Mobile Phone Contract - Price Rise Refunds

RandomCurve

Below is a response to EEs defence a few points to note:
It is based on the response @Danielsheard received at post #553, you may need to AMEND the paragraph numbers to fit your defence, but all of the defences (so far) have been the same.Pay particuilat attention to the sum quoted in the response to paragraph 25


An interesting point to note is that I think Carmel Codd is EEs top legal bod - so they are clearly not leaving this to their little guys to deal with.
As far as I can tell the whole defence is an attempt at mis-directing the adjudicator to consider the price rise in terms of the contract (where you probably can't win other than to have the price rise stopped), and to steer clear of GC 9.6.


So I suppose we will find out in approx. 3 weeks which way the adjudicators will jump! If CISAS go back to EE and give them a chance to resubmit their defence (as they did with DelBoy9) then we will know the whole thing is fixed and we will have to go to court!




I will in the main address EEs defence by reference to the paragraph numbers, but request that adjudicator refers to my CISAS claim. I would also like the adjudicator to note that EE appear to have declined to address the points raised in my cases in that they have not explained:

[*]Why a new and T&C effective 26th March should not be subject to the clarified Ofcom definition of Material Detriment effective from 23rd January
[*]Why a price rise above CPI is not a real terms increase – which is therefore of Material Detriment under GC 9.6 regardless of which Ofcom definition is used
[*]How an Ofcom clarification of the definition of Material Detriment when the actual wording of GC 9.6 has not changed should not apply to our contract.


Paragraph 1
I have already clearly explained in my case to CISAS that this case has nothing to do with EEs business decision to increases prices, it is to do with EE breaching of GC 9.6 and not allowing me the penalty free termination which GC 9.6 allows. Further evidence of EE trying to frustrate my claim.

Paragraph 5, 30 to 33
As per my CISAS claim:
“Should EE plead that this is a complex matter then I request that the adjudicator considers if this would warrant an additional compensation payment as EE would either:

• Not be acting in Good Faith by claiming that the matter is complex – when it is not OR

• If it considered too complex then EE have not applied the required duty of care when drafting the contract and its revisions.”

As EE are clearly pleading that this is a complex issue of law I request that the adjudicator considers my request for additional compensation, and views EEs defence in this respect to be nothing more than a further attempt to frustrate my claim.




Paragraph 12
This is clear evidence and agreement from EE that my contract is subject to NEW T&Cs applicable from 26th March 2014. This clearly supports my claim that as the change in T&Cs occurred AFTER Ofcom clarified the definition of Material Detriment from 23rd January 2014 then the new price rise term must be subject to that clarification. I note that EE have declined to dispute (or even address) this point. If I am to be held to T&C amendments from the date of the amendment by EE, then EE must also be held to amendments to Ofcom Regulations when they make changes to T&Cs covered by that amendment. Therefore under the clarified definition of GC 9.6 ANY change to core subscription price will be considered likely to be of Material Determent and trigger my right to a penalty free cancellation.


Paragraphs 13 to 20
EE appear to be arguing that the contract allows the use of RPI, however my case is in regards to GC 9.6 (Which over rules my contract with EE as EE are required to comply with Ofcom General Conditions of Entitlement). An RPI increase is of Material Detriment under the old Ofcom definition of GC 9.6 (“Not to the consumers benefit or not neutral to the consumer” – i.e. Material Detriment = detriment) as it is a REAL TERMS increase as RPI(J) and CPI are the only official measures of UK inflation as per my case to CISAS.


Paragraph 15
EE seem unable to interpret their own contract as they claim that the contract “REQUIRES” EE to use RPI under clause 7.2.2.3. This is obviously factually incorrect; the reference to RPI is simply a figure that EE must not exceed, which is entirely different to being a figure EE is “required” to use, and demonstrates the lack of care EE have displayed since I first contacted them on this matter. However even if it was construed that EE were required to use RPI that is under their own contract and if EE have put a clause in their own contract that REQUIRES them to breach GC 9.6 (by applying a REAL TERMS increase which cannot be to my benefit nor neutral to me (as it is a real terms increase), then that is for EE to consider.


EE repeat a similar lack of care at Paragraph 20 where they claim that using any other measure than RPI (be it higher or lower than RPI) would not be in accordance with the terms of the agreement, and that RPI MUST be used, again this is (for increases lower than RPI) factually incorrect.


Paragraph 25
This is my evidence of EEs lack of duty of care to me. I do not “dislike” EEs response because “it did not contain what I wanted to hear”. I dislike the stress and inconvenience suffered when EE reply without responding fully to the points I have raised even when my emails clearly stated that a response that did not address the points raised would not be considered an acceptable response. Further my claim for compensation is clearly articulated in my claim. I also note that EE refer to a sum of £140, and whilst this may be higher than my original request given the response received from EE to my claim I request that the adjudicator considers if this is a more suitable sum in light of my comments to EEs defence at Paragraphs 1, 5, 30-33, 15, 20, 25, and 29.


Paragraph 28
If the price variation clause is unenforceable under the UTCCRS then I am able to request (and legally enforce) that the price is not increased, however my claim has nothing to do with UTCCRS nor mis-selling and I am at a loss to understand why EE would bring this into the defence other than to try and further complicate the issue.


Paragraph 29
I have provided “strict proof thererof” in my CISAS claim by clearly demonstrating that an increase of RPI is a real terms increase and under the old Ofcom Definition of Material Detriment a real terms increase cannot be neutral and therefore by Ofcom's definition is likely to be of Material Detriment to me (notwithstanding the fact that since EE changed my T&Cs in March 2014 our contract is subject to the revised Ofcom definition). This is yet further evidence of EEs lack of care as rather than addressing if an increase above CPI is a real terms increase they have chosen to ignore what I have submitted in my claim and make it sound as if I have not submitted evidence.

RandomCurve

skuk21 wrote: »

RC

done!

Delivery to the following recipient failed permanently:

[EMAIL="Edwin.laine@bbc.co.uk"]Edwin.laine@bbc.co.uk[/EMAIL]

Technical details of permanent failure:
Google tried to deliver your message, but it was rejected by the server for the recipient domain bbc.co.uk by cluster1.eu.messagelabs.com. [195.245.231.99].

The error that the other server returned was:
550 Invalid recipient <Edwin.laine@bbc.co.uk> (#5.1.1)

Thank you - I have updated the address and added a couple more on.


Thanks for your support.

corsaman2002

RandomCurve wrote: »

Thank you - I have updated the address and added a couple more on.


Thanks for your support.

E-Mail Sent.


I had an auto e-mail back from the BBC saying they do not accept e-mails only from their web forms.

jogplc

Complaint sent, thanks for all your help

ulaggy

Couple of queries before I submit my response.

1) In T-Mobile's defence to me, they claim I am subject to T&C version CVN58 and that from 26th March, 2014 I'm subject to the agreement CVN58C. Now the T&C sheet I have attached to my Service/Upgrade agreement (signed 21/11/2012) quite clearly says Version 59 on it. How should I respond with regards to this?

Edit: I see that we're claiming that we're not on old T&C, but new ones cos of the changes. Still, is it worth me responding somehow to their error?

2) The bit that talks about mis-sold terms and what not - paragraph 27 - My paperwork (which I still have) clearly reads Full Monty 36. Is it worth me adding in about that, with attach images as proof? It's mis-sold if you call something Full Monty 36 and change the price. It wasn't just called Full Monty. It specifically listed the price.

Edit: I've added the following

"Paragraph 27
EE deny that they have mis-sold the terms of the price plan to myself. Whilst this was not something I had previously alleged in my CISAS claim, I feel it necessary to respond to this point raised. On 21/11/2012 I upgraded from my original T-Mobile contract to the Full Monty £36 contract. At point of sale I was never advised by the sales advisor, Shezad, that there was the potential for price rises. I have attached a photo of both the Service Agreement and the payment receipt, which both clearly show that the contract was for £36 only. As such, I feel that price rises on a contract that is clearly defined as £36 constitutes mis-selling despite EE's claim that it is not. This further proves my point about EE's lack of duty of care"

Not a question with regards to my response, but the whole refusal to define Material Detriment is weird, really. Surely a contract that contains clauses that cannot be defined renders said contract null and void? I suppose that is kinda the crux of our argument.

Edit again:

Oh, with regards to paragraph 15. I've just found something potentially useful. What do you think RC? I've attached a photo with the interesting bit underlined.



Penalty free termination if the price rise is above Retail Price Index OR any other statistical measure of inflation published by any Government body authorised to do so.

That clause no longer appears in the T&C they claim I'm now using (V58C). But I have paperwork showing T&C Version 59, with that clause still in it. That clause suggests to me that if the price rise is above RPI OR any other Government inflation statistic (like CPI and RPIJ) then I'm entitled to penalty free. What do you reckon RC?

RandomCurve

EE changed ALL of the T&Cs for all contract versions so (with the exception of the statements below) it is irrelevant which contract you were on as they changed the relevant T&C (which is why so many people cancelled when the T&Cs changed).


With regards to the Full Monty being a fixed price and the contract being ambiguous - these argument can be won successfully, but will only lead to the price rise being cancelled (i.e. the clause is null and void and not the contract), and so you contract would not be cancelled penalty free.


You need to weave in the following points from post #554 for Delboys9 response as they did the same to him the extra bits to add are (the paragraph numbers/dates may need changing):






I also note that EE are insisting that I am V58 of the contract. I have prepared my case and this response to the defence based on the fact that I must be on V59 as my initial contract was taken out after 30th October 2012. However should the adjudicator believe I am on V58 then I ask that the additional evidence I have included at the end of this response is taken into consideration as it adds a fundamental additional argument as to why this increase triggers my right to a penalty free cancellation which I would have used in my original case had I known that EEs record keeping was so poor that they cannot correctly identify which contract a customer is on – an error by EE for which I should not be penalised.



Paragraph 4-7 & 24 (contract term 2.11)
These paragraphs clearly state that I took out my contract on 24th April 2013, and confirm that was via EEs own telesales force, but EE then go on to say that I am on version V58 of the contract, this is simply not true. T-Mobile updated their terms and conditions on 30th October 2012 a full One Hundred and Seventy Six (176) days BEFORE I entered into my contract and I submit a copy of V59 of the contract which proves that I must be on V59. This is clear evidence of the lack of duty of care that EE has applied in its dealings with me and I cannot be held responsible for EEs inability to train its own staff to record the correct contract versions on its customer database. Also the contact states that I am able to rely on the contract as published on EEs website (clause 2.11) which is what I have done, even if EE seem unable to do the same!




EE have argued that I am on version 58 of the contract – and if that is so then I would ask that the adjudicator (in ADDITION to the above) considers the following:





The price rise applied to v58 T-Mobile contracts is of Material Detriment under GC 9.6. In March 2013 T-Mobile were most forceful (see legal representation from EE legal* office 3rd July 2013) insisting that the Annual RPI applied to my account of 3.3% related to the March 2013 RPI published in April 2013, whereas now EE are applying the February 2014 ANNUAL RPI rate to the same contract. Effectively EE are applying a 12 month inflation rate to an 11 month period, or put another way, EE are increasing my contract price more regularly than once a year. As the contract refers to the right to increase prices by the ANNUAL inflation rate, it is implied that the rate applied must reference a 12 month (ANNUAL) period between the RPI rates applied. To apply an ANNUAL RPI increase to my account EE would have to reference the March 2014 RPI figure which was 2.5% and not 2.7%. Therefore EE have applied a rate in excess of that allowed under the contract. It follows that as EE have applied a rate in excess of the correct annual RPI (regardless of materiality) then I should be entitled to a penalty free cancellation as per the terms of our contract.

*T-Mobile Defence to a CISAS case regarding the Annual RPI rate applied to my contract:

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME

REFERENCE: 212132298
BETWEEN
MR XXXXXXXX Claimant
and
EVERYTHING EVERYWHERE LIMITED
trading as T-Mobile Respondent
…………

19 As the Written Notice was issued in the month of April 2013 then the relevant month’s RPI figure for the purposes of Clause 7.2.3.3 of the Agreement is the RPI figure as published by the Office of National Statistics (“ONS”) representing March 2013; being the month before the month in which the Written Notice was issued. The March RPI figure, 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 to this Defence but can be made available to CISAS upon request. …………

The Respondent believes that the facts stated in this form are true. I am duly authorised by the Respondent to sign this statement.

Dated the 03 July 2013

(Text removed by MSE Forum Team)

jogplc

Thanks to RandomCurve. I've posted my Defence to Cisas today based on his response. Can I just say to other people currently producing their defence, be really careful on the Paragraph Numbers, on mine they've giggled them around and changed the wording slightly but they're in essence the same thing. I suspect this is to catch people out when copy/pasting a defence.

FYI I am on an Orange Contract!

All the best and good luck!

ulaggy

jogplc wrote: »

Thanks to RandomCurve. I've posted my Defence to Cisas today based on his response. Can I just say to other people currently producing their defence, be really careful on the Paragraph Numbers, on mine they've giggled them around and changed the wording slightly but they're in essence the same thing. I suspect this is to catch people out when copy/pasting a defence.

All the best and good luck!

I had my defence one the left of my screen and the other guy's (that RC has used to format the response for us all) on the right and checked through every word. Took ages, but everything is word for word the same, with the exception of dates and the contract version.

They really will do everything they can though to worm out of it. Gits

danielsheard

Massive thanks to RC.

Ive sent the response too CISAS regarding the company’s Defence (EE).

I'll keep everyone updated.

Thanks

ulaggy

Right, sorry for being a pest today. Struggled to get my head around the stuff I needed to add. I *think* I've got it all worked out and adjusted to fit with my own situation.


I will in the main address EE's defence by reference to the paragraph numbers, but request that adjudicator refers to my CISAS claim. I would also like the adjudicator to note that EE appear to have declined to address the points raised in my cases in that they have not explained:


Why a new and T&C effective 26th March should not be subject to the clarified Ofcom definition of Material Detriment effective from 23rd January
Why a price rise above CPI is not a real terms increase – which is therefore of Material Detriment under GC 9.6 regardless of which Ofcom definition is used
How an Ofcom clarification of the definition of Material Detriment when the actual wording of GC 9.6 has not changed should not apply to our contract.

Paragraph 1
I have already clearly explained in my case to CISAS that this case has nothing to do with EEs business decision to increases prices, it is to do with EE breaching of GC 9.6 and not allowing me the penalty free termination which GC 9.6 allows. Further evidence of EE trying to frustrate my claim.

Paragraph 5, 30 to 33
As per my CISAS claim:
“Should EE plead that this is a complex matter then I request that the adjudicator considers if this would warrant an additional compensation payment as EE would either:


Not be acting in Good Faith by claiming that the matter is complex – when it is not OR


If it considered too complex then EE have not applied the required duty of care when drafting the contract and its revisions.”


As EE are clearly pleading that this is a complex issue of law I request that the adjudicator considers my request for additional compensation, and views EEs defence in this respect to be nothing more than a further attempt to frustrate my claim.


Paragraph 11 & 12

Whilst EE are correct when they state I have been a customer since 17th August, 2008, I wish to state that on the 21st November 2012 I changed my phone tariff from what it originally was to a different tariff: “Full Monty 36”. I have both the Service Agreement and payment receipt to confirm this date. These photos are attached to my response at Appendix 2. This was done at a T-Mobile store in Nottingham, UK.

I note that EE are insisting that I am V58 of the contract. This is simply not true. T-Mobile updated their terms and conditions on 30th October 2012, a full 22 days BEFORE I entered into my new contract (Full Monty 36). I submit evidence of this by attaching photos of each page of my terms and conditions, with the front page quite clearly labelled as Version 59 - See Appendix 3. This is clear evidence of the lack of duty of care that EE has applied in its dealings with me and I cannot be hold responsible for EE’s inability to train staff to record the correct contract versions on it’s customer database. I have prepared my case and this response to the defence based on the fact that I must be on V59 as I started the new, “Full Monty 36” contract after 30th October 2012. However should the adjudicator believe I am on V58 then I ask that the additional evidence I have included, at the end of this response in Appendix 1, is taken into consideration as it adds a fundamental additional argument as to why this increase triggers my right to a penalty free cancellation which I would have used in my original case had I known that EEs record keeping was so poor that they cannot correctly identify which contract a customer is on – an error by EE for which I should not be penalised.



Paragraph 12
This is clear evidence and agreement from EE that my contract is subject to NEW T&Cs applicable from 26th March 2014. This clearly supports my claim that as the change in T&Cs occurred AFTER Ofcom clarified the definition of Material Detriment from 23rd January 2014 then the new price rise term must be subject to that clarification. I note that EE have declined to dispute (or even address) this point. If I am to be held to T&C amendments from the date of the amendment by EE, then EE must also be held to amendments to Ofcom Regulations when they make changes to T&Cs covered by that amendment. Therefore under the clarified definition of GC 9.6 ANY change to core subscription price will be considered likely to be of Material Determent and trigger my right to a penalty free cancellation.


Paragraphs 13 to 20
EE appear to be arguing that the contract allows the use of RPI, however my case is in regards to GC 9.6 (Which over rules my contract with EE as EE are required to comply with Ofcom General Conditions of Entitlement). An RPI increase is of Material Detriment under the old Ofcom definition of GC 9.6 (“Not to the consumers benefit or not neutral to the consumer” – i.e. Material Detriment = detriment) as it is a REAL TERMS increase as RPI(J) and CPI are the only official measures of UK inflation as per my case to CISAS.


Paragraph 15
EE seem unable to interpret their own contract as they claim that the contract “REQUIRES” EE to use RPI under clause 7.2.2.3. This is obviously factually incorrect; the reference to RPI is simply a figure that EE must not exceed, which is entirely different to being a figure EE is “required” to use, and demonstrates the lack of care EE have displayed since I first contacted them on this matter. However even if it was construed that EE were required to use RPI that is under their own contract and if EE have put a clause in their own contract that REQUIRES them to breach GC 9.6 (by applying a REAL TERMS increase which cannot be to my benefit nor neutral to me (as it is a real terms increase), then that is for EE to consider.


EE repeat a similar lack of care at Paragraph 20 where they claim that using any other measure than RPI (be it higher or lower than RPI) would not be in accordance with the terms of the agreement, and that RPI MUST be used, again this is (for increases lower than RPI) factually incorrect.


Paragraph 25
This is my evidence of EEs lack of duty of care to me. I do not “dislike” EEs response because “it did not contain what I wanted to hear”. I dislike the stress and inconvenience suffered when EE reply without responding fully to the points I have raised even when my emails clearly stated that a response that did not address the points raised would not be considered an acceptable response, choosing to use generic email responses instead. Further my claim for compensation is clearly articulated in my claim.

Paragraph 28
If the price variation clause is unenforceable under the UTCCRS then I am able to request (and legally enforce) that the price is not increased, however my claim has nothing to do with UTCCRS nor mis-selling and I am at a loss to understand why EE would bring this into the defence other than to try and further complicate the issue.


Paragraph 29
I have provided “strict proof thererof” in my CISAS claim by clearly demonstrating that an increase of RPI is a real terms increase and under the old Ofcom Definition of Material Detriment a real terms increase cannot be neutral and therefore by Ofcom's definition is likely to be of Material Detriment to me (notwithstanding the fact that since EE changed my T&Cs in March 2014 our contract is subject to the revised Ofcom definition). This is yet further evidence of EEs lack of care as rather than addressing if an increase above CPI is a real terms increase they have chosen to ignore what I have submitted in my claim and make it sound as if I have not submitted evidence.


Appendix 1:

EE have argued that I am on version 58 of the contract – and if that is so then I would ask that the adjudicator (in ADDITION to the above) considers the following:

The price rise applied to v58 T-Mobile contracts is of Material Detriment under GC 9.6. In March 2013 T-Mobile were most forceful (see legal representation from EE legal* office 3rd July 2013) insisting that the Annual RPI applied to my account of 3.3% related to the March 2013 RPI published in April 2013, whereas now EE are applying the February 2014 ANNUAL RPI rate to the same contract. Effectively EE are applying a 12 month inflation rate to an 11 month period, or put another way, EE are increasing my contract price more regularly than once a year. As the contract refers to the right to increase prices by the ANNUAL inflation rate, it is implied that the rate applied must reference a 12 month (ANNUAL) period between the RPI rates applied. To apply an ANNUAL RPI increase to my account EE would have to reference the March 2014 RPI figure which was 2.5% and not 2.7%. Therefore EE have applied a rate in excess of that allowed under the contract. It follows that as EE have applied a rate in excess of the correct annual RPI (regardless of materiality) then I should be entitled to a penalty free cancellation as per the terms of our contract.

*T-Mobile Defence to a CISAS case regarding the Annual RPI rate applied to my contract:




COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME

REFERENCE: 212132298
BETWEEN
MR XXXXXXXX Claimant
and
EVERYTHING EVERYWHERE LIMITED
trading as T-Mobile Respondent
…………

19 As the Written Notice was issued in the month of April 2013 then the relevant month’s RPI figure for the purposes of Clause 7.2.3.3 of the Agreement is the RPI figure as published by the Office of National Statistics (“ONS”) representing March 2013; being the month before the month in which the Written Notice was issued. The March RPI figure, 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 to this Defence but can be made available to CISAS upon request. …………

The Respondent believes that the facts stated in this form are true. I am duly authorised by the Respondent to sign this statement.

Dated the 03 July 2013

(Text removed by MSE Forum Team)

Appendix 2:

1 photo of my Service Agreement dated 21st November 2012 & 1 photo of my credit for payment, also dated 21st November 2012.

Appendix 3:

3 x photos, showing the complete terms and conditions that were attached to my Service Agreement from 21st November, 2012.

~~

I heavily changed the one paragraph that talks about telesales because I wasn't a new customer, but a customer who was going from one contract (Web 'n' Walk or something, can't remember so not included it in my response) to the Full Monty 36 one. I did it in-store in Nottingham. All in all, I think I've included everything I need to and obviously will be attaching 5 photos (3 of T&C v59, 1 of Service Agreement with November date on it and 1 of the receipt that also shows the date, location of sale, etc)

Should I send that off now? Thanks ever so much mate. I'd buy you a drink but I'm not likely to have the opportunity. That said, if we are successful (either via CISAS or small claims) in terminating contracts and getting refunds/compensation, I would like to make a donation either towards your website or a charity of your choice if you would prefer, in gratitude for the hard work you've put in, and keep putting in.