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

andrewmp

Just received EE's defence:

COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: xxx
BETWEEN
xxx
Claimant
and
EE LIMITED t/a 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 27 June 2011. The
Claimant is registered with the Respondent as a consumer and was allocated
account number x upon connection. The Respondent submits that the
Claimant currently has two active mobile telephone number on the above
account, being:-
(a) Mobile Number x (“the First Mobile Number”) which was first
activated on 27 June 2011; and
(b) Mobile Number x (“the Second Mobile Number”) which was
first activated on 6 September 2013.
5. On 15 May 2013 the Claimant entered into a Service Upgrade Agreement (“the
First Agreement”) with the Respondent in respect of the First Mobile Number
via one of the Respondent’s authorised retailers. The Claimant was provided
with the terms and conditions applicable to the First Agreement at the point of
entering into the First Agreement.
6. The Claimant entered into a Service Agreement (“the Second Agreement”) in
respect of the Second Mobile Number on 6 September 2013 via one of the
Respondent’s authorised retailers. The Claimant was provided with the terms
and conditions applicable to the Second Agreement at the point of entering into
the Second Agreement.
7. 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.
8. At Schedule 1 attached hereto is a copy of the Terms and Conditions for
Telephone Service and Equipment – Conditions Version 59. The Respondent
submits that such terms and conditions relate to the original terms and
conditions of both the First and Second Agreements (“the Agreements”).
9. At Schedule 2 attached hereto is a copy of the amended terms and conditions –
Conditions Version 59 A, to be subject to the Agreements and take effect as of
the 26th March 2014.
10. The Respondent submits that this dispute, as per the Claimant’s application,
arises from the Respondent’s amendment of the terms of the Agreements
between the Claimant and Respondent. The amendment changed the
circumstances in which a price rise gives the Claimant an automatic right to
terminate the Agreements, 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 59 (at
Schedule 1) with the intention of increasing certainty for consumers and is to
the Claimant’s benefit.
11. As to the substance of this complaint, the Respondent’s position is that it has a
general right to change the terms of the Agreements, 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 Agreements and the regulatory scheme to
terminate the Agreements 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.
12. 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.
13. This response addresses below:
a) The change to the Agreements;
b) The Respondent’s right to change the terms of the Agreements;
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 AGREEMENT
13. The Agreements provide for a specific right for the Respondent to vary its
charges for services provided under the Agreements. The change about which
complaint is made concerns the terms which provide for when increases to the
Claimant’s £15.50 price plans (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 Agreements prior to the Change
15. The Respondent is referred to the terms and conditions at Schedule 1.
16. Prior to the changes in question, point 7.1.4 of the Agreements 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 Agreements further provided that the Claimant has a right to terminate the
Agreements 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 2.11.3 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; 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) 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; and
(ii) You give Us notice to immediately cancel this Agreement before
the change takes effect.
18. Point 7.2 is referred to below as “the Old Term”.
19. The effect of point 7.2.3.3 was that the Claimant would only have a right to
terminate the Agreements if the price increase was higher than the retail price
index (“RPI”) or another statistical measure of inflation selected by the
Respondent. The purpose of including reference to another measure of inflation
was that, at the time of the drafting of this term, it was understood that the
Office for National Statistics was intending to cease publication of RPI.
20. It was considered that the term was insufficiently clear in two respects in that it
allowed the Respondent 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.
21. It is not clear whether the Claimant contends that the Old Term allowed the
Customer to cancel if the price increase notified was less than RPI but higher
than some other statistical measure of inflation. If and to the extent that the
Customer does make such a contention, the Respondent’s position is that, on its
proper construction, point 7.2.3.2 allowed them to select the measure of
inflation which was to be used. Moreover, it would now be for the Claimant to
identify the statistical measure of inflation which it is said should apply under
point 7.2.3.2.
The Agreements after the Change
22. The Respondent refers to the terms and conditions as at Schedule 2.
23. 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.
24. The effect of this term (“the New Term”) is that the Customer has a right to
terminate the Agreements if the price increase is higher than RPI, calculated
using the most recently published RPI figures.
25. 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 Agreements
26. The Respondent is entitled to revise its contract terms pursuant to point 2.11 of
the Agreements, 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
27. The Agreements further provide 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 Agreements 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.
28. 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
29. 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 Agreements without penalty.
The Change is not of material Detriment
30. The Change is not of material detriment for the following reasons.
31. 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.
32. 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.
33. Alternatively, if and to the extent that the Claimant has suffered any marginal
detriment, such detriment is not material.
33.1. 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.
33.2. 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.
33.3. The Claimant has not identified such an alternative measure of inflation.
33.4. 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
34. 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 Agreements
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.
35. The Material Detriment Issue does not relate to any of the matters set out in
Rule 2a.
35.1. Bills: It does not relate to any bill issued by the Respondent to the
Claimant.
35.2. Customer Service: It does not relate to the quality of customer service
provided by the Respondent to the Claimant.
35.3. 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.
36. Further or alternatively, the Material Detriment Issue constitutes a complicated
issue of law.
36.1. 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.
36.2. 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.
36.3. 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.
36.4. 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.
37. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether contractually or otherwise, to terminate his Agreements 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.
38. The Respondent notes that the Claimant has 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 (being the cancellation of the Agreements without a
cancellation fee) to which he was not entitled. The Respondent denies (if such is
alleged) that it has failed to deal with the Claimant’s complaint in a timely and
professional manner and the Claimant is put to strict proof thereof.
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.
40. The Respondent submits that it can provide the Claimant with a Port
Authorisation Code (“PAC”) to cancel the Agreements in respect of the First and
Second Mobile Numbers, however it is the Respondent’s position that the
Claimant will remain liable for the applicable cancellation charges which will be
applied to his account. The cancellation charge in respect of the First Mobile
Number is currently the sum of £162.73 and the cancellation charge in respect of
the Second Mobile Number is currently the sum of £208.74 reducing on a daily
basis.
41. The Respondent denies liability to the Claimant as pleaded, or at all.
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 11 April 2014
xx
For and on behalf of the Respondent whose address for service is at:
EE Limited
Legal Department
Trident Place
Mosquito Way
Hatfield
Hertfordshire
AL10 9BW

Where do I go from here? I know I need to reply with something about RIP etc?

jon1555

Goto page 33 ( I think ) RC has a template there for a response to the defence.

Wallace231

RandomCurve wrote: »

I have added the below to all CISAS claim and EE Defence response templates (except Orange Pre 30th Oct 2012) in the hope of nudging M. Coombes Davies in the right direction should anybody be unfortunate enough to have her assigned to their case, it hopefully will not "offend" other adjudicators.




"I entered into my contract on DATE, at that time EE never made it clear that the contract contained a price variation clause; despite this I have abided by the Contract Terms and Conditions and relevant Ofcom regulation. In early February 2014 EE advised me of a change in T&Cs which I believe is LIKELY to be to my Material Detriment. Under the T&Cs and Ofcom Regulation 9.6 the ONLY options for me now are to either accept the change or request a penalty free cancellation. I have decided that - for the reasons stated - the change is LIKELY to be of material detriment, and I wish EE to abide by the contract terms and Ofcom regulations (as I have) and grant a penalty free cancellation.
This case revolves solely around if the change in T&Cs is LIKELY to be of Material Detriment."


I think I will also contact Ofcom - not that they will do anything, but they can't then say they had no ideas how low the legal skills of some of the adjudicators are!

I am still waiting on a response from my adjudicator..in the main time should i send this template or just wait for a reply ?

thanks

andrewmp

jon1555 wrote: »

Goto page 33 ( I think ) RC has a template there for a response to the defence.

I saw that, I'm a bit lost to be honest, that says it's a draft, it also says it's for contracts after October?

Does anyone know the post number I'd use for my reply to their defence?

jon1555

andrewmp wrote: »

I saw that, I'm a bit lost to be honest, that says it's a draft, it also says it's for contracts after October?

Sorry couldn't remember the exact page, if you go forward a few pages there is one for Post Oct then a few pages later there's a pre oct

andrewmp

Found it..... 689 for future reference, fingers crossed.

baldyj

Liam-1987 wrote: »

Hey guys I got my case back adjudicator has won my request I can cancel with out penalty but I replied back saying I accept so I didn't wait didn't think do I just wait now for another email saying when it ends or do I phone them my first email to Swantee to give my notice was on 28/2/14

thanks for everything random curve appreciate it.

EE will have four weeks to respond, so for the time being just wait.

baldyj

oxfordmark wrote: »

Hello

I called up EE on the day i received the Terms refresh text. As this complaint and T&C rejection was rejected. Could i put a claim to CISAS?

I know RC has done templates, but they have been lost.


Can someone link me the key templates?

Thanks

Post #744 will assist you.

baldyj

andrewmp wrote: »

Where do I go from here? I know I need to reply with something about RIP etc?

Check out #744 for a guide of where to fond what

baldyj

Wallace231 wrote: »

I am still waiting on a response from my adjudicator..in the main time should i send this template or just wait for a reply ?

thanks

Wait for a reply.