EE.T-Mob.Orange. Change T&C From 26th March 2014

baldyj

Sunnyhaze wrote: »

Can't remember, I think it was Justine. Will check when I get home. Out shopping at the moment.

Sorry, just realised you already answered this earlier!

Sunnyhaze

baldyj wrote: »

Sorry, just realised you already answered this earlier!

No worries. I didn't want to read the email at first incase I had lost, haha. Only time I felt this nervous was my first date with my ex GF :rotfl: :rotfl: :rotfl:

Prichards2014

Another longtime lurker registering to say thank you to everyone but especially RandomCurve!

Put two claims in yesterday, originally rejected the terms change back in Feb and had the fun and games of EE.

One question, should I wait for the case to conclude or can I request my PACs and it have no effect on the case? (First requested in Feb but denied by EE)

Obviously thanks to RandomCurve if the case fails it will 99% win at SCC.

Thanks

baldyj

Summary of progress so far (please review and correct if i have made any mistakes):

Bimmermad:
EE/Post Oct '12/Used RC's Template/Thomas Earley adjudicated.
WON! Contract terminated, full compensation figure awarded

SimonD316:
Orange/Pre Oct '12/Used RC's Template/Justine Mensa-Bonsu adjudicated.
WON! Contract terminated, full compensation figure awarded

sshariff:
Orange/Pre Oct '12/Edited or didn't use RC's Template/adjudicator not named yet
WON! Contract terminated, full compensation figure awarded

BananaPilot:
EE/Post Oct '12/Edited or didn't use RC's Template/Thomas Earley adjudicated.
LOST!

23six (1/2):
T-Mobile/Post Oct '12/Used RC's Template (no response to EE defence submitted)/Clive Saunders adjudicated.
WON! Contract Terminated, partial compensation awarded

23six (2/2):
T-Mobile/Pre Oct '12/Used RC's Template (no response to EE defence submitted)/Clive Saunders adjudicated.
LOST!

Sunnyhaze (x2 Contracts):
EE/Post Oct '12/Edited or didn't use RC's Template/adjudicator not named yet.
WON! Contracts Terminated, no compensation requested or rewarded.

Nodding Donkey:
Orange/Pre Oct '12/Used RC's Templates/D Stoker adjudicated.
WON! Contract Terminated, full compensation awarded.


7/9 wins so far, and i think the two cases that lost one would have won if RC's template was used, and the other maybe could have won if a reply to the EE defence had been submitted!

Wilsonwiz

I've been trying to contact EE regarding this. They obviously refused to release me from my contract. How can I go through an independent body? I asked EE for a deadlock letter but they've refused due to 'avoidance of doubt'. Do I have to wait 8 weeks then before doing anything regarding this matter? I'm on an Orange pre-october 2012 contract and they even tried to tell me the change doesn't effect me (even though it does)

Sorry if a lot of this has been covered, I'm a bit lost with all this.

Nodding_Donkey

Another win here

Pre Oct 2012 Orange, used RCs templates throughout.

DECISION
by D. Stoker BA (Hons), LLB (Hons), Pg Dip LP.
An adjudicator appointed by CISAS
under the Communications and Internet Services Adjudication Scheme.
Decision date: 10 April 2014
Adjudication Reference: 212141225
Between Mr Nodding Donkey1 and EE Limited, t/a Orange2 The claim is made by the customer, Mr Nodding Donkey, against a telecommunication and internet services company, EE Limited, t/a Orange. The claim dated 27 February 2014 is for the company to pay compensation of £100.00 to the customer; to give him a backdated penalty free cancellation; and to provide him with a PAC and an unlock code. The position of the company is explained in its 26 March 2014 defence which is disputed by the customer in his undated reply. The customer’s claim is that the company has breached the contract between the parties by refusing his request for a penalty free cancellation of the contract following a change to the company’s Terms and Conditions. The company’s position is that it denies liability.
Decision
1. The claim succeeds in part.
2. I direct the company to pay compensation in the amount of £100.00 to the customer; to cancel his contract without penalty, backdated to 25 February 2014, waiving any charges incurred after that date; and to provide him with a PAC.
Main issues
3. I consider that the main issues in this adjudication are:
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a. Whether the company has broken a term of the contract between it and the customer or failed in its duty of care.
b. Whether the reasons given by the customer are sufficient to justify the claim.
Background information
4. In order to succeed in a claim against the company the customer must prove on a balance of probabilities that the company has broken some term express or implied of the agreement which existed between them, or failed in the duty of care which the company owed to the customer and that as a result of this breach the customer has suffered loss. (A duty of care is a responsibility or a legal obligation of the company to avoid acts or omissions which can be reasonably foreseen to be likely to cause harm to others). If no such breach or loss is proved the company will not be liable to pay compensation however disappointed or upset the customer is.
5. The customer and the company are aware of the facts of this case. I do not propose to recount all the facts in the same manner and order as the parties have done in their documents except where it is necessary for the purposes of this decision. I have carefully considered all of the documents submitted by the parties in support of their submissions and presented to me. The parties should also be reassured that if I have not referred to a particular document or matter specifically, this should not be taken to mean that I have not considered it in reaching my decision.
Customer’s and company’s positions
6. The customer’s claim is that the company has breached the terms of the contract by refusing his request for a penalty free cancellation following notification of a change to the Terms and Conditions on 4 February 2014, which he considers to be to his material detriment. He is claiming compensation for a number of breaches committed by the company. He argues that it failed to inform him of his right to cancel the contract which is a breach of General Condition 9.6. It breached the UTCCRs Schedule 2 Paragraph 1 by taking the exclusive right to interpret what material detriment means. It breached its duty of care to him by ignoring his legitimate requests for information. It also breached its requirement to act in good faith in the way that the change in the Terms and Conditions was presented to him.
7. The company submits that this dispute falls outside the scope of CISAS because it does not relate to bills, communication services or customer service, and because it involves a complicated issue of law. It submits that it has a general right to change the terms of the agreement. This is subject to the customer’s right under the terms of the agreement and the regulatory scheme to terminate the agreement if the change is of material detriment to him. In
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the present case, the change is not of detriment to the customer at all, or alternatively any detriment is marginal not material. On the contrary, it is to the customer’s benefit as the change makes clear and certain the published measure of inflation which may be used. Out of date and potentially confusing references to other statistical measures of inflation have been removed. The changes will therefore enable the customer to identify when the right to cancel arises. The company therefore denies that the customer has the right to terminate his agreement without charge. It submits that the customer has made no complaint as to customer service and in any event it has provided a good level of customer service. It denies liability.
Adjudicator’s findings and reasons
8. I find that:
a. The customer’s claim concerns the application of the company’s Terms and Conditions under which he is provided with a communication service. I am therefore satisfied that it relates to a communication service. I do not consider contractual interpretation to be a complicated issue of law. I am therefore satisfied that I am able to adjudicate on this dispute.
b. The main issue at the heart of the customer’s application is the company’s alteration of the Terms and Conditions of the agreement between the parties, specifically a change to the wording of clauses 4.3 and 4.3.1.
c. The company has provided both versions of the Terms and Conditions as evidence. Clauses 4.3 and 4.3.1 of the original Terms and Conditions provide that:
4.3 You may also terminate your Contract if we vary its terms, resulting in an excessive increase in the Charges or changes that alter your rights under this Contract to your 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 telling you about the changes). However this option does not apply if:
4.3.1 we have increased the Charges by an amount equal to or less than the percentage increase in the All Items Index of Retail Prices published by the Central Statistical Office in the Monthly Digest of Statistics in any 12 month period;
d. Clauses 4.3 and 4.3.1 of the new Terms and Conditions provide that:
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
4
days written notice prior to your Billing Date (and within one month of us giving you written notice about the changes). However this option does not apply if:
4.3.1 the increase in the 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 Statistics (calculated using the most recently published RPI figure before we give you Written Notice under 4.3);
e. The original clause 4.3 provides that the customer may terminate the agreement if the changes to the terms alter the customer’s rights under the contract to his detriment, whereas the new clause 4.3 provides that the customer may terminate the contract if the changes alter his rights under the contract to his material detriment. The effect of adding the word material to this clause is to make it more difficult for the customer to be able to cancel the contract without penalty, as establishing material detriment is necessarily more difficult than establishing just detriment.
f. Having carefully considered the original clause 4.3.1, I find that it is ambiguous and uncertain, and that it is open to interpretation what the correct RPI rate might be. I therefore find that as the clause is ambiguous and uncertain, the company could not have relied upon it to prevent the customer cancelling without penalty in the event that it sought to impose a price increase on him.
g. The new clause 4.3.1 clearly provides that the company may increase its prices by an amount equal to or lower than the most recent RPI figure published. Therefore, the customer would not be able to cancel the contract without penalty in the event that the company sought to impose a price increase in line with RPI.
h. In view of my observations above, I find that the effect of the changes to clauses 4.3 and 4.3.1 is to significantly restrict the customer’s right to terminate his contract without penalty in the event that the company seeks to vary the contract terms in the future or to impose a price increase on the customer. I am therefore satisfied that the changes to the terms are not just of detriment, but are in fact of material detriment, to the customer, and that he was therefore entitled to cancel his contract without penalty upon receiving notice of those changes. I therefore find that the company breached the contract between the parties by refusing to allow him to do so.
i. Ofcom’s General Conditions 9.6 provides that:
9.6 The Communications Provider shall:
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(a) give its Subscribers adequate notice not shorter than one month
of any modifications likely to be of material detriment to that
Subscriber;
(b) allow its Subscribers to withdraw from their contract without
penalty upon such notice; and
(c) at the same time as giving the notice in condition 9.6 (a) above,
shall inform the Subscriber of its ability to terminate the contract
without penalty if the proposed modification is not acceptable to
the Subscriber.
j. The customer states that the company notified him by text on 4 February 2014 about the changes to the Terms and Conditions. However, he complains that it failed to inform him of his cancellation rights under GC 9.6 (b) and (c). The customer has not provided this text message as evidence. However, it can be deduced from the company’s email to the customer dated 20 February 2014 (in which it responds to his complaint that it did not comply with GC 9.6 (b) and (c)) that the notice it issued did not include this information: “The notice we have issued to our customers is not a notice whereby the change is of material detriment, as such there is no entitlement for customers to cancel their contract without charge”. I therefore find that the company failed in its duty of care to the customer in this regard.
k. The customer complains that the company has breached the Unfair Terms in Consumer Contract Regulations (“the UTCCRs”) Schedule 2, Paragraph 1(m). He argues that the company has taken exclusive right to determine what material detriment means. This is based on the company’s email dated 20 February 2014 in which it writes that “The notice we have issued to our customers is not a notice whereby the change is of material detriment…” The customer has concluded that the company was giving itself the exclusive right to determine what material detriment means and that this is a breach of the UTCCRs.
l. However, I do not agree with the customer’s analysis. The effect of the UTCCRs is to make unfair terms in consumer contracts unenforceable against the consumer. Schedule 2, Paragraph 1 provides an indicative and non-exhaustive list of contract terms which may be regarded as unfair, including any term which gives one party the exclusive right to interpret the contract. I am not satisfied that a list of potentially unfair terms can be “breached” by the company, and in any case the statement in the company’s email is not a contract term to which the regulations would apply. Furthermore, the two terms that give the customer the right to cancel the contract if a change is of detriment to him
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(clauses 4.3 and clause 15.1(b)) make no mention of the company reserving the exclusive right to determine what material detriment means.
m. The customer complains that the company failed in its duty of care to him by ignoring his legitimate requests for information. In his email dated 18 February 2014, the customer asks for the company to clearly articulate why the Terms and Conditions do not give rise to the customer’s right to a penalty free cancellation. The company failed to provide an adequate response in its email dated 20 February 2014. In his email dated 20 February 2014, the customer then asked on what basis the company had decided the change was not of material detriment to him. By this point the company had already informed him that it would not enter into further discussion, but without providing information about where to take his complaint from there. I consider the customer’s request for a response to these questions to have been reasonable, and the failure of the company to respond and its decision to simply stop communicating with him to be poor customer service. I therefore find that it failed in its duty of care to provide a reasonable level of customer service.
n. The customer complains that the company breached its requirement to act in good faith in the manner in which it presented the change in the Terms and Conditions to him. In its email dated 18 February 2014, the company explains that its alteration of the Terms and Conditions was motivated by a wish to increase certainty and transparency for customers in the event of the company making changes to the customer’s price plan. The company repeats this position in its defence. I accept the company’s position. I am not satisfied that there is evidence of an ulterior motive on the part of the company. Therefore, I am not satisfied that the company has failed in its duty of care as regards this issue.
o. The customer is claiming compensation in the amount of £100.00. I have found that the company breached the contract between the parties by refusing to allow him to cancel his contract without penalty. It failed in its duty of care to advise him, in accordance with General Condition 9.6, of his right to cancel. It also failed in its duty of care to provide a reasonable level of customer service. In light of the stress and inconvenience caused to the customer as a result of these failures, I find it fair and reasonable to award compensation of £100.00.
p. The customer is asking for a backdated penalty free cancellation and a PAC. I have found that the customer was entitled to cancel the contract without paying a cancellation charge and that the company breached the contract by not allowing him to do so. The customer gave written notice on 12 February 2014 to cancel the contract. However, he was required under clause 4.3 of the Terms and Conditions to give 14 days’ written notice. Therefore, I am only prepared to backdate the cancellation to 25 February 2014. I
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therefore direct the company to cancel the customer’s contract without penalty and to
backdate the cancellation to 25 February 2014, waiving any charges incurred after that
date. I also direct it to provide him with a PAC.
q. The customer is asking to be provided with an unlock code. However, clause 14.1 of the
Terms and Conditions provides that the device is acquired outside the terms of the
contract. In light of this, I am not satisfied that the company is obliged, either
contractually or otherwise, to provide a handset unlocking code. Therefore, this part of
the claim does not succeed.
Conclusion
9. My conclusion on the main issues is that:
a. The company has breached the contract between the parties and failed in its duty of care
to the customer.
b. The reasons given by the customer are sufficient to justify the claim in part.
10. Therefore, my decision is to direct the company to pay compensation in the amount of £100.00
to the customer; to cancel his contract without penalty, backdated to 25 February 2014, waiving
any charges incurred after that date; and to provide him with a PAC.
D. Stoker BA (Hons), LLB (Hons), Pg Dip LP.
Adjudicator

baldyj

Wilsonwiz wrote: »

I've been trying to contact EE regarding this. They obviously refused to release me from my contract. How can I go through an independent body? I asked EE for a deadlock letter but they've refused due to 'avoidance of doubt'. Do I have to wait 8 weeks then before doing anything regarding this matter? I'm on an Orange pre-october 2012 contract and they even tried to tell me the change doesn't effect me (even though it does)

Sorry if a lot of this has been covered, I'm a bit lost with all this.

Go to post#744 on page 38, this will take you through the steps.

PEllix

I have received T-Mobile's response through CISAS (I've been using the templates kindly provided here for this). I'm not sure if there has been a template drawn up for a response to this (in post #769 RandomCurve suggested that persil33 could respond with the templates from posts #688 and#689 - was this for the pre-October part of their response?)

Just before I paste the lengthy full text of their response - I noticed that in their schedule 3 (which captures their communications with me) they have not included any of the template cancellation emails I sent - should I draw this to the adjudicators attention?

Here is the text:

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: XXXXX
BETWEEN
XXXX
Claimant
and
EE LIMITED
trading as T-MOBILE
Respondent
DEFENCE
1. The Respondent denies that it is liable to the Claimant as pleaded or at all.
2. The Respondent is a mobile telecommunications network operator that enters into Service Agreements with its customers to enable its customers to access its network. The Claimant is one such customer of the Respondent.
3. Access to the Respondent’s network is granted to the customer by way of the issuance to the customer of a SIM card which is issued subject to the Respondent’s then applicable conditions for telephone service.
4. The Claimant has been a customer of the Respondent since 28 July 2009. The Claimant is registered with the Respondent as a consumer and was allocated account number xxxxx upon connection. The Respondent submits that the Claimant had one active mobile telephone number recently on the above account, being xxxxxx.
5. On 28 August 2012 the Claimant entered into an Upgrade Agreement (“the Agreement”) with the Respondent. 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 provided to the Claimant.
6. The Respondent maintains a paperless environment with regards to Service Agreements entered into with its customers but does not retain a copy. However, the Respondent maintains a record of the applicable terms and conditions that govern each Service Agreement entered into.
7. At Schedule 1 attached hereto is a copy of the Terms and Conditions for Telephone Service and Equipment – Conditions Version 58. The Respondent submits that such terms and conditions relate to the original terms and conditions to the Agreement.
8. At Schedule 2 attached hereto is a copy of the amended terms and conditions – Conditions Version 58C, to be subject to the Agreement and take effect as of the 26 March 2014.
9. The Respondent submits that this dispute, as per the Claimant’s application, arises from the Respondent’s amendment of the terms of the Agreement between the Claimant and Respondent. The amendment changed the circumstances in which a price rise gives the Claimant an automatic right to terminate the Agreement, without paying a cancellation charge. The amendment was introduced in light of comments expressed by Ofcom regarding the Respondent’s terms and conditions - Condition Version 58 (at Schedule 1) with the intention of increasing certainty for consumers and is to the Claimant’s benefit.
10. As to the substance of this complaint, the Respondent’s position is that it has a general right to change the terms of the Agreement, as per the terms and conditions exhibited at Schedule 1. That right is subject to the right of the Claimant under the terms of the Agreement and the regulatory scheme to terminate the Agreement if the change is of material detriment to the Claimant. However, in the present case, the change is not of detriment to the Claimant at all, alternatively any detriment is marginal and not material. On the contrary, it is to the Claimant’s benefit, and accordingly there is no right of termination.
11. The Respondent submits that they also consider that this dispute falls outside CISAS’ remit on the grounds that (i) it does not fall within CISAS rule 2a; and/or (ii) it falls within CISAS rule 2b.
12. This response addresses the following:
a) The change to the Agreement;
b) The Respondent’s right to change the terms of the Agreement;
c) The Claimant’s right to terminate following a change if the change is of material detriment;
d) Why the change is not of material detriment to the Claimant;
e) Why the dispute falls outside CISAS’ remit and/or is not appropriately resolved by CISAS.
THE CHANGE TO THE CONTRACT
13. The Agreement provides for a specific right for the Respondent to vary its charges for services provided under the Agreement. The change about which complaint is made concerns the terms which provide for when increases to the Claimant’s £22.00 price plan (the main recurring monthly charge) gives a right to terminate without paying a cancellation charge.
14. The Respondent confirms that between the 29 January 2014 and 14 February 2014 the Claimant was notified by SMS as to the amendment of the original terms and conditions (at Schedule 1) to the amended terms and conditions (at Schedule 2). Following the 14 February 2014 the SMS delivery data was then analysed by the Respondent and letters confirming the amendments were then sent out to the registered addresses of any customers whose notification SMS had either failed or not been delivered. The Respondent confirms that the sending of the above said notification letters to the remaining un-notified customers was completed by the 21 February 2014. The Respondent submits that this entire process was of course in compliance with the relevant notice requirement as per the original terms and conditions.
The Contract prior to the Change
15. The Respondent is referred to the terms and conditions at schedule 1, CVN58.
16. Prior to the changes in question, point 7.1.4 of the Contract provided:
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.
17. The Agreement further provided that the Claimant has a right to terminate the Agreement without paying a cancellation charge where a price increase notified under point 7.1.4 was of material detriment to the Claimant (point 7.2.3.2) or exceeded the rate of inflation (point 7.2.3.3).
7.2.3. A Cancellation Charge won’t apply if You are within the Minimum Term and:
…
7.2.3.2. You are a Consumer and the change that We gave You Written Notice of in point 2.11.2 or 7.1.4 above is of material detriment to You and You give Us notice to immediately cancel this Agreement before the change takes effect; or
7.2.3.3. The change that We gave You Written Notice of in point 7.1.4 is: (i) an increase in Your Price Plan Charge (as a percentage) higher than any increase in the Retail Price Index (also calculated as a percentage) for the 12 months before the month in which We send You Written Notice and You give Us notice to immediately cancel this Agreement before the change takes effect.
17. Point 7.2 is referred to below as “the Old Term”.
18. The effect of point 7.2.3.3 in CVN58 was that the Claimant would only have a right to terminate the Agreement if the price increase was higher than the retail price index (“RPI”).
The Agreement after the Change
19. The Respondent refers to the terms and conditions as at Schedule 2, CVN58C.
20. The revised Agreement provides as follows:
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.
21. The effect of this term (“the New Term”) is that the Claimant has a right to terminate the Agreement if the price increase is higher than RPI, calculated using the most recently published RPI figures.
22. This change increases certainty for customers and reduces the scope for disputes regarding whether a price change gives rise to a right to cancellation.
The Respondent’s right to change the terms of the Agreement
23. The Respondent is entitled to revise its contract terms pursuant to point 2.11 of the Agreement, which provides as follows:
2.11. We will make a copy of Our current version of these term and conditions available on Our website. We can change these terms and conditions for any good reason, for instance, if We want all customer on the same conditions. We will tell You about the change beforehand, as explained here.
2.11.1 We will make a copy of Our current version of these terms and conditions available on Our website. We can change these terms and conditions for any good reason, for instance, if We want all customers on the same conditions. We will tell You about the change beforehand, as explained here:
The Claimant has a right to terminate only if the change is of material detriment
24. The Agreement further provides that where a change notified under point 2.11.1 is of material detriment to the Claimant, the Claimant has a right to terminate the Agreement without paying a cancellation charge. However, if the change notified is not of material detriment and the Claimant is within their minimum term, the Claimant does not have such right of termination.
25. Points 2.11 and 7.2 provide (so far as material) as follows:
2.11.2. If You are a Consumer and the change of terms and conditions is not of material detriment to You or You are not a Consumer, We will send You Written Notice 30 days before the terms and conditions are due to change. The new terms and conditions will automatically apply to You once that notice has run out.
2.11.3. If You are a Consumer and the change is of material detriment to You, We will send You Written Notice 30 days before the terms and conditions are due to change. The new terms and conditions will apply to You once that notice has run out, unless You terminate Your Agreement with Us within that notice period. If You do this You won’t have to pay any Cancellation Charge that would otherwise apply, see point 7.2.3.2.
…
7.2. Your termination rights
7.2.1. You can give Us notice to terminate this Agreement, to take effect on or after the end of the Minimum Term. However (except as set out in point 7.2.3 and 7.2.4) if, in our total discretion, We accept notice from You to terminate this Agreement within the Minimum Term, You will have to pay Us a Cancellation Charge and, if applicable, the Additional Commitment Service Cancellation Charge. …
…
7.2.3. A Cancellation Charge won’t apply if You are within the Minimum Term and:
…
7.2.3.2. You are a Consumer and the change that We gave You Written Notice of in point 2.11.2 or 7.1.4 above is of material detriment to You and You give Us notice to immediately cancel this Agreement before the change takes effect; or
26. Point 2.11 implements General Condition 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 contract without penalty.
The Change is not of material Detriment
27. The Change is not of material detriment for the following reasons.
28. Under both the Old Term and the New Term, the Claimant may cancel, without incurring a cancellation charge, if the price increase notified by the Respondent exceeds the rate of inflation as measured by RPI. In substance, the Claimant’s rights of cancellation have therefore not been affected and the Claimant has suffered no detriment whatsoever.
29. On the contrary, the effect of the changes is to benefit the Claimant. The changes make clear and certain the specific published measure of inflation which may be used for the purposes of this comparison. Out of date and potentially confusing references to other statistical measures of inflation have been removed. The changes therefore will enable the Claimant to identify when a right of cancellation arises.
30. Furthermore, the clause specifically refers to RPI and not Consumer Price Index (‘CPI’). CPI and RPI are measured in different ways and takes into account different factors in determining the figure for the relevant month. CPI figures can indeed be higher than the RPI figures. The Respondent has historically relied only upon the RPI figure and not CPI. The Respondent’s business decision to rely solely upon the RPI as a measure creates certainty to the Claimant as to which measure will be used. In any event, the Respondent submits that even if the CPI figure had been used as a measure that an increase by a CPI measure would not be regarded as an increase which would constitute a material detriment to the Claimant.
31. Alternatively, if and to the extent that the Claimant has suffered any marginal detriment, such detriment is not material.
31.1. The only circumstance in which it could be said that the Claimant has suffered detriment would be if it were established that the Old Term allowed the Claimant to terminate, without incurring a cancellation charge, in circumstances where the price rise notified was less than RPI, but higher than some other statistical measure of inflation.
31.2. In order to demonstrate that the change was of material detriment, the Claimant would need to (i) identify such other statistical measure of inflation which it is said would qualify under the Old Term; (ii) identify the difference over the period of the Claimant’s minimum term between price rises which would be calculated according to RPI and price rises which would be calculated according to the alternative measure of
inflation and (iii) establish that the difference between such price rises qualifies as material detriment under point 7.2.3.2.
31.3. The Claimant has not identified such an alternative measure of inflation.
31.4. Further or alternatively, it is submitted that the difference, over the course of the Claimant’s minimum term between any two measures of inflation which would qualify under point 7.2.3.2 is not sufficient to be material.
THE DISPUTE FALLS OUTSIDE CISAS’ REMIT
32. The dispute cannot be settled by CISAS under Rule 2 of the CISAS Rules insofar as it concerns whether the Claimant is entitled to cancel the Agreement by reason of the Respondent’s amendments to terms 7.1.4 and/or 7.2.3.3 terms and conditions on the grounds that those amendments are modifications likely to be of material detriment to the Claimant. The Material Detriment Issue does not relate to any of the matters set out in Rule 2a and/or involves a complicated issue of law.
33. The Material Detriment Issue does not relate to any of the matters set out in Rule 2a.
33.1. Bills: It does not relate to any bill issued by the Respondent to the Claimant.
33.2. Customer Service: It does not relate to the quality of customer service provided by the Respondent to the Claimant.
33.3. 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.
34. Further or alternatively, the Material Detriment Issue constitutes a complicated issue of law.
34.1. A proper resolution of the case would require CISAS to consider (i) the proper construction of the Old Term, as a matter of contract; (ii) the proper construction of the New Term, as a matter of contract; (iii) the proper construction of the term “material detriment”; and (iv) whether, in light of those matters, the change from the Old Term to the New Term was of such material detriment. Each of points (i), (iii) and (iv) involves complicated issues of law.
34.2. As noted above the proper construction of the Old Term may not be easy to establish. It does not make clear which statistical measures of inflation may be used for the purposes of comparison.
34.3. 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 GC9.6. 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.
34.4. 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 customer. Rather it is necessary that the Claimant identify the degree to which the Old and New Terms would differ, if applied to him, and to establish that that difference is material.
35. 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.
36. Furthermore, the Respondent keeps a record of all its customers details and records all calls made to the Respondent’s Customer Services Department by way of Account Notes. When a customer calls or corresponds with the Respondent’s Customer Services Department a note is put onto the customer’s account by one of the Respondent’s Customer Service Advisors regarding the nature and content of the call or correspondence. At Schedule 3 attached hereto is an extract of the Respondent’s Account Notes held in respect of the Claimant’s account with the Respondent since August 2012.
37. The Respondent notes that the Claimant made no complaint as to customer services and in any event, the Respondent submits that the Claimant was provided with a good level of customer services at all times and that any dissatisfaction on the part of the Claimant simply stems from the fact that the matter was not resolved as he had hoped, which in any event related to a proposed remedy that he was not entitled to.
38. The Respondent submits that the Claimant was hasty in his cancellation of the Agreement on 15 March 2014, and notwithstanding the above was informed clearly of what the termination fee would be and volunteered payment. The Respondent denies if pleaded or otherwise that the Claimant is entitled to a refund of any termination fee paid and/or any other sums claimed. Therefore the Respondent submits that the Claimant’s case should be dismissed and no award made.
39. The Respondent submits that they have acted well within the parameters of their terms and conditions and entirely in compliance with any obligations and therefore, any liability to the Claimant is entirely denied.
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 8 April 2014

jon1555

Just had Partners Result through from adjudicator -

Success in part!

Penalty free backdated cancellation

£25 compensation instead of the £100

Was only with the adjudicator for 3 days!

Adjudicator was Clive Sanders and contact was Orange post 2012

Just got to wait for mine now!

50Twuncle

" which " are now involved

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