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

Wallace231

How about i don't understand very well everything that i reed since i am a foreigner and i don't understand English perfectly.
Sorry to bother you but i am just looking for the best advise i can have.
Visited post #744 on this very page !
Thank you and sorry again ....

baldyj

Wallace231 wrote: »

How about i don't understand very well everything that i reed since i am a foreigner and i don't understand English perfectly.
Sorry to bother you but i am just looking for the best advise i can have.
Visited post #744 on this very page !
Thank you and sorry again ....

Well you seem to have understood it pretty well so far if you have submitted a CISAS claim!

persil33

this is the defence I have just been sent
not seen one for tmobile pre 2012
I have pre and post 2012 on tmobile
have to split into two posts

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 registered as a domestic consumer since 4 July 2012 in
respect to the account number ****** (“the Account”). The Claimant
currently has two active Service Agreements (“the Agreements”) in respect to
the following mobile numbers;
(i) Mobile number *********(“the First Mobile Number”) which was first activated on 4 July 2012 and;
(ii) Mobile number *********(“the Second Mobile Number”) which was first activated on 11 April 2013.
5. The Claimant entered into a Service Agreement (“the First Agreement”) with
the Respondent in respect of the First Mobile Number via one of the
Respondent’s authorised retailers. The Claimant was provided with the terms
and conditions applicable to the First Agreement at the point of entering into
the First Agreement.
6. The Claimant entered into a further Service Agreement (“the Second
Agreement”) with the Respondent in respect of the Second Mobile Number on
11 April 2013 via one of the Respondent’s authorised retailers. The Claimant
was provided with the terms and conditions applicable to the Second
Agreement at the point of entering into the Second Agreement.
7. The Respondent avers that, at all material times, the Claimant was made aware
that the Mobile Numbers were subject to terms and conditions, which were
offered to the Claimant prior to entering into the Agreements and were also
available for viewing on the Respondent’s website. The Claimant was also
made aware that the Mobile Numbers were subject to minimum term periods.
8. 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.
9. 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.
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 Agreements, as per the terms and
conditions. 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.
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 the following:
a) Terms and Conditions Version Number 58 (“CVN58”)
b) Terms and Conditions Version Number 59 (“CVN59”)
c) The change to the Agreements;
d) The Respondent’s right to change the terms of the Agreements;
e) The Claimant’s right to terminate following a change if the change is
of material detriment;
f) Why the change is not of material detriment to the Claimant;
g) Why the dispute falls outside CISAS’ remit and/or is not
appropriately resolved by CISAS.
Terms and Conditions Version Number 58 (“CVN58”)
13. The Respondent submits that the First Mobile Number is currently subject to
the CNV58 effective from July 2010. At Schedule 1 attached hereto are
copies of the Terms and Conditions for CVN58. The Respondent submits that
such terms and conditions relate to the original terms and conditions to the
First Agreement for the First Mobile Number.
14. At Schedule 2 attached hereto is a copy of the amended terms and conditions –
Conditions Version Number 58C (“CVN58C”) to be subject to the First
Agreement for the First Mobile Number and take effect as of the 26 March
2014.
Terms and Conditions Version Number 59 (“CVN59”)
15. The Respondent submits that the Second Mobile Number is currently subject
to the CNV59 effective from October 2012. At Schedule 3 attached hereto are
copies of the Terms and Conditions for CVN59. The Respondent submits that
such terms and conditions relate to the original terms and conditions to the
Second Agreement for the Second Mobile Number.
16. At Schedule 4 attached hereto is a copy of the amended terms and conditions –
Conditions Version Number 59A (“CVN59A”) to be subject to the Agreement
for the Second Mobile Number and take effect as of the 26 March 2014.
17. The amendment of terms was introduced in light of comments expressed by
Ofcom regarding the Respondent’s terms and conditions CVN59 with the
intention of increasing certainty for consumers and is to the Claimant’s benefit.
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 plans for the First and Second Mobile Numbers (in respect to
the main recurring monthly charge) give a right to terminate the Agreements
without paying a cancellation charge.
14. The Respondent confirms that between 29 January 2014 and 14 February 2014
the Claimant was notified by SMS as to the amendment of the original terms
and conditions (at Schedules 1 and 3) to the amended terms and conditions (at
Schedules 2 and 4). Following 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 21 February 2014. The Respondent submits that
this entire process was of course in compliance with the relevant notice
requirement as per the original terms and conditions.
15. The Respondent submits that the applicable terms to the Agreements, as set out
in CVN58 and CVN59, differ prior to 26 March 2014. Therefore, for ease of
use the Respondent deals with the applicable terms for CVN58 and CVN59
separately below. Paragraphs 16-20 relates to terms set out within CVN58 and
paragraphs 21-27 relates to terms set out within CNV59.
The Agreement prior to the Change – CVN58 only
16. The Respondent is referred to the terms and conditions at Schedule 1.
17. Prior to the changes in question, point 7.1.4 of the First Agreement provided:
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.
18. The First Agreement further provided that the Claimant has a right to terminate
the First Agreement without paying a cancellation charge where a price
increase notified under point 7.1.4 was of material detriment to the Claimant
(point 7.2.3.2) or exceeded the rate of inflation (point 7.2.3.3).
7.2.3. A Cancellation Charge won’t apply if You are within the
Minimum Term and:
…
7.2.3.2. You are a Consumer and the change that We gave You
Written Notice of in point 2.11.2 or 7.1.4 above is of material
detriment to You and You give Us notice to immediately cancel this
Agreement before the change takes effect; or
7.2.3.3. The change that We gave You Written Notice of in point 7.1.4
is: (i) an increase in Your Price Plan Charge (as a percentage)
higher than any increase in the Retail Price Index (also calculated as
a percentage) for the 12 months before the month in which We send
You Written Notice and You give Us notice to immediately cancel this
Agreement before the change takes effect.
19. Point 7.2 is referred to below as “the Old Term”.
20. The effect of point 7.2.3.3 in CVN58 was that the Claimant would only have a
right to terminate the First Agreement if the price increase was higher than the
retail price index (“RPI”).
The Agreement prior to the Change – CVN9 only
21. The Respondent is referred to the terms and conditions at Schedule 3.
22. Prior to the changes in question, point 7.1.4 of the Second Agreement provided:
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.
23. The Second Agreement further provided that the Claimant has a right to
terminate the Second Agreement without paying a cancellation charge where a
price increase notified under point 7.1.4 was of material detriment to the
Claimant (point 7.2.3.2) or exceeded the rate of inflation (point 7.2.3.3).
7.2.3. A Cancellation Charge won’t apply if You are within the
Minimum Term and:
…
7.2.3.2. You are a Consumer and the change that We gave You
Written Notice of in point 2.11.2 or 7.1.4 above is of material
detriment to You and You give Us notice to immediately cancel this
Agreement before the change takes effect; or
7.2.3.3. The change that We gave You Written Notice of in point 7.1.4
is: (i) an increase in Your Price Plan Charge (as a percentage)
higher than any increase in the retail price index (also calculated as
a percentage) or any other statistical measure of inflation published
by any government body authorised to publish measures of inflation
from time to time, and published on a date as close as reasonably
possible before the date on which We send You Written Notice; and
(ii) You give Us notice to immediately cancel this Agreement before
the change takes effect.
24. Point 7.2 is referred to below as “the Old Term”.
25. The effect of point 7.2.3.3 in CVN59 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”). CVN59 provides a further condition that the Claimant
would also have a right to terminate the Second Agreement if the price increase
was higher than another statistical measure of inflation selected by the
Respondent. The purpose of including reference to another measure of inflation
in CVN59 was that, at the time of the drafting of this term, it was understood
that the Office for National Statistics was intending to cease publication of RPI.
26. 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.
27. It is not clear whether the Claimant contends that the Old Term allowed the
Claimant to cancel if the price increase notified was less than RPI but higher
than some other statistical measure of inflation. If and to the extent that the
Claimant does make such a contention, the Respondent’s position is that, on its
proper construction, point 7.2.3.3 allowed them to select the measure of
inflation which was to be used. Moreover, it would now be for the Claimant to
identify the statistical measure of inflation which it is said should apply under
point 7.2.3.3.
28. Paragraph 15 is repeated. The terms set out within the remainder of this defence
apply to both Agreements applicable as from 26 March 2014 in respect both the
First and Second Mobile Numbers, being CVN58C and CVN59A.
The Agreements after the Change
29. The Respondent refers to the terms and conditions as at Schedules 2 and 4.
30. The revised terms provide as follows:
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.
31. The effect of this term (“the New Term”) in both Agreements is that the
Claimant has a right to terminate the Agreements if the price increase is higher
than RPI, calculated using the most recently published RPI figures.
32. This change increases certainty for customers and reduces the scope for
disputes regarding whether a price change gives rise to a right to cancellation.
The Respondent’s right to change the terms of the Agreements
33. The Respondent is entitled to revise its Agreements terms pursuant to point
2.11 of the Agreements, which provides as follows:
2.11. We will make a copy of Our current version of these term and
conditions available on Our website. We can change these terms and
conditions for any good reason, for instance, if We want all customer
on the same conditions. We will tell You about the change
beforehand, as explained here.
2.11.1 We will make a copy of Our current version of these terms and
conditions available on Our website. We can change these terms and
conditions for any good reason, for instance, if We want all
customers on the same conditions. We will tell You about the change
beforehand, as explained here:
The Claimant has a right to terminate only if the change is of material detriment
34. The Agreements further provide that where a change notified under point
2.11.1 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.
35. Points 2.11 and 7.2 provide (so far as material) as follows:
2.11.2. If You are a Consumer and the change of terms and
conditions is not of material detriment to You or You are not a
Consumer, We will send You Written Notice 30 days before the terms
and conditions are due to change. The new terms and conditions will
automatically apply to You once that notice has run out.
2.11.3. If You are a Consumer and the change is of material
detriment to You, We will send You Written Notice 30 days before the
terms and conditions are due to change. The new terms and
conditions will apply to You once that notice has run out, unless You
terminate Your Agreement with Us within that notice period. If You
do this You won’t have to pay any Cancellation Charge that would
otherwise apply, see point 7.2.3.2.
…
7.2. Your termination rights
7.2.1. You can give Us notice to terminate this Agreement, to take
effect on or after the end of the Minimum Term. However (except as
set out in point 7.2.3 and 7.2.4) if, in our total discretion, We accept
notice from You to terminate this Agreement within the Minimum
Term, You will have to pay Us a Cancellation Charge and, if
applicable, the Additional Commitment Service Cancellation Charge.
…
…
7.2.3. A Cancellation Charge won’t apply if You are within the
Minimum Term and:
…
7.2.3.2. You are a Consumer and the change that We gave You
Written Notice of in point 2.11.3 or 7.1.4 above is of material
detriment to You and You give Us notice to immediately cancel this
Agreement before the change takes effect; or
36. Point 2.11 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 Agreements without penalty.

persil33

The Change is not of material Detriment
37. The Change is not of material detriment for the following reasons.
38. 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.
39. 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.
40. Alternatively, if and to the extent that the Claimant has suffered any marginal
detriment, such detriment is not material.
40.1. 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.
40.2. 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 7.2.3.2.
40.3. The Claimant has not identified such an alternative measure of inflation.
40.4. 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 7.2.3.2 is not sufficient to be
material.
THE DISPUTE FALLS OUTSIDE CISAS’ REMIT
41. 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 Agreements
by reason of the Respondent’s amendments to terms 7.1.4 and/or 7.2.3.3 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.
42. The Material Detriment Issue does not relate to any of the matters set out in
Rule 2a.
42.1. Bills: It does not relate to any bill issued by the Respondent to the
Claimant.
42.2. Customer Service: It does not relate to the quality of customer service
provided by the Respondent to the Claimant.
42.3. 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.
43. Further or alternatively, the Material Detriment Issue constitutes a complicated
issue of law.
43.1. A proper resolution of the case would require CISAS to consider (i) the
proper construction of the Old Term, as a matter of contract; (ii) the
proper construction of the New Term, as a matter of contract; (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.
43.2. 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.
43.3. 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
Agreements 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.
43.4. 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 customer.
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.
44. For the reasons stated above the Respondent denies that the Claimant as at all
entitled, whether Contractually or otherwise, to terminate his Agreements
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.
45. 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.
46. 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 the
terms of the Agreements. The cancellation charges currently stands at the sum of
£66.58 in respect of the First Agreement and the sum of £152.93 in respect of the
Second Agreement, reducing on a daily basis.
47. 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.
48. 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 1 April 2014
Helen Young
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 9B

Wallace231

Well you seem to be on this forum to cause problems and not to help each other. I have apologized and i will not take further discussion regarding post #749 if not for info on how to proceed with my claim.
Regards.

baldyj

Wallace231 wrote: »

Well you seem to be on this forum to cause problems and not to help each other. I have apologized and i will not take further discussion regarding post #749 if not for info on how to proceed with my claim.
Regards.

I am certainly not here to cause problems! I just (as previously stated) find it incredibly frustrating when people ask questions that have clearly been answered (sometimes more than once) before.


I'm absolutely all for helping each other, but I think people need to help themselves first.

baldyj

To those of you that have submitted your response to EE's defence, how quickly did you get an acknowledgment from CISAS?


I submitted my response on 31/03 (it had to be submitted by today at the latest) - but I have still not received any acknowledgment yet.

Dils47

i also submitted response on 31st, they have not email acknowledged but i rang them and they confirmed they have received it, and will be acknowledged soon,

im guessing they swamped

sshariff

Dils47 wrote: »

i also submitted response on 31st, they have not email acknowledged but i rang them and they confirmed they have received it, and will be acknowledged soon,

im guessing they swamped

I got it immediately next day, probably they are swamped.

baldyj

Dils47 wrote: »

i also submitted response on 31st, they have not email acknowledged but i rang them and they confirmed they have received it, and will be acknowledged soon,

im guessing they swamped

Thanks. I might just call them up tomorrow to make sure they have it.

I wonder how many claims they have had so far? Hopefully loads.