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

sshariff

RandomCurve wrote: »

I know this is the devil in me but....


For the hell of it why not email CISAS and say that you are not sure if you can respond by the 4th - can they extend the deadline to 7th?


You don't have to miss the 4th, but it would be very interesting to see what they say!

Done! See my response below:

Dear CISAS,

As per your email, you have provided me with 5 working days i.e. until the 4th of April to respond back to the comments made by EE. Considering that you had already offered EE an additional 5 working days to respond beyond the initial deadline and also accepted their defence AFTER this deadline had elapsed; can you kindly also offer me an extension beyond the 4th so as to prepare for my response. I trust that this will be acceptable to you in interests of fairness to both sides.

Sincerely,

RandomCurve

A quick warning for ALL


Check that the T&Cs that EE submit to CISAS are YOUR T&Cs.
When I fought them over the T-Mobile price rise of 2013 T-Mobile provided the pre 30 Oct 2012 T&Cs as evidence and claimed that was what was on their billing system - I took my contract out mid December 2012!! The adjudicator agreed with me straight away that I had the right to expect that I was on the post 30th October 2012 T&Cs.


Of course if they EE mess it up to your favour (I've seen them do that too) then just accept your good fortune!

RandomCurve

sshariff wrote: »

.... I think ultimately we will need to go to the SCC....

I am 99% sure that at SCC you would win, but I would not write off CISAS just yet. The EE defence is the most self-incriminating "legal" statement I have ever seen (although to be honest I don't see that many ).


What they are saying is that any price rise they have applied previously was unenforceable as they relied on an unfair contract term, that means you have up to 6 years to challenge EE and have the price rise refunded. So if you accepted the price last year, after this case is over you can go after them again to have the sums taken over and above your original contract price refunded - pennies maybe, but for EE - it is worth it!!!

sshariff

RandomCurve wrote: »

I am 99% sure that at SCC you would win, but I would not write off CISAS just yet. The EE defence is the most self-incriminating "legal" statement I have ever seen (although to be honest I don't see that many ).


What they are saying is that any price rise they have applied previously was unenforceable as they relied on an unfair contract term, that means you have up to 6 years to challenge EE and have the price rise refunded. So if you accepted the price last year, after this case is over you can go after them again to have the sums taken over and above your original contract price refunded - pennies maybe, but for EE - it is worth it!!!

Thanks, can you please put up a draft for the pre 31 Oct 2012 contracts as well when you get the time?

sshariff

I can't believe EEs response, honestly. Are they shooting themselves in the foot? I am bemused with the following two points (Pre Oct 2012)...

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.

33.1 A proper resolution of the case would require CISAS to consider (i) the proper construction of the Old Term, as a matter of Agreement; (ii) the proper construction of the New Term, as a matter of Agreement; (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. 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.

At one point they are saying that both the old and new clauses refer to RPI and then in the next point they are confirming that the old terms actually don't make it clear which statistical method of inflation they should be using!!! Actually they are correct in point #33.1 as the old clause never referred to the RPI that we know of today as it was for an outdated body!

Doesn't this make their entire defense useless as they have nullified their two main sections of defence altogether (Defense 1 - The Change is not of material Detriment and Defence 2 - It is outside CISAS scope as it involves a complicated issue of law)?

RandomCurve

I don't believe it - I think I have found a definition of Material Detriment from Ofcom which means that any change in T&Cs that is not either Neutral, or to my benefit is of Material Detriment - i.e. ANY detriment (however small) is Material!!


I'll post it here for you guys to either jump for joy - or shoot me down!


Be critical and honest in your assessment as I would rather you guys shot me down then EE and CISAS

Lifes_Grand_Plan

sshariff wrote: »

Done! See my response below:

Dear CISAS,

As per your email, you have provided me with 5 working days i.e. until the 4th of April to respond back to the comments made by EE. Considering that you had already offered EE an additional 5 working days to respond beyond the initial deadline and also accepted their defence AFTER this deadline had elapsed; can you kindly also offer me an extension beyond the 4th so as to prepare for my response. I trust that this will be acceptable to you in interests of fairness to both sides.

Sincerely,

IMHO I think the above is likely to just like you are being arsey to CISAS. I would have been more inclined to e-mail them and ask why after the initial deadline, and after the extended deadline, they are still willing to accept a defence from T-Mobile and that the defence should be disregarded and the case decided on all information submitted by either party BEFORE the applicable deadlines.

RandomCurve

Honest views please - have I found an Achilles heal - or am I to eager to find a solution???


What does material detriment mean – Regulatory Context


In the regulatory context regardless of what is in EEs T&Cs under GC 9.6 I have a right to terminate my contract penalty free as follows:

GC9.6:
“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.”

As EE point out there is no guidance within GC9.6 as to what constitutes Material Detriment so we need to understand why the Term “likely to be of Material Detriment” is included within GC 9.6 and guidance from the source documentation of GC 9.6.

In the Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in November 2013 Ofcom explain the rationale for including the term at paragraph 3.6 as follows:

“…..Ofcom and, before us, OFTEL has included a material detriment requirement in the relevant part of GC9. Our intention was to reflect our general duties and principles of good administration and proportionality in particular. We sought, in light of these, not to rule out contract variations altogether. For example, those beneficial to, or having a neutral impact on, a subscriber.”

So to determine if this change is likely to be of Material Detriment to me we only need to consider if the change is beneficial or neutral to me. Obviously if an impact of a T&C is neutral (both for the company and the consumer) then there is absolutely no point in EE going to the trouble and expense of making the change (apart from legislative reasons – which are not factor in this case) so we can discount the “neutral” element. This only leaves the question of if the change is to my benefit, and if it is not to my benefit then – by Ofcom’s definition – it is to my material detriment.

RandomCurve

Lifes_Grand_Plan wrote: »

IMHO I think the above is likely to just like you are being arsey to CISAS. I would have been more inclined to e-mail them and ask why after the initial deadline, and after the extended deadline, they are still willing to accept a defence from T-Mobile and that the defence should be disregarded and the case decided on all information submitted by either party BEFORE the applicable deadlines.

That would not have worked because the adjudicator (once assigned) can hold the proceedings up if they want to wait for a company response.


Would appreciate your views on my logic re Ofcom's definition of Material Detriment

rufio1408

As someone who is on a later version of the Orange contracts (took mine out last may) and who has not yet submitted a CISAS case (final contact with EE was 3 weeks ago but work has been hella busy!)

Is there anything different to the template that i should include, any additional information etc...