Tmobile price increase

RandomCurve

TMs DEFENCE


The documents TM send are as follows:

1. A Screen shot of their customer contact system showing which contract you are on
   1. I wont publish it here, but it shows I am V58 i.e. PRE Oct 2012, when my contract started POST Oct 2012 (Dec 2012)
2. A copy of the contract (V58 instead of V59 in my case)
3. A print out of the contact I have had with TM
   1. I wont publish it here
4. Their defence statement

COMMUNICATIONS &INTERNET SERVICES ADJUDICATION SCHEME

REFERENCE XXXX

BETWEEN

XXX Claimant

and

EVERYTHING EVERYWHERELIMITED trading as T-Mobile

Respondent

DEFENCE



1. The Respondent submits that the issue at the heart of theClaimant’s Claim relates

to a business decision taken by the Respondent to increaseits prices.



2. Rule 2(g) of the CISAS Scheme Rules (“the Rules”)provides that the CISAS

Scheme (“the Scheme”) can be used to settle disputesabout

i) bills and/or;

ii) communication services provided to the Respondent’scustomers.



3. Rule 2(j) of the Rules provides that the dispute must notinvolve a complicated

issue of law.



4. The Respondent submits that the cause of action pleaded by the Claimant is

neither directly related to bills or communication servicesand therefore represents

a dispute which falls outside the remit of Rule 2(g) andtherefore is a matter which

is not within the jurisdiction of the Scheme



5. Further the dispute, as pleaded, necessitates theconsideration of the legal

interpretation of clauses contained within the serviceagreement entered into

between the Claimant and Respondent, applied as againstfacts, to ascertain

whether a legal right of termination exists. The Respondentsubmits that such

issues of legal interpretation and consideration requiresevaluation and application

of areas of law concerning contractual interpretation whichare by their very nature

complex and complicated.



6. Therefore, the Respondent respectfully submits that theClaimant’s claim as

pleaded cannot be dealt with under the Scheme and thatpursuant to the Rules an

adjudicator is not therefore able to consider the Claimant’sclaim.



7. The remainder of this Defence is pleaded withoutprejudice to the above.



8. The Respondent denies that it is liable to the Claimantas pleaded or at all.



9. The Respondent is a mobile telecommunications networkoperator that enters into

service agreements with its customers to enable itscustomers to access the

services. TheClaimant is one such customer of the Respondent.



10. Access to the Respondent’s network is granted to thecustomer by way of the

issuance to the customer of SIM card which is issued subjectto the Respondent’s

then applicable conditions for telephone service.

11. The Claimant has been a customer with the Respondentsince 05 December 2012 in respect to account number XXXXX. The Claimant has one active mobile

number being XXXXXXX registered on the account.



12. On 05 December 2012 the Claimant entered into a ServiceAgreement (“the

Agreement”) with the Respondent via an authorised thirdparty retailer of the

Respondent (namely A1 Communications). The Claimant was madeaware that the

Agreement was subject to terms and conditions which wereoffered to the

Claimant prior prior to entering into the agreement and wereavailable for viewing

on the Respondent’s website. The Claimant was made awarethat each Agreement

was subject to a minimum term period and he was providedwith the terms and

conditions applicable to the Agreement at the point ofentering into the

Agreement.



13. Attached hereto at Schedule 1 is an extract from theRespondent’s billing system

which shows the information captured on the Respondent’sbilling system at the

point of sale which states that the applicable terms andconditions applicable to the

Agreement are Conditions Version Number 58 (“CVN 58”).



14. The Claimant refers to Conditions Version Number 59(“CVN59”) within his

supporting document (referred to in the document as APPENDIX2 CURRENT

TERMS OF SERVICE FOR PAY MONTHLY CUSTOMERS JOINING ON OR

AFTER 30 OCTOBER 2012) however as such terms are notapplicable to the



Agreement between the parties the Respondent’s defence willdeal only with the

applicable terms, being CVN58. The Claimant’s Agreement is not subject to

CVN59 and therefore not applicable to the dispute betweenthe parties.



15. At Schedule 2 attached hereto is a copy of CVN58applicable to the Agreement

entered into between the Claimant and the Respondent. Theterms and conditions

governing the Agreement contains amongst other things thefollowing;-

(i) Clause 2.5.1 - Unless We agree otherwise, a new MinimumTerm will

apply. Once that Minimum Term is over this Agreement willcontinue

until terminated;

(ii) Clause 7.1.4.- We can increase any Price Plan Charge.We will give You

Written Notice 30 days before We do so. The change will thenapply to

You once that notice has run out;

(iii) Clause 7.2.2. You can only give Us notice to terminatethis Agreement by

calling customer services. Your Agreement will terminate 30days from

when We receive Your call, although You are free to changeYour mind

and call Us to withdraw Your notice of termination at anytime during that

period. You will be responsible for all Charges up to andincluding the

date that this Agreement terminates;

(iv) Clause 7.2.3 - ACancellation Charge won’t apply if You are within the

Minimum Term and:



(a) Clause 7.2.3.3 - The change that We gave You WrittenNotice

of in point 7.1.4 is an increase in Your Price Plan Charge(as a

percentage) higher than any increase in the Retail PriceIndex

(also calculated as a percentage) for the 12 months beforethe

month in which We send You Written Notice and You give Us

notice to immediately cancel this Agreement before thechange

takes effect.



16. Pursuant to Clause 7.1.4 on or about the 2-8 April 2013the Respondent issued to the Claimant (together with all of its pay monthlycustomers) written notice (“the

Written Notice”) advising of a 3.3% increase in price planmonthly charges that

would take effect as from 09 May 2013. The Respondent submits that adequate

Written Notice was provided to the Claimant for the purposesof Clause 7.1.4.



17. The Respondent denies that the price increase of 3.3% isan increase above the

Retail Price Index (‘RPI’) (when calculated as a percentage)for the 12 months

before the month in which the Respondent issued the Claimantwith the Written

Notice.



18. The Respondent further denies that such increase incharges is an increase which entitles the Claimant to terminate the Agreementwithout paying a cancellation

charge.



19. As the Written Notice was issued in the month of April2013 then the relevant

month’s RPI figure for the purposes of Clause 7.2.3.3 of theAgreement is the RPI

figure as published by the Office of National Statistics(“ONS”) representing

March 2013; being the month before the month in which theWritten Notice was

issued. The March RPIfigure, published by the ONS Statistics was 3.3%. By way

of the Monthly Statistical Bulletin (“the Bulletin”)published by the ONS the

following is stated:-

The RPI 12-month rate for March [2013] stood at 3.3%

The Bulletin is a lengthy document so has not annexed tothis Defence but can be

made available to CISAS upon request.



20. The following is a summary of the RPI figures issued bythe ONS month by

month for the period January 2013 to March 2013.



RPI Month RPI Percentage RPI Publication Date

December 2013 3.1% 15 January 2013

January 2013 3.3% 12 February 2013

February 2013 3.2% 19 March 2013

March 2013 3.3% 16 April 2013



21. As the increase in charges of 3.3% set out within theWritten Notice is not higher

than the RPI figure published for the month before the monthin which the Written

Notice was issued (March 2013) of 3.3% the Claimant, by wayof Clause 7.2.3.3

or otherwise, is not entitled to cancel the Agreementwithout paying a cancellation

charge.



22. The Respondent denies that it issued Written Notice toits customers on 1 March

2013. The Respondent submits that the press publicationissued on 1 March 2013

referred to by the Claimant was merely an indication as towhat the Respondent’s

future intention may have been but that such did notconstitute actual written

notice for the purposes of Clause 7.1.4.

23. The Respondent denies that Clause 7.2.3.3, or any otherClause referred to above, is an unfair term in breach of the Unfair Terms inConsumer Contract Regulations 1999 or otherwise. The terms were clear and unambiguous andclearly stated within the Respondent’s Agreement. They were not hidden. Furthermore, the

Claimant could have chosen to enter into an agreement formobile phone services

with an alternative service provider, he was not obligatedto enter into the

Agreement with the Respondent, he did so of his own freewill and in doing so is

therefore subject to the terms and conditions applicable tothe Agreement.

Furthermore, the Respondent denies that the terms andconditions set out within

the Agreement are in breach of the OFT guidelines relatingto plain and

intelligible language.



24. The RPI figure of 3.2% published by the ONS on 19 March2013 as referred to

by the Claimant within his application relates to the RPIfigure for February

2013. The RPI figurepublished by the ONS in a given month relates to the

preceding month and not the actual month of publication.Therefore the figure

referred to by the Claimant as published on 19 March 2013 isactually the RPI

figure for February 2013 and not the RPI figure for March2013. The Respondent

is not seeking to rely upon the RPI figure for February2013.



25. The Respondent avers that published RPI figure for March2013 is the correct

figure to use when applying the strict interpretation ofClause 7.2.3.3. Clause

7.2.3.3 specifically refers to the ‘Retail Price Index (alsocalculated as a

percentage) for the 12 months before the month in which wesend You Written

Notice. (emphasis added). It follows, in line with the strict interpretation of Clause

7.2.3.3, that the Written Notice being issued in April 2013relates to RPI figure

for March 2013. Whilst the March RPI figure was not issued until after the date

of the Written Notice such does not affect the constructionand interpretation of

the Clause 7.2.3.3.



26. It is denied that the fact that March 2013 RPI figurehad not been published at the time the Written Notice was given restricts theClaimant’s ability to give notice to

cancel as pleaded or at all. Clause 7.2.2.3 provided that notice to cancel (no such

right being admitted) was required to be given prior to thenew charge taking

effect. The newcharge was to take effect on 09 May 2013. March 2013 RPI

figure was published on 16 April 2013. The Claimant therefore still had ample

opportunity if the relevant RPI rate gave grounds to cancel(none being admitted)

to give notice before the new charge took effect.



27. Whilst the Respondent acknowledges the Claimant’srequest to terminate his

Agreement within the minimum term period pursuant to Clause7.2.2 the

Respondent submits that in processing the termination theClaimant would be

liable for the cancellation charge for the remainder of theminimum term period.

As at today’s date such figure would be £225.36 reducing ona daily basis.



28. The Claimant states that he is entitled to ‘a back datedpenalty free contract

termination’ within his application. The Respondent submitsthat pending the

outcome of the Claimant’s claim the Respondent has notprocessed the Claimant’s

request for termination; however it remains the Respondent’sview that in doing so

the Claimant remains liable for the cancellation charge. TheRespondent submits

that in the event that the adjudicator finds in theRespondent’s favour and the

Claimant does not elect subsequently to retract thetermination request that it will

process the Claimant’s request to terminate the Agreementand back date such

request to 30 days from receipt of the notice, subject tothe Claimant paying the

cancellation charge. The Respondent will also provide the Claimant with the

requested Porting Authorisation Code (‘PAC’) to enable himto transfer the

Mobile Number to another network provider. The Respondentsubmits that it

would however also accept the Claimant’s withdrawal of theirrequest to terminate

the Agreement, should he so wish to withdrawn suchrequest.



29. It should be noted that prior to the Claimant’s application,the Claimant had

previously requested a PAC code and that his request forsuch had been processed

pursuant to Clause 7.2.2.



30. The Respondent keeps a record of all its customers’details and records all calls

made to the Respondent’s Customer Services Department by wayof Account

Notes. When acustomer calls or corresponds with the Respondent’s Customer

Services Department a note is put onto the customer’saccount by one of the

Respondent’s Customer Service Advisers regarding the nature andcontent of the

call or correspondence. At Schedule 3 attached hereto is acopy of the Account

Notes held in respect to the Claimant’s account with theRespondent from April

2013 until present.



31. The Notes indicate that the Respondent processed theClaimant’s request to

terminate the account by way of transferring his mobilenumber to another

network service provider on 26 April 2013. An email was sentto the Claimant on

or around 27 April 2013 confirming the Claimant’s PAC Codeand advising him

that he remained liable for the cancellation charges. Thereare no notes on the

Claimant’s account indicating that the Claimant was advisedthat he was entitled

to terminate the Agreement without applying the cancellationfees and the

Claimant is put to strict proof thereof. The Notes show thatthe Claimant was

advised by way of email that the early termination feeswould be applied to his

next monthly bill, in lieu of the Claimant using the PACCode terminating the

account. Attached hereto at Schedule 4 is a copy of theClaimant’s bill dated 07

May 2013 showing the early termination fees applied to thatbill. The Claimant’s

bill dated 07 May 2013 therefore requested a total paymentof £262.77 to be paid

by 22 May 2013. The Respondent confirms receipt of thosesums by way of direct

debit on 22 May 2013. The Respondent submits that, as the Claimant disputed the

cancellation charges, and furthermore did not use the PACCode within 30 days of

issue, the Respondent agreed to return the cancellation feesto the Claimant. The

Respondent confirms that a refund of £231.48 was transferredto the Claimant’s

bank account on 10 June 2013 and the Claimant’s request toterminate the account

was cancelled. The Claimant acknowledges receipt of thereturned sums within his

application.



32. The Respondent denies that it has breached its Agreementand/or breached its duty of care to the Claimant. The Respondent has communicated with theClaimant

throughout the disputed period and provided him with aresponse, both verbally

and in writing, in a timely fashion and such response hasbeen consistent. Whilst



the Claimant’s appears to dislike the content of suchresponse it does not follow

that the Respondent has breached its duty of care to theClaimant.



33. The Respondent further denies that the Claimant isentitled to seek damages in the sum of £3,374.80 pleaded or at all. The Claimant has not provided any evidence

in support of such purported losses and in any event theRespondent submits that

such sums are disproportionate to the value of theclaim.



34. The Respondent denies liability to the Claimant aspleaded or at all, either

contractually or otherwise. The Respondent believes that thefacts stated in this form are true. I am duly authorised by the Respondent tosign this statement.

Dated the 03 July 2013

(Text removed by MSE Forum Team)

RandomCurve

My response to TMs defence. Responses to Para 25 & 26, 28 & 32 you may find of most benefit.

I know some of you have won by keeping it simple, and the below is probably over kill! So much so that I need to split into 2 posts

POST 1

XXXXXX

V

Everything EverywhereLimited

Trading as T-Mobile

Summary Response.

Having notedT-Mobiles defence to my claim in summary my response is:

· Thiscase does fall within the scope of CISAS.

· T-Mobileis incorrect to assert that I am on Version 58 of the contract – I am onVersion 59.

· Havingincorrectly assessed my contract to be subject to V58 of the T&Cs T-Mobilego on to defend a position on V58 that has not been submitted by me and appearsto be a response to a T-Mobile internally invented claim against itself. I donot believe I have to respond to this as it is irrelevant to my V59 T&Cs,however without prejudice to my case I have attempted a limited response whichI request the adjudicator ignores should I not be required to respond to anirrelevant defence.

· Schedule 3 (Account Notes) should not be admissibleas evidence of anything other than the lack of data integrity within T-Mobilessystems (as also evidenced in Schedule 1).

o The data contains inaccuracies and is summarised tothe point of being meaningless.

· T-Mobilehave provided no evidence that it has not breached the Unsolicited Goods and ServicesAct 1971 in both billing me for a PAC code that was never requested on anybasis other than on a penalty free basis AND again by removing money from myaccount for the unsolicited good/service.

· At Para28 of the defence T-Mobile provide a clear example of how they have been takingmy correspondence out of context.

· I put T-Mobile to strict proof that I everrequested a PAC code and early termination on anything other than a penaltyfree basis.

· T-Mobilehas breached their duty of care in many respects – these are detailed in themain body of my response.

· Theclaim for compensation is evidenced and is not disproportionate to:

o The behaviourof T-Mobile,

o Thecontract value, and

o The statutesand contract clauses breached

When taken together.

· T-Mobilehave not provided sufficient evidence to prove that they have complied withPara 12.4 of the OFT guidance on price variation clauses.

· T-Mobilehas not provided evidence that shows that they have not applied the inflationrate between February 2012 and December 2012 to my account twice.

· T-Mobilehas not provided evidence that proves this price rise is not of materialdetriment to me.

· My claimas submitted stands and T-Mobile should be directed to comply fully with theircontract terms and make full redress as per Appendix A of my claim.



Response in detail.

T-Mobiles defence points 1 - 6

In my claim(preamble) I recognised (without prejudice) that clause 7.1.4 does allowT-Mobile to apply mid-term price increase, however that ability is subject tostrict conditions and this claim is in regards to how the price rise has beenapplied and T-mobiles breach of contract for not complying with clause 7.2.3.3(penalty free cancellation). It is not in regards to a business decision toincrease prices.



There are no complexissues of law involved in this case it is a simple matter of understanding thedifference between the words “Before” and “After”.



As the above isclearly connected with the amount billed for the provision ofTelecommunications services it does fall within CISAS’s remit.



T-mobiles defence Points 11-14

T-Mobile claim thatthe T&Cs which apply to my contract are V58 of the T&Cs and not V59 ofthe T&Cs as that is what their Billing System shows as per their defencedocument at “schedule 1”. This is wholly inaccurate data and demonstrates awoeful lack of care by T-Mobile in administering this contract and coupled withthe reference to me as being a Mr Ackerman (Schedule 3 of T-Mobiles defenceentry date 19th April) shows a systemic lack of data integritywithin T-Mobiles customer account handling systems which means that no reliancewhatsoever should be placed on such data in reaching an opinion on this claim.



It is my contentionthat all of the facts relating to:

1. theeffective dates of T-Mobiles various T&Cs,

2. the dateof my contract, and

3. togetherwith T-Mobiles responses to my correspondence in always referring to the V59 ofthe T&Cs,

is clear evidence thatT-Mobiles systems hold incorrect information and that my contract is – and canonly be - subject to V59 and that T-Mobile are fully aware of this factevidenced as follows:



· My contractbegan on 5th December 2012(As per Appendix 8 of my claim) and as T-Mobile acknowledges as correct at Paras11 and 12 of their Defence.



· TheT&Cs V58 that T-Mobile has provided in its defence in Schedule 2 Begin:

o “Termsand conditions. The legal terms You need to know about Your pay monthlytelephone service. Version 58 dated July2010.”



· TheTerms and conditions I included in my case were included at Appendix 2 andbegin:

o “Termsand conditions. The legal terms You need to know about Your pay monthly telephoneservice. Version 59 dated October 2012”



· Clearlytherefore any contract which begins after October 2012 (a specific date is notgiven in the T&Cs) must be subject to T-Mobiles T&Cs V59. My contractstarted a minimum of 35 days AFTER T-Mobile updated its T&Cs and thereforethe information on T-Mobiles Billing System is incorrect.



A simple timelineillustrates the point:

1. V58T&Cs introduced July 2010

2. V59T&Cs introduced and replace V58 in October 2012

3. Mycontract started on 5th December 2012

Should further proofbe required a have included a screen shot of T-Mobiles own website with regardsto which T&Cs refer to which contracts.



http://www.t-mobile.co.uk/shop/terms-and-conditions/terms/







[IMG]file:///C:/Users/XXXXX/AppData/Local/Temp/msohtmlclip1/01/clip_image002.jpg[/IMG]





T-Mobile hasacknowledged throughout our correspondence in relation to this matter that I amon V59 of the contract as this is the T&Cs they have quoted in allcorrespondence. A review of all the correspondence contained in my claim willprove this; however I would particularly like to draw your attention to thefollowing:

· Appendix7 – Email dated 22nd April from T-Mobile authorised by the “LegalTeam” that quotes 7.2.3.3 V59 i.e. “…publishedbefore….” wording. And

· Appendix11 Pages 4 of 11 and 8 of 11 which contain the following emails:

o 16thMay – email from T-Mobile which incorrectlyquotes V58 of the T&Cs (the one and only time this occurred)

o 17thMay – My response to T-Mobiles email above pointing out that they have quotedthe wrong T&Cs

o 22ndMay – Email from T-Mobile apologising for using the WRONG information in theiremail of 16th May.



So linking my contractstart date with the date that V59 of the T&Cs became effective togetherwith the correspondence from T-Mobile – most notably the Email dated 22ndApril (appendix 7) which quotes V59 clause, and the email dated 22 May(Appendix 11 page 8) where T-Mobile apologies for incorrectly quoting V58 isconclusive evidence My contract is, and can only be, subject to V59 of theT&Cs.



As from the abovethe T&Cs applicable to my contract are V59 (both as witnessed by the startdate of my contract and the date from which the T&Cs are effective from,AND T-Mobiles own acknowledgements in all previous correspondence ) T-Mobilesdefence to my claim should only reference V59 of the T&Cs. I cannot be heldaccountable for the lack of data integrity within T-Mobiles systems, indeedsuch a fundamental inaccuracy in a key T-Mobile system must cast doubt on thevalidity of ANY defence that T-Mobile have produced from their customer contactsystems in support of their defence –and I will point out further inaccuracieslater.



As I have not submitted a claim re V58 (as mycontract is subject to V59 of the T&Cs) it appears that T-Mobile have“invented” their own internal claim against themselves on V58 T&Cs and thenhave sent CISAS a defence to rebut their own “invented” claim! As I have neverbeen through this process before I do not know if I need to defend the claimthat T-Mobile have invented against themselves, and seek to disprove thedefence they have submitted on their own claim to CISAS or not. i.e am Irequired to rebut a defence that T-Mobile have submitted based on T-Mobiles owninvented claim against itself?

However withoutprejudice to my claim that I am on V59 of the T&Cs I will attempt to pointout flaws in T-Mobiles arguments against its own claim as best as I am able toas a consumer (a non legal expert), and trust that if I am not required to do thisyou as an adjudicator will ignore any comments that my harm my case re V59 ofthe T&Cs. Also as I am not allowed to bring new evidence into my responseif I inadvertently do in responding to the below (I don’t think I have) – and Iwas not legally obliged to respond – can you ignore those responses. Items in italicsresponding to (Para 15-26) below are arguments that I do not think I need torespond to and do so without prejudice to my claim that the V59 T&Cs applyto me.



Without Prejudice:

Para 15 iv a

This is not myclause however as the March RPI was not published until AFTER the letters weresent and the price rise letter referred to “Current RPI” Then the RPI used inthe letter cannot possibly be the same RPI as used for the actual price rise asat the time of receiving the letter (6th April) the February RPIpublished on 19th March was CURRENT and the March RPI published on16th April was FUTURE. I also note that the clause does not includea “published before” statement which may, by its omission, bring some ambiguityinto the clause.



Para 16 – Again notmy clause, but the defence “adequate written notice” does not equate to 30 daysnotice as required if the rate being used was published on 16thApril and the price rise is effective 9th May.



Para 17 – not mycontract as this rate was not published before they wrote to me as required byV59 of the T&Cs’ However whilst the month used appears to be strictlycorrect( for V58 of the T&Cs), given that the price rise letter was issuedbefore the actual publication then if the V58 letter also stated “current RPI”then I would have thought that the February rate would be correct. I guess itgoes back to Para 15 re ambiguity in the clause.



Para 18 – 3.3% isthe rate applicable to March, but at the time the price rise letter wasreceived stating Current RPI the March RPI was a Future RPI and February RPIwas the current RPI. However my contact is V59 and that states that the rateused must be PUBLISHED BEFORE I receive the letter i.e. published before 6thApril. March RPI was published (according to the chart in T-mobiles defence atpara 20) on 16th April – 10 days AFTER I received my letter.



Para 20 – AlthoughT-Mobile are using this chart in the context of V58 of the T&Cs it doesclearly demonstrate that the March Rate (3.3%) was published AFTER I receivedmy letter dated 6th April, and that the rate published BEFORE Ireceived my letter on 6th April is -as I have always contested – the February rate (3.2%).



Para 22 –I wasaware that T-Mobile made an announcement in the press as a joint statement withOrange (also part of EE) on 1st March 2013, however I have neverclaimed (in correspondence nor in my CISAS claim) that the announcementconstituted written notice to customers so I have no idea why T-Mobile havementioned this here as part of their “made-up” claim to defend? However I wouldobserve that if T-Mobile had announced they were going to use 3.3% on March 1stfor an RPI that was not going to be published – and was therefore unknown untilApril 16th - then they took a reckless risk, but that is irrelevantto my claim. Also I would have thought That he time period between 1stMarch (announced using 3.3%) and the leter being sent (Mine received 6thApril) I s Ample time for T-Mobile to have composed a letter that clearlyarticulated which months RPI was being used.



Para 23 – I havenot made any comments in my claim on the fairness or otherwise of V58 clause7.2.3.3. Indeed even in my claim re V59 of 7.2.3.3 I make no claim as to theambiguity or otherwise of the clause so I don’t understand why T-Mobile havereferred to this in their defence to their own made up claim. I would observethat if customers on V58 have been told the same as I have in my claim atAppendix 6 and 7 I.e:

1. We are applying theJanuary rate, and then;

2. We are notanswering questions until their legal team have reviewed the situation, andthen;

3. We are applying theMarch rate

Then my conclusion would be that T-Mobiles ownactions must prove that the term in conjunction with the timing and wording ofthe letter must have been ambiguous otherwise T-Mobile would have given oneconsistent definitive answer from the start. I will address this point laterwhen we are back on my actual claim in connection with V59 of the T&Cs



Para 24 – I agreewith T-Mobile re the period that the February rate relates to, and thisstatement by T-Mobile supports my claim that the current rate at the time theletter was sent was the February rate published on 19th March.



Para 25 & 26 –again although not relevant to my V59 clause. If I was a version 58 T&Ccustomer then I would argue that a “strict interpretation” of the clause isonly suitable in business to business dealings, as this a business to consumercontract the term has to be clear to non-legal people and it is not sufficientthat it is strictly correct in a legal sense. Also it is inconsistent ofT-Mobile to argue for a strict interpretation of clause 7.2.3.3 regarding themonths RPI that is referred to, but when it comes to the length of notice to begiven under clause 7.2.2.3 (the strict interpretation is 30 days notice) T-Mobilewant a looser interpretation of “Ample notice”. Either both clauses need to beinterpreted strictly or neither clause – as a business to consumer contract. Iwould argue for neither clause having a strict interpretation as this is abusiness to consumer contract. It is also useful to compare and contract thatT-Mobile consider less than 30 days to be “Ample Notice”, but when they had inexcess of 30 days to compose their price rise letter there was not enough timeto word it clearly enough to articulate which months RPI they were using. So byT-Mobiles own actions even 30 days may not be “Ample notice” for a consumer toresearch, consider, and compile a claim against a price rise that has beenmis-applied.



As stated before all of the responses in italics above re T-Mobilesdefence Paras 15-26 to T-Mobiles own “made up” claim are irrelevant to my claimand the above responses were made in case the process required me to respondand are made without prejudice to the fact that I am on V59 of the T&Cs. Irequest that if the process is such that I did not have to respond to Para15-26 then the adjudicator should ignore those points.

RandomCurve

DEFENCE POST 2



T-Mobiles defencepoints 27-31 (Appendix 4, 5, 10, 11 and 12 of my claim)

Para 27 – T-Mobile has (deliberately?) omitted to state that ALLrequests made to terminate the contract early were made with the proviso thatthe termination should be PENALTY FREE due to T-Mobile applying a price rise ata rate that triggers my contractual right to penalty free cancellation.T-Mobile even demonstrates their willingness to you to reinterpret theircustomers’ requests in their defence to my claim at para 28 which I willaddress shortly.



By issuing a PAC code, billing for an early termination fee, and then actuallytaking the early termination from my account (even after I had made T-Mobileaware that no PAC code had been requested on this basis after being advisedthat a charge will be levied) amounts to a breach of the Unsolicited Goods andServices Act 1971Chapter 30 S(1) and (2) as I have NEVER requested a PAC codeon anything other than a penalty free basis. I put T-Mobile to strict proofthat I ever requested a PAC code and early termination on anything other than apenalty free basis.



Additionally there is no clause in T-Mobiles T&Cs that give T-Mobilethe right to apply a full termination on ISSUE of a PAC code. As soon as Irealised that T-Mobile intended to charge me I contacted them to make it clearthat there should be no charge unless the PAC code is actually used (which itwas not). Despite T-Mobile being made aware that this was an unsolicitedGood/Service they “investigated” and decided to go ahead with the charge.



Para 28 – The whole of this paragraph of the defence is evidence of howT-Mobile deliberately ignore the wording of my PAC requests and clearlydemonstrates why I assert that they have breached the Unsolicited Goods and ServicesAct 1971. T-Mobiles defence clearly quotes my termination request as being for “a back dated penalty free contract termination”, but T-Mobile go onto state (threaten?) that “....in theevent that the adjudicator finds in the respondent’s favour and the Claimantdoes not elect subsequently to retract the termination request that it willprocess the Claimants request to terminate the Agreement and back date suchrequest to 30 days from the receipt of the notice, subject to the Claimantpaying the cancellation charge.” The only termination I have requested ison a penalty free basis as T-Mobile themselves acknowledge in para 28 of theirdefence, therefore should the adjudicator rule in T-Mobiles favour there is noPAC request for T-Mobile to process – other than on a penalty free basis, andnothing for me to retract. This whole Para of the defence amply demonstrateshow T-Mobile is deliberately mis-interpreting my correspondence.



I put T-Mobile to strict proof that I ever requested a PAC code andearly termination on anything other than a penalty free basis.



Para 29 – The defence here is a “half-truth”, which is indicative ofT-Mobiles behaviour throughout this whole episode. YES I have requested a PACcode, but again that was only ever on a PENALTY FREE basis – which has alwaysbeen made clear. Therefore by T-Mobiles own admission that they issued a PACcode and charged me for it (despite it not being used) is further evidence of:

· T-Mobile presenting my contact with them out ofcontext,

· T-Mobiles willingness to deliberately mis-interpretmy correspondence, and

· T-Mobiles breach of the unsolicited goods andServices Act 1971.

I put T-Mobile to strict proof that I ever requested a PAC code andearly termination on anything other than a penalty free basis.



Para 31 – T-Mobile have put me to “strict proof” that T-Mobile have everinformed that I am entitled to a penalty free cancellation. This is a verystrange thing for them to ask for as I have NEVER claimed that they had offeredme a penalty free termination (either in correspondence with them or in myclaim to you). Indeed the whole reason we are in dispute is because I believethat T-Mobile should give me a penalty free cancellation due to the price riseadvised being at a rate that triggers my right to a penalty free cancellationunder clause 7.2.3.3. They have refused to do so.



By issuing a PAC code, billing for an early termination fee, and thenactually taking the early termination from my account (even after I had madeT-Mobile aware that no PAC code had been requested on this basis after beingadvised that a charge will be levied) amounts to a breach of the UnsolicitedGoods and Services Act 1971Chapter 30 S(1) and (2) as I have NEVER request aPAC code on anything other than a penalty free basis. I put T-Mobile to strictproof that I ever requested a PAC code and early termination on anything otherthan a penalty free basis.





T-Mobiles defencepoint 32

I have made no compliant as regard to the response times to mycommunications with T-Mobile and I do not understand why T-Mobile is defendinga statement that I never made?



I do contest that T-Mobile have breached their duty of care in severalways as follows:



1. Despite T-Mobiles claim in Para 32 (for which no supporting evidencehas been provided by T-Mobile) that responses received from T-Mobile have been consistent– they have not as evidenced by:

· On 18th April T-Mobile informed me thatthey had applied the January RPI Rate to my contract (Appendix 6 of my claim)

· Also on 18th April T-Mobile informedthat they were not answering questions on the price rise until it had beenreviewed by their legal team (appendix 6 of my claim)

o I note that schedule 3 of T-Mobiles defence inrelation to contact made on 18th April is misleading in the extreme.It makes no mention of the information I was actually given (as above), and itsuggests that I want to close my account without expanding that that was in thecontext of a penalty free cancelation due to T-Mobile applying an incorrect RPIincrease. If T-Mobile wish to rely on anything contained within Schedule 3 theywill need to provide a FULL TRANSCRIPT of calls as the summaries are so out ofcontext that they are meaningless.

· On 22 April I was informed that the RPI used wasThe March RPI (Appendix 7 of my claim)

So clearly not consistent.



2. T-Mobile also asserts that I “disliked the content of the responses”.I neither like nor dislike T-Mobiles responses – this has nothing to do withfeelings, but legal facts. I contest that responses received from T-Mobile weresimply factually incorrect in that they continually quoted that they have touse a rate PUBLISHED BEFORE they write to me (V59 of the T&Cs) and thenattempt to justify why that means they can use a rate PUBLISHED 10 days AFTERthey have written to me (appendix 7,9 and 10). As the meaning of the wordsBEFORE and AFTER are well known by all but the most basically educated ofpeople (even junior school children would know the difference) it is outrageousfor T-Mobiles legal staff to pretend that they cannot understand thedifference in the words (even when clearly articulated to them (Appendix 10))–this is a clear breach of a duty of care.



3. The wording of the price rise letter is “CURRENT RPI” at the time of writingregarding the price rise letter the “current RPI” was 3.2%. If T-Mobile werereferring to any rate other than the February rate then they have failed in theirduty of care to exercise skill when drafting that letter (Appendix 1).



4. Despite my letter of 14th April (Appendix 5) invokingclauses 4.4.5.1 & 2 which clearly gives me the right to withhold payment ifI am in a genuine dispute. T-Mobile completely disregarded their obligationsunder this clause and continued to process the monthly direct debit evenalthough I had expressly withdrawn my permission for them to do so. Againevidenced that T-Mobile was breaching its obligations to act with due care andattention.



All of the above are ample evidence that T-Mobile have fallen short ofapplying a duty of care in relation to my contract.



T-Mobiles defencepoint 33

T-Mobile defence is that I have not provided evidence for the damagessought. This is plainly not true.

Appendix A of my claim sets out clearly the basis of the claim and theassociated evidence, and as T-Mobile have provided no evidence to the contraryon most of the claims I assume they agree the figures which in summary are:

· Penalty free termination (T-Mobile do dispute thispoint – although no evidence submitted with regards V59 of the T&Cs whichare the T&Cs applicable to my contract) £309.80p – A maximum dependant ontiming of cancellation

· Four separate breaches of T-Mobiles duty of care - £50for each:

o Appendix 6&7 – inconsistent information (noevidence provide by T-Mobile which demonstrates consistency –only a statementthat they think they have been consistent, but anybody can make a statement -itneeds to be backed up with evidence)

o Appendix 5 – Breach of clause 4.4.5.1&2 reGenuine dispute and continuing to process direct debits (T-Mobile have notdefended this at all)

o Appendix 15 – Refusal to issue a deadlock letter(T-Mobile have not defended this at all)

o Appendix 1 – lack of care when wording the pricerise letter (T-Mobile have not defended this at all)

· Compensation for the additional letters and callsetc that I have had to expend time on as T-Mobile has deliberately ignored theword “before” in the V59 T&Cs (which they have quoted to me in allcorrespondence). I informed T-Mobile that I would charge for the additionalwork (Appendix 9b). I believe that T-Mobile has the right to defend itsposition and a certain amount of effort is expected of a customer to putforward their argument, however as the difference in meaning between the wordsBEFORE and AFTER is so obvious it was clear that T-Mobile were simply trying tofrustrate my right to a penalty free cancellation and were not even attemptingto explain why they considered that they had the right to use a rate publishedafter they wrote – other than to state that they had used such a rate. T-Mobilehas never challenged these costs – and has not defended this in their defencehere either. £465.00

· Compensation for breach of the Unsolicited good andServices act 1971 Chapter 30 S2 (1) and (2) – which I explain fully in AppendixA and evidence in Appendix 4, 5, 10, 11, and 12.

So contrary to T-Mobile claiming that I have not provided supportingevidence I clearly have.



General response.

I contest that the document provided at Schedule 3 (Account Notes)should not be admissible as evidence of anything other than T-Mobiles lack ofdata integrity within its’ systems. The data is summarised to the point ofbeing meaningless. If T-Mobile wish to rely on anything within that schedule asevidence they MUST provide the full transcript of conversations or full text ofletters to ensure that the whole message is both understood and taken in thecorrect context – Examples:

· Summarised to the point of meaningless (seeAppendix 6 of my claim):

o Entry dated 18 April – Makes no reference to thefact that I was informed that the January rate was used

o Entry dated 18th April – makes noreference to the fact that I was told that T-Mobile were not answering querieson the price rise until their legal team have reviewed the situation.

· Lack of data integrity within T-Mobiles systems:

o Entry dated 19-April 2013 refers to a Mr Ackerman -I have never gone by this name, nor do I know of anybody with this name. Why isthis name on any system/document within T-Mobiles systems in relation to myaccount?





Claim re MaterialDetriment

Without prejudice I note that T-Mobile have made no defence as to why itconsiders this price rise not to be of material detriment to me, nor does itprovide any evidence that its own costs have indeed increased by an amount of3.3%. The rules are clear that the operator has considerable scope to determineif a price rise is of material detriment to me, as T-Mobile have failed tosubmit a defence to my claim that this price rise is of material detriment tome then it can only be appropriate to conclude that T-Mobile have no defenceand by an absence of any statement to the contrary agree that the price rise isof material detriment to me and thus allows me a penalty free cancellation.With no defence to this point the adjudicator should consider only the facts aspresented in my claim when ruling on this point

.



Claim re Noncompliance with OFT clause 12.4

I note that T-Mobile only indirectly addresses this argument at para 12and 13 of their response where T-Mobile claim that I was made aware of the T&Csapplicable to my account; however the law is clear that for the price rise termto be enforceable it must have been “….CLEARLY and ADEQUTELY drawn to thecustomer’s attention” at the time of purchase. The only evidence T-Mobile haveprovided is that I have been deemed to have read the whole T&C (and thatevidence refers to a set of T&C that do not even apply to my account). Ifwe use V58 of the T&Cs as provided by T-Mobile at Schedule 2 of theirdefence you will see that the T&Cs are 7 pages of very small print with 2columns to a page. It is clear from those T&Cs that the price rise term isneither highlighted or differentiated in any way to bring it prominently to myattention (it is within clause 7.1.4 on page 5 of 7 two-thirds of the way downthe second column of very small text). As T-Mobile have not even been able to provideevidence that I have even been given the correct T&Cs (no T&Cs weresent with the phone) I put T-Mobile to strict proof that they clearly and adequatelydrew this clause to my attention at the point of sale.



Claim re no pricerise applicable at this stage

Without prejudice I note that T-Mobile have made no defence as to myclaim that they have doubled counted the inflation rate on my account for theperiods between February 2012 (last price rise) and December 2012 (when mycontract started) as T-Mobile would have already factored that period of costinto my contract price at point of sale. Therefore the only annual RPIthat should be applied to my account under 7.1.4 would be the December 2012 toNovember 2013 rate – which cannot be communicated to me until December 2013when that rate is published, therefore the adjudicator should consider only thefacts as presented in my claim when ruling on this point.

RandomCurve

I'll post the Ofcom correspondence tonight, but basically I started to write to Ofcom to challenge them as to why they thought EE had acted reasonably. It was hard work but I finally convinced them that the V59 clause is potentially an unfair contract term and that is what they are "considering" looking into. Ofcom also (and I never asked them to) asked TM about my individual case - and this is where I now have an even BIGGER issue with Ofcom as TMs responses to Ofcom are CLEARLY MISLEADING, yet 3 times now Ofcom have refused to say that they will take action against TM for MISLEAING OFCOM!!! I think my discussion later this week with my MP is going to more about Ofcom then TM!

xkpa

This is their reply to me about why the charged me ETF even if didn't used the PAC code:

Please accept my apologies that you have been charged the early disconnection fee when you have not used the Port Authorisation Code (PAC), this fee is generated when the PAC is and is automatically applied to your next bill. As you are pursuing this matter further with CISAS I have placed this amount in dispute until a resolution is reached.

I trust this explains the situation in full and I will await further instruction from CISAS.

psilvester

How long have people been waiting between submitting final comments and having an adjudicator assigned to actually getting a result?

I received notice of my adjudicator on the 8th and although it said a result would be expected within 3 weeks the wait is killing me.

Lifes_Grand_Plan

psilvester wrote: »

How long have people been waiting between submitting final comments and having an adjudicator assigned to actually getting a result?

I received notice of my adjudicator on the 8th and although it said a result would be expected within 3 weeks the wait is killing me.

From having my adjudicator allocated I ended up waiting about 3 1/2 to 4 weeks. After the first week I was re-allocated to a different adjudicator and I ended up chasing CISAS up twice before I got my result back.

Chimper

anna2007 wrote: »

I'm still waiting for the refund of my plan charges (I did receive a cheque last week though for the compensation element), the CISAS deadline was yesterday.

I phoned CISAS this afternoon, did what Chimper suggested and asked first whether TM had confirmed to them that they'd complied with the decision. Guess what? They confirmed this yesterday... I'm obviously shocked that TM would tell a lie - can you imagine?!

It gets worse - when I informed CISAS that TM hadn't paid the refund, they actually defended TM, saying they believed that there were problems with processing Bacs payments!

I asked if there were any penalties imposed on TM for failing to comply within the timescale... but no, it appears that CISAS are more than willing for TM to walk all over them.

CISAS said they would chase it up, which is of no use at all (I told them during the call that I'd had an email from EE last night confirming when to expect the refund).

So, in answer to your question - no, it seems there's nothing can be done! I'd still let CISAS know, maybe if enough deadlines are missed...

TBH, TM's attitude is hardly surprising, at least they're consistent and treat the likes of CISAS with the same disregard as their customers.

It may not surprise anyone but T-Mobile have also told CISAS they've complied the decision in my case. Again I've had nothing from T-Mobile, so it's obvious that T-Mobile are routinely telling lies to the adjudicators.

:mad:

diamonds

Hollaio wrote: »

Is there something that can be done about T-mobile not complying with the CISAS decision? I've made them aware that the deadline has passed and they've not paid my compensation, provided them with my bank details should they wise to expedite the process and they seem to have a very lackadaisical attitude to it all - as if the deadline set by CISAS means nothing and they can do what they want.

Inform CISAS, launch Small Court Claim, the CISAS decision is binding as per Ofcom approval of the whole process.

diamonds

Chimper wrote: »

It may not surprise anyone but T-Mobile have also told CISAS they've complied the decision in my case. Again I've had nothing from T-Mobile, so it's obvious that T-Mobile are routinely telling lies to the adjudicators.

:mad:

As Above post Chimper^

CISAS rulings are legal and to be followed, with Ofcom the regulator enforcing such, your only option now is to take Small Claims Court to recover the amount T-Mobile have been INSTRUCTED to do. No small claims court will throw a Ofcom approved CISAS ruling out.

You can also claim upto £5000 so add a bit on for your time and mental disposition of stress through EE actions from start to submission date and further stress with non compliance with CISAS ruling.