Court Action Against Tmobile - I need advice

grumbler

Buzby wrote: »

You keep stating this with no evidence.

So do you. For me it's just common sense.

A contract needs to be explicit - the tariff is variable and is not stipulated.
The contract will refer to the tariff and its subject to change, following your logic, since the contract does not state pricing, you could argue you shouldn't pay anything!

It is stipulated and so are the limits of the variations. There is no point in setting the limits if the base price isn't a part of the contract.
Nothing is more explicit than the base monthly price, what it covers and the yearly limits for the price variation.
For out-of-allowances prices it's a little less clear as some vague terms like 'detrimental effect' are often used, but for this particular case this is absolutely irrelevant.

Neither does a contract exist for the time period of the minimum term only (laughable comments such as 'I'm out of contract' abound).

Come on... You know well that only very few people are mistaken/deluded about this. For the majority it's just a 'slang' and they perfectly understand the real meaning of these words. The same applies to the word 'rolling' that you keep attacking with no reason.

The bottom line for the OP is he is probably going to lose money in the long run, so not very MSE.

I agree, there is a risk of losing, although IMHO winning is not unlikely.

mobilejunkie

Buzby wrote: »

Then you can be sure (as loser) you will be required to pay the defenders (capped) costs at court, this could be up to £200, but be assured they will push for as much the court deems reasonable.

It's extremely unlikely that with a small claim the plaintiff will pay anything towards the defendant's costs should they lose, since costs are limited to court fees etc and the defender won't have any. Apart from (potentially) loss of earnings and travelling expenses for attending court the costs of legal representation aren't awarded - though should the plaintiff start throwing accusations of fraud around they may end up with a very unsympathetic judge.

d123

Presido wrote: »

I disagree with you because the unravelling of a fraudulent transaction trumps the mitigation of any loss.

As has already been answered to this fact less statement, and proved even further your ignorance of the legal position, there is no fraud, do yourself the huge favour of getting some legal advice before you waste any money pursuing non-existent "fraudulent transactions".

Herongull

The fact that you can't explain your case or the evidence properly will count against you in court.

Don't waffle. Skip all the irrelevant stuff and concentrate on the points you want to make and what evidence supports them. Clearly and logically. In English.

What I think you might be trying to say is:

You accepted the offer of an indefinite monthly rolling contract with included unlimited free calls to various numbers.

You never received anything about your contract in writing. (Is this correct? You said something about texting the contract which I couldn't understand.)

For the first 3 months the free calls agreed were in fact free because you were not billed for them and you have evidence on your phone that these calls were made in the first 3 months and not billed. (I think this is what you are trying to say - didn't understand the text 150 to AL stuff.)

Then you were charged for them for the next 6 months (£hundreds) but didn't release because you hadn't checked your bills. Why not?

When you raised this with them on month 9, they made these calls free again thereafter.

You lost the original case because:
a) you didn't mitigate your losses by checking the bills between months 3 and months 9

or

b) because the mobile company claimed you were not entitled to these free calls.

Which one was the actual reason? I couldn't work this out.

You want to challenge this in the small claims court, but as others have said, you need help from someone who a good command of both logic and English.

Presido

Herongull,

Thank you for your comments.

On a Tmobile Network there is a free text message facility through which customers can use to know what allowance they have left for the month. To do so a customer sends only the word "AL" in a text message to number "150" on the mobile handset with Tmobile network. You then receive an automatic response of what your left allowance is. In my case it clearly included that I have unlimited landline calls. With unlimited landline calls I can call any number beginning with 01, 02 and 03 completely free.

To be certain that I was given the right deal, I made calls to numbers beginning with 01, 02, and 03 during cooling off period (the first few days) and checked my calls and allowance and these numbers were not charged and my allowances were as agreed. So I felt everything was fine.

Nine months later as I was redacting some items on my last six month Bank Statements to send elsewhere, I observed huge monthly withdrawals under Tmobile. The first huge withdrawal took place in month five after the permanent (indefinite) rolling one month contract I agreed over the telephone (not a written contract).

So I called Tmobile immediately which was effectively four months after they took the first huge withdrawal from my Bank Account. Tmobile told me at that time that they would recalculate and refund all the money they took.

When the money was not refunded I contacted Tmobile again. This time Tmobile said there was no written evidence that I was given unlimited landline calls nd as a result they would not refund the money. I then provided a screen shot of the automatic response received on my mobile phone during the first few days of the contract. Then Tmobile changed their story that they have to rely on what the adviser had written down not my evidence (which Tmobile had initially requested to provide).

Before the Adjudicator: Tmobile relied on two principal points. The first point was that there was not written evidence from the adviser who offered me the deal and the generated bill for that first month did not include unlimited landline calls. The second point was that I never mitigated the loss early enough as it took me about four months to notify Tmobile.

I demonstrated in my submission to the Adjudicator from the bill statement generated by Tmobile covering ten months that there was no single call to landline numbers from month one to month three and also from month nine to date. I then presented evidence of calls made to landline numbers within the first three months which were not registered by Tmobile. That the bill statement was not accurate for not including the unlimited landline calls and that the deal was not for 12 month but a permanent one month rolling contract.

The Adjudicator's decision:
1. The Unlimited landline was operational when customer took the deal.
2. It was customer responsibility to monitor the bill and mitigate loss by calling immediately. [So only accepted the company to REFUND about 97% of months five and six alone].
3. The company has failed in its duty of care to the customer.
4. The reason given by the customer justifies a compensation of [35% of the value provided by the customer]
5. The company to send a written apology to the customer.

Herongull

Based on what you've said, the adjudicator seems to have accepted that:

T-mobile (somehow) changed the terms of your contract after month 3 without advising you.

but

T-mobile only has to refund you some of the money it took from you as a result of this change because it took you about 5 months to notice the money was missing from your bank account.

This does appear very odd. Either T-mobile is allowed to vary certain aspects of the charging or it isn't (depends on the T&Cs), but even this is allowed, I would have thought there must be a requirement to give notice of the changes and you would then be able to cancel the contract if you weren't happy.

Buzby

mobilejunkie wrote: »

It's extremely unlikely that with a small claim the plaintiff will pay anything towards the defendant's costs should they lose, since costs are limited to court fees etc and the defender won't have any. Apart from (potentially) loss of earnings and travelling expenses for attending court the costs of legal representation aren't awarded - though should the plaintiff start throwing accusations of fraud around they may end up with a very unsympathetic judge.

Tell me that when you next lose in court! SC track costs if you lose are fully allowable, and Royal Mail certainly did so when my claim against them was disallowed. 'Unlikely' depends on how alert the representation is - and bearing on how much they charge the defender, it would be silly not to expect the possibility.

The defender won't have any court costs? Dream on! It won't be a call centre bod turning up, but a company charged with protecting the defender's interests. They cannot charge what it costs them, but they go for the maximum they can, currently £200.

mobilejunkie

I never lose in the small claims court; one of the reasons I use it when required is that the opposition can't obtain costs against me for the legal team I may be pitted against. It would have to be an exceptional case where £200 costs were awarded against you if you brought the case - though in this instance the judge might be minded to make a small award should the OP accuse the defendant of acting fraudulantly and fail to present a proper case (which may be likely).

brianposter

This "mitigating your loss" argument which has been accepted by the adjudicator is actually nonsense.

There is a contract with a service and a price and the correct charge is that stipulated by the contract - "mitigating losses" has nothing to do with anything. Exactly how does one go about mitigating losses if there is a perfectly good and valid contract in place.

And the OP would definitely be well advised to get someone with good literary skills to prepare the court documents

RandomCurve

brianposter wrote: »

This "mitigating your loss" argument which has been accepted by the adjudicator is actually nonsense.

There is a contract with a service and a price and the correct charge is that stipulated by the contract - "mitigating losses" has nothing to do with anything. Exactly how does one go about mitigating losses if there is a perfectly good and valid contract in place.

And the OP would definitely be well advised to get someone with good literary skills to prepare the court documents

At last as sensible responsible to the main point.


It is up to EE to send out bills that are correct (Ofcom GC 11.1). If EE has taken money for services that they should not have billed for then if the customers requests a refund within SIX YEARS then under the contract they must pay up.


You need to send a "Letter Before Action" - if you need some help putting that together then please post the full CISAS decision (it has been done on lots of other forum) but do remove any personal info (name/number) first.