Tmobile price increase

anna2007

IanR2012 wrote: »

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.

I'd be very surprised if a post-Oct contract was found in TM's favour, given that CISAS have found in favour of the customer for pre-Oct contracts. The distinction is like night and day, there can be no dispute over the post-Oct contracts, March RPI (issued Apr) is clearly not the one published before written notice sent.

I suppose any admission by TM that they got it wrong means that all customers who gave notice to cancel would then be entitled to. They're still in damage limitation mode, so will continue to fight on a case by case basis, in the hope that this will cost them less in the long run (even accounting for the arbitration and compensation costs) than letting all of these customers walk away penalty-free.

With that said, I requested a written apology from TM as part of my CISAS complaint, which I've now received. This from the CISAS adjudication:

"As the price increase of 3.3% notified by the company on 6 April 2013 was in excess of the most recent RPI figure of 3.2% published on 19 March 2013, I find that the customer had the right to immediately cancel her contracts within thirty days of notice of the price increase being given. As the company refused to allow the customer to do this, I find that the company breached the terms of its contract with her".

And:

"The customer seeks to be provided with an apology from the company. I am satisfied that it would be reasonable and appropriate for the company to provide the customer with an apology for its breach of contract and its failures in the duty of care that it owed to her. I therefore direct that an authorised representative of the company shall provide the customer with a written apology for its failure to allow her to cancel her contracts without penalty, its failure to provide the customer with appropriate advice regarding the referral of her complaint to CISAS, and its failure to apologise sooner for its inappropriate advice".

Extract from TM Legal's email:

"We also write to apologise in accordance with the Decision for our failure to allow you to cancel your Agreements without penalty, our failure to provide you with the necessary information and advice in order that you could refer your complaint to CISAS, and our failure to apologise sooner for any inappropriate advice provided".

Although they have been careful not to say "We apologise for breaching the contract", the failure to allow me to cancel the agreements without penalty is the breach of contract - is this an admission that they got it wrong? And if they breached my contract, then they have breached the contracts for each and every customer who gave notice to cancel, as we all received the same price increase, at the same time and under the same contract terms.

Any thoughts on whether others could use this in their CISAS and court cases? Or even to approach TM directly and say "Look, your Legal Team have admitted that you breached the contract".

Chimper

anna2007 wrote: »

I'd be very surprised if a post-Oct contract was found in TM's favour, given that CISAS have found in favour of the customer for pre-Oct contracts. The distinction is like night and day, there can be no dispute over the post-Oct contracts, March RPI (issued Apr) is clearly not the one published before written notice sent.

I suppose any admission by TM that they got it wrong means that all customers who gave notice to cancel would then be entitled to. They're still in damage limitation mode, so will continue to fight on a case by case basis, in the hope that this will cost them less in the long run (even accounting for the arbitration and compensation costs) than letting all of these customers walk away penalty-free.

With that said, I requested a written apology from TM as part of my CISAS complaint, which I've now received. This from the CISAS adjudication:

"As the price increase of 3.3% notified by the company on 6 April 2013 was in excess of the most recent RPI figure of 3.2% published on 19 March 2013, I find that the customer had the right to immediately cancel her contracts within thirty days of notice of the price increase being given. As the company refused to allow the customer to do this, I find that the company breached the terms of its contract with her".

And:

"The customer seeks to be provided with an apology from the company. I am satisfied that it would be reasonable and appropriate for the company to provide the customer with an apology for its breach of contract and its failures in the duty of care that it owed to her. I therefore direct that an authorised representative of the company shall provide the customer with a written apology for its failure to allow her to cancel her contracts without penalty, its failure to provide the customer with appropriate advice regarding the referral of her complaint to CISAS, and its failure to apologise sooner for its inappropriate advice".

Extract from TM Legal's email:

"We also write to apologise in accordance with the Decision for our failure to allow you to cancel your Agreements without penalty, our failure to provide you with the necessary information and advice in order that you could refer your complaint to CISAS, and our failure to apologise sooner for any inappropriate advice provided".

Although they have been careful not to say "We apologise for breaching the contract", the failure to allow me to cancel the agreements without penalty is the breach of contract - is this an admission that they got it wrong? And if they breached my contract, then they have breached the contracts for each and every customer who gave notice to cancel, as we all received the same price increase, at the same time and under the same contract terms.

Any thoughts on whether others could use this in their CISAS and court cases? Or even to approach TM directly and say "Look, your Legal Team have admitted that you breached the contract".

It will be interesting to see what form my apology takes, but the chances are it will be the usual cut-and-paste.

To use this in future complaints to CISAS would probably need to be done in the initial application. T-Mobile would then have to explain, as part of their defence, why they've apologised for failing to cancel an Agreement without penalty when they're still refusing to do the same for the complainant.

Chimper

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'.

Could part of that legal argument include the fact that T-Mobile have admitted getting it wrong (if they haven't then why apologise) for some customers, while refusing others who are in the same position. If they've breached a contract then they've done it to all customers who have the same Terms and Conditions.

anna2007

Chimper wrote: »

It will be interesting to see what form my apology takes, but the chances are it will be the usual cut-and-paste.

To use this in future complaints to CISAS would probably need to be done in the initial application. T-Mobile would then have to explain, as part of their defence, why they've apologised for failing to cancel an Agreement without penalty when they're still refusing to do the same for the complainant.

Thanks, that's what I was thinking, it might prove more difficult for TM to argue that they haven't breached the contract if they've admitted to it in writing.

If anyone feels this might help their own case for CISAS or court, PM me with your email and I'll forward it on to you - but might be worth waiting to see if daveuk1 and fitz offer their opinion on the legal side.

anna2007

I've been looking at my CISAS decision again, and thought the following might help others preparing their cases for CISAS - the adjudicator states the main issues as:

"3. I consider that the main issues in this adjudication are:

a. Whether the company has broken a term of the contract between it and the customer or failed in its duty of care.

b. Whether the reasons given by the customer are sufficient to justify any compensation, an apology, or for the company to "cancel my two contracts without penalty"."

The next section (Background Information) states:

"4. In order to succeed in a claim against the company the customer must prove on a balance of probabilities that the company has broken some term express or implied of the agreementwhich existed between them, or failed in the duty of care which the company owed to the customer and that as a result of this breach the customer has suffered loss. (A duty of care is a responsibility or a legal obligation of the company to avoid acts or omissions which can be reasonably foreseen to be likely to cause harm to others). If no such breach or loss is proved the company will not be liable to pay compensation however disappointed or upset the customer is".

The above might be standard from one decision to another (and I'm assuming each adjudicator follows the same format in setting out their report). However, if it's not, and each adjudicator has cited different main issues and/or different criteria for succeeding in a claim, this might help explain why there have been different outcomes in the decisions?

Would the others who have received their decisions mind checking theirs to see if these vary from the above?

stoney73

anna2007 wrote: »

I've been looking at my CISAS decision again, and thought the following might help others preparing their cases for CISAS - the adjudicator states the main issues as:

"3. I consider that the main issues in this adjudication are:

a. Whether the company has broken a term of the contract between it and the customer or failed in its duty of care.

b. Whether the reasons given by the customer are sufficient to justify any compensation, an apology, or for the company to "cancel my two contracts without penalty"."

The next section (Background Information) states:

"4. In order to succeed in a claim against the company the customer must prove on a balance of probabilities that the company has broken some term express or implied of the agreementwhich existed between them, or failed in the duty of care which the company owed to the customer and that as a result of this breach the customer has suffered loss. (A duty of care is a responsibility or a legal obligation of the company to avoid acts or omissions which can be reasonably foreseen to be likely to cause harm to others). If no such breach or loss is proved the company will not be liable to pay compensation however disappointed or upset the customer is".

The above might be standard from one decision to another (and I'm assuming each adjudicator follows the same format in setting out their report). However, if it's not, and each adjudicator has cited different main issues and/or different criteria for succeeding in a claim, this might help explain why there have been different outcomes in the decisions?

Would the others who have received their decisions mind checking theirs to see if these vary from the above?

Exactly the same on mine.

d123

Same here as well.

anna2007

stoney73 wrote: »

Exactly the same on mine.

Thanks Stoney and d123, looks like the adjudicators will be judging cases on the same basis, which might help. Maybe it does all come down to the individual adjudicator, which is complete rubbish

anna2007

fitz2012 wrote: »

I think there will be winners and losers solely because of different legal interpretation, as ruled by the decision maker, in a claim to CISAS or Court.

As daveuk1 correctly argues as a commercial solicitor, if you follow the literal interpretation, 'natural meaning' of the words then the relevant RPI is March and 3.3%. This can be strongly argued and certainly would be the most likely decision in commercial litigation between companies.

However, we are talking here about a consumer contract, which allows a different interpretation to be found. The timing of TM letter causes the term to be ambiguous and uncertain. The current, published RPI at this relevant time is 3.2%.

To add weight to the consumer case, TM previous years actions give some clarity, using the then known RPI. In their letter TM use the word 'current'. If you are pre Oct terms, you can also evidence TM have changed terms to include 'published' RPI.

I personally believe it does not matter what approach the customer takes in submitting your case, because as shown in the CISAS results, the decision maker can find a legal interpretation he chooses.

That said, I would would submit any argument, that showed TM's own ambiguity as to which RPI they meant, Jan 3.3% or predicting Mar 3.3%. Last years action re price rise, wording of the letter, change in pre and post oct terms, findings of other winning cases, EE's previous submissions, emails, apologies etc that support you and are persuasive evidence of your case.

I would strongly consider Court action if you lose at CISAS. If your claim is less than £300, it costs you £25 for a second chance. See how EE respond. If they still defend, then you would need to pay another £25 to proceed to a Court hearing. Before any hearing date I would be telephoning the Executive Office to offer to settle my claim.

Never say never, but I just do not believe EE want to allow a price rise test case in Court. Although a finding against EE in a small claims court is not binding to other cases on the same issue, it is 'persuasive' evidence. Any national press reports would not be helpful if EE lose in Court!

Thanks for your input, it's much appreciated to have another view on the legal aspect

When you mention "natural" interpretation, is this the same as "literal", or does it mean what the normal, sane and reasonable person might take it to mean?

The arguments that you've suggested are pretty much what we've been putting forth (additional arguments too) , but unfortunately with variable results. I believe the consumer has a strong case (borne out by the successful outcomes), your comments that the results will vary from one CISAS adjudicator or judge to another do worry me though. Seems to go against the whole point of having a legal system (in my wee bubble again!)

I appreciate your comment that EE won't want to test the price rise clause in court, but that argument is pretty much irrelevant to the issue here - EE have breached a clause of the contract, plain and simple.

I don't know if you read back in the thread, but would appreciate your view on others using TM's apology for breach of contract in their own cases - do you think this is something that might hold weight?

lazyjack

What I still can't understand is if different people from the same organisation (CISAS), all with (I assume) a great deal of legal experience, can't agree on the interpretation, there must be a fair amount of ambiguity. In this scenario, the consumer is supposed to get the benefit, which they are clearly not.

Obviously they are not ruling on 'identical' cases (even though the situation is) as everyone's case will be put forward in a slightly different way. As Fitz also points out, I think the same adjudicator is unlikely to give different results to what they have already given so far.

Out of the winners & losers, I would be interested to find out if anyone specifically mentioned that the price increase letter clearly stated 'current RPI'. I think this is critical to anyone's case as for me (bearing in mind I have no legal experience) it clarifies what TM mean in their T&C, or at the very least makes it ambiguous.