Tmobile price increase

RandomCurve

d123 wrote: »

I would disagree with you on this one, I did not lodge an intention to cancel, the T&Cs don't allow me to give an intention to cancel.

They don't, but neither do they give you a right to cancel unless the rate TM use is higher than March. the conversation will go something like this:
TM "What rate did you base your cancellation letter on?"
You (I guess) "February 3.2% because that was current published rate"
TM " and where in the T&Cs does it say we have to use a published rate, or have to use February rate?"
You " it doesn't, but it is unreasonable to use an unpublished rate"
TM "Your claim is based on the rate we used, not reasonableness"*
CISAS "On the facts presented TM win":(
* I'll put up another post about this
I agree the above is crapee, but tell me - which part is not factual?

Your highlight of clause 7.2.3.3 in blue - What TM will quote I have highlighted in Red.

7.2.3.3. The change that We gave You Written Notice of in point 7.1.4 is an increase in Your Price Plan
Charge (as a percentage) higher than any increase in the Retail Price Index (also calculated as a percentage) for the 12 months before the month in which We send You Written Notice and You give Us notice to immediately cancel this Agreement before the change takes effect.

As there is no mention in the clause of the word "published" (and that is what makes it an unfair T&C -and that is what you have to argue) why do you think you can cancel? it clearly states it refers to the RPI for the 12 months before the month we send you written notice - they wrote in April, they applied March RPI - therefore no trigger for you to cancel.

The word "ANY" I think you are right to point that out, but again only in the context of trying to prove the clause is ambiguous. A short summary of the argument is:

1. The word "any" causes additional ambiguity into a clause that has already been rendered unintelligible by the timing of its application therefore,
2. The contract term is unfair under OFT rules
3. If unfair the remedy is to interpret the clause in a way most favourable to the consumer (as per the unfair contracts terms act)
4. The way to make the clause fair and unambiguous is to give it clarity by inserting the word "published" (per OFT guidance - and evidenced by TMs newer T&Cs referring to "published" RPI)
5. The word published then means -due to the timing that the only month that the clause can refer to is FEBRUARY and therefore you WIN

The above IS NOT arguing anything different to what you are saying - it is just using a DIFFERENT approach. Both approaches MAY win , both may lose.


As I've said before - I have no legal training, but I have been watching how TM operate and I'm going to post something regarding the Orange contract claims that will give you a clue to what a beast they are!

Don't be fooled into thinking they are stupid because they are doing/saying stupid things. Since they got into this mess EVERYTHING they have done has been for a reason - even (especially) the stupid stuff, because it is the stupid staff we concentrate on because it is illogical and immoral, and in doing so they take our eye of the LEGAL stuff - which is the only stuff that counts at CISAS.

RandomCurve

Barnicle_Fiend wrote: »

2012
So letters were received from t-mobile after the release of Februarys RPI figure and before the release of the March Figure i.e. letters in early April.

The February figure was then used.

2013
Letters were received from t-mobile after the release of Februarys RPI figure and before the release of the March Figure i.e. letters in early April.

T-mobile are now claiming that the march figure should be used.

Have I got that right? I can't see them getting anywhere with that argument...

BINGO.

But to use that argument your claim must be based on the fact that they have deviated from custom and practice, or the T&Cs are ambiguous.
If you start from the point that they applied March Rate before it was published - then I don't think you can bring the above into the equation. As your claim is "they have used the wrong rate", but the T&Cs state TM can use the RPI relating to the month before the month in which they write to you - and they HAVE - March 3.3%.

It all stems back to the fact that the word PUBLISHED is missing from the T&Cs and therefore it is ambiguous - if you basis the argument on unfair T&C - you can "clarify" how a fair interpretation of the clause should be by referring back to past custom and practice which SUPORTS the case that the word "published" should be in the T&Cs.

anna2007

It's ultimately for the courts (or CISAS in the first instance) to decide on how the clause should be interpreted. However, from my (limited) understanding of contract law, a literal interpretation (which is what TM has done, claiming the RPI rate referred to (as the month before) is literally for the period 1 April 2012 to 31 March 2013), fell out of favour with the courts by the middle of the last century. The courts now consider interpretation with reference to what the term conveys to a reasonable person, who has knowledge of the whole context, and also that the meaning should not run contrary to a common sense viewpoint. I believe the CISAS adjudicators are all legally qualified, and they should therefore follow these fundamental rules when considering the most reasonable interpretation of the RPI rate. Remember, the customer is not legally qualified and we shouldn't be expected to argue a case with reference to the applicable law - that's the court's (and CISAS's) role.

I agree that the clause wasn't ambiguous (it was very clear to me that the RPI rate being referred to on 6 April, when I received my written notice, was the current one of 3.2%); however TM, through their actions, have created the ambiguity, and are using it to their own advantage, in an attempt to cover their mistake and avoid their legal obligations under the contract.

Maybe the approach to take is to argue why you believe your interpretation is reasonable and shows a common sense viewpoint, whereas TM's interpretation is unreasonable and lacks common sense, with reference to:

TM's actions during last year's increase (this is completely relevant because it proves TM's interpretation this year contradicts their interpretation last year, and it was the same set of t&c's in place last year (Barnicle Fiend - see my previous post # 580 for a summary of what happened during last year's price increase)

Reference to the current RPI rate in the written notice (the key document in bringing clause 7.2.3.3 into effect).

TM's amendment to clause 7.2.3.3 in the updated t&c's, which now explicitly states that the relevant RPI rate is the one published before the written notice is sent.

The fact that the clause allows for immediate cancellation of the contract, therefore if notice was given before 16 Apr, the March RPI rate has no relevance whatsoever to the contract.

TM's claim that they are referring to the March RPI means you have not been given the 30 days' notice required under the contract, as this rate wasn't known until 16 Apr.

TM's reference to an RPI rate that has yet to be published effectively renders the clause completely meaningless - the customer is left in the position of not knowing whether or not they are entitled to cancel.

TM could not possibly have had the relevant data to hand on 1 Mar (when the 3.3% increase was announced) to enable them to make an accurate prediction of the March RPI rate, when this rate covers the period up to 31 Mar. This means that TM took a gamble on the RPI rate being no higher than 3.3%, and if they had been wrong they could have lost their entire customer base. Although this is a business decision and therefore their risk to take - would a court consider such actions to be reasonable or show common sense, when this risk could have been mitigated to zero, by them waiting another 10 days until the RPI rate was published?

I would have thought that all of the above arguements mean that TM are effectively stuffed, however because of the ambiguity over the clause (created by TM), it's possible a court would take into account the relevant consumer protection laws, whether these laws have been adhered to by TM, and whether the clause could be deemed unfair. I think it can only help our case to refer to this legislation, but make it clear that you don't consider the clause to be ambiguous (because of your arguements above), however TM's actions have created the ambiguity.

OFT's guidance on the provisions of the UTCCR's for unfair contract terms might be helpful:

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311.pdf


Extracts from the above:

Regulation 7 states that:

(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under Regulation 12.

Page 86 of the OFT guidance, relating to plain and intelligible language:

19.3 It follows that what is required is that terms are intelligible to ordinary members of the public, not just lawyers. They need to have a proper understanding of them for sensible and practical purposes. It is not sufficient for terms to be clear and precise for legal purposes, except in contracts normally entered only on legal advice.

19.6 Ambiguity. Where a term is ambiguous, a court may be able to find at least one fair meaning in it, and enforce it on that basis, rather than declaring it unfair and void by reason of lack of clarity. However, the Directive makes clear that the 'most favourable interpretation' rule is intended to benefit consumers in private disputes, not to give suppliers a defence against regulatory action – see Regulation 7(2). If a term's ambiguity could cause detriment to consumers it may be challenged as unfair even if one of its possible meanings is fair.

Also, Page 58 of the OFT guidance, relating to price variation clauses:

12.4 A degree of flexibility in pricing may be achieved fairly in the following ways.30

• Where the level and timing of any price increases are specified (within narrow limits if not precisely) they effectively form part of the agreed price. As such they are acceptable, provided the details are clearly and adequately drawn to the consumer's attention.

• Terms which permit increases linked to a relevant published price index such as the RPI are likely to be acceptable, as paragraph 2 of Schedule 2 to the Regulations indicates, subject to the same proviso.

• Any kind of variation clause may in principle be fair if consumers are free to escape its effects by ending the contract. To be genuinely free to cancel, they must not be left worse off for having entered the contract, whether by experiencing financial loss (for example, forfeiture of a prepayment) or serious inconvenience, or any other adverse consequences.31

Chimper

RandomCurve wrote: »

Welcome to the club!

See posts #834 and #835 for links to the law, and post #874 for a note of caution.

Somebody else posted that on a second call to TM they did agree not to charge the cancellation charge if the PAC was not used.

Yes, they eventually dropped the cancellation charge, as the PAC hadn't been used. See my post #815 for the details. What I think swung it was the fact that I could have withheld the disputed amount but that would have put me in dispute for a second time. If they hadn't cancelled it then I could have taken them to CISAS for that complaint as well.

RandomCurve

A short insight to the Beast of EE.

Orange increased it's prices in April, and they have complied with the current T&Cs - However customers on older contracts - I am one of them - had different T&Cs which meant Orange CAN'T apply the price rise. However without writing to contract holders Orange changed every ones T&CS (notice in our TM case both T&Cs are current - were as Orange REPLACED the older T&Cs) which is in breach of S9.6 as they have to inform customers of T&C changes. SNEAKY PARTS 1- they never wrote to customers when they changed T&C, 2 -they REMOVED all copies of the original T&Cs from the internet! (starting to see the picture of the beast?)

People have been going to CISAS based on the fact that T&Cs were changed and therefore they can cancel the contract.

I don't know what the out come of this particular case is (I'm still trying to get a deadlock number) but the Orange defence (and this is why I had the "*" in the earlier post) was as follows:

(From Damepeggy on the "You can cancel your Orange contract!" MSE Forum)
• They did indeed not send any specific notification about their changes in the pre-October 2012 Ts&Cs.
• I am therefore still covered by the original Febrary 2011 Ts&Cs. i.e. The ones with the long-defunct government agency and the non-existent publication.
• As my CISAS complaint was on the basis that my Ts&Cs had changed, there were no grounds upon which I can make a claim for a detrimental change.

So effectively because the basis of the CISAS compliant was the change in T&Cs Orange did an about turn and said the old T&C still apply, therefore the grounds for the CISAS compliant is non existent because it claims that T&CS were changed -and Orange are now saying that they were not. AND I THINK THIS IS THE WARNING TO ALL OF US THAT ARGUING THE RATE WILL GET YOU NOWHERE as the BASIS of your claim is MORE IMPORTANT than the facts!!!

For information Orange had been telling customers who complainer that the price does apply because the new T&Cs allow them to.

I'm just glad OFCOM is there to protect us consumers!!!!

RandomCurve

anna2007 wrote: »

........

Maybe the approach to take is to argue why you believe your interpretation is reasonable and shows a common sense viewpoint, whereas TM's interpretation is unreasonable and lacks common sense, with reference to:

TM's actions during last year's increase (this is completely relevant because it proves TM's interpretation this year contradicts their interpretation last year, and it was the same set of t&c's in place last year (Barnicle Fiend - see my previous post # 580 for a summary of what happened during last year's price increase)

Reference to the current RPI rate in the written notice (the key document in bringing clause 7.2.3.3 into effect).

TM's amendment to clause 7.2.3.3 in the updated t&c's, which now explicitly states that the relevant RPI rate is the one published before the written notice is sent.

The fact that the clause allows for immediate cancellation of the contract, therefore if notice was given before 16 Apr, the March RPI rate has no relevance whatsoever to the contract.

TM's claim that they are referring to the March RPI means you have not been given the 30 days' notice required under the contract, as this rate wasn't known until 16 Apr.

TM's reference to an RPI rate that has yet to be published effectively renders the clause completely meaningless - the customer is left in the position of not knowing whether or not they are entitled to cancel.

TM could not possibly have had the relevant data to hand on 1 Mar (when the 3.3% increase was announced) to enable them to make an accurate prediction of the March RPI rate, when this rate covers the period up to 31 Mar. This means that TM took a gamble on the RPI rate being no higher than 3.3%, and if they had been wrong they could have lost their entire customer base. Although this is a business decision and therefore their risk to take - would a court consider such actions to be reasonable or show common sense, when this risk could have been mitigated to zero, by them waiting another 10 days until the RPI rate was published?

I would have thought that all of the above arguements mean that TM are effectively stuffed, however because of the ambiguity over the clause (created by TM), it's possible a court would take into account the relevant consumer protection laws, whether these laws have been adhered to by TM, and whether the clause could be deemed unfair. I think it can only help our case to refer to this legislation, but make it clear that you don't consider the clause to be ambiguous (because of your arguements above), however TM's actions have created the ambiguity.

OFT's guidance on the provisions of the UTCCR's for unfair contract terms might be helpful:

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311.pdf


Extracts from the above:

Regulation 7 states that:

(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under Regulation 12.

Page 86 of the OFT guidance, relating to plain and intelligible language:

19.3 It follows that what is required is that terms are intelligible to ordinary members of the public, not just lawyers. They need to have a proper understanding of them for sensible and practical purposes. It is not sufficient for terms to be clear and precise for legal purposes, except in contracts normally entered only on legal advice.

19.6 Ambiguity. Where a term is ambiguous, a court may be able to find at least one fair meaning in it, and enforce it on that basis, rather than declaring it unfair and void by reason of lack of clarity. However, the Directive makes clear that the 'most favourable interpretation' rule is intended to benefit consumers in private disputes, not to give suppliers a defence against regulatory action – see Regulation 7(2). If a term's ambiguity could cause detriment to consumers it may be challenged as unfair even if one of its possible meanings is fair.

Also, Page 58 of the OFT guidance, relating to price variation clauses:

12.4 A degree of flexibility in pricing may be achieved fairly in the following ways.30

• Where the level and timing of any price increases are specified (within narrow limits if not precisely) they effectively form part of the agreed price. As such they are acceptable, provided the details are clearly and adequately drawn to the consumer's attention.

• Terms which permit increases linked to a relevant published price index such as the RPI are likely to be acceptable, as paragraph 2 of Schedule 2 to the Regulations indicates, subject to the same proviso.

• Any kind of variation clause may in principle be fair if consumers are free to escape its effects by ending the contract. To be genuinely free to cancel, they must not be left worse off for having entered the contract, whether by experiencing financial loss (for example, forfeiture of a prepayment) or serious inconvenience, or any other adverse consequences.31

Totally agree - the best way is to argue how your interpretation is reasonable and TMs is not using the above and the relevant OFT's guidance on the provisions of the UTCCR's for unfair contract terms.
Only route I would not go down is the bit I've "greyed out" in the quote above as it is TMs business decision - and they really could have picked a rate in what ever fairy tale manner they wanted. Although I agree it is bonkers.

On the CISAS process (I am not there yet) can you introduce the above arguments once you have submitted your claim? I.e if you put in a claim that they have used the wrong rate, or you cancelled before the March Rate was published, but did not add all the arguments about reasonable interpretations - how do you get that to be considered by CISAS?

daveuk1

Worth pointing out here that (especially if you are pre-Oct) you are almost completely reliant on discretionary interpretation of contract and consumer protection legislation by either CISAS or the courts.

FWIW, I don't find much of what has been written previously persuasive that there has been a breach of the (pre-Oct) Ts & Cs. But, in any event, since you are so heavily reliant on the sympathy of CISAS and/or the courts, you should bear in mind how this whole thing looks objectively, irrespective of how disgruntled you may be.

I think we would all agree that this is clearly not a case of T-Mobile setting out to manipulate its Ts & Cs for its own gain and to the detriment of its customers. Rather, they have made a monumentally stupid error and are now trying to avoid allowing their customers to benefit (quite disproportionately) from that error. They may be the big, nasty profit machine against we the innocent customers but that shouldn't overshadow the facts. This is relevant because I would think it is likely to influence how a court may construe the facts.

Maybe worth bearing in mind in terms of managing your own expectations...

Barnicle_Fiend

daveuk1 wrote: »

Worth pointing out here that (especially if you are pre-Oct) you are almost completely reliant on discretionary interpretation of contract and consumer protection legislation by either CISAS or the courts.

FWIW, I don't find much of what has been written previously persuasive that there has been a breach of the (pre-Oct) Ts & Cs. But, in any event, since you are so heavily reliant on the sympathy of CISAS and/or the courts, you should bear in mind how this whole thing looks objectively, irrespective of how disgruntled you may be.

I think we would all agree that this is clearly not a case of T-Mobile setting out to manipulate its Ts & Cs for its own gain and to the detriment of its customers. Rather, they have made a monumentally stupid error and are now trying to avoid allowing their customers to benefit (quite disproportionately) from that error. They may be the big, nasty profit machine against we the innocent customers but that shouldn't overshadow the facts. This is relevant because I would think it is likely to influence how a court may construe the facts.

Maybe worth bearing in mind in terms of managing your own expectations...

I don't disagree with you. I think t-mobile made an honest mistake whilst trying to screw more money out of their customers in a legally questionable manner.

It's warming to note the effort they have in fact gone to to apologise and explain to customers. I feel reassured that whilst mistakes happen at large companies from time to time, t-mobile always have the customers best interests at heart and will act quickly to correct any errors before relationships become damaged.

RandomCurve

daveuk1 wrote: »

Worth pointing out here that (especially if you are pre-Oct) you are almost completely reliant on discretionary interpretation of contract and consumer protection legislation by either CISAS or the courts.

FWIW, I don't find much of what has been written previously persuasive that there has been a breach of the (pre-Oct) Ts & Cs. But, in any event, since you are so heavily reliant on the sympathy of CISAS and/or the courts, you should bear in mind how this whole thing looks objectively, irrespective of how disgruntled you may be.

I think we would all agree that this is clearly not a case of T-Mobile setting out to manipulate its Ts & Cs for its own gain and to the detriment of its customers. Rather, they have made a monumentally stupid error and are now trying to avoid allowing their customers to benefit (quite disproportionately) from that error. They may be the big, nasty profit machine against we the innocent customers but that shouldn't overshadow the facts. This is relevant because I would think it is likely to influence how a court may construe the facts.

Maybe worth bearing in mind in terms of managing your own expectations...

Fair point we must look at this objectively.

But by the same token would CISAS also look at how TM have behaved since in your words making a "monumentally stupid error"?

Also ..."avoid allowing their customers to benefit (quite disproportionately) from that error"
The remedy is in the T&Cs that TM drafted without negotiation. If I do something out side of T&Cs in error I get punished and so it should be for the company.

After all there is quote from EE in the Guardian on 1st March as follows:
A spokeswoman for EE said: "The terms and conditions state that prices can be increased mid-contract, by the same [rate] as the Retail Prices Index.

"Customers are encouraged to read the terms and conditions and have a 14-day period in which to change their minds. If customers are unhappy they can break their contract if they pay a fee for leaving us early."

So in return EE are encouraged to read their T&Cs!!

daveuk1

Sure, but the point is that, albeit by pure dumb luck, they haven't breached their Ts & Cs (at least not those that apply to pre-Oct contracts).