made to a particular government department and a particular publication. Since the Central Statistical Office (which ceased to exist in 1996) did not publish any statistics the customer submits that the clause should therefore fail. The customer invites a “face value” interpretation of the wording.

q. However, as the customer has pointed out I must have regard to the intention of the parties and the purpose of the clause. In my view the primary intention of the parties is to
allow a get out for the customer if the company imposes new detrimental terms during the fixed term contract. It allows the customer to terminate the contract if the company increases its prices over the RPI. The precise mechanics of which government office supplies the RPI or in what publication this information is supplied in is not relevant.

r. I also accept that the contract wording should be clear and unambiguous. In my judgement the clause is not ambiguous and does not suffer from lack of clarity. On the plain reading of the clause it is clearly making reference to the official government published Retail Price Index or RPI. Apart from the reference to an historic source of the data the meaning of the clause is clear. RPI data is now published by the Office of
National Statistics and what constitutes the RPI is understood by everyone without difficulty.

s. Having regard to the intention of the contracting parties, the purpose of the clause and the fact that on its plain reading it is clear and unambiguous I find that the reference to a defunct government office does not invalidate clause 4.3.1. The clause is still workable and understandable.