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

[Deleted User]

jon1555 wrote: »

Cisas can take up to 5 days to send you the defence.

Mine came 2 days after defence was due

Thank you for the information!!!

SimonD316

[quote=[Deleted User];65231110]Nearly 5pm, still no emails received from CISAS regarding a defense submitted by the company. Today is the deadline for EE, if I still have nothing by 6pm today, what should I do?[/QUOTE]

jon1555 wrote: »

Cisas can take up to 5 days to send you the defence.

Mine came 2 days after defence was due

Yup, mine came the day after.

Wullie32

Sent mine today, will give this a go, if I'm out of time, I'll go with the price rise approach instead. Will report back. Thanks RC.

baldyj

I WON!!

T Mobile/Post Oct '12/Used RC's Templates/Mark McGeoch adjudicated

The company shall cancel the customer’s contract as of 18 February 2014 without applying a penalty for doing so, provide the customer with a PAC and unlock code, waive all charges incurred on the customer’s account from 18 February 2014 onwards, and pay the customer the sum of £100.00 in compensation.

Thanks once again to the mighty Random Curve!

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 (x2 Contracts):
Orange/Pre Oct '12/Edited RC's Template/Justine Mensa-Bonsu adjudicated.
WON! Contracts terminated, full compensation figure awarded

sshariff:
Orange/Pre Oct '12/Edited or didn't use RC's Template/Uju Obi adjudicated
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.

Jon1555:
Orange/Post Oct '12/Used RC's Templates/Clive Saunders adjudicated.
WON! Contract Terminated, partial compensation awarded.

Smeghead Dave Lister:
Orange/??/??/??
WON! Contract Terminated, ?? compensation.

jakethepeguk:
Orange/Post Oct '12/Used RC's Templates/?? adjudicator
WON! Contract Terminated, full compensation awarded.

Dils47:
EE/Post Oct '12/Used RC's Templates/Vidette Ogden adjudicated
WON! Contract Terminated, full compensation awarded.

Maddy2k11:
Orange/Post Oct '12/Used RC's Templates/M. Coombes Davies adjudicated
Lost!

baldyj:
T-Mobile/Post Oct '12/Used RC's Templates/Mark McGeoch adjudicated
WON! Contract Terminated, full compensation awarded.


13/16 wins so far, and i think 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!

lynus2004

New here and wanted to say thank you to everybody and in particular Random Curve for the effort put into creating the templates etc.

I won my claim and was awarded £100 on my Orange contract. The adjudicator was Andrew Walker.

Dils47

congrats

i got assigned Andrew Walker, but adjucitator got reassigned to another one due to unforeseen circumstances

would like to know what these unforeseen circumstances were

Bimmermad

lynus2004 wrote: »

New here and wanted to say thank you to everybody and in particular Random Curve for the effort put into creating the templates etc.

I won my claim and was awarded £100 on my Orange contract. The adjudicator was Andrew Walker.

Congrats and welcome to the party. interested to know if it was pre Oct or post

g6jns_2

Maddy2k11 wrote: »

Just had my decision, I lost using RC's templates, although I feel that maybe my documents did not get uploaded..although I did contact them to check and they confirmed they had received it. Posted the reply below:

Decision
1. The claim does not succeed.

Main issues
2. I consider that the main issues in this adjudication are:

a. Whether the company has broken a term of the contract between it and the customer or
failed in its duty of care.

Background information
3. 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.

4. 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 position
5. The customer’s position is that the company has breached the terms of the parties contract by
refusing the customer’s request to a penalty free cancelation following notification of a change
in the terms and conditions. The company notified the customer of the change by text on 11
February 2013. The customer considers this was to his material detriment as provided for
under clauses 15.1(b) and 4.3 of the contract and that he should be allowed to exit his contract
penalty free back dated to 11 February 2013. The contract states:

‘7.2.3.2 You are a Consumer and the change that We gave You Written Notice of in point
2.11.3 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….

15.1(b) We acknowledge that if we do increase the Charges, withdraw Orange Additional
Services or introduce new mandatory Charges – or if your contractual rights are
affected to your detriment – you may terminate your Contract in accordance with
Condition 4.3. If you do not give notice within one month of our notifying you of any
change(s), you will be taken to have accepted the change(s)…

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 3

14 days written notice prior to your Billing Date (and within one month of us giving you
written notice about the changes). However this option does not apply if:

6. The customer claims a total of £100.00 compensation, being £25.00 for each of the following
items:

a. Breach of General Condition3
9.6 because the customer states he was not informed of
his rights to cancel the contract.

b. ‘Breach of UTCCRs Schedule 2, paragraph 1’, because of, ‘the company taking
exclusive right to interpret what Material Detriment means’.

c. Breach of the duty of care owed by the company who the customer asserts ignored his,
‘legitimate requests for information’.

d. Breach by the company of the requirement to act in good faith in the way that the change
in the terms and conditions was presented to the customer.

7. The customer in his reply takes issue with the company on its defence (summarised below),
highlights the key points of the claim and provides further clarification including:

a. There is a requirement on the company to ensure that the contract, which is a standard
form of contract with a consumer, is not complex and is written in plain and intelligible
language. The customer asserts that if the company has made the contract complex, or
used complex and unintelligible language then this is evidence of the company not acting
in good faith.

b. The customer does not dispute that the company can amend the terms and conditions
but asserts it does not mean that these are necessarily enforceable. He refers to various
regulations including GC 9.6 which states that during a fixed term a modification to the
terms and conditions must give the customer a corresponding right to withdraw from the
contract penalty free.


3
Also referred to as, ‘GC’, which states, ‘The Communications Provider shall:
(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 if the proposed modification is not acceptable to the
Subscriber’.
4

c. Referring to the company’s submission that the meaning of the term, ‘material
detriment’, needs to be established by contractual construction and in its regulatory
context, the customer mentioning a number of regulations, directives and commentaries
states that, ‘the use of the word “AND” is misleading as if the change is likely to be of
material detriment to’, the customer, ‘in either context then’, the customer has a right to a
penalty free termination of his contract. ‘In the regulatory context regardless of what is
in’, the company’s T&Cs under GC 9.6 the customer has a right to terminate his contract
penalty free’. To determine if the change is likely to be of material detriment to the
customer then the customer only needs to consider if the change is beneficial or neutral
to him. Whilst the company may benefit from having clearer terms and conditions,
however the customer explains that he has less scope to challenge the company on
future price increases and this is to his material detriment. He points out that the
company concede that there may be a marginal determent to the customer. The
customer asserts that this change gives rise to his, ‘right to a penalty free cancellation
under GC 9.6, as per... (the customer’s) CISAS claim –the change is likely to be of
Material Detriment to’, the customer.

d. Again referring to a number of regulations, the customer asserts that material detriment
in the contractual context means that in a standard form contract between a business
and a customer where a term is not written in plain and intelligible language the meaning
most advantageous to the customer should be used. The customer’s interpretation of the
term, ‘material detriment’, is any change that is not to his benefit. He asserts that despite
the company’s attempts to sell the change as being for the customer's benefit it is
actually a change for the company’s benefit as it gives it a stronger position to defend
future price increases. This is not to the customer’s benefit as he will have a reduced
scope to challenge a price increase. Consequently it is to his material detriment and he
should be allowed to leave the contract penalty free as per the contractual terms and
conditions.

e. The customer has asked the company to explain why, ‘they referenced a price rise in
their response and ignored his reference to a change in T&C’s’, as the customer’s email
of complaint made no mention of a price rise but the company declined to offer an
explanation. The customer asserts that in terms of compensation, ‘this is considerably
more serious than the lack of duty of care’, that he is claiming; the company has yet to
explain under what Ofcom guidance it has acted, it has, ‘been disingenuous with the
reason for the change in T&Cs in all of’, its dealings with the customer. The company has
never explained to the customer the criteria it has used to conclude that this is not to his
material detriment despite the customer requesting this information.
5

f. The customer points out that the changed clause gives the company the right to choose
which statistic to use and the customer’s right to cancel should the company apply a rate
higher than, ‘RPI or any other rate’. He believes that the company, ‘are admitting that the
old clause was ambiguous in that it gives EE the right to choose the rate and the month –
this is an unfair (and therefore unenforceable). Therefore the change in T&Cs moves the
Term from being potentially unenforceable (by EEs own admission) to a potentially
enforceable clause which is to’, the customer’s material detriment. The customer asserts
that his claim clearly articulates the difference between CPI and RPI, yet the company
maintains he has not identified another statistic. Based on February 2014 inflation
statistics the new clause allows the company to impose an increase 58.8% higher than
was the case before which is to the customer’s material detriment (RPI 2.7%, CPI 1.7%
difference 1%, 1% as a percentage of 1.7 % is 58.8%).

He was provided with the terms
and conditions applicable to the agreement at the point of entering into the agreement. The
amended, ‘Terms and Conditions for the Supply of Orange Network Services – LEG300v15A’,
took effect as of the 26 March 2014. The dispute arises from the company’s amendment of the
terms of the agreement which changed the circumstances in which a price rise gives the
customer an automatic right to terminate the agreement, without paying a cancellation charge.
The company maintains that the amendment was introduced in light of recent Ofcom comments
with the intention of increasing certainty for consumers and is to the customer’s benefit. The
company has a general right to change the terms of the agreement which is subject to the right
of the customer under the terms of the contract and the regulatory scheme to terminate the
agreement if the change is of material detriment to the customer. The company maintains that,
the change is not of detriment to the customer, ‘alternatively any detriment is marginal and not
material’, but is to the customer’s benefit and accordingly there is no right of termination’.

9. The company asserts that this dispute falls outside CISAS’ remit as it does not fall within
CISAS rule 2a or it falls within CISAS rule 2b. I note that the customer’s dispute has been
accepted into CISAS, therefore this point is not considered further.

10. The company states that the agreement provides for a specific right for the company 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 customer’s £XX.00 price plan
gives a right to terminate without paying a cancellation charge. Between 29 January 2014 and
14 February 2014 the customer was notified by SMS about the amendment of the original
terms and conditions. Following 14 February 2014 the SMS delivery data was then analysed by 6

the company and letters confirming the amendments were sent out by 21 February 2014 to the
registered addresses of any customers whose notification SMS had either failed or not been
delivered. The entire process was in compliance with the notice requirements of clause 19.11
that, ‘All notices to be served in accordance with your Contract must be served by post or
facsimile. We can in addition serve notice to you by voicemail, email, text or other form of
electronic message, such as notice through Your Account. They will be deemed served 48
hours after they are sent, or on earlier proof of delivery. We may also send you “over the air‟
updates to your Device which may make some minor adjustments to the functionality or display
on your Device. You’ll need to accept these changes which may include doing anything
reasonable we request. All invoices and notices served by post will be sent to the address
given by you on Registration unless you notify us of a change to this address. Any waiver,
concession or extra time we may allow you is limited to the specific circumstances in which it is
given and does not affect our rights in any other way’.

11. The company maintains that prior to the changes clause 15.1 of the agreement provided, ‘We
acknowledge that if we give you written notice to increase the Charges, or introduce new
mandatory Charges, and such a change is to your material detriment you may terminate your
Contract in accordance with Condition 4.3. If you do not give notice within one month of our
notifying you of any change(s), you will be taken to have accepted the change(s)’. The
agreement also provided that the customer has a right to terminate the agreement without
paying a cancellation charge where a price increase notified was of material detriment to the
customer or exceeded the rate of inflation4
:

‘4.3. You may also terminate your Contract if we give you written notice to vary its terms,
resulting in an increase in the Charges or changes that alter your rights under this
Contract to your material detriment. In such cases you would need to give us at least 14
days written notice prior to your Billing Date (and within one month of us giving you
written notice about the changes). However this option does not apply if:

4.3.1 We give you written notice to increase the Charges (as a percentage) by an amount equal
to or less than the percentage increase in the All Items Index of Retail Prices or any
other statistical measure of inflation published by any government body authorised to
publish measures of inflation from time to time, and published on a date as close as
reasonably possible before the date on which we send you written notice’.

12. The company state that the effect of clauses 4.3 and 4.3.1 was that the customer would only
have a right to terminate the agreement if the price increase was higher than the retail price
index (RPI) or another statistical measure of inflation selected by the company. The purpose of
including reference to another measure of inflation was that, at the time of the drafting of this

4
Referred to as, ‘the old term’. 7

term, it was understood that the Office for National Statistics was intending to cease publication
of RPI. It was considered that the term was insufficiently clear in two respects in that it allowed
the company to select both the measure of inflation to be used and to select any measure of
inflation within a reasonable period prior to the notification of the price increase. On its proper
construction, clause 4.3.1 allowed the company to select the measure of inflation which was to
be used. Moreover, it would now be for the customer to identify the statistical measure of
inflation which it is said should apply under clause 4.3.1.

13. The revised terms of the agreement provided5
:

‘4.3 You may also terminate your Contract if we give you written notice to vary its terms,
resulting in an increase in the Charges or changes that alter your rights under this
Contract to your material detriment. In such cases you would need to give us at least 14
days written notice prior to your Billing Date (and within one month of us giving you
written notice about the changes). However this option 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)…

15.1 We acknowledge that if we give you written notice to increase the Charges, or introduce
new mandatory Charges, and such a change is to your material detriment you may
terminate your Contract in accordance with Condition 4.3. If you do not give notice within
one month of our notifying you of any change(s), you will be taken to have accepted the
change(s).

14. The company maintains that the effect of the new term is that the customer has a right to
terminate the agreement if the price increase is higher than RPI, calculated using the most
recently published RPI figures, ‘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
company is entitled to revise its terms pursuant to clause 15.1 of the agreement. Where a
change is of material detriment to the customer, the customer has a right to terminate the
agreement in accordance with clause 4.3 without paying a cancellation charge. However, if the
change is not of material detriment and the customer is within their minimum term, the
customer does not have such right of termination. The company states that the written notice
provided to the customer implements General Condition 9.6, imposed by Ofcom on
communications providers under the Communications Act 2003 section 45 which provides for

5
Referred to as, 'the new term’. 8

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.

15. The company maintains that the change is not of material detriment because under both the old
and new terms, the customer may cancel, without incurring a cancellation charge, if the price
increase notified by the company exceeds the rate of inflation as measured by RPI. Therefore
the customer’s rights of cancellation have not been affected and the customer has suffered no
detriment. The effect of the changes is to benefit the customer as they, ‘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 customer to identify when
a right of cancellation arises. If the customer, ‘has suffered any marginal detriment, such
detriment is not material’. The company asserts that the only circumstance in which the
customer could suffer detriment would be if it were established that the Old Term allowed the
customer 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,
‘In order to demonstrate that the change was of material detriment, the customer 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 customer’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 clause 4.3. The company believes that
the customer has not identified an alternative measure of inflation or the difference over the
course of the customer’s minimum term between any two measures of inflation which would
qualify under clause 4.3 is not sufficient to be material.

16. The company points out that, ‘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’. It denies that the customer is entitled to
terminate his agreement without charge, therefore, the customer, ‘is subject to the standard
contractual termination points as per the applicable terms and conditions’. The customer has
made no complaint as to customer services or any other issues and the company has provided
the customer with a good level of customer services. It will provide a Port Authorisation Code to
the customer upon request, however it is the company’s position that the customer remains
liable for a cancellation charge which at the date of the defence was £352.17, reducing on a
daily basis.

17. The company denies that the customer is entitled to compensation of £100.00. If the customer
had suffered actual loss he would have pleaded that damage as a quantified sum and provided
evidence to support such a claim. The customer has not done so and as a consequence is not 9

entitled to any compensation.

Adjudicator’s findings and reasons
18. I find that:

a. The dispute the customer states with the company is about the application of General
Condition 9.6, that is, whether the company has made a materially detrimental
modification to its terms and conditions and properly applied that condition. The
customer says that the company has made such a change but has not complied with the
condition. The company disputes this. The customer accepts the company can change
the conditions of the contract but argues that all changes to the contract cannot be
neutral as if they were the changes need not be made and that by definition the changes
must benefit the company otherwise the directors would be failing in their duty, effectively
any change cannot be to the customer’s benefit and is likely to be of material detriment
to the customer. Whilst I note the customer’s argument that he may at some point in the
future find himself not in a position to challenge a future price rise, however having
carefully considered all the circumstances I find that the customer has not presented
sufficient evidence to clearly prove this element of his claim.

b. The customer’s arguments are undermined in that he is does not seek to maintain the
existing terms of the contract so that he would not be disadvantaged in the future (which
he in any cases argues are unenforceable). This raises the question as to why the
customer entered the contract freely and willingly in the first place. Instead he seeks
financial compensation and wishes to leave his contract without early termination
charges being applied by the company. I find the claims of the customer to be based on
theoretical arguments of circumstances that may or may not happen in the future rather
than on any real dispute whereby the customer has suffered or lost through real
circumstances.

c. Overall I consider that the arguments presented by the customer are little more than
opinions which are insufficiently supported by evidence. On that basis I find the claim
fails

Conclusion
19. My conclusion on the main issues is that:

a. The company has not failed in its duty of care to the customer and it has not acted in
breach of the terms of the agreement.

b. The reasons given by the customer are not sufficient to justify the claim.
10

20. Therefore, my decision is the claim fails. 11
M. Coombes Davies B.Sc., B.Arch., Ph.D., RIBA, C.Arb.
Adjudicator

A very puzzling outcome. I am astonished that someone who has no detailed legal training on the subject can be allowed to adjudicate. Personally I would want to have this looked at professionally before taking the Small Claims Track.

RandomCurve

Wullie32 wrote: »

Sent mine today, will give this a go, if I'm out of time, I'll go with the price rise approach instead. Will report back. Thanks RC.

If they say you are out of time remind them in the clause in your contract as per post #744.In the mean time also send the price rise cancellation request - just in case!!!