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

sarahdonnelly

Hi Random Curve,


I received the EE defence below, but it seems different to other defences I've read on this thread. There's no mention of a V58/V59 contract and I'm finding their defence very confusing! I've used all of your template letters so far, could you point me in the direction of which one I should be using? I'd be very grateful! Thanks




COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
EE LIMITED
Respondent
DEFENCE
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]1. The Respondent submits that the issue at the heart of the Claimant’s Claim relates to a business decision taken by the Respondent to increase its prices.
2. Rule 2(g) of the CISAS Scheme Rules ("the Rules") provides that the CISAS Scheme ("the Scheme") can be used to settle disputes about (i) bills and/or; (ii) communication services provided to the Respondent’s customers.
3. The Respondent submits that the cause of action pleaded by the Claimant is neither directly related to bills or communication services and therefore represents a dispute which falls outside the remit of Rule 2(g) and therefore is a matter which is not within the jurisdiction of the Scheme.
　
4. The Respondent submits that the cause of action pleaded by the Claimant is neither directly related to bills or communication services and therefore represents a dispute which falls outside the remit of Rule 2(g) and therefore is a matter which is not within the jurisdiction of the Scheme
5. Therefore, the Respondent respectfully submits that the Claimant’s claim as pleaded cannot be dealt with under the Scheme and that pursuant to the Rules an adjudicator is not therefore able to consider the Claimant’s claim.
6. The remainder of this Defence is pleaded without prejudice to the above.
[/FONT][/FONT]RESPONDENT’S DEFENCE
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]7. The Respondent denies that it is liable to the Claimant as pleaded or at all.
8. The Respondent is a mobile telecommunications network operator that enters into service agreements with its customers to enable its customers to access the services. The Claimant is one such customer of the Respondent.
9. Access to the Respondent’s network is granted to the customer by way of the issuance to the customer of SIM card which is issued subject to the Respondent’s then applicable conditions for telephone service.
10. The Claimant has been a customer with the Respondent since 09 February 2013 in respect to the EE account number xx ("the Account"). The Claimant has one mobile number being xx ("the Mobile Number").
　
11. Upon entering into the Service Agreement ("the Agreement") in respect to the Mobile Number the Claimant would have been provided with the terms and conditions applicable at the point of entering into the Agreement. The applicable terms and conditions subject to the Agreement were available to the Claimant at that time via the Respondent’s website or by contacting the Respondent’s customer services at any time.
12. The Respondent submits that this dispute, as per the Claimant’s application, arises from the notification of the increase in prices effective from 28 May 2014.
13. The Claimant seeks termination of the Agreement without termination and to transfer the Mobile Numbers to another network service provider and for the cancellation to be back dated to the date of his request for termination. In addition the Claimant also seeks an unlock code for an unspecified handset, but presumably the handset associated with the Mobile Number on the Claimant’s account.
14. The Respondent confirms that prior to the 26 March 2014 the Agreement between the parties was subject to the terms and conditions CVN01A. From 29 January 2014 to 14 February 2014 the Respondent provided the Claimant with notice, pursuant to the Agreement at the time, that the Respondent’s terms and conditions would be updated and the new terms effective as of the 26 March 2014. Therefore, the Respondent submits that as from the 26 March 2014 the terms and conditions applicable to the Agreement between the parties and so governing the Claimant, is CVN01B.
　
15. Save that the Respondent denies that the change in terms effective 26 March 2014 gave the Claimant the right to terminate his Agreement without charge the Respondent submits that in any event the Claimant was required to give notice to terminate prior to the increase in charges taking effect on 26 March 2014. The Respondent submits that the Claimant failed to give notice to terminate the Agreement prior to 26 March 2014 and therefore is bound by the terms of the Agreement effective 26 March 2014.
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]16. At [/FONT][/FONT]Schedule 1 [FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]attached hereto is a copy of the terms and conditions being Conditions Version Number 01B [/FONT][/FONT](CVN01B) [FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]applicable to the Agreement entered into between the Claimant and the Respondent. The terms and conditions governing the Agreement contains amongst other things the following;- [/FONT][/FONT]
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman] [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]2.5.1 Unless We agree otherwise, a new Minimum Term will apply. Once that Minimum Term is over this Agreement will continue until terminated;
7.1.4. We can increase any Price Plan Charge. We will give You Written Notice 30 days before We do so. The change will then apply to You once that notice has run out;
7.2.2. You can only give Us notice to terminate this Agreement by calling customer services. Your Agreement will terminate 30 days from when We receive Your call, although You are free to change Your mind and call Us to withdraw Your notice of termination at any time during
that period. You will be responsible for all Charges up to and including the date that this Agreement terminates;
7.2.3 A Cancellation Charge won’t apply if You are within the Minimum Term and:
7.2.3.3 We have given You Written Notice of an increase in a Price Plan Charge under point 7.1.4 and (i) the increase in Your Price Plan Charge (as a percentage) is higher than the annual percentage increase in the Retail Price Index (RPI) published by the Office for National Statistics (calculated using the most recently published RPI figure before we give you Written Notice under 7.1.4); and (ii) You give Us notice to immediately cancel this Agreement before the change takes effect.
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]17. Pursuant to Clause 7.1.4 between the 5-15 April 2014 the Respondent issued to the Claimant (together with all of its pay monthly customers) written notice ("the Written Notice") advising of a 2.7% increase in price plan monthly charges that would take effect as from 28 May 2014.
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]18. As Written Notice was given between the 5-15 April 2014 the Respondent was required, for the purposes of Clause 7.2.2.3 to use the [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]most recently published RPI figure before we give you Written Notice under 7.1.4. [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Therefore the correct RPI figure to use was the RPI figure for February 2014 which was published on 25 March 2014, being the most recently published RPI figure before Written Notice of the increase was given. [/FONT][/FONT]
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman] 　
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]19. The RPI figure published as at the time the Written Notice was issued (being 5-14 March 2014) was the RPI figure for month of February 2014 which was [/FONT][/FONT]published on 25 March 2014 [FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]which was 2.7%. [/FONT][/FONT]
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman] [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]The RPI 12-month rate for February 2014 stood at 2.7%1
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]1. 1 http://www.ons.gov.uk/ons/rel/cpi/consumer-price-indices/february-2014/stb---consumer-price-indices---january-2014.html
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman] 20. The Respondent denies that the price increase of 2.7% is an increase above the RPI as provided for by way of Clause 4.3.1.
21. The Respondent further denies that such increase in charges is an increase which entitles the Claimant to terminate the Agreement without paying a cancellation charge as provided for by way of Clause 7.2.3 or indeed that such is a material detriment that entitles the Claimant to treat the Agreement as terminated without paying a cancellation charge.
22. As the increase in charges of 2.7% set out within the Written Notice is not higher than the RPI for February 2014 of 2.7% the Claimant is not entitled pursuant to Clause 7.2.3 of the Agreement or otherwise to cancel the Agreement without paying a cancellation charge.
1.
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]23. The Respondent submits, if such is alleged, that it is not obligated to use any other method to calculate the price increase, such as the use of Consumer Price Index ("CPI"). The Respondent submits that the clause specifically refers to the use of RPI as a measure of calculation and therefore the use of any other measure, whether such be higher or lower, would not be in accordance with the terms of the Agreement. The Respondent has given certainty to the Agreement to specify RPI as the measure that it would use for the purpose of any increase and accordingly it is the RPI measure that must be used and not any measure, such as CPI.
24. The Respondent denies that, if such is alleged, that it mis-sold the terms of the price plan to the Claimant. At the time of entering into the Agreement the Respondent did not have plans to increase its prices and that therefore the price quoted to the Claimant was the correct price at that time. The Respondent submits that it did not mis-sell or mis-lead the Claimant in respect to such charges. The Respondent submits that it was not a ‘fixed term contract’ and that the Respondent could increase its charges, as provided for by way of the Agreement. The Respondent has exercised its contractual right to increase charges and the Claimant is not entitled to the remedy sought.
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]25. The Respondent further refers General Condition 9.6 ("GC 9.6"), imposed by Ofcom on Communications Providers under s.45 of the Communications Act 2003, which provides for Communications Providers to give subscribers one month’s notice of "[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]any modifications likely to be of material detriment[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]" and to allow subscribers to withdraw from the Agreement without penalty. [/FONT][/FONT]
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman] 　
The Respondent submits that he increase in charges at the rate of RPI is not of material detriment to the customer and the customer is hereby put to strict proof thereof.
26. Further or alternatively, the material detriment issue constitutes a complicated issue of law for the purpose of Rule 2(j) of the Scheme.
27. The Material Detriment Issue does not relate to any of the matters set out in Rule 2a.
Bills: It does not relate to any bill issued by the Respondent to the Claimant.
Customer Service: It does not relate to the quality of customer service provided by the Respondent to the Claimant.
Communications Services: For the reasons further set out below, the reference in Rule 2a to "Communications services provided to customers" relates to the physical provision of electronic communications services and/or does not relate to regulatory issues such as the Material Detriment Issue. Rule 2a is intended to implement General Condition 14.5 ("GC 14.5") which requires the Respondent to "implement and comply with a Dispute Resolution Scheme, … for the resolution of disputes …in relation to the provision of Public Electronic Communications Services." Electronic Communications Services are defined in s.32 of the Communications Act 2003 to mean "a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals".
That indicates that the focus of the dispute resolution scheme is on the service actually provided to customers.
[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]28. A proper resolution of the case would require CISAS to consider the proper construction of the term "[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]material detriment[/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]" and the increase in charges is of material detriment. [/FONT][/FONT]
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman] 29. Further, the meaning of material detriment needs to be established both as a matter of contractual construction and by reference to the regulatory context. The term is not defined explicitly in the Agreement or in GC 9.6 The fact that Ofcom has recently published guidance on the issue of material detriment in respect of price change clauses indicates that absent such guidance, the issue of material detriment is unclear; and that the considerations applicable to determining material detriment can be complicated.
30. The application of the material detriment test to the change of terms is doubly complex. It is not sufficient simply that it is theoretically possible that the change could be of some detriment to the Claimant. Rather it is necessary that the Claimant establish that that increase is of material detriment.
31. For the reasons stated above the Respondent denies that the Claimant as at all entitled, whether contractually or otherwise, to terminate his Agreement without charge, either for the reasons as indicated within his application or any other such reason. Therefore, the Respondent submits that the Claimant
　
is subject to the standard contractual termination clauses as per the applicable terms and conditions.
32. The Respondent denies that it has breached its Agreement and/or breached its duty of care to the Claimant. The Respondent remains of the view that the decision to increase its prices is a business decision and falls outside the remit of the Scheme. Accordingly, as the subject-matter of the complaint falls outside the remit of the Scheme the Respondent did not issue the Claimant with a deadlock letter. However, as above, the Respondent remains of the view that the decision to increase its prices is outside the remit of the Scheme.
33. The Respondent submits that the Claimant is free to cancel the Mobile Number by giving notice to cancel at any time. However, as the Claimant is within the minimum term period in respect to the Mobile Number he would be liable for a cancellation charge in the sum of £518.95 (reducing on a daily basis) should he terminate the Mobile Number within the minimum term period.
34. The increase in charges does not take effect until 28 May 2014 and therefore as at the date of the Claimant’s application and the Defence the Claimant has not been charged any additional charges and therefore a refund is not applicable, such being denied that the Claimant is entitled to such refund in any event.
　
35. The Respondent denies that it has breached its Agreement and/or breached its duty of care to the Claimant. As provided for by way of Annex 4 to General Condition 14, the Respondent is not required to issue a written deadlock letter when requested by a complainant where the subject matter of the complaint is outside the jurisdiction of the Respondent’s Alternative Dispute Resolution scheme. The Respondent remains of the view, and as previously stated by CISAS, that the decision to increase its prices is a business decision and falls outside the remit of the Scheme. Accordingly, as the subject-matter of the complaint falls outside the remit of the Scheme the Respondent did not issue the Claimant with a deadlock letter.
36. The Respondent has provided a response to the Claimant in a timely fashion and that such response has been consistent. Whilst the Claimant’s appears to dislike the content of such response it does not follow that the Respondent has breached its duty of care to the Claimant. The Respondent denies that it has failed to address each aspect of the Claimant’s claim and that in any event the Respondent submits that its position remains unaltered and that it does not accept the Claimant’s arguments that such response entitles them termination without charge and/or compensation it the sum of £100.00.
37. Save as is denied in any event, the Respondent submits that the Claimant’s only recourse should the increase be in excess of RPI is to termination of the Agreement without paying a cancellation charge. The Respondent submits that the Claimant is not entitled to seek an unlock code for any handset associated with the Agreement and such is not a remedy as provided for by way of the Agreement. The Respondent denies that it is liable to the
　
Claimant with regards the facilitation of an unlock code for the handset, either as free of charge or chargeable. There is no contractual obligation to unlock a handset at any stage before, during or after termination of the Agreement and the Claimant is hereby put to strict proof thereof.
38. The Respondent denies liability to the Claimant as pleaded or at all, either contractually or otherwise.
The Respondent believes that the facts stated in this form are true. I am duly authorised by the Respondent to sign this statement.
Dated the 20 May 2014
Rue Kandi
Legal Executive
For and on behalf of the Respondent whose address for service is at:
EE Limited 1 Trident Place Mosquito Way Hatfield Hertfordshire AL10 9BW
[/FONT][/FONT]

JonSpittle

Hi all, sorry very late to the party - is it still possible to follow this process or am I too late? I did an upgrade last Sept with Orange but then migrated to EE a month later....appreciate any advice.
Thanks

Wallace231

Hi to all!
I accepted the CISAS decision on the 1st of May and received confirmation from CISAS on the 7th of May.
Iv still not received a text or email from T-Mobile with my PAC code, is it worth chasing T-Mobile up for this or should I just wait until the deadline of the 4th of June?
Thank you

jakethepeguk

@Wallace
They take their time mate, I received the pac on my first contract 3 days prior to their date they had been given.
I have another due from them by the 24th and have still not received anything.

Mary_Whitehouse

I won my case and are going to bide my tim eto accept the decision.

Two questions:-

Do I keep the phones or send them back to Orange (they are both Iphones).

The Adjudicator made no mention of a PAC code presumably I just request them from Orange before I accept the Adjudicator's decision ?

jakethepeguk

the phones are yours to keep.
I would contact cisas reference to the pac codes, I cant imagine, EE will give up the pac code without being told they have to.

littlestar1974

My response to EE's defense of my claim (!) has been processed by CISAS today and my adjudicator for a post-Oct 2012 Orange contract is Eisei Higashi.

I noticed on the updates people have been successful on all his cases thus far so fingers crossed. I'll let you know how it goes

RandomCurve

sarahdonnelly wrote: »

Hi Random Curve,


I received the EE defence below, but it seems different to other defences I've read on this thread. There's no mention of a V58/V59 contract and I'm finding their defence very confusing! I've used all of your template letters so far, could you point me in the direction of which one I should be using? I'd be very grateful! Thanks

Well EE have argued so many points in so many different ways I can't tell if you submitted a claim due to the change in T&Cs or a claim due to the price increase - can you clarify for me pleases so I know which way to refute their defence - and the best way to show EE in the worst light!!.

sarahdonnelly

RandomCurve wrote: »

Well EE have argued so many points in so many different ways I can't tell if you submitted a claim due to the change in T&Cs or a claim due to the price increase - can you clarify for me pleases so I know which way to refute their defence - and the best way to show EE in the worst light!!.

I know! I submitted a claim due to the March 2014 2.7% increase, I've rechecked my letters against the templates you've now put up on http://www.fightmobileincreases.com/fight-ee/fight-the-march-2014-price-rise/ and I've used the correct ones (in response to version 2).

I've been assigned Jean-Marie Sadio to my case, not a name I've come across on here yet.

Thank you so much for your help! Much appreciated

SimonD316

Following on from my previous posts Orange have paid up in full, and my account is closed

For anyone wondering my CISAS timeline is below:

• 25th Feb - Sent application
• 4th March - Case sent to EE for Defence. Deadline 18th March
• 18th March - 5 day extension granted - Deadline 25th March
• 26th March - Defence received
• 28th March - Responsed to Defence
• 31st March - Adjudicator Assigned
• 7th April - Decision Received, and accepted (already found new deals, so wanted to move ASAP)
• 14th April - Confirmation decision has been accepted received
• 3rd May - PAC received
• 6th May - PAC used
• 8th May - Compensation cheque received
• 9th May - Account closed
• 22nd May - Refund cheque received

There seems to be some confusion, and cross thread posting. My claim was due to the change in T&C's announced in February.

Massive thanks to everyone who has provided input to this, but especially to RandomCurve.