MSE News: O2 to hike its prices by 2.7% - can you leave your contract penalty-free?

iAMaLONDONER

ChilliP2012 wrote: »

However, should any settlement be forthcoming then it will be bound by the court and the agreement kept, yep you've guessed it, confidential.

Surely there must be some loophole so you can give hints e.g the settlement might be in a 2 or 3 figure sum?

ChilliP2012

I'm sure I'll figure something out. Where there's a will and all that

ChilliP2012

Ok, just for O2, I have re-jigged my PoC. I'd appreciate your thoughts and recommendations of anything I can add/change etc..

IN THE Northampton COUNTY COURT CASE No. AXXXXXXX
BETWEEN
XXXXXX XXXXXX Claimant
AND
Telefonica UK Limited Defendant

PARTICULARS OF CLAIM

1. The Claimant has an account XXXXXXXXXX with the Defendant which was opened on or around 21st November 2012 via mobiles.co.uk a trading division of Carphone Warehouse Limited.
(a) The contract, point of sale material, and the salesperson did not make it clear that a price rise would or could occur during the contract. My contract was entered into online, and whilst there was a box to check that I had read the T&Cs the narrative with that box did not state “I have read the T&Cs which contain a price vacation clause”. All screens prior to this screen only ever mention the monthly price in relation to the fixed allowances and fixed length of the contract. There was no mention of “initial monthly price” or “variable month price” just a fixed number of months and a price. Therefore I had no expectation that the contract would contain a price variation clause and I entered into the contract with a genuine belief and expectation that the bargain I had signed up for was a contract with fixed allowances, for a fixed term and with a fixed price.

(b) Raising prices in line with the Retail Prices Index causes me material detriment because my own income has not risen by 2.7% and/or in March 2013 the Office for National Statistics said RPI is no longer a national statistic which can be relied upon. The official measure of inflation is the CPI which rose by only 2%. The cost of certain ‘out-of-bundle’ minutes and texts in O2's recent price rise, as well as call costs to NGN (Non Geographical Numbers) are of material detriment to me. The price increase of calls to NGN (Non Geographical Numbers) in O2's recent price rise equates to a rise a little over 14%. RPI is not neutral it is a real Terms increase, as CPI is the official measure of UK inflation. If we compare RPI (2.7%) to CPI (1.7%) there is a 58.8% difference.

Under the UTCCRs (Unfair Terms in Consumer Contracts Regulations 1999) companies cannot claim exclusive right to determine what material Detriment means. Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract




13.5 Right to decide the meaning of terms. Similarly, if a supplier reserves the right to decide what a term in a contract means, then he is effectively in a position to alter the way it works so as to suit himself. It is not sufficient to say that the supplier will act 'reasonably'. Such a term gives rise to the same objections as a right to vary terms generally, dealt with in Group 10.

(c) I reiterate my point that at NO TIME has the defendant adequately informed me of any RPI increases by email, text/SMS message or in any written communication. Whilst the defendant has pointed out alleged contradictions by me, I would like to point out to the court & the defendant that I discovered that the defendant was increasing its prices, online, via a reputable news site. I object to the defendants claim that they notified me via text/SMS message of their price increases. I have never received such notification.

The failure of the defendant to adequately give notice to myself by any form of communication puts the defendant in direct breach of their own contract as pointed out in their own defence.

Clause 5.2 of the contract states: “We may increase or decrease our Charges from time to time. If we increase our Charges (apart from for Additional Services), we'll let you know at least 30 days before the Charges are due to go up and you'll have the rights explained in paragraphs 5.3 and 5.4. We won't increase your Monthly Subscription Charges more than once in any 12 month period”

There also seems to be some contradiction between what the defendant has stated in their defence regarding that I was informed by text message of this increase on or around 22nd January 2014. This is contrary to previous emails I have received during my complaint with defendant, which categorically states that everyone was informed by email of the price rises. Could the defendant also clarify that text messages would have been received by myself had there been a restriction of my services for failure to pay December’s bill. I also contest that informing someone of a price increase via text/SMS message is wholly inadequate and I should have been informed in writing, either electronically or via the postal system.

 
2. The Claimant contends that:
(a) The defendant has actually increased the costs of the service to me by 2.7%, that is actual and substantial and falls under the Article 20(2) of the Universal Services Directive (“USD”) (Directive 2002/22/EC, as amended by Directive 2009/136/EC)31 which requires that:

“Member states shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions.

”The Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013. Ofcom defined “Likely to be of Material Detriment as follows:

Paragraph 6.22
“In particular, we consider guidance is needed as to price rises which we are likely to regard as materially detrimental (or likely to be materially detrimental) and invoking the requirements of GC9.6. Such price rises are likely to include any increase to core subscription prices.”

(b) I note the defendant has stated that Ofcom have announced that this will only apply to contracts entered into on or after 23rd January 2014. However, all Ofcom have actually done is clarify a definition. They have not changed the words of GC 9.6. As they have only clarified a definition then the definition must apply to all contracts as it cannot be a legally correct position that two contracts subject to the same regulation with exactly the same wording (GC 9.6) can have two different meanings.

(c) Further Ofcom GC 9.6 supports the USD implementation as the term "likely to be of material detriment" was introduced because:

"Our intention was to reflect our general duties and principles of good administration and proportionality in particular. We sought, in light of these, not to rule out contract variations altogether. For example, those beneficial to, or having a neutral impact on, a subscriber.” (from Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013”

As Ofcom's (and OFTEL before them) reasoning for introducing the term was to protect me - the consumer - from changes which are not to my benefit or at the very least are neutral then a price rise of any kind is clearly neither to my benefit, nor neutral, and are therefore likely to be of Material Detriment.

(d) I also claim the price rise unlawful under the Unfair Terms in Consumer Contracts Regulations 1999. The defendant has imposed a term which limits my rights but retains similar rights for the defendant. So the defendant is free to raise prices, but I cannot leave without paying a large penalty and I am trapped into paying the higher price. That seems the essence of a one-sided and therefore unfair term.

(e) The defendant also questions why I have raised a claim in an English court even though I am a domicile in Glasgow, Scotland. I would like to make both the defendant and the court aware that I did check with the MCOL Helpdesk prior to starting my claim to clarify the position of starting a claim using MCOL even though I am a Scottish domicile. It was brought to my attention by the Helpdesk that I was free to do this as I was a UK resident and the defendant has a head office in England & Wales.

(f) I don’t dispute the defendant’s claims that on 25th December 2013 the I was issued with a bill for £34.09. Payment was due by 8th January 2014 and that was not received. I am happy to pay this outstanding bill. However, any bills generated after this date (from the 25th January 2014 onward) I contest as the defendant, in my view, was in breach of their own contract and the price rises on my contract caused me material detriment of which I have tried to cancel my contract without penalty for the reasons stated above.

(g) I have never intentionally or knowingly cancelled my own contract by my failure to pay my bills. I contest that the account should have been placed into dispute whilst the process of my complaint was dealt with internally by the defendant and my complaint with the ombudsmen had been thoroughly investigated. The defendant has chosen to see this as a failure to pay on my part and has ended the contract for this reason. Furthermore the account has now been passed to Moorcroft Debt Recovery.

(h) At every opportunity the defendant has tried to belittle me and has in my view been extremely condescending regarding my lack of knowledge regarding legal protocol. I am not a legal expert and I would like to ask the court for some leeway if the nature of my application not being entirely precise in terms of protocol. At all times during the complaints process with both the defendant & the ombudsmen and now the claims process, I have been willing to discuss this matter with the defendant and settle this dispute without having to resort to court proceedings.

(i) Finally, following a recent telephone conversation with the defendant I am happy to try and resolve this matter via the Small Claims Mediation Service as long as the defendant is still willing to do so as discussed.




5. Accordingly the Claimant claims:

The immediate cancellation of my contract with the defendant, without penalty and the cessation of the collections process via Moorcroft Debt Recovery.
Court costs
I had previously requested the sum of £50.00 as compensation/gesture of goodwill due to the amount of time I have spent on the phone and dealing with various parties (the defendant, the ombudsmen) via email. However, I am happy to retract this request.

Statement of Truth
The Claimant believes that the facts stated are true.

Signed……………………………………………………………….

COPY TO:
THE DISTRICT JUDGE
AND TO:
THE DEFENDANT

RandomCurve

@ChilliP - A revised document for your consideration. I am NOT legally trained so the below is just my "lay persons" thoughts/interpretations - It is your case (the blue text should be deleted (strike through does not seem to work on the forum) and the red text is either to be included in the claim OR is an explanation as to why I don't think the blue text should be there.


IN THE Northampton COUNTY COURT CASE No. AXXXXXXX
BETWEEN
XXXXXX XXXXXX Claimant
AND
Telefonica UK Limited Defendant

PARTICULARS OF CLAIM

1. The Claimant has an account XXXXXXXXXX with the Defendant which was opened on or around 21st November 2012 via mobiles.co.uk a trading division of Carphone Warehouse Limited.
(a) The contract, point of sale material, and the salesperson did not make it clear that a price rise would or could occur during the contract. My contract was entered into online, and whilst there was a box to check that I had read the T&Cs the narrative with that box did not state “I have read the T&Cs which contain a price vacation clause”. All screens prior to this screen only ever mention the monthly price in relation to the fixed allowances and fixed length of the contract. There was no mention of “initial monthly price” or “variable month price” just a fixed number of months and a price. Therefore I had no expectation that the contract would contain a price variation clause and I entered into the contract with a genuine belief and expectation that the bargain I had signed up for was a contract with fixed allowances, for a fixed term and with a fixed price.





Also as per the UTCCRs (paragraphs 18 – “Declarations” can not be relied on by O2 as proof that I have read and understood my contract:





18.5.4 Declarations can be acceptable if they are of matters wholly and necessarily within the consumer's knowledge (for example, their age), and a free choice is given as to what to say. But whether any declaration is in fact fair will depend on how it is used. If consumers are routinely told or given to understand that they must say one thing for the contract to go ahead, the declaration is just as likely to be considered unfair and legally ineffectual as if the written words gave no apparent choice. The Regulations apply to unwritten as much as to written terms.


18.5.5 'Have read and understood' declarations. Declarations that the consumer has read and/or understood the agreement give rise to special concerns. The Regulations implement an EU Directive saying that terms must be clear and intelligible and that consumers must have a proper opportunity to read all of them (see Part IV). Including a declaration of this kind effectively requires consumers to say these conditions have been met, whether they have or not. This tends to defeat the purpose of the Directive, and as such is open to serious objection.


18.5.6 In practice consumers often do not read, and rarely understand fully, any but the shortest and simplest contracts. It might be better if they tried to do so, but that does not justify requiring them to say they have done so whether they have or not. The purpose of declarations of this kind is clearly to bind consumers to wording regardless of whether they have any real awareness of it. Such statements are thus open to the same objections as provisions binding consumers to terms they have not seen at all – see Group 9.

(b) Raising prices in line with the Retail Prices Index causes me material detriment because my own income has not risen by 2.7% and/or in March 2013 the Office for National Statistics said RPI is no longer a national statistic which can be relied upon. The official measure of inflation is the CPI which rose by only 2%. The cost of certain ‘out-of-bundle’ minutes and texts in O2's recent price rise, as well as call costs to NGN (Non Geographical Numbers) are of material detriment to me. The price increase of calls to NGN (Non Geographical Numbers) in O2's recent price rise equates to a rise a little over 14%. RPI is not neutral it is a real Terms increase, as CPI is the official measure of UK inflation. If we compare RPI (2.7%) to CPI (1.7%) there is a 58.8% difference.

Under the UTCCRs (Unfair Terms in Consumer Contracts Regulations 1999) companies cannot claim exclusive right to determine what material Detriment means. Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract




13.5 Right to decide the meaning of terms. Similarly, if a supplier reserves the right to decide what a term in a contract means, then he is effectively in a position to alter the way it works so as to suit himself. It is not sufficient to say that the supplier will act 'reasonably'. Such a term gives rise to the same objections as a right to vary terms generally, dealt with in Group 10.I would not use unless the contract mentions Materual Detriment – I don’t think it does, but am happy to be correctly.

(c) I reiterate my point that at NO TIME has the defendant adequately informed me of any RPI increases by email, text/SMS message or in any written communication. Whilst the defendant has pointed out alleged contradictions by me, I would like to point out to the court & the defendant that I discovered that the defendant was increasing its prices, online, via a reputable news site. I object to the defendants claim that they notified me via text/SMS message of their price increases. I have never received such notification.

The failure of the defendant to adequately give notice to myself by any form of communication puts the defendant in direct breach of their own contract as pointed out in their own defence.

Clause 5.2 of the contract states: “We may increase or decrease our Charges from time to time. If we increase our Charges (apart from for Additional Services), we'll let you know at least 30 days before the Charges are due to go up and you'll have the rights explained in paragraphs 5.3 and 5.4. We won't increase your Monthly Subscription Charges more than once in any 12 month period” AND I put O2 to strict evidence that I have received such notification.

There also seems to be some contradiction between what the defendant has stated in their defence regarding that I was informed by text message of this increase on or around 22nd January 2014. This is contrary to previous emails I have received during my complaint with defendant, which categorically states that everyone was informed by email of the price rises. Could the defendant also clarify that text messages would have been received by myself had there been a restriction of my services for failure to pay December’s bill. I also contest that informing someone of a price increase via text/SMS message is wholly inadequate and I should have been informed in writing, either electronically or via the postal system.(contract allows this)

 
2. The Claimant contends that:
(a) The defendant has actually increased the costs of the service to me by 2.7%, that is actual and substantial and falls under the Article 20(2) of the Universal Services Directive (“USD”) (Directive 2002/22/EC, as amended by Directive 2009/136/EC)31 which requires that:

“Member states shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions.


The above directive is enshrined in UK law by Ofcom GC 9.6.

(b) Further Ofcom GC 9.6 supports the USD implementation as the term "likely to be of material detriment" was introduced because:

"Our intention was to reflect our general duties and principles of good administration and proportionality in particular. We sought, in light of these, not to rule out contract variations altogether. For example, those beneficial to, or having a neutral impact on, a subscriber.” (from Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013”

As Ofcom's (and OFTEL before them) reasoning for introducing the term was to protect me - the consumer - from changes which are not to my benefit or at the very least are neutral then a price rise of any kind is clearly neither to my benefit, nor neutral, and are therefore likely to be of Material Detriment, and a REAL TERMS price increase can never be classed as neutral.








(c)”The Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013. Ofcom defined “Likely to be of Material Detriment as follows:

Paragraph 6.22
“In particular, we consider guidance is needed as to price rises which we are likely to regard as materially detrimental (or likely to be materially detrimental) and invoking the requirements of GC9.6. Such price rises are likely to include any increase to core subscription prices.”

I note the defendant has stated that Ofcom have announced that this will only apply to contracts entered into on or after 23rd January 2014. However, all Ofcom have actually done is clarify a definition. They have not changed the words of GC 9.6. As they have only clarified a definition then the definition must apply to all contracts as it cannot be a legally correct position that two contracts subject to the same regulation with exactly the same wording (GC 9.6) can have two different meanings.



(d) I also claim the price rise unlawful under the Unfair Terms in Consumer Contracts Regulations 1999. The defendant has imposed a term which limits my rights but retains similar rights for the defendant. So the defendant is free to raise prices, but I cannot leave without paying a large penalty and I am trapped into paying the higher price. That seems the essence of a one-sided and therefore unfair term. This will only have the price rise cancelled, not the contract.

(e) The defendant also questions why I have raised a claim in an English court even though I am a domicile in Glasgow, Scotland. I would like to make both the defendant and the court aware that I did check with the MCOL Helpdesk prior to starting my claim to clarify the position of starting a claim using MCOL even though I am a Scottish domicile. It was brought to my attention by the Helpdesk that I was free to do this as I was a UK resident and the defendant has a head office in England & Wales.

(f) I don’t dispute the defendant’s claims that on 25th December 2013 I was issued with a bill for £34.09. Payment was due by 8th January 2014 and that was not received. I am happy to pay this outstanding bill. However, any bills generated after this date (from the 25th January 2014 onward) I contest as the defendant, in my view, was in breach of their own contract and the price rises on my contract caused me material detriment of which I have tried to cancel my contract without penalty for the reasons stated above.

(g) I have never intentionally or knowingly cancelled my own contract by my failure to pay my bills. I contest that the account should have been placed into dispute whilst the process of my complaint was dealt with internally by the defendant and my complaint with the ombudsmen had been thoroughly investigated. The defendant has chosen to see this as a failure to pay on my part and has ended the contract for this reason. Furthermore the account has now been passed to Moorcroft Debt Recovery. IS THERE A CLAUSE IN THE CONTRACT ALLOWING THIS? THERE SHOULD BE SO QUOTE THE CLAUSE (it may only allow withholding the increased not the full amount)

(h) At every opportunity the defendant has tried to belittle me and has in my view been extremely condescending regarding my lack of knowledge regarding legal protocol. I am not a legal expert and I would like to ask the court for some leeway if the nature of my application not being entirely precise in terms of protocol. At all times during the complaints process with both the defendant & the ombudsmen and now the claims process, I have been willing to discuss this matter with the defendant and settle this dispute without having to resort to court proceedings.

(i) Finally, following a recent telephone conversation with the defendant I am happy to try and resolve this matter via the Small Claims Mediation Service as long as the defendant is still willing to do so as discussed.




5. Accordingly the Claimant claims:

The immediate cancellation of my contract with the defendant, without penalty and the cessation of the collections process via Moorcroft Debt Recovery.
Court costs
I had previously requested the sum of £50.00 as compensation/gesture of goodwill due to the amount of time I have spent on the phone and dealing with various parties (the defendant, the ombudsmen) via email. However, I am happy to retract this request.

Statement of Truth
The Claimant believes that the facts stated are true.




.

ChilliP2012

RandomCurve wrote: »

(g) I have never intentionally or knowingly cancelled my own contract by my failure to pay my bills. I contest that the account should have been placed into dispute whilst the process of my complaint was dealt with internally by the defendant and my complaint with the ombudsmen had been thoroughly investigated. The defendant has chosen to see this as a failure to pay on my part and has ended the contract for this reason. Furthermore the account has now been passed to Moorcroft Debt Recovery. IS THERE A CLAUSE IN THE CONTRACT ALLOWING THIS? THERE SHOULD BE SO QUOTE THE CLAUSE (it may only allow withholding the increased not the full amount)

I'm not 100% sure there is a clause in the contract regarding this. It's just an internal procedure as far as I'm aware. I'm having a look through just now and so far I can't see anything that would back this up. if that is the case, then would it be wise to remove it?

RandomCurve

ChilliP2012 wrote: »

I'm not 100% sure there is a clause in the contract regarding this. It's just an internal procedure as far as I'm aware. I'm having a look through just now and so far I can't see anything that would back this up. if that is the case, then would it be wise to remove it?

If there is a contract clause to back it up then quote the clause - but don't delete this point just because there is no such clause, because there probably should have been.


If it is a genuine dispute then the debt has not been "established" and until it is "established" there is no right to O2 to pursue you. (only problem is that for this to take effect you should have "asked" them not to pursue the debt until the issue was resolved). If you HAVE already done that then quote it here.
Alternatively you could plead ignorance and say you would have thought given that the amount was clearly in dispute the O2 legal department should have known that the debt had not been established and therefore they should have not pursued it, you as a consumer should not have to have spelt it out explicitly.

ChilliP2012

It is a genuine dispute. I told them I wasn't going to pay whilst I believed they were in a breach of contract for failure to notify me of the price rises. So will quote that, but may be plead ignorance as well.

Also in terms of O2 saying they informed by text of the price rises, which in all honesty I never received. Would it also be wise to point out a few reasons why I wouldn't receive the text? Something like no network coverage (which is obvious if they had suspended my services), phone not connecting to the network properly (again an obvious one), overloaded network, phone software fault, full inbox.

ChilliP2012

Hopefully, this will be the final edit before I send it off to Northampton CCBC.

IN THE Northampton COUNTY COURT CASE No. XXXXXXXX
BETWEEN
XXXXXX XXXXXX Claimant
AND
Telefonica UK Limited Defendant

PARTICULARS OF CLAIM

1. The Claimant has an account xxxxxxxxxx with the Defendant which was opened on or around 21st November 2012 via mobiles.co.uk a trading division of Carphone Warehouse Limited.

(a) The contract, point of sale material, and the salesperson did not make it clear that a price rise would or could occur during the contract. My contract was entered into online, and whilst there was a box to check that I had read the T&Cs the narrative with that box did not state “I have read the T&Cs which contain a price vacation clause”. All screens prior to this screen only ever mention the monthly price in relation to the fixed allowances and fixed length of the contract. There was no mention of “initial monthly price” or “variable month price” just a fixed number of months and a price. Therefore I had no expectation that the contract would contain a price variation clause and I entered into the contract with a genuine belief and expectation that the bargain I had signed up for was a contract with fixed allowances, for a fixed term and with a fixed price.

Also as per the UTCCRs (paragraphs 18 – “Declarations” cannot be relied on by O2 as proof that I have read and understood my contract:

18.5.4 Declarations can be acceptable if they are of matters wholly and necessarily within the consumer's knowledge (for example, their age), and a free choice is given as to what to say, but whether any declaration is in fact fair will depend on how it is used. If consumers are routinely told or given to understand that they must say one thing for the contract to go ahead, the declaration is just as likely to be considered unfair and legally ineffectual as if the written words gave no apparent choice. The Regulations apply to unwritten as much as to written terms.

18.5.5 'Have read and understood' declarations. Declarations that the consumer has read and/or understood the agreement give rise to special concerns. The Regulations implement an EU Directive saying that terms must be clear and intelligible and that consumers must have a proper opportunity to read all of them (see Part IV). Including a declaration of this kind effectively requires consumers to say these conditions have been met, whether they have or not. This tends to defeat the purpose of the Directive, and as such is open to serious objection.

18.5.6 In practice consumers often do not read, and rarely understand fully, any but the shortest and simplest contracts. It might be better if they tried to do so, but that does not justify requiring them to say they have done so whether they have or not. The purpose of declarations of this kind is clearly to bind consumers to wording regardless of whether they have any real awareness of it. Such statements are thus open to the same objections as provisions binding consumers to terms they have not seen at all – see Group 9.

(b) Raising prices in line with the Retail Prices Index causes me material detriment because my own income has not risen by 2.7% and/or in March 2013 the Office for National Statistics said RPI is no longer a national statistic which can be relied upon. The official measure of inflation is the CPI which rose by only 2%. The cost of certain ‘out-of-bundle’ minutes and texts in O2's recent price rise, as well as call costs to NGN (Non Geographical Numbers) are of material detriment to me. The price increase of calls to NGN (Non Geographical Numbers) in O2's recent price rise equates to a rise a little over 14%. RPI is not neutral it is a real Terms increase, as CPI is the official measure of UK inflation. If we compare RPI (2.7%) to CPI (1.7%) there is a 58.8% difference.

(c) I reiterate my point that at NO TIME has the defendant adequately informed me of any RPI increases by email, text/SMS message or in any written communication. Whilst the defendant has pointed out alleged contradictions by me, I would like to point out to the court & the defendant that I discovered that the defendant was increasing its prices, online, via a reputable news site. I object to the defendants claim that they notified me via text/SMS message of their price increases. I have never received such notification.

The failure of the defendant to adequately give notice to myself by any form of communication puts the defendant in direct breach of their own contract as pointed out in their own defence.

Clause 5.2 of the contract states: “We may increase or decrease our Charges from time to time. If we increase our Charges (apart from for Additional Services), we'll let you know at least 30 days before the Charges are due to go up and you'll have the rights explained in paragraphs 5.3 and 5.4. We won't increase your Monthly Subscription Charges more than once in any 12 month period” AND I put the defendant to strict evidence that I have received such notification.

There also seems to be some contradiction between what the defendant has stated in their defence regarding that I was informed by text message of this increase on or around 22nd January 2014. This is contrary to previous emails I have received during my complaint with defendant, which categorically states that everyone was informed by email of the price rises. Could the defendant also clarify that text messages would have been received by myself had there been a restriction of my services for failure to pay December’s bill.
 
2. The Claimant contends that:

(a) The defendant has actually increased the costs of the service to me by 2.7%, that is actual and substantial and falls under the Article 20(2) of the Universal Services Directive (“USD”) (Directive 2002/22/EC, as amended by Directive 2009/136/EC)31 which requires that:

“Member states shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions.

The above directive is enshrined in UK law by Ofcom GC 9.6.

Further, Ofcom GC 9.6 supports the USD implementation as the term "likely to be of material detriment" was introduced because:

"Our intention was to reflect our general duties and principles of good administration and proportionality in particular. We sought, in light of these, not to rule out contract variations altogether. For example, those beneficial to, or having a neutral impact on, a subscriber.” (from Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013”)

As Ofcom's (and OFTEL before them) reasoning for introducing the term was to protect me - the consumer - from changes which are not to my benefit or at the very least are neutral then a price rise of any kind is clearly neither to my benefit, nor neutral, and are therefore likely to be of Material Detriment, and a REAL TERMS price increase can never be classed as neutral.

”The Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in October 2013. Ofcom defined “Likely to be of Material Detriment as follows:

Paragraph 6.22

“In particular, we consider guidance is needed as to price rises which we are likely to regard as materially detrimental (or likely to be materially detrimental) and invoking the requirements of GC9.6. Such price rises are likely to include any increase to core subscription prices.”

(b) I note the defendant has stated that Ofcom have announced that this will only apply to contracts entered into on or after 23rd January 2014. However, all Ofcom have actually done is clarify a definition. They have not changed the words of GC 9.6. As they have only clarified a definition then the definition must apply to all contracts as it cannot be a legally correct position that two contracts subject to the same regulation with exactly the same wording (GC 9.6) can have two different meanings.

(c) The defendant also questions why I have raised a claim in an English court even though I am a domicile in Glasgow, Scotland. I would like to make both the defendant and the court aware that I did check with the MCOL Helpdesk prior to starting my claim to clarify the position of starting a claim using MCOL even though I am a Scottish domicile. It was brought to my attention by the Helpdesk that I was free to do this as I was a UK resident and the defendant has a head office in England & Wales.

(d) I don’t dispute the defendant’s claims that on 25th December 2013 the I was issued with a bill for £34.09. Payment was due by 8th January 2014 and that was not received. I am happy to pay this outstanding bill. However, any bills generated after this date (from the 25th January 2014 onward) I contest as the defendant, in my view, was in breach of their own contract and the price rises on my contract caused me material detriment of which I have tried to cancel my contract without penalty for the reasons stated above.

(e) I have never intentionally or knowingly cancelled my own contract by my failure to pay my bills. I contest that the account should have been placed into dispute whilst the process of my complaint was dealt with internally by the defendant and my complaint with the ombudsmen had been thoroughly investigated. The defendant has chosen to see this as a failure to pay on my part and has ended the contract for this reason. Furthermore the account has now been passed to Moorcroft Debt Recovery. I would have thought given that the amount and issue was clearly in dispute the defendant should have known that the debt had not been established and therefore they should never have pursued it. As a consumer I should not have to have spelt it out explicitly to the defendant.

(f) At every opportunity the defendant has tried to belittle me and has in my view been extremely condescending regarding my lack of knowledge regarding legal protocol. I am not a legal expert and I would like to ask the court for some leeway if the nature of my application not being entirely precise in terms of protocol. At all times during the complaints process with both the defendant & the ombudsmen and now the claims process, I have been willing to discuss this matter with the defendant and settle this dispute without having to resort to court proceedings.

(g) Finally, following a recent telephone conversation with the defendant I am happy to try and resolve this matter via the Small Claims Mediation Service as long as the defendant is still willing to do so as discussed.

5. Accordingly the Claimant claims:

The immediate cancellation of my contract with the defendant, without penalty and the cessation of the collections process via Moorcroft Debt Recovery.

Court costs

I had previously requested the sum of £50.00 as compensation due to the amount of time I have spent on the phone and emailing various parties (the defendant, the ombudsmen). This has caused me a lot of inconvenience and stress. However, I am happy to retract this request.


Statement of Truth
The Claimant believes that the facts stated are true.

Signed……………………………………………………………….

COPY TO:
THE DISTRICT JUDGE
AND TO:
THE DEFENDANT

ChilliP2012

Just whilst I am waiting for RC to ok the above, I received an email today. Some people might like this as it shows O2 in their true light!

From Which?

In the ad below from January 2014, O2 advertises a £14-a-month contract. And yet that price applied for just one month of the two-year contract. How's that for being upfront with your potential customers?

The ASA is currently investigating the ad.

davethorp

ChilliP2012 wrote: »

Just whilst I am waiting for RC to ok the above, I received an email today. Some people might like this as it shows O2 in their true light!

From Which?

In the ad below from January 2014, O2 advertises a £14-a-month contract. And yet that price applied for just one month of the two-year contract. How's that for being upfront with your potential customers?

The ASA is currently investigating the ad.

I submitted a complaint to the ASA about ads on Facebook which were advertising phones at a monthly price which would only be valid for a matter of a few weeks. My complaint was taken on by them but resolved informally as O2 agreed to amend their advertising to draw attention to the compulsory price rises

Been lurking on this thread for a while as I'm in two minds whether to go and try to reclaim my early cancellation fees I've paid to terminate all my lines with O2 after rejecting the price rises