Mobile Phone Contract - Price Rise Refunds

pau1200

Ok I think im going to need some help with my defense. Ive spent sone time comparing word for word my response with others there are subtle differences and they have been smarter with the wordings. Im not sure if the defense template fits as they have rewordered there points.

Any help will be great.

pau1200 wrote: »

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

Mikmonken

I'ev had a quick look through your defence, and apart from the following paragraphs it's identical to the one i had and several others on the forum, the template from - http://fightmobileincreases.com/fight-ee/fight-the-march-2014-price-rise/ which will be your best bet in getting the right response.

for info the following paras are different, but i'm not sure whether they hold any relevance

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.

If you didn't submit a defence which related to someone else's CISAS case reference, you need to be certain though as if you just cut and paste the info into the CISAS claim and emails to EE and did not make the relevant changes as per RandomCurves notes then you may well have done, you they're suggesting i'd be drawing attention to the adjudicator along the lines of:

Yet further evidence of the lack of care EE have applied in servicing my contract and indeed this case, why this has been a stressful and frustrating experience. My claim has not referenced any other CISAS cases and I in fact would suggest the EE are using other CISAS cases to draw their defence without showing due diligence.

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.

Don't know how to respond to this one.

hope this helps

delboy9

Hi, just checking in mostly for the benefit of RandomCurve. Im still waiting for a reply/decision after EE changed their defence. This was a couple of weeks ago. Will post back as soon as I hear anything.........

pau1200

I did reference another case, the ?????? I put in before posting the response on here. They have been smarter with there wordings.


In the standard response it makes a point of referencing paragraphs 5,30,and 33 which is all about EE claiming that this is a complex issue of law, they have removed all such references in my defense.


Other parts of there defense have been reworded also, Ill go through it again trying to pick what has changed

Mikmonken wrote: »

I'ev had a quick look through your defence, and apart from the following paragraphs it's identical to the one i had and several others on the forum, the template from - http://fightmobileincreases.com/fight-ee/fight-the-march-2014-price-rise/ which will be your best bet in getting the right response.

for info the following paras are different, but i'm not sure whether they hold any relevance

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.

If you didn't submit a defence which related to someone else's CISAS case reference, you need to be certain though as if you just cut and paste the info into the CISAS claim and emails to EE and did not make the relevant changes as per RandomCurves notes then you may well have done, you they're suggesting i'd be drawing attention to the adjudicator along the lines of:

Yet further evidence of the lack of care EE have applied in servicing my contract and indeed this case, why this has been a stressful and frustrating experience. My claim has not referenced any other CISAS cases and I in fact would suggest the EE are using other CISAS cases to draw their defence without showing due diligence.

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.

Don't know how to respond to this one.

hope this helps

Mikmonken

it's different the T-Mobile request but not particularly the EE response,

see post #603 https://forums.moneysavingexpert.com/discussion/4818999

you'll have to double check the paragraph numbers though as you have 2 extra paragraphs so anything referenced as being after Para 21 will be out of sync, i.e if you run a search for para complex and complicated and they will through up the paras that the original defence referenced as 5,30 and 33.

Good luck

BonnieBonn

Have followed each step and now have an adjudicator of Clive Sanders. Waiting for 3 weeks with my fingers and toes crossed. Thank you so so much to all the help so far RandomCurve !

Troy_Tempest

Ok, got my response from EE.

As fas as I can see it's the same as Mikmonken and Doug85's (post #603) but with the subtle paragraph changes (para 10 merged with para 11) and the dates about the "written notice" Para 18 and 19 merged, (Mikmonken's post #657).

So use the EE response template with adjustment for para numbers and add in the written notice detail?

Adjudicator is Jean-Marie Sadio

Thanks guys!

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. 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 3 December
2007 in respect to account number XXXXXXXX. The Claimant has one mobile
number being XXXXX XXXXXX (“the Mobile Number”).
Upon entering into a Service Upgrade Agreement (“the Agreement”) in
respect to the Mobile Number on 10 August 2012 via the Respondent’s
telephone sales department, the Claimant was made aware that the
Agreement was subject to terms and conditions which were offered to the
Claimant prior to entering into the Agreement and were available for
viewing on the Respondent’s website. A copy of the terms and conditions
were subsequently despatched to the Claimant.

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 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.

13. The Respondent confirms that prior to the 26 March 2014 the Agreement
between the parties was subject to the terms and conditions CVN58. 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 CVN58C.

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 58C (CVN58C) 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.

16. 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.

17. 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.

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 Clause 4.3.1.

20. 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.
1http://www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/february-2014/stb---consumer-priceindices---
january-2014.html#tab-Retail-Prices-Index--RPI--and-RPIJ21.
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.

22. 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.

23. 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.

24. 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.

25. 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.

26. Further or alternatively, the material detriment issue constitutes a
complicated issue of law for the purpose of Rule 2(j) of the Scheme.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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 £31.88 (reducing on a daily
basis) should he terminate the Mobile Number within the minimum term
period.

34. The increase in charges does 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.

35. 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.

36. 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, a refund of any backdated charges and/or
compensation it the sum of £XX.XX.

37. 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.

38. 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.
Dated the 30th May 2014
Helen Young
Legal Assistant

EFC_1878

Hi!

I have been with EE since February 2013, and I have been through at least two price changes - both increases, funnily enough.

When I took out the contract at a stupid £56 per month, I was working full-time, but I then started university the following August. Because I was leaving my job to become a student, I contacted EE to see if there was anything they could do to help me out and reduce the price of my contract, which they didn't, aside from offering me the chance to buy out my contract, which at the sum of £800, or somewhere in that region, I didn't want to do. I didn't really expect EE to do anything, but I'd heard of a couple of other phone companies helping out their customers, so it was at least worth a try.

If it wasn't for my phone contract, I doubt I would be as much into my student overdraft as I am. Having seen this thread, I was wondering if there is any way I could cancel my contract with EE. From what I can see, I may be a little late to the party. But if there is anyone who has, and can explain a solution to me, then that would be great!

Mick_Cranes_Sidestep

Had my reply from CISAS. Adjudicator is Miss Justine Mensa-Bonsu

RandomCurve

EFC_1878 wrote: »

Hi!

I have been with EE since February 2013, and I have been through at least two price changes - both increases, funnily enough.

When I took out the contract at a stupid £56 per month, I was working full-time, but I then started university the following August. Because I was leaving my job to become a student, I contacted EE to see if there was anything they could do to help me out and reduce the price of my contract, which they didn't, aside from offering me the chance to buy out my contract, which at the sum of £800, or somewhere in that region, I didn't want to do. I didn't really expect EE to do anything, but I'd heard of a couple of other phone companies helping out their customers, so it was at least worth a try.

If it wasn't for my phone contract, I doubt I would be as much into my student overdraft as I am. Having seen this thread, I was wondering if there is any way I could cancel my contract with EE. From what I can see, I may be a little late to the party. But if there is anyone who has, and can explain a solution to me, then that would be great!

Can probably get your price rises refunded, but officially you have missed the boat on the cancellation. If you can hold off for a couple of weeks until the adjudicators decisions start to come in we may be able to find grounds to reopen the case for cancellation for those who have yet to claim.