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

50Twuncle

https://forums.moneysavingexpert.com/discussion/comment/65129846#Comment_65129846
Anyone who wants to see Olaf embarrassing himself - see link

glasgowm148

Is there a template for pre-oct for tmobile?

baldyj

I echo all the others thanking you Random Curve! You have gone above and beyond the call of duty!

I have now submitted my response to the EE 'Defence', so it's back to the waiting game.

If CISAS were to rule in favour of EE I presume the next step is the Small Claims Court? In which case in order to access the court am I right in saying we would need to cancel our contracts, and therefore pay the early termination fee?

shafeeq

EE sent me their defence to the case.. I am joined orange October 2012. So thanks RC will use his defence.


Shafeeq

SimonD316

shafeeq wrote: »

EE sent me their defence to the case.. I am joined orange October 2012. So thanks RC will use his defence.


Shafeeq

Check which contract they refer to in their defence as there are two possible contracts from October 2012. You can easily tell which by looking in Clause 4.3 - if it does or doesn't mention Material Detriment.

shafeeq

This is the defence


COMMUNICATIONS & INTERNET SERVICES ADJUDICATION SCHEME
REFERENCE: *****
BETWEEN
*****
Claimant
and

EE LIMITED t/a ORANGE
(formerly EVERYTHING EVERYWHERE LIMITED)

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 9 October 2012.
The Claimant is registered with the Respondent as a consumer and was
allocated account number *****upon connection. The Respondent submits
that the Claimant has one active mobile telephone number on the above
account, being ***** (“the Mobile Number”).
5. On 9 October 2012 the Claimant entered into a Service Agreement (“the
Agreement”) with the Respondent. 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. A copy of the terms and conditions were
subsequently provided to the Claimant.
6. 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.
7. At Schedule 1 attached hereto is a copy of the Terms and Conditions
applicable to the Claimant’s Agreement 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.
8. At Schedule 2 attached hereto is a copy of the amended terms and conditions –
Version LEG300v14C, to be subject to the Agreement and take effect as of the
26 March 2014.
9. The Respondent submits that this dispute, as per the Claimant’s application,
arises from the Respondent’s amendment of the terms of the Agreement
between the Claimant and Respondent. The amendment changed the
circumstances in which a price rise gives the Claimant an automatic right to
terminate the Agreement, 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.
10. As to the substance of this complaint, the Respondent’s position is that it has a
general right to change the terms of the Agreement, 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 Agreement and the regulatory scheme to
terminate the Agreement 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.
11. 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.
12.
This response addresses below:
a) The change to the Agreement;
b)
The Respondent’s right to change the terms of the Agreement;
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 Agreement provides for a specific right for the Respondent to vary its
charges for services provided under the Agreement. 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 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) (“the Written Notice”). 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 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 Agreement 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 Agreement 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 Agreement further provided that the Claimant has a right to terminate the
Agreement 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 Agreement 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 Claimant has
right to terminate the Agreement 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 Agreement further provides that where a change notified under point 15.1
is of material detriment to the Claimant, the Claimant has a right to terminate
the Agreement 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.
THE DISPUTE FALLS OUTSIDE CISAS’ REMIT
31.
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 Agreement
by reason of the Respondent’s amendments to terms 4.3.1 and/or 15.1(a) 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.

32. The Material Detriment Issue does not relate to any of the matters set out in Rule
2a.
32.1
Bills: It does not relate to any bill issued by the Respondent to the
Claimant.
32.2
Customer Service: It does not relate to the quality of customer service
provided by the Respondent to the Claimant.
32.3
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.
33.
Further or alternatively, the Material Detriment Issue constitutes a complicated
issue of law.

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.
33.2
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.
33.3
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 Clamant.
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.

34.
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.
35.
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 that he was not entitled to.
36.
The Respondent submits that it will provide a Port Authorisation Code (“PAC”)
to the Claimant upon request, however it is the Respondent’s position that the
Claimant will remain liable for a cancellation charge in accordance with Points
4.2 and 4.3 of the Agreement. The applicable cancellation fee would be the sum
of £165.31, reducing on a daily basis for which the Claimant remains liable.
Remedies Sought by the Claimant
37.
As set out above, the Respondent denies that it is liable to cancel the Agreement
without payment of the relevant cancellation charge for the reasons set out
above. A PAC code can be provided to the Claimant however he will remain
liable for the cancellation charge as set out above.

38.
The Claimant claims the sum of £100 in compensation. The Respondent denies
that the Claimant is entitled to compensation in the sum of £100 as pleaded or at
all. If the Claimant had suffered actual loss he would have pleaded that damage
as a quantified sum and furthermore provided evidence to support such a claim.
The Claimant has not done so and as a consequence is not entitled to any
compensation. The Claimant is hereby put to strict proof as to his purported loss.
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.
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 31st March 2014
****
Legal Assistant
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

SimonD316

shafeeq wrote: »

This is the defence

That looks to be the same as my defence, so you need posts https://forums.moneysavingexpert.com/discussion/4888862 and https://forums.moneysavingexpert.com/discussion/4888862

RandomCurve

Letter to Ofcom regarding Orange not informing customers of the full changes - let's see if we get a response.


Dear Lynn,


Over the weekend I was assisting some Orange customers prepare a response to the defence submitted by Orange in response to their CISAS case regarding the change in T&Cs being to their detriment. It became apparent whilst preparing that response that Orange have not only changed clause 4.3.1 which is the clause regarding the inflation statistic and publishing body, but they have also changed clauses 4.3 and 15.1. (b).


The significance of this is that under the old clauses (Contract version LEG3000v14A) customers could cancel their contracts penalty free if a change was of DETRIMENT to them, the revised clauses state customers can only cancel penalty free if a change is of MATERIAL DETRIMENT – a significant difference and literally “Material”.


The above raises questions as to the criteria applied by Orange to determine what constitutes material detriment to their customers under GC 9.6 as it appears that Orange are interpreting that to mean that nothing they do is of Material Detriment. It also raises the question of what disclosures are required by Orange when they change their T&Cs (and I would welcome Ofcom’s views) are they:

• Required to highlight all changes;
• Highlight just the changes they want to draw your attention to AND make it clear that there are other changes, or
• Highlight just the changes they want to draw your attention to
  
  

Orange have opted for option “C” above as their website (see below or follow link http://terms.ee.co.uk/Orange-TC14.html.) only suggests that they have changed cause 4.3.1 and does not give any indication that other clauses have changed.

• Can you please clarify to me the regulatory requirements for consumer protection that Orange is required to follow when changing T&Cs?
• The regulations requiring Orange to display a duty of care and to act in Good Faith?
• Confirm that the regulations as they stand allow Orange to effectively focus attention away from changes they would rather customers did not spot?
  

This also begs the question – are customers expected to compare revised contracts line by line for changes? - again I would welcome Ofcom’s view.

I thank you in advance for a full response to the questions raised on this ongoing matter, and if there are any points above where you are unclear as to the question being asked please do not hesitate to contact me on 07xxx-xxxxxx and I will be happy to clarify.

Kindest Regards

RandomCurve

50Twuncle wrote: »

https://forums.moneysavingexpert.com/discussion/comment/65129846#Comment_65129846
Anyone who wants to see Olaf embarrassing himself - see link

Thanks for sharing this - are you admitting to being Olaf?

RandomCurve

Another update to help you find your way around
For anybody who has yet to send the email at #44 you may still be able to send as the contracts contain the following clause:

"If either party delays or does not take action to enforce their rights under this Contract this does not prevent either party from taking action later" - so go for it!!!

Email 1 - Original cancellation request is at post #44
All Orange and T-Mobile clauses are at post #57
EEs response to email 1 is at post #65
Email 2 - response to EE is at post #68
EE response to email 2 is at #73 OR #98
Email 3 - response to EE is at post #110 or #111 for post #73
Email 3 - response to EE is at post #116 for post #98
Post #402 if you want to "force" a deadlock notice from EE - only to be used when you have an email saying that EE will no longer communicate with you.



A CISAS guide to read BEFORE sending ANY of the CISAS templates #266
CISAS Template #267 and #269 for POST 30th October contract holders for Orange, T-Mobile, and EE
CISAS Template #383 for T-Mobile PRE 30th October 2012 contract holders
CISAS Template #385 for ORANGE PRE 30th October 2012 contract holders



Response to EE/Orange/T-Mobile defence document post 30th October 2012 page 35 #688 and #689
Response to Orange pre 30th October 2012 if your contract only states detriment in clause 4.3 (LEG300v14A) page 36 post #703 to #704


I will reword posts #385 and #267/9 shortly