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

RandomCurve

Okay I am happy with this defence response which is for PRE 30th October contracts for ORANGE - where you have the DETRIMENT (not material detriment) term at 4.3 and 15.1 b) of your contract.. It is written on the basis that you have used the templates that I have provided before, so if you have deviated from those please check that the points in this defence response are valid and correct them where necessary to make the response fit your circumstances. Also note that the Paragraph numbers (in red) may differ from the defence you received so please check and amend as necessary - the numbers in this defence reference SimonD316 defence at post #626 on page 32

The text in blue is optional remove or leave it in (change the colour to black) - I don't think it will make any difference either way!

One final Caveat as always - I am not legally trained - you do not have to use the template below you can create your own responses.

This is going to be 3 posts!


EE state that they believe this falls outside of the remit of CISAS, however as the change in T&Cs will have a direct impact on the amount EE will bill me for the provision of telecommunications service it clearly is connected with both the billing for and provision of telecommunications services and therefore should fall within CISAS’ remit.

Ofcom have confirmed this - determination of material detriment - should fall within the remit of an ADR in a letter dated 12th March from Lynn Parker (Director of Consumer Protection) who can be contacted at [EMAIL="lynn.parker@ofcom.org.uk"]lynn.parker@ofcom.org.uk[/EMAIL] for confirmation:

“Under sections 52 and 54 of the Act, and through General Condition 14.5, we require all Communications Providers (“CPs”) to be a member of an approved ADR scheme. We currently approve two schemes: Ombudsman Services: Communications (”OS”) and the Communications and Internet Services Adjudication Scheme (“CISAS”) (“the Schemes”). We cannot and do not intervene in or overturn decisions made by the Schemes. Section 54 (2)(a) of the Act requires Ofcom to be independent from them.

Subject to the above, it appears to Ofcom that your dispute with EE is about the application of General Condition 9.6 (“GC 9.6”). That is, whether it has made a materially detrimental modification to its terms and conditions and properly applied that Condition. You say it has made such a change but not complied with the Condition. It disputes that.

If that is so, that appears to Ofcom a matter that, in principle, may be subject to ADR. We have corresponded with CISAS, which agrees, and, we understand, has told EE so (meaning it should issue letters enabling access to ADR).

You should now pursue the matter with EE and CISAS. It will be for CISAS to decide whether it can consider your specific case (i.e. is it a case falling within the general principle described in the previous paragraph). If so, it will also decide if your complaint has merit. Clearly, these points depend on the specific facts. The outcome is not guaranteed and Ofcom has no role in it.”

RandomCurve

I would refer the adjudicator to my claim in the main.

Before responding to EEs defence I would like to remind the adjudicator that under the terms of my contract I am entitled to a penalty free cancellation if a change in T&Cs is to my detriment – there is no material detriment requirement at either clause 4.3, or 15.1 (b) as follows:
terminating your Contract because Orange has changed its terms
4.3 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,…..”
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.

I am unclear as to why EE have submitted a defence claiming that the change is not of material detriment, as this is irrelevant to my claim.

EEs Defence document is full of inaccuracies, half-truths, and guilty of deceit by omission, and is also factually incorrect in parts – as I will show. I will address EEs defence with reference to their numbered paragraphs.

Paragraph 8 states that I am on version LEG300v14A of the contract – and I agree that this is the – I would ask the adjudicator to read clauses 4.3, and 15.1(b) and compare those with the new clauses in LEG300v14c and how EE have quoted selectively from these documents at paragraphs 16 and 25 (clause 15.1 (b), and again at Paragraphs 17 and 20 (clause 4.3) to try and mislead the adjudicator.

Paragraph 11 – The first part of this paragraph is factually incorrect “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….”
Under the relevant clauses in my T&Cs (4.3 and 15.1 (b)) I can cancel penalty free if the change is of detriment to me –EEs defence is clearly factually incorrect, and designed to confuse this claim.
I will cover the regulatory meaning of Material detriment at GC 9.6 later.

Paragraph 11 – In the second part of this paragraph EE concede that there may be “marginal detriment” “11. As to the substance of this complaint, the…….. 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.
As any detriment gives rise to my right to a penalty free cancellation I should be able to leave my contract penalty free as per my claim

Paragraph 16 & 25
Paragraph 16 purports to quote the old clause relevant to the clause change, however EE have quoted clause 15.1(a) which is irrelevant as it is clause 15.1 (b) which contains the cancellation rights and clearly shows that I can cancel my contract penalty free if the change is of detriment: 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.
Further at Paragraph 25 – where EE quotes the new clause they are no longer quoting 15.1 (a) as it is irrelevant, but are quoting clause 15.1(b) which now of course has the term “Material Detriment”. This deliberate quoting of different clauses when comparing the old and new contracts is designed to have the effect that on a casual reading of the defence the impression is given that :

• Clause 15.1(b) has not changed and that ”Material Detriment” was always relevant (it was not); and
• Masks (on a casual reading) the fact the contract has been changed in EEs favour as (if I accept the change) I will be required to prove Material detriment rather than just detriment.

This change is clearly of material detriment to me and I should be able to cancel my contract penalty free as provided for by the terms of the contract.
EE have employed the same tactics at Paragraphs 17 and 25.

Paragraphs 17 and 25
Paragraph 17 – purports to quote the old clause relevant to the clause change; however EE have omitted clause 4.3 and have jumped straight to clause 4.3.1. The reason for doing this is that clause 4.3 clearly shows that I can cancel my contract penalty free if the change is of detriment 4.3 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,…..”
Further at Paragraph 20 – where EE quotes the new clause they now quote 4.3 and 4.3.1, but clause 4.3 now of course has the term “Material Detriment”. This deliberate quoting of selected clauses when comparing the old and new contracts is designed to have the effect that on a casual reading of the defence to give the impression that:

• Clause 4.3 has not changed and that ”Material Detriment” was always relevant (it was not) and
• Masks (on a casual reading) the fact the contract has been changed in EEs favour as (if I accept the change) I will be required to prove Material detriment rather than just detriment

This change is clearly of material detriment to me and I should be able to cancel my contract penalty free as provided for by the terms of the contract.

RandomCurve

Paragraph 18 – EEs admission that the current Clause 4.3.1allowed EE to select “any 12 month period” is likely to give a rise to a claim that the contract term for the price rise is not defined “narrowly, if not precisely “ under the UTCCRS:
(Group 12 – price variation clauses - 12.4 A degree of flexibility in pricing may be achieved fairly in the following ways
• Where the level and timing of any price increases are specified (within narrow limits if not precisely) they effectively form part of the agreed price……”
and is therefore potentially unenforceable, As the new term removes this potential for me to contest a price rise on these grounds the change is of detriment to me and I should be able to cancel my contract penalty free as provided for by the terms of the contract.

Paragraph 27 – EE refer to Material Detriment – this is irrelevant to my T&Cs as I only need to prove detriment.

Paragraph 28 – this is factually incorrect – under the old term I could cancel my contract if the price rise was higher than the “All Items Index of Retail Prices” not RPI. As the All Items Index is no longer published effectively EE could not impose any increase without a legal challenge, under the new terms I have lost the right to make that challenge, which is of detriment to me, as under the UTCCRs both sections 12 and 13 potentially offered me protection as follows:

(Group 12 – price variation clauses - 12.4 A degree of flexibility in pricing may be achieved fairly in the following ways
• Where the level and timing of any price increases are specified (within narrow limits if not precisely) they effectively form part of the agreed price……”
And Group 13:
Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.

13.5 Right to decide the meaning of terms. Similarly, if a supplier reserves the right to decide what a term in a contract means, then he is effectively in a position to alter the way it works so as to suit himself. It is not sufficient to say that the supplier will act 'reasonably'. Such a term gives rise to the same objections as a right to vary terms generally

Paragraph 29 – EE again admit that the current price rise may not be enforceable due to non-compliance with the UTCCRS (Group 19) in that it is not in plain and intelligible language (“potentially confusing refrences”). The change in T&Cs reduces my scope to challenge EE on this point and is therfoe to my detriment.
Under the UTCCRs Group 19 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

Paragraph 30 – EE admit that potentially there is some detriment to me – and under our contract I am therefore entitled to a penalty free cancellation as three has been detriment.

Paragraph 11
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.”

The meaning of Material Detriment can be determined by understanding why the Term “likely to be of Material Detriment” was 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 ““likely to be of Material Detriment” 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 (eg VAT changes) – which are not a factor in this case). In this case the change is not neutral as whilst I may benefit from having clearer T&Cs that benefit is outweighed by the benefit accruing to EE in that I now have less scope to challenge EE on future price increases and T&C changes as I am required to prove Material Detriment rather than just detriment, so it is clearly not neutral. 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 and under GC 9.6 EE are required to give me a penalty free cancellation.

As I have clearly stated above the new clearer terms in relation to the price rise at clause 4.3.1 reduce my scope for challenging future price rises and are therefore not to my benefit and – under Ofcom’s definition are to my material detriment. Additionally the changes at clauses 4.3 and 15.1 (b) where I am now required to prove Material Detriment rather than detriment in a contractual context is clearly not to my advantage and again under Ofcom’s definition of Material detriment under GC 9.6 EE are required to offer me a penalty free cancellation.



Whilst EE have tried to “sell” this change as a benefit to me as it makes the terms clear, this very fact reduces my potential to challenge future price rises and changes in T&Cs as it was the clauses very ambiguity and bad drafting that has caused EE to revise its T&Cs and if my potential rights to a penalty free cancellation are reduced the change is obviously not to my benefit – in fact it is of a significant material detriment.

The above interpretation of Material detriment by Ofcom in relation to a change in T&Cs is entirely consistent and therefore reinforced by the USD 20/2 and can also be verified by reference to the Ofcom publication “ Price rises in fixed term contracts - Decision to issue Guidance on General Condition 9.6”, Published in November 2013 paragraph 3.5:

GC9.6 is included pursuant to section 51(1)(a) of the Act and is intended to give effect to Article 20(2) of the Universal Services Directive (“USD”) (Directive 2002/22/EC, as amended by Directive 2009/136/EC)31 which requires that:

“Member states shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions.”



Reasons for compensation

At Para XX EE have tried to deflect my claim for compensation by claiming that my dissatisfaction arises purely from the fact that EE have refused to allow me to cancel my contract without penalty –this is factually incorrect. It is clear from this that EE have deliberately ignored the well laid out reasoning for my compensation claim and they have not tried to refute the reasoning on a point by point basis – this is indicative of the approach EE have taken from the outset of this matter:

• EEs response to my initial letter requesting cancellation due to a change in T&Cs was responded to by an email claiming that EE have not increased prices – I have asked them to explain why they referenced a price rise in their response and ignored my reference to a change in T&C’s, as my email made no mention of a price rise - to date they have declined to offer an explanation and I can only assume it was a deliberate attempt to deflect me from the issue regarding T&Cs – which is considerably more serious than the lack of duty of care that I am claiming.
• EE have yet to explain under what Ofcom guidance they have acted – I have highlighted the guidance in my claim which I believe they are referencing – this guidance clearly shows that the benefit of the change actually falls to EE as it makes the price rise clause more likely to be enforceable, but EE have never outlined the benefits to them (and have not in their entire defence as that would clearly show that the change is to EEs benefit and therefore to my material detriment), so EE have been disingenuous with the reason for the change in T&Cs in all of my dealings with them.
• EE have assumed the right to determine what is of detriment to me - which the UTCCRs Schedule 2 Paragraph 1 (m) specifically bar them from doing. Additionally EE have never explained to me the criteria they have used to conclude that this is not to my detriment despite me requesting this information – they simply repeat that EE do not “consider this to be a change which is of material detriment”
  I therefore request that the adjudicator notes the real reasons that I am seeking compensation on this matter and treats EE claims at paragraph 38 as further evidence of EEs attempts to cause frustration over this matter.

RandomCurve

I will need to tweak the CISS cases submissions as posts #267/269 (minor) and post #385 to allow for the addition of the word "Material" into clause 4.3 and 15.1 (b).


PRE October 30th 2012 ORANGE customers:
When EE published the changes I recall they clearly showed the new price variation clause re using RPI on the "front page", but did they also mention that they had changed "Detriment" to "material Detriment"?


I'll let you know when the tweaks are made.

GolfBravo

RC, I'm really worried about you now.

Your last 5 posts.

Written b/w 2am and 3:25am? Really?

I think we all owe you a lot of :coffee: when this is all sorted out.

sshariff

GolfBravo wrote: »

RC, I'm really worried about you now.

Your last 5 posts.

Written b/w 2am and 3:25am? Really?

I think we all owe you a lot of :coffee: when this is all sorted out.

Didn't you know that super heroes stay awake at night and sleep during the daytime! This makes sure that all the plotting that the criminals at EE do during the daytime gets taken care by night time so that we are ready for the next day!

sshariff

RandomCurve wrote: »

PRE October 30th 2012 ORANGE customers:
When EE published the changes I recall they clearly showed the new price variation clause re using RPI on the "front page", but did they also mention that they had changed "Detriment" to "material Detriment"?

This is the exact message sent taken from http://terms.ee.co.uk/Orange-TC14.html. Note that they only told us that they have changed clause 4.3.1; however the cheeky !!!!!!s amended clauses 4.3 and 15.1 to include "material" detriment!

We’re making some changes to the terms and conditions for your Orange plan regarding the notification of price changes. The new terms will take effect from 26 March 2014.

Please see below the updated clause which gives you more clarity around the circumstances in which you are unable to cancel as a result of a price change.

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).

You can view your new terms and conditions in full here.

wild_tiger

50Twuncle wrote: »

I think that you know the answer to that already ?

I thought it might have already been covered on this thread and I didn't want to start a new thread however I see someone else has started a new thread.

Sorry

sshariff

Recieved response from CISAS on my comments. The waiting game begins....

Case No: XXXXXX - Mr X v Everything Everywhere LTD (EE)
We acknowledge receipt of Comments on Defence from the Claimant a copy of which is enclosed for the Company.

The parties are advised that Ms Z has been appointed as adjudicator and that all of the case papers received have been forwarded for consideration.

We will contact the parties again upon receipt of the Adjudicator’s Decision unless, in the meantime, the Adjudicator requires any clarification on any issues contained within the case papers.

Yours sincerely

Sunnyhaze

Does anyone know how long it takes on average for the adjudicator to reach a decision? I've never felt so nervous haha