Tmobile price increase

IanR2012

fitz2012 wrote: »

I have sent a summons to EE re Orange price rise. My argument is breach of oral sales contract as in Angela Walsh v Tmobile case.

When contract made by telephone Orange did not tell me there was a term that allowed a price increase, so it is not part of my agreed oral contract. As Judge Trent said printed terms and conditions were irrelevant, the contract was concluded on the phone.

fitz2012 you may well have this already, but just in case it gives you a "heads up" to EE's argument against, here is their response to me for that same point:

~~~~~~~~~snip
I confirm the case referred to surrounding Ms Walsh was an isolated case. The facts of the case including the court's decision was limited to the unique facts of that particular case. It is perfectly acceptable, and an industry standard, to upgrade over the phone. Moreover, many industries take a similar approach: insurance for example. In this instance it came down to her word against T Mobile's and what was discussed in a specific conversation.

EE has processes in place for all mediums of contract creation (on-line, telesales and in store) to ensure that the proposition that the customer is entering into is clear and transparent. In addition all our pricing is easily accessible via our web site.
~~~~~~~~~snip

boatman

In 7.2.3.3, try changing the word 'any' to 'the'..... and tell it doesn't change the language meaning.

daveuk1

fitz2012 wrote: »

IanR2012 - Thanks for your post. EE would certainly hope the Walsh case is isolated and unique on it's own facts.

However, it is actually simple contract law. The court would have to find that the relevant term 'is part of the agreed oral contract'. You discuss the tariff, minutes, calls, data allowance and agree the price. Simple contract.

Yes, it is the sales guy's word against yours. If EE produce them as an actual witness (as if!) Will they produce the recording to prove their case ? Absolutely not!

Ask yourself on the balance of probability. For an industry that records sales calls, who fail to show a recording to the court which evidences the customer 'was told there was a price rise RPI clause in the contract', or a customer who says 'i was not told the price can increase during contract' who would win ?

Why would Judge Trent rule that terms and conditions are irrelevant because the contract was concluded on the phone ?

It is simple contract law. If roaming data charges are not part of an agreed oral sales contract as in Walsh v TM, why would a clause allowing a price rise, also not told to a customer on the phone be allowed ?

EE will have to show, dispute, argue, either I was told by the sales guy, or by some magic, ask the court to agree it is implied I accept any and all of their terms and conditions.

I would argue a term that can affect the price is too material and too important not to have been told at the time of purchase.

Time will tell if EE want to defend in a Court hearing or choose to reach an amicable agreement

As you are presumably aware, contract law has evolved over the ages to keep up with commercial reality. It has to. I haven't seen the Walsh judgment unfortunately but I'd be interested in the reasoning because if your interpretation is correct, it would render telesales effectively obsolete as you'd have to go through every contract term on the phone as opposed to the current long accepted practice which allows reference to written terms provided after the event. The Distance Selling Regs currently offer protection if those terms subsequently turn out to be unsatisfactory.

I'd be very surprised if those were really the implications of the Walsh decision and if they were, I dare say it's bad law that can't survive.

IanR2012

daveuk1 wrote: »

as opposed to the current long accepted practice which allows reference to written terms provided after the event

If the long accepted practice allows reference to the written terms during the sale and for them to be provided after then that helps me since the terms were not referenced at any time during my call to purchase, and T-Mobile have not disputed this.

They dispute my point that I was never provided them since T-Mobile says there is a tick in a box on my account that they sent them with the phones.

As a consumer, when I'm told I'm purchasing 2 phones at £33.00 per month per phone for a minimum 24 months, without any reference to T&C's, I feel it is not unreasonable for me to assume that is the cost for every one of those months.

Interestingly Watchdog recently tested 5 T-Mobile in-store sales people and explicitly asked if the costs of the plan they were purchasing would increase during the term, to which they were told it would not.

anna2007

The thread seems to be changing course towards a legal debate which, as relevant as it might be, I don't think is particularly helpful to the people who have been following this thread and are about to take their cases to CISAS – I think we need to keep legal views out of it and stick to the facts. EE have complicated the issue enough - too much debate on the legal aspect might just tip it and put people off altogether

I don't mean this with any disrespect, but it might be an idea to open a new thread if you want to debate the legal issues in detail? I honestly feel !!!! for saying that, but it's only to maintain the main gist of this thread, which is to help those who want to take their complaint against TM/EE further.

Having said that, I intend to reply to daveuk1 on same issue

IanR2012

anna2007 wrote: »

Having said that, I intend to reply to daveuk1 on same issue

Best you start a new thread then ;-)

Joking aside, its helping me. Perhaps not everyone has followed an identical path.

anna2007

IanR2012 wrote: »

Best you start a new thread then ;-)

Joking aside, its helping me. Perhaps not everyone has followed an identical path.

I hope you're joking!! If it helps, all and good, that's the whole point of the thread.

All I'm saying is, if we bring in new legal arguments, that's going to complicate something that is already a complicated issue (needn't be, only TM's actions have made it so). Anyone following the thread might actually be put off going to CISAS, when it's a pretty straightforward case, that's the point I was trying to make.

anna2007

daveuk1 wrote: »

I absolutely agree it's ridiculous. And clearly untrue. You won't hear any moral defence of their actions from me. My point is that it ought to be legally irrelevant and I think they probably tied themselves up in knots unnecessarily by making such a claim. There's no room for manipulation. Neither TM nor the customer can change what the relevant RPI rate ought to be according to the contract, whatever they say. Which is why I'm equally adamant that post-Oct customers (on which subject it's gone rather quiet) ought to be able to terminate.

If TM used the wrong RPI in previous years then it would have been open to customers to have invoked 7.2.3.3 then but the fact that nobody did doesn't mean that they were right then and wrong now.

Same as it doesn’t mean that they were wrong then and right now! The circumstances this year actually support the view that TM have manipulated the term to their own advantage - if a court would disregard the whole ‘prediction of RPI’ because it’s a business decision and therefore irrelevant to the case, that feels intuitively wrong; TM’s actions are a matter of fact, and should be completely relevant.

I’m not arguing this point for the sake of it, it’s because I genuinely believe my interpretation (and that of the vast majority, going by the views expressed on the forum) to be the right one. When I first read cause 7.2.3.3 after receiving notice of the price increase, and checked current RPI on the ONS website, which was 3.2%, why on earth would I think “Wait a minute, perhaps they mean the actual RPI rate that is yet to be announced, I’ll hold back a while and see what that brings”? That, to me, is utter nonsense.

I do appreciate your view, and I more than understand why it’s TM’s view, but then again, there have also been other interpretations of what the relevant RPI might be, particularly if you include the part “any increase in…” before the main part of the clause (all of which supports the argument that the clause is ambiguous). For anyone putting their case to CISAS, please don’t add this to your claim as it won’t help – stick to what is the relevant RPI – I’m only adding it because I think it shows the extent of the ambiguity of the clause… the RPI rate could mean:

The current (or latest) RPI rate, published March, covering the previous12 month period.

The actual RPI rate for March, published April

Taking an average of the published (or actual) RPI rates for the previous 12 months

Choosing any one of the published (or actual) RPI rates in the last 12 months

Taking the lowest of the published (or actual) RPI rate in the last12 months (Boatman's theory?)

That’s around 8 different interpretations, which may seem completely ridiculous, but all of them could be valid, if you accept that the ‘future’ rate is a contender.

EDIT: I haven't a clue when it comes to the legalities, but the "natural" interpretation to me, out of all of the above, is that the clause refers to the current RPI rate...

Regarding the later contracts going quiet - there'll be significantly less cases where the latest terms apply - there have only been a few on the forum - my own (positive result but only through default), Random Curve (he only submitted his application to CISAS the other day) - I don't remember any others?

anna2007

fitz2012 wrote: »

To CISAS and (if lose) or alternatively to small claims Court, which you may then find the legal argument more useful.

Either way, you have to present the facts, your evidence, and your own 'legal argument'.

Completely agree, the point is all the facts are here already (as some have been successful at CISAS). The issue now is figuring out why some have won and others have failed, when the crux of the argument is the same?

It could be down to the individual adjudicator, which has been suggested (I live in my own wee bubble so refuse to accept this!), or it's down to the arguments that each of us is putting across - any thoughts?

IanR2012

anna2007 wrote: »

Regarding the later contracts going quiet - there'll be significantly less cases where the latest terms apply - there have only been a few on the forum - my own (positive result but only through default), Random Curve (he only submitted his application to CISAS the other day) - I don't remember any others?

I have a post-Oct complaint I'm doing for a family member which hits the 8 weeks next week. Probably submit it to CISAS at the end of the week unless significant progress is made with T-Mobile.


I'm shocked that T-Mobile aren't just rolling over on that one and avoiding the Arbitration and compensation costs.