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

SimonD316

Reading through this again, have EE shot themselves in the foot here?

BananaPilot wrote: »

Part 2
35.2. 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.

They are saying the Old Term was not clear?

Ed13P

SimonD316 wrote: »

Thanks BananaPilot that's a very interesting reply.

I assume your a T-Mobile customer from the references to clause 7.2.3.2?

Yeah, would be helpful to know who you are with.

Bimmermad

Looks like SCC it is then!! If this is too complicated for CISAS surely ignorant customers like us don't stand a chance.

SimonD316

I've just received my Defence - Very similar to BananaPilot's but signed by another person.

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 XXXXX 2012. The Claimant was registered with the Respondent as a consumer and was allocated account number XXXXXXXX (“the Account”) upon connection. The Respondent submits that the Claimant has two active mobile telephone numbers on the above account, being XXXXX XXXXXX (“the First Mobile Number”) and XXXXX XXXXXX (“the Second Mobile Number”)

5. On XXXXXXXX 2012 the Claimant entered into a Service Agreement with the Respondent following a change of ownership request, the Mobile Number was transferred to the Claimant and allocated to the Account. 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.

6. On XXXXXXXX 2012 the Claimant entered into a further Service Agreement with the Respondent via one the Respondent’s authorised retailers. Respondent’s authorised retailers. The Claimant was provided with the terms and conditions applicable to the Agreement at the point of entering into the 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 applicable to both the Claimant’s Agreements being the Orange Pay Monthly Network Terms and Conditions, version LEG300v14A. The Respondent submits that such terms and conditions relate to the original terms and conditions to the Agreement.

9. At Schedule 2 attached hereto is a copy of the amended terms and conditions –Version LEG300v14C, 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 LEG300v14A (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 AGREEMENTS
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 price plan (the main recurring monthly charge) gives a right to terminate without paying a cancellation charge.

14. The Respondent confirms that between the 29th January 2014 and 14th 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) (“the Written Notice”). Following the 14th 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 21st February 2014. The Respondent submits that this entire process was of course in compliance with the relevant notice requirement as per point 19.9 which provides as follows:-

19.9 All notices to be served in accordance with your Agreement 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. They will be deemed served 48 hours after they are sent, or on earlier proof of delivery. 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.

The Agreements prior to the Change
15. The Respondent refers to the terms and conditions at Schedule 1.

16. Prior to the changes in question, point 15.1 of the Agreements provided:

15.1 (a) We reserve the right to vary the terms of this Agreement from time to time, to restrict your right to cancel a change of Service Plan and to make changes to your Service Plan.

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 4.3.1 exceeded the rate of inflation as measured by RPI.

However this option to terminate without paying a cancellation charge does not apply if:

Old Term
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.

18. That term (“the Old Term”) contained an out-dated reference to the Central Statistical Office, which was liable to confuse consumers. It also allowed the Respondent to select “any 12 month period” over which inflation could be measured.

The Agreements after the Change

19. The Respondent refers to the terms and conditions as at Schedule 2.

20. The revised agreement provides as follows:

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 to terminate without paying a cancellation charge does not apply if:
4.3.1 the increase in 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 Statistical (calculated using the most recently published RPI figure before we can give you Written Notice under Clause 4.3).

21. The effect of this term (“the New Term”) continue to be that the Customer has right to terminate the Agreements without paying a cancellation charge if the price increase notified under Point 4.3.1 exceeded the rate of inflation as measured by RPI.

22. However, the changes (i) to make the term clearer by updated it to refer to the Office for National Statistics; and (ii) to make the term more certain by making clear that only the most recent RPI figures may be used for these purpose.

The Respondent’s right to change the terms of the Agreement
23. The Respondent is entitled to revise its Agreement terms pursuant to point 15.1(a) as set out above.

The Claimant has a right to terminate only if the change is of material detriment

24. The Agreements further provide that where a change notified under point 15.1 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.

25. Points 4.3 and 15.1(b) provide (so far as material) as follows:

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 to terminate without paying a cancellation charge does not apply if:

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 Agreement 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).

26. The Written Notice provided to the Claimant 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 Agreement 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. Alternatively, if and to the extent that the Claimant has suffered any marginal detriment, such detriment is not material.

30.1. 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.

30.2 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 15.1(a) and/or 15.1(b).

30.3 The Claimant has not identified such an alternative measure of inflation.

30.4 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 15.1(a) and/or 15.1(b) is not sufficient to be material.

I've ommited the drivel about it not being within CISAS's Remit...

What's really p$$$$$g me off is they talk about the change not being of material detriment throughout their "defence", but I'm on an Orange pre October 2012 contract, so clause 4.3 reads

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:

My contract only talks about detriment! :mad:

I'll be interested to see RandomCurve's response to this...

baldyj

Surely this:

BananaPilot wrote: »

35. Further or alternatively, the material detriment issue constitutes a complicated issue of law.

Goes against this:

UTTCRs wrote:

Under the UTCCRs Regulation 7 states that:

(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under Regulation 12.

??

ed_209_2

If all the extensions and requests for extra time is the best EE can come up with then they are screwed. They have not answered any of the arguments and the UTTCRs have them bang to rights.

I look forward to my CISAS response and replying to them... even if CISAS don't adjudicate, I look forward to my day in the small claims court.

BananaPilot

I am on an EE contract, started in September 2013.

Not had a chance to read the defence yet.

boatman

If the case is beyond the remit of CISAS, why do EE bother to respond, it should go straight to court. If it is too complicated for customers to understand the regulator need to demand amendments to the contracts to make them crystal clear for simpletons like us. OFCOM have already ruled on the meaning of material detriment, it is clear, you can't put the price up!!

ed_209_2

boatman wrote: »

If the case is beyond the remit of CISAS, why do EE bother to respond, it should go straight to court. If it is too complicated for customers to understand the regulator need to demand amendments to the contracts to make them crystal clear for simpletons like us. OFCOM have already ruled on the meaning of material detriment, it is clear, you can't put the price up!!

This is so true. Its plain and simple... EE themselves agree in their response that a situation of RPI being greater than CPI can give grounds to a termination but then argues this difference is not material.

Its corrupt and a disgrace, but this response makes me very confident in pursuing this to the bitter end.

baldyj

BananaPilot wrote: »

18. The effect of Clause 7.2.3.3 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”) or another statistical measure of inflation selected by the
Respondent.

They may have meant it like this, but the clause doesn't read like this!

9. 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.

The term didn't/doesn't allow the EE to choose anything. It is clear that the rise couldn't be more than RPI or any other rate of inflation!

31. 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.

If out of date and confusing references have been removed, then they have changed unenforceable terms into enforceable terms - this is to our material detriment!

32.4. 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 Clause 7.2.3.2 is not sufficient to
be material.

On what basis? What do they define as material? They have already stated that it is a complicated matter of law, so how can they state this without any evidence to back it up?