Mobile Phone Contract - Price Rise Refunds

sarahdonnelly

CISAS have received my defence, my adjudicator is Keith Richards. Fingers crossed!

narika

Shaunyboy wrote: »

EE had until today to reply but I've not heard anything. When do people normally hear from them through CISAS, is it on the deadline day or after?

sane here.2nd June deadline for orange to react and I haven't heard anything yet. Should I be contacting CISAS?

Mikmonken

I'd leave it the 5 working days as they can get a 5 day extension which they will get if prompted but if you leave it 5 working days before you make contact that opportunity for an extension should have passed

narika

Mikmonken wrote: »

I'd leave it the 5 working days as they can get a 5 day extension which they will get if prompted but if you leave it 5 working days before you make contact that opportunity for an extension should have passed

Thanks a ton.i am happy to wait.i will probably contact CISAS end of next week if I had not heard from them by then. Interesting waiting game.

skuk21

We acknowledge receipt of comments on the company’s response to the claim from the

customer. A copy is provided for the company’s information.



The parties are advised that Ms Claire Williams has been appointed as adjudicator and that all

of the case papers received have been forwarded for consideration.



Upon receipt, the Decision will be sent to both parties (usually within 3 weeks). In the meantime,

we may contact you if the adjudicator requires any clarification or further information on the

documents submitted.



When the Decision is issued the Customer will be given 6 weeks to advise us whether they

accept or reject it.





Yours sincerely

zcakg26

Hello,

Have been out of touch of this forum for a while due to exams. I'm just about to send off my CISAS complaint. I received my last email from EE referring me to CISAS on the 14th May 2014 so was just wondering if I have left my CISAS complaint too long?

Also editting the CISAS draft letter I have come across the last paragraph in green:

5. Without prejudice (Only to be used if the calculation shows a figure higher than 2.7% - even if it is 2.70001%)
The methodology used by EE to calculate the increase applied to my account results in the actual payment leaving my bank account each month relating to the core subscription price being in excess of the February RPI rate. In accordance with the contract if an increase is applied in excess of RPI then I am entitled to a penalty free cancellation (regardless of Material Detriment).
The figures are as follows Previous monthly cost £XX.XXp. revised monthly cost £XX.XXp which is an increase of £X.XXp whereas a 2.7% increase would have resulted in a new monthly cost of £X.xxP, therefore under the terms of our contract as the net increase is in excess of RPI I am entitled to a penalty free cancelation

The quantum above RPI is irrelevant. Even if the increase was just 1p above 2.7% then EE must have applied a rate HIGHER than the published RPI rate which triggers my right to a penalty free cancellation as per the contract.

Not quite sure how to edit this paragraph to me.

pau1200

Ive had my defence from EE, and it all looks similar but i have 40 points where the others i have looked at only have 38 but i cant see what extra they have added, can anyone spot anything different or should i use the standard defence response.
EE defence below:

1. The Respondent submits that the issue at the heart of the Claimant’s Claim
relates to a business decision taken by the Respondent to increase its prices.
2. Rule 2(g) of the CISAS Scheme Rules (“the Rules”) provides that the
CISAS Scheme (“the Scheme”) can be used to settle disputes about (i) bills
and/or; (ii) communication services provided to the Respondent’s
customers.
3. The Respondent submits that the cause of action pleaded by the Claimant is
neither directly related to bills or communication services and therefore
represents a dispute which falls outside the remit of Rule 2(g) and therefore
is a matter which is not within the jurisdiction of the Scheme.
4. The Respondent submits that the cause of action pleaded by the Claimant is
neither directly related to bills or communication services and therefore
represents a dispute which falls outside the remit of Rule 2(g) and therefore
is a matter which is not within the jurisdiction of the Scheme
5. Therefore, the Respondent respectfully submits that the Claimant’s claim as
pleaded cannot be dealt with under the Scheme and that pursuant to the
Rules an adjudicator is not therefore able to consider the Claimant’s claim.
6. The remainder of this Defence is pleaded without prejudice to the above.
RESPONDENT’S DEFENCE
7. The Respondent denies that it is liable to the Claimant as pleaded or at all.
8. The Respondent is a mobile telecommunications network operator that
enters into service agreements with its customers to enable its customers to
access the services. The Claimant is one such customer of the Respondent.
9. Access to the Respondent’s network is granted to the customer by way of
the issuance to the customer of SIM card which is issued subject to the
Respondent’s then applicable conditions for telephone service.
10. The Claimant has been a customer with the Respondent since 17 April 2009
in respect to account number *********. The Claimant has one mobile
number being ********* (“the Mobile Number”).
11. On 03 October 2012, the Claimant entered into a Service Upgrade
Agreement (“the Agreement”) in respect to the Mobile Number. The
Claimant would have been provided with the terms and conditions
applicable at the point of entering into the Agreement. The applicable terms
and conditions subject to the Agreement were available to the Claimant at
that time via the Respondent’s website or by contacting the Respondent’s
customer services at any time.
12. The Respondent submits that this dispute, as per the Claimant’s application,
arises from the notification of the increase in prices effective from 28 May
2014.
13. The Claimant seeks termination of the Agreement without termination and
to transfer the Mobile Numbers to another network service provider and for
the cancellation to be back dated to the date of his request for termination.
In addition the Claimant also seeks an unlock code for an unspecified
handset, but presumably the handset associated with the Mobile Number on
the Claimant’s account.
14. The Respondent confirms that prior to the 26 March 2014 the Agreement
between the parties was subject to the terms and conditions CVN59. From
29 January 2014 to 14 February 2014 the Respondent provided the Claimant
with notice, pursuant to the Agreement at the time, that the Respondent’s
terms and conditions would be updated and the new terms effective as of the
26 March 2014. Therefore, the Respondent submits that as from the 26
March 2014 the terms and conditions applicable to the Agreement between
the parties and so governing the Claimant, is CVN59A.
15. Save that the Respondent denies that the change in terms effective 26 March
2014 gave the Claimant the right to terminate his Agreement without charge
the Respondent submits that in any event the Claimant was required to give
notice to terminate prior to the increase in charges taking effect on 26
March 2014. The Respondent submits that the Claimant failed to give notice
to terminate the Agreement prior to 26 March 2014 and therefore is bound
by the terms of the Agreement effective 26 March 2014.
16. At Schedule 1 attached hereto is a copy of the terms and conditions being
Conditions Version Number 59A (CVN59A) applicable to the Agreement
entered into between the Claimant and the Respondent. The terms and
conditions governing the Agreement contains amongst other things the
following;-
2.5.1 Unless We agree otherwise, a new Minimum Term will apply.
Once that Minimum Term is over this Agreement will continue until
terminated;
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 then apply to
You once that notice has run out;
7.2.2. You can only give Us notice to terminate this Agreement by
calling customer services. Your Agreement will terminate 30 days from
when We receive Your call, although You are free to change Your mind
and call Us to withdraw Your notice of termination at any time during
that period. You will be responsible for all Charges up to and including
the date that this Agreement terminates;
7.2.3 A Cancellation Charge won’t apply if You are within the
Minimum Term and:
7.2.3.3 We have given You Written Notice of an increase in a Price
Plan Charge under point 7.1.4 and (i) the increase in Your Price Plan
Charge (as a percentage) is higher than the annual percentage
increase in the Retail Price Index (RPI) published by the Office for
National Statistics (calculated using the most recently published RPI
figure before we give you Written Notice under 7.1.4); and (ii) You give
Us notice to immediately cancel this Agreement before the change takes
effect.
17. Pursuant to Clause 7.1.4 between the 5-15 April 2014 the Respondent
issued to the Claimant (together with all of its pay monthly customers)
written notice (“the Written Notice”) advising of a 2.7% increase in price
plan monthly charges that would take effect as from 28 May 2014.
18. As Written Notice was given between the 5-15 April 2014 the Respondent
was required, for the purposes of Clause 7.2.2.3 to use the most recently
published RPI figure before we give you Written Notice under 7.1.4.
Therefore the correct RPI figure to use was the RPI figure for February
2014 which was published on 25 March 2014, being the most recently
published RPI figure before Written Notice of the increase was given.
19. The RPI figure published as at the time the Written Notice was issued
(being 5-14 March 2014) was the RPI figure for month of February 2014
which was published on 25 March 2014 which was 2.7%.
The RPI 12-month rate for February 2014 stood at 2.7% 1
20. The Respondent denies that the price increase of 2.7% is an increase above
the RPI as provided for by way of Clause 4.3.1.
21. The Respondent submits that the previous increase of charges in March
2013 does not prevent the increase in charges in May 2014. The
Respondent submits that, in accordance with the terms of the Agreement
that it can increase its charges providing that notice of such increase of
charges is given to the Claimant. The Respondent submits that due notice
was correctly given to the Claimant.
1.
1.
1
http://www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/february-
2014/stb---consumer-price-indices---january-2014.html
22. The Respondent further denies that such increase in charges is an increase
which entitles the Claimant to terminate the Agreement without paying a
cancellation charge as provided for by way of Clause 7.2.3 or indeed that
such is a material detriment that entitles the Claimant to treat the Agreement
as terminated without paying a cancellation charge.
23. As the increase in charges of 2.7% set out within the Written Notice is not
higher than the RPI for February 2014 of 2.7% the Claimant is not entitled
pursuant to Clause 7.2.3 of the Agreement or otherwise to cancel the
Agreement without paying a cancellation charge.
24. The Respondent submits, if such is alleged, that it is not obligated to use
any other method to calculate the price increase, such as the use of
Consumer Price Index (“CPI”). The Respondent submits that the clause
specifically refers to the use of RPI as a measure of calculation and
therefore the use of any other measure, whether such be higher or lower,
would not be in accordance with the terms of the Agreement. The
Respondent has given certainty to the Agreement to specify RPI as the
measure that it would use for the purpose of any increase and accordingly it
is the RPI measure that must be used and not any measure, such as CPI.
25. The Respondent denies that, if such is alleged, that it mis-sold the terms of
the price plan to the Claimant. At the time of entering into the Agreement
the Respondent did not have plans to increase its prices and that therefore
the price quoted to the Claimant was the correct price at that time. The
Respondent submits that it did not mis-sell or mis-lead the Claimant in
respect to such charges. The Respondent submits that it was not a ‘fixed
term contract’ and that the Respondent could increase its charges, as
provided for by way of the Agreement. The Respondent has exercised its
contractual right to increase charges and the Claimant is not entitled to the
remedy sought.
26. The Respondent further refers General Condition 9.6 (“GC 9.6”), imposed
by Ofcom on Communications Providers under s.45 of the Communications
Act 2003, which provides for Communications Providers to give subscribers
one month’s notice of “any modifications likely to be of material detriment”
and to allow subscribers to withdraw from the Agreement without penalty.
The Respondent submits that he increase in charges at the rate of RPI is not
of material detriment to the customer and the customer is hereby put to strict
proof thereof.
27. Further or alternatively, the material detriment issue constitutes a
complicated issue of law for the purpose of Rule 2(j) of the Scheme.
28. The Material Detriment Issue does not relate to any of the matters set out in
Rule 2a.
Bills: It does not relate to any bill issued by the Respondent to the Claimant.
Customer Service: It does not relate to the quality of customer service
provided by the Respondent to the Claimant.
Communications Services: For the reasons further set out below, the
reference in Rule 2a to “Communications services provided to customers”
relates to the physical provision of electronic communications services
and/or does not relate to regulatory issues such as the Material Detriment
Issue. Rule 2a is intended to implement General Condition 14.5 (“GC 14.5”)
which requires the Respondent to “implement and comply with a Dispute
Resolution Scheme, … for the resolution of disputes …in relation to the
provision of Public Electronic Communications Services.” Electronic
Communications Services are defined in s.32 of the Communications Act
2003 to mean “a service consisting in, or having as its principal feature, the
conveyance by means of an electronic communications network of signals”.
That indicates that the focus of the dispute resolution scheme is on the
service actually provided to customers.
29. A proper resolution of the case would require CISAS to consider the proper
construction of the term “material detriment” and the increase in charges is
of material detriment.
30. Further, the meaning of material detriment needs to be established both as a
matter of contractual construction and by reference to the regulatory
context. The term is not defined explicitly in the Agreement or in GC 9.6
The fact that Ofcom has recently published guidance on the issue of
material detriment in respect of price change clauses indicates that absent
such guidance, the issue of material detriment is unclear; and that the
considerations applicable to determining material detriment can be
complicated.
31. The application of the material detriment test to the change of terms is
doubly complex. It is not sufficient simply that it is theoretically possible
that the change could be of some detriment to the Claimant. Rather it is
necessary that the Claimant establish that that increase is of material
detriment.
32. For the reasons stated above the Respondent denies that the Claimant as at
all entitled, whether contractually or otherwise, to terminate his Agreement
without charge, either for the reasons as indicated within his application or
any other such reason. Therefore, the Respondent submits that the Claimant
is subject to the standard contractual termination clauses as per the
applicable terms and conditions.
33. The Respondent denies that it has breached its Agreement and/or breached
its duty of care to the Claimant. The Respondent remains of the view that
the decision to increase its prices is a business decision and falls outside the
remit of the Scheme. Accordingly, as the subject-matter of the complaint
falls outside the remit of the Scheme the Respondent did not issue the
Claimant with a deadlock letter. However, as above, the Respondent
remains of the view that the decision to increase its prices is outside the
remit of the Scheme.
34. The Respondent submits that the Claimant is free to cancel the Mobile
Number by giving notice to cancel at any time. However, as the Claimant is
within the minimum term period in respect to the Mobile Number he would
be liable for a cancellation charge in the sum of £126.08 (reducing on a
daily basis) should he terminate the Mobile Number within the minimum
term period.
35. The increase in charges did not take effect until 28 May 2014 and therefore
as at the date of the Claimant’s application and the Defence the Claimant
has not been charged any additional charges and therefore a refund is not
applicable, such being denied that the Claimant is entitled to such refund in
any event.
36. The Respondent denies that it has breached its Agreement and/or breached
its duty of care to the Claimant. As provided for by way of Annex 4 to
General Condition 14, the Respondent is not required to issue a written
deadlock letter when requested by a complainant where the subject matter
of the complaint is outside the jurisdiction of the Respondent’s Alternative
Dispute Resolution scheme. The Respondent remains of the view, and as
previously stated by CISAS, that the decision to increase its prices is a
business decision and falls outside the remit of the Scheme. Accordingly,
as the subject-matter of the complaint falls outside the remit of the Scheme
the Respondent did not issue the Claimant with a deadlock letter.
37. The Respondent has provided a response to the Claimant in a timely fashion
and that such response has been consistent. Whilst the Claimant’s appears to
dislike the content of such response it does not follow that the Respondent
has breached its duty of care to the Claimant. The Respondent denies that it
has failed to address each aspect of the Claimant’s claim and that in any
event the Respondent submits that its position remains unaltered and that it
does not accept the Claimant’s arguments that such response entitles them
termination without charge and/or compensation it the sum of £50.00.
38. The Claimant has enclosed within his supporting documents an extract of
the Respondent’s defence in respect to the CISAS case reference
??????????. The Respondent notes that such a case relates to a completely
separate matter which the Claimant was not a party to. Such being a
confidential document in any event. The Respondent fails to see the
relevance of this document to the Claimant’s application and furthermore
the Claimant has not provided an explanation for the same. The Claimant is
hereby put to strict proof thereof.
39. Save as is denied in any event, the Respondent submits that the Claimant’s
only recourse should the increase be in excess of RPI is to termination of the
Agreement without paying a cancellation charge. The Respondent submits
that the Claimant is not entitled to seek an unlock code for any handset
associated with the Agreement and such is not a remedy as provided for by
way of the Agreement. The Respondent denies that it is liable to the
Claimant with regards the facilitation of an unlock code for the handset,
either as free of charge or chargeable. There is no contractual obligation to
unlock a handset at any stage before, during or after termination of the
Agreement and the Claimant is hereby put to strict proof thereof.
40. The Respondent denies liability to the Claimant as pleaded or at all, either
contractually or otherwise.
The Respondent believes that the facts stated in this form are true. I am duly
authorised by the Respondent to sign this statement

narika

Maccadinho25 wrote: »

Thanks RC will add that in and send tomorrow night.

Any thoughts on the deadlock statement or am i barking up the wrong tree?

Anyone else on Orange had the same contract version mentioned in their defense? LEG300v15?? Ill be honest i cant find my t&cs in my paperwork to check and confirm

Hi Maccahinho25,
I am on orange my contract was taken in August 2013 and i have exactly the same wordings as you including the LEG300v15. I also have absolutely no clue as had taken the contract through reseller and there was no TnCs.....
i will really appreciate if you could share EE's defence and your response to it through a PM. i am sending you my EE's defence through a PM.

thanks and i am sure we can sort this out.:T

narika

Hi
I'm on Orange and got the following response. may i know what response should i send as i am just confused as hell. any help is greatly appreciated.

DEFENCE
1. The Respondent submits that the issue at the heart of the Claimant’s Claim
relates to a business decision taken by the Respondent to increase its prices.
2. Rule 2(g) of the CISAS Scheme Rules (“the Rules”) provides that the CISAS
Scheme (“the Scheme”) can be used to settle disputes about (i) bills and/or; (ii)
communication services provided to the Respondent’s customers.
3. The Respondent submits that the cause of action pleaded by the Claimant is
neither directly related to bills or communication services and therefore
represents a dispute which falls outside the remit of Rule 2(g) and therefore is a
matter which is not within the jurisdiction of the Scheme.
4. Therefore, the Respondent respectfully submits that the Claimant’s claim as
pleaded cannot be dealt with under the Scheme and that pursuant to the Rules an
adjudicator is not therefore able to consider the Claimant’s claim.
5. The remainder of this Defence is pleaded without prejudice to the above.
RESPONDENT’S DEFENCE
6. The Respondent denies that it is liable to the Claimant as pleaded or at all.
7. The Respondent is a mobile telecommunications network operator that enters
into service agreements with its customers to enable its customers to access the
services. The Claimant is one such customer of the Respondent.
8. Access to the Respondent’s network is granted to the customer by way of the
issuance to the customer of SIM card which is issued subject to the
Respondent’s then applicable conditions for telephone service.
9. The Claimant has been a customer with the Respondent in respect to account
number XXXX since XX August 2013. The Claimant has one active mobile
number being XXXXXXXXXX (“the Mobile Number”) registered to the account.
10. Upon entering into the Service Agreement (“the Agreement”) in respect to the
Mobile Number via one of the Respondent’s authorised retailers, the Claimant
would have been provided with the terms and conditions applicable at the point
of entering into the Agreement. The applicable terms and conditions subject to
the Agreement were available to the Claimant at that time via the Respondent’s
website or by contacting the Respondent’s customer services at any time.
11. The Respondent submits that this dispute, as per the Claimant’s application,
arises from the notification of the increase in prices effective from 28 May 2014.
12. The Claimant seeks termination of the Agreement without termination and to
transfer the Mobile Number to another network service provider and for the
cancellation to be back dated to the date of his request for termination. In
addition the Claimant also seeks an unlock code for an unspecified handset, but
presumably the handset associated with the Mobile Number on the Claimant’s
account.
13. The Respondent confirms that prior to the 26 March 2014 the Agreement
between the parties was subject to the terms and conditions LEG300v15. From
29 January 2014 to 14 February 2014 the Respondent provided the Claimant
with notice, pursuant to the Agreement at the time, that the Respondent’s terms
and conditions would be updated and the new terms effective as of the 26 March
2014. Therefore, the Respondent submits that as from the 26 March 2014 the
terms and conditions applicable to the Agreement between the parties and so
governing the Claimant, is LEG300v15A.
14. Save that the Respondent denies that the change in terms effective 26 March
2014 gave the Claimant the right to terminate his Agreement without charge the
Respondent submits that in any event the Claimant was required to give notice to
terminate prior to the increase in charges taking effect on 26 March 2014. The
Respondent submits that the Claimant failed to give notice to terminate the
Agreement prior to 26 March 2014 and therefore is bound by the terms of the
Agreement effective 26 March 2014.
15. At Schedule 1 attached hereto is a copy of the terms and conditions being
Conditions Version Number LEG300v15A (LEG300v15A) applicable to the
Agreement entered into between the Claimant and the Respondent. The terms
and conditions governing the Agreement contains amongst other things the
following;-
4.3 You may also terminate your Contract if we give you written notice to
vary its terms, resulting in an increase in the Charges or changes that
alter your rights under this Contract to your material detriment. In such
cases you would need to give us at least 14 days written notice prior to
your Billing Date (and within one month of us giving you written notice
about the changes). However this option to terminate without paying a
cancellation charge does not apply if:
4.3.1 the increase in Charges (as a percentage) is equal to or lower than the
annual percentage increase in the Retail Price Index (RPI) published by
the Office for National Statistical (calculated using the most recently
published RPI figure before we can give you Written Notice under Point
4.3).
5.2 Termination of your Contract is subject to you paying us any money you
owe us and us paying you any money we owe you. After termination, it is
your responsibility to cancel any direct debit, standing orders, credit
card mandates or other authorisations you may have given for periodic
payments to be made to us by third parties.
19.9 All notices to be served in accordance with your Agreement must be
served by post or facsimile. We can in addition serve notice to you by
voicemail, email, text or other form of electronic message. They will be
deemed served 48 hours after they are sent, or on earlier proof of
delivery. All invoices and notices served by post will be sent to the
address given by you on Registration unless you notify us of a change to
this address. Any waiver, concession or extra time we may allow you is
limited to the specific circumstances in which it is given and does not
affect our rights in any other way.
16. Pursuant to Clause 4.3 between the 5-15 April 2014 the Respondent issued to
the Claimant (together with all of its pay monthly customers) written notice
(“the Written Notice”) advising of a 2.7% increase in price plan monthly charges
that would take effect as from 28 May 2014.
17. As Written Notice was given between the 5-15 April 2014 the Respondent was
required, for the purposes of 4.3.1 to use the most recently published RPI figure
before we give you Written Notice under point 4.3. Therefore the correct RPI
figure to use was the RPI figure for February 2014 which was published on 25
March 2014, being the most recently published RPI figure before Written Notice
of the increase was given.
18. The RPI figure published as at the time the Written Notice was issued (being 5-
14 March 2014) was the RPI figure for month of February 2014 which was
published on 25 March 2014 which was 2.7%.
The RPI 12-month rate for February 2014 stood at 2.7%1
19. The Respondent denies that the price increase of 2.7% is an increase above the
RPI as provided for by way of point 4.3.
20. The Respondent further denies that such increase in charges is an increase which
entitles the Claimant to terminate the Agreement without paying a cancellation
charge or indeed that such is a material detriment that entitles the Claimant to
treat the Agreement as terminated without paying a cancellation charge.
21. As the increase in charges for the price plan of 2.7% set out within the Written
Notice is not higher than the RPI for February 2014 of 2.7% the Claimant is not
entitled pursuant to point 4.3.1 of the Agreement or otherwise to cancel the
Agreement without paying a cancellation charge.
1.
1 http://www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/february-2014/stb---
consumer-price-indices---january-2014.html#tab-Retail-Prices-Index--RPI--and-
RPIJ22.
The Respondent submits, if such is alleged, that it is not obligated to use any
other method to calculate the price increase, such as the use of Consumer Price
Index (“CPI”). The Respondent submits that the clause specifically refers to the
use of RPI as a measure of calculation and therefore the use of any other
measure, whether such be higher or lower, would not be in accordance with the
terms of the Agreement. The Respondent has given certainty to the Agreement
to specify RPI as the measure that it would use for the purpose of any increase
and accordingly it is the RPI measure that must be used and not any measure,
such as CPI.
23. The Respondent denies that, if such is alleged, that it mis-sold the terms of the
price plan to the Claimant. At the time of entering into the Agreement the
Respondent did not have plans to increase its prices and that therefore the price
quoted to the Claimant was the correct price at that time. The Respondent
submits that it did not mis-sell or mis-lead the Claimant in respect to such
charges. The Respondent submits that it was not a ‘fixed term contract’ and that
the Respondent could increase its charges, as provided for by way of the
Agreement. The Respondent has exercised its contractual right to increase
charges and the Claimant is not entitled to the remedy sought.
24. The Respondent further refers General Condition 9.6 (“GC 9.6”), imposed by
Ofcom on Communications Providers under s.45 of the Communications Act
2003, which provides for Communications Providers to give subscribers one
month’s notice of “any modifications likely to be of material detriment” and to
allow subscribers to withdraw from the Agreement without penalty. The
Respondent submits that he increase in charges at the rate of RPI is not of
material detriment to the customer and the customer is hereby put to strict proof
thereof.
25. Further or alternatively, the material detriment issue constitutes a complicated
issue of law for the purpose of Rule 2(j) of the Scheme.
26. The Material Detriment Issue does not relate to any of the matters set out in Rule
2a.
Bills: It does not relate to any bill issued by the Respondent to the Claimant.
Customer Service: It does not relate to the quality of customer service provided
by the Respondent to the Claimant.
Communications Services: For the reasons further set out below, the reference in
Rule 2a to “Communications services provided to customers” relates to the
physical provision of electronic communications services and/or does not relate
to regulatory issues such as the Material Detriment Issue. Rule 2a is intended to
implement General Condition 14.5 (“GC 14.5”) which requires the Respondent
to “implement and comply with a Dispute Resolution Scheme, … for the
resolution of disputes …in relation to the provision of Public Electronic
Communications Services.” Electronic Communications Services are defined in
s.32 of the Communications Act 2003 to mean “a service consisting in, or
having as its principal feature, the conveyance by means of an electronic
communications network of signals”. That indicates that the focus of the dispute
resolution scheme is on the service actually provided to customers.
27. A proper resolution of the case would require CISAS to consider the proper
construction of the term “material detriment” and the increase in charges is of
material detriment.
28. Further, the meaning of material detriment needs to be established both as a
matter of contractual construction and by reference to the regulatory context.
The term is not defined explicitly in the Agreement or in GC 9.6. The fact that
Ofcom has recently published guidance on the issue of material detriment in
respect of price change clauses indicates that absent such guidance, the issue of
material detriment is unclear; and that the considerations applicable to
determining material detriment can be complicated.
29. The application of the material detriment test to the change of terms is doubly
complex. It is not sufficient simply that it is theoretically possible that the
change could be of some detriment to the Claimant. Rather it is necessary that
the Claimant establish that that increase is of material detriment.
30. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether contractually or otherwise, to terminate his Agreement without
charge, either for the reasons as indicated within his application or any other
such reason. Therefore, the Respondent submits that the Claimant is subject to
the standard contractual termination clauses as per the applicable terms and
conditions.
31. The Respondent denies that it has breached its Agreement and/or breached its
duty of care to the Claimant. The Respondent remains of the view that the
decision to increase its prices is a business decision and falls outside the remit of
the Scheme. Accordingly, as the subject-matter of the complaint falls outside the
remit of the Scheme the Respondent did not issue the Claimant with a deadlock
letter. However, as above, the Respondent remains of the view that the decision
to increase its prices is outside the remit of the Scheme.
32. The Respondent submits that the Claimant is free to cancel the Mobile Number
by giving notice to cancel at any time. However, as the Claimant is within the
minimum term period in respect to the Mobile Number he would be liable for a
cancellation charge in the sum of £347.46 for the Mobile Number (reducing on a
daily basis) should he terminate the Mobile Number within the minimum term
period.
33. The increase in charges did not take effect until 28 May 2014 and therefore as at
the date of the Claimant’s application and 28 May 2014 the Claimant has not
been charged any additional charges and therefore a refund is not applicable,
such being denied that the Claimant is entitled to such refund in any event.
34. The Respondent denies that it has breached its Agreement and/or breached its
duty of care to the Claimant. As provided for by way of Annex 4 to General
Condition 14, the Respondent is not required to issue a written deadlock letter
when requested by a complainant where the subject matter of the complaint is
outside the jurisdiction of the Respondent’s Alternative Dispute Resolution
scheme. The Respondent remains of the view, and as previously stated by
CISAS, that the decision to increase its prices is a business decision and falls
outside the remit of the Scheme. Accordingly, as the subject-matter of the
complaint falls outside the remit of the Scheme the Respondent did not issue the
Claimant with a deadlock letter.
35. The Respondent has provided a response to the Claimant in a timely fashion and
that such response has been consistent. Whilst the Claimant’s appears to dislike
the content of such response it does not follow that the Respondent has breached
its duty of care to the Claimant. The Respondent denies that it has failed to
address each aspect of the Claimant’s claim and that in any event the
Respondent submits that its position remains unaltered and that it does not
accept the Claimant’s arguments that such response entitles them termination
without charge and/or compensation it the sum of £XX.00
36. Save as is denied in any event, the Respondent submits that the Claimant’s only
recourse should the increase be in excess of RPI is to termination of the
Agreement without paying a cancellation charge. The Respondent submits that
the Claimant is not entitled to seek an unlock code for any handset associated
with the Agreement and such is not a remedy as provided for by way of the
Agreement. The Respondent denies that it is liable to the Claimant with regards
the facilitation of an unlock code for the handset, either as free of charge or
chargeable. There is no contractual obligation to unlock a handset at any stage
before, during or after termination of the Agreement and the Claimant is hereby
put to strict proof thereof.
37. The Respondent denies liability to the Claimant as pleaded or at all, either
contractually or otherwise.
The Respondent believes that the facts stated in this form are true. I am duly authorised
by the Respondent to sign this statement.

Shaunyboy

Comments gone to CISAS.

Oh and I was on EEs CVN01A but moved on to CVN01B apparently!