Please help, stuck in a £90 a month Orange contract I didn't agree to!

[toothfairy101]

Hi all, sorry it's a bit long-winded, am at my wits end with this situation, hope someone can advise..

 

Last June I was called by a company called Excell Communications who claimed they worked with Orange. They offered me a £15 (total) a month mobile contract with Orange claiming I would receive 1500 minutes. (Even though I never use that amount of minutes, at the time I was having difficulty with the reception with the ‘3’ network so I thought it would improve things for the same cost I was paying 3). Excell said it was a ‘business contract’, but they stated that it didn’t matter that I wasn’t a business.

 

After I had agreed to these terms, and the change-over to Orange had begun, did I realise that the ‘total’ price excluded VAT, and in fact the agreement worked as a cash back system, meaning that I was on an Orange ‘business sense 1500 - 24 month contract’. The invoices came from Orange for £88.13 and, once I had paid this and sent a copy of the invoice to Excell, I would be refunded £60, costing me nearly double what I had originally agreed, especially now with the VAT increase, the bills are now £89.63.

 

However, the bigger problem emerged in December when Excell Communications went into administration, leaving me (amongst approx 8000 others) in expensive mobile contracts with Orange for another 18 months. I have spoken to Orange to ask them if I can leave the contract considering my agreement with Excell has been broken, and they will not allow it. They have only offered to reduce my tier slightly which will still cost me nearly £50 a month which I simply cannot afford. They also stated that if I accept, I will also lose any option of cashbacks in the future, should they happen. They referred me to a company called Midland who they say is dealing with the situation, but they claim they are not, but merely offering a £60 cash back as a ‘goodwill gesture’ for 3 months. However the cashbacks have to be paid into my Orange account, effectively paying Orange twice.

 

Since starting this contract with Excell in July, I have so far paid to Orange £618.75, and only received two £60 cash back payments from Excell. According to Ofcom’s GC23, Mobile service providers are obliged to:

- not to engage in dishonest, misleading or deceptive conduct

- ensure that any retailers it uses to sell mobile services are made aware of GC23 and to monitor their compliance

- use reasonable endeavours to ensure that any incentives offered by mobile services retailers are not unduly restrictive, and that consumers are provided with clear, comprehensible and accurate information on the particulars of the sales incentive.

 

On top of this, I noticed that Orange’s terms and conditions for business contracts is that they require a copy of my business headed paper and company cheque book, neither of which have been requested nor do I own. Also I hear Excell Communications are now trading under Premier Phones with apparantly no comeback to the problems they have caused.

 

At the end of the day Orange are benefitting from unethical trading and should be held accountable.

 

Can anyone help please, I cannot afford this contract at all and am considering canceling my direct debit because it is pushing my overdraft to the limit with its costs.

[locutus]

Any non-payment will probably get marked against your credit file. Personally, I'd complain using Orange's Code of Practice Located here Specifically this bit :-

how to complain

If you want to make a complaint, firstly you should call Customer Services and speak to us to

discuss any problems you may have. In most cases your query will be answered immediately.

If you have a difficulty that is not resolved to your satisfaction, please ask to discuss it with

one of our Customer Services Managers.

If you pay monthly, please call 150 from an Orange phone (or 07973 100150 from any other

phone). If you pay as you go, please call 451 (or 07973 100451 from any other phone).

adjudication

Orange is committed to resolving any difficulty quickly and amicably. However, if we can’t

reach an agreement, there is a special independent adjudication scheme that Orange (in

conjunction with other leading communications providers) has arranged with the Chartered

Institute of Arbitrators. This gives you a fast, free and impartial resolution to any dispute that

does not involve a complicated issue of law or a sum of money of more than £5,000.

We are obliged to comply with any decision that the independent adjudicator makes.

However, if you’re still not satisfied with the outcome, you can refer your case to the Courts.

You can get a guide to Orange’s dispute resolution procedures online at

www.arbitrators.org/cisas. Alternatively, you can get a copy of this guide by calling Orange

Customer Services. You can also obtain this guide in Braille or large print if you would like it.

 

P.S. I'd also ask them how to complaint about them "misselling" and profiting from you being mis sold to.

[toothfairy101]

Thanks Locutus, i've literally just done that, so here's hoping

[toothfairy101]

Great, what's the solution?

[Somebody Told Me]

Wait for Orange to get back to you and see what they say.

Whilst not paying is an option you take this course of action at risk of damaging your credit file.

It's clear you want to get this sorted quickly but don't do anything hasty. If you approach things methodically and reasonably you're more likely to get a positive outcome.

[locutus]

Stopping paying will lead to adverse data on your credit file. You need Orange to agree that this contract is unfair/mis-sold and cancel it. If you follow orange's complaints procedure, and you complain about both the unfair contract you are in, and also the fact that Orange are profiting from you being mis-sold to without helping resolve this, your complaint will have a lot of weight added to it. Also a complaint that gets escalated beyond Orange will cost them money for it to be heard, so you can guarantee someone with a bit of common sense will try to resolve things before it gets to that stage.

 

Personally, I'd keep payments up to date until Orange responded. If they state that the "contract still stands, you need to continue paying, and deal with Excell Communications" I'd probably forward my complaint to Excell Communications, and take them to small claims court for the entire cost of the contract unless they canceled it and refunded any money paid.

[toothfairy101]

Thanks, Good advice. I've sent off the complaints letter, as up until now Orange has responded to my emails by telephone, so I will have requested written proof this time.

 

As Excell are in administration, I have written to the administrators Begbie Traynor, though they haven't responded, I called them and they said there is nothing I can do till they sort it out. I doubt anyone is holding much hope that there will be any money left as the consumer is at the bottom of the pile in terms of priority payment are concerned, so I may just have to write that off.

 

Fingers crossed for a good result from Orange, otherwise next step Cisas.

 

Thanks for help.

[Human Writes]

CISAS have handled dozens of claims previously on the issue of cash back, you'll find that by and large the networks win them.

 

http://www.cisas.org.uk/media/text/CISAS-11-case-studies-26.2.08.pd

[toothfairy101]

An update on this situation: Many of us complained through CISAS, but found them bias - they based their entire adjudication on the premise that we had a 'contract' with Orange, even though Orange never informed anyone that we had a contract or provided any terms and conditions. In Orange's evidence they provided somebody else's paperwork as they didn't have mine (because it does not exist). Then I discovered that Orange heavily funds CISAS.. 'independent' they say...!

 

Ofcom are currently investigating Orange's obligation to GC23, as certainly in this case they have broken just about every possible obligation and responsibility they had.

 

I have asked them to provide me with the credit agreement under the CCA to which they responded that they are exempt from this law, in fact, you would think Orange are above any law the way they conduct themselves.

 

Of the 100 people who I have talked to involved in this debacle, not one person was aware they were entering into a contract with Orange, no-one was provided with terms and conditions, other instances include: a person who changed his mind during the sales call, was told that was not possible (cooling-off period?), another asked what if the company went into administration? Excell responded that there is an insurance body set up so consumers will always be protected. Not true. Another person, on receipt of his phone and could not get a signal, was told that a new mast was currently being put up in his local area (not true). Most people were deceived about the VAT being added on top, not just to the £15 agreed amount, but to Orange's total of £75, making it a new total of £96.98, making it nearly double the total amount was agreed.

 

After 12 months, we were told we would be on a 'better deal', our packages would be reviewed and we would not pay more than before. However speaking to ex-Excell staff, this turned out to be untrue. New cashback deals were dealt out, or more expensive tariffs, the motif was always to keep customers chained forever to these companies.

 

 

 

I stopped using my phone over a year ago. Orange have been completely unreasonable and not offered any affordable solution to me. They expected me to pay £96.98 a month for 300 mins, no internet, and on the average - regularly faulty - Sony Ericsson Elm - the camera does not work and it regularly switches itself off.

 

I get the same deal for £12 from Virgin.

 

Orange recently threatened to send in the debt collectors, I advised him that at present the debt is disputed and cannot be forwarded. It is currently under investigation with Ofcom, and 19 of us are taking them to court.

 

Regardless Orange sent it to the debt collectors, who have sent me a bill for £1,300 and have started to leave messages on my phone.

 

This is the story so far, any advice would be much appreciated.

Edited January 25, 2012 by MARTIN3030

[MARTIN3030]

If there were aspects or assertions that were instrumental in customers deciding to take up services,and Orange fell short of this,or else a customer would have been unlikely to have agreed or taken up goods/services had they known what was to follow later,then these may be things in breach of CPUT 2008.

 

http://www.legislation.gov.uk/uksi/2008/1277/made

[MARTIN3030]

Prohibition of unfair commercial practices3.—(1) Unfair commercial practices are prohibited.(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.

 

(b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.

 

 

4) A commercial practice is unfair if—(a)it is a misleading action under the provisions of regulation 5;

(b)it is a misleading omission under the provisions of regulation 6;

 

5) In paragraph (4)(b), the “main characteristics of the product” include—(a)availability of the product;

(b)benefits of the product;

©risks of the product;

(d)execution of the product;

(e)composition of the product;

(f)accessories of the product;

(g)after-sale customer assistance concerning the product;

(h)the handling of complaints about the product;

(i)the method and date of manufacture of the product;

(j)the method and date of provision of the product;

(k)delivery of the product;

(l)fitness for purpose of the product;

(m)usage of the product;

(n)quantity of the product;

(o)specification of the product;

(p)geographical or commercial origin of the product;

(q)results to be expected from use of the product; and

®results and material features of tests or checks carried out on the product.

 

Misleading omissions6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—(a)the commercial practice omits material information,

(b)the commercial practice hides material information,

©the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.(2) The matters referred to in paragraph (1) are—(a)all the features and circumstances of the commercial practice;

(b)the limitations of the medium used to communicate the commercial practice (including limitations of space or time); and

©where the medium used to communicate the commercial practice imposes limitations of space or time, any measures taken by the trader to make the information available to consumers by other means.

(3) In paragraph (1) “material information” means—(a)the information which the average consumer needs, according to the context, to take an informed transactional decision; and

(b)any information requirement which applies in relation to a commercial communication as a result of a Community obligation.

[Human Writes]

Orange didn't offer cash back though, the retailer did, and they are no longer trading. It's difficult to argue Orange are in breach of the CPUTR in this instance if they didn't sell, promote or offer the cash back.

[toothfairy101]

Thanks for your responses and useful information. It seems that Orange do have a responsibility to ensure that their retailers are following the rules also, which is what Ofcom's GC23 is about.

 

In this case Orange owns a company called Midland, and perhaps because of the reshuffling of the MD of Excell or the high cash back offered, Midland (Orange) decides to pull all the funds from Excell, which directly causes them to go under. Then, the MD starts a new company which Orange continues to trade with. Sound fishy?

 

I now have debt collectors on my back, even though Orange knew the alleged contract is disputed.

 

I am unclear about one aspect relating to this: When Excell originally called me they told me I had to be a business to start this contract (business contract). When I told them I was not, they said to make up the name of a business and I can 'take advantage of their offer', so I did. The debt collectors letter is addressed to that business at my address. Does anyone know what that means for me?

[johnvernon74]

I used to be the owner of a mobile phone company that was a 3rd party retailer selling all networks. Have you established if the company that went into administration were a direct dealer with Orange or did they put their sales via a distributor. Orange will be able to tell you this information and if it was via a distributor (which I suspect) you could put pressure on them.

 

One important thing is that you will probably find that Orange do not have a copy of a contract. How did you (allegedly) agree to a contract, did you sign anything? Did the company record the call, as my understanding is that orange require a signed contract and proof of address, photo ID verification. If this information was not available and the customer (ie you) did challenge the contract the retailer (now bust) would normally be clawed back.

 

I note in one of your posts orange state Midland are dealing with. While I have never heard of them do you think it could be Mainline (which are a distributor) for Orange

 

I'd ask for proof of contract.

 

Hope this helps.

Edited January 25, 2012 by johnvernon74
Additional Info

[Human Writes]

The debt collectors letter is addressed to that business at my address. Does anyone know what that means for me?

 

If they didn't set it up the contract in the name of a limited company and you agreed to the contract you personally would be liable for the contract.

[toothfairy101]

Thanks for your responses. The company is called Midland Distributions and as I understand it are the distributor for Orange. It is true that Orange do not have a copy of the contract (which I have requested on several occasions), I also requested a copy of the credit agreement under Consumer Credit Act, but they state they are exempt from this, to which I have had varying conflicting advice.

 

According to ex-sales agents at Excell, calls weren't recorded (as they knew that they were being mis-sold). When the contract came from Excell it stated that as I have 'purchased the good by telephone, there is no legal requirement to sign for them as your contract is generated by accepting the mobile phone over the telephone' (?). So, I didn't sign anything. According to Orange, I accepted their alleged contract by paying the bills. I noticed that business customers of Orange (which apparently I am, having a business contract), are required to provide several things: company headed paper, cheque book etc. I was never asked for this.

 

RE: last post (@Human Writes) the contract is not in the name of a limited company, in fact the company does not exist, does that make a difference.

 

Much appreciated.

[LizBee]

RE: last post (@Human Writes) the contract is not in the name of a limited company, in fact the company does not exist, does that make a difference.

 

Possibly, but possibly not. You cannot make a contract with someone or something that doesn't exist - I think this is the "doctrine of common mistake" in legal terms. However, the fact that you have treated the contract as real and in existence suggests that a contract does in fact exist, with you as the customer. The existence of a contract can be implied through a course of dealings, as evidenced by payment. So in conclusion, this is a bit of techie legal point, and so not necessarily a good practical route to go down. You never know, it might help to argue that the contract never existed in the first place. Another potential avenue is a misrepresentation claim, which has quite a wide measure of damages.

 

Anyway, good luck, and my sympathies.

 

LizBee

[johnvernon74]

Here's the number for Orange Executive office - may be worth asking them to deal with this, and perhaps if not willing to help consider talking to local paper or radio. Slight issue is where you state that you were asked to make up a company name. I'd assume this was something that the telsales operator did and something you were not aware off. Here's the number 0870 8700862

[Human Writes]

As I understand Orange's complaints procedure, arbitration is the final stage, if you go back to the Executive Office having already completed the complaints procedure and after losing your CISAS claim I'm not sure you'd get much help from them. Legal action may be the only option left.

[my-spirit-soars-free]

I have an email from the OFT stating that mobile phone companies are not exempt from the CCA. Individual contracts may not be credit agreements, de[ends on the contract, but they are certainly not exempt.

 

The utilities are.

 

Oddly, I cannot find a registration for any of the mobile phone companies, which I find strange.

[toothfairy101]

Thanks for your responses. The process of trying to sort it out with Orange has been exhausted, they simply will not budge an iota. Once a customer has been through the CISAS process, I think you can't go back to Orange directly (I tried - they simply said that they won the CISAS case and our communication has been exhausted).

 

Re: the CCA, I also find that very confusing, it seems if the bills are unpredictable then they are not exempt, but the bills in this case are predictable each month (fixed amount of £96.94 for 'business sense' package). I have written to OFT again to complain also that Orange has passed the alleged debt to a debt collectors whilst in full knowledge that it is disputed, OFT response is it is not their problem and to go to OFCOM. Round and round I go..

[my-spirit-soars-free]

I cannot see how the predictability, or otherwise, of the contract makes a difference, and that is not the response I got from the OFT.

 

If predictable bills made the difference then we could get "free cars" if we sign up for a five year, fixed payment "service contract" to cover services etc, and which just happens to recover the cost of the car - and as long as it was fixed payments it would not be credit?

 

You still have the option of the small claims court, as far as I can see - pay off the contract, then sue for the amount it cost you, and you can also sue Orange for harassment - someone on here will know the British gas case that may apply- but you may want to get legal advice, maybe a free initial discussion? As far as I can see, you made a contract with company A, and company A has gone bust, so that contract no longer exists. Company A made a contract with company B, and company B is now attempting to hold you to a contract you were not party to, by threatening your credit history.

 

Not allowed, as far as I can see, if your contract was with company A the contract ceased when the legal person you contracted with ceased to exist.

[toothfairy101]

Thanks for that response, I am still very unclear about the CCA and have heard very mixed views about it. I believe OFT said that Orange were under the CCA, but twice Orange have told me they are not. I did complete a complaint form issued by the OFT to investigate, but I also hear other mixed responses about this. Yes, legal advice is undoubtedly the way to go. Well there are 19 of us who are taking Orange to court to get out of this alleged contract. I agree, I cannot see how I will be held to a contract I did not make to company b, and nor was I even aware of its existence. Hopefully, once the justice system does bring justice, then I will sue Orange for the years amount of time and money I have wasted on this. Fingers crossed for a positive outcome, for us and for other potential victims of this [problem].

[Somebody Told Me]

The CCA would apply here as mobile phone agreements are classed as service agreements rather than credit agreement which involve the lending of money.

However, you can still request a SAR via Orange if you haven't already done so.

Unfortunately, once you've referred matter to their Ombudsman Orange would engage in any further correspondence with you through the usual customer service routes,

That said, while the Ombudsman decision is binding for Orange it isn't for you and you can still issues court proceedings if you feel that you have sufficient proof for your case.

I'm sure the Site Team will be able to assist you further through the relevant processes should you decide to take court action.