O2 Small Claims

[CerberusSco]

Hi all, just need some advice.

 

I've filed a small claim against O2 Telefonica using MCOL.

 

My current claim status is as follows:

 

You submitted a claim on 15/03/2014 at 23:44:06

Your claim was issued on 17/03/2014

Telefonica UK Ltd issued an acknowledgment of service on 20/03/2014

 

How long do O2 have now to respond?

 

My second query is, if the need arises in the future that I can add more information to my claim? When submitting my claim I was limited (by characters) to describe the reasons for my claim.

 

My reasons for the claim are:

 

1. The contract, point of sale material, and the salesperson did not make it clear that a price rise would or could occur during the contract.

 

2. Raising prices in line with the Retail Prices Index causes me material detriment because (a) my own income has not risen by 2.7% and/or (b) in March 2013 the Office for National Statistics said RPI is no longer a national statistic which can be relied upon. The official measure of inflation is the CPI which rose by only 2%.

 

3. Therefore I am free to leave the contract without penalty under EU law.

 

4. The cost of certain out-of-bundle texts and calls in O2's recent price rise, as well as international call costs are of material detriment to me.

 

5. At NO TIME has O2 informed me of any RPI increases by email, text message or by post.

 

Also, the price rise is unlawful under the Unfair Terms in Consumer Contracts Regulations 1999. This law protects people where a company imposes a term which limits the customer's rights but retains similar rights for the company. So it is free to raise prices but the customer cannot leave without paying a large penalty and is thus trapped into paying the higher price. That seems the essence of a one-sided and therefore unfair term.

 

By O2's own admission on their own website, it states that "Our advertising has also said 'tariff prices may go up' since January 2013, which wasn't advertised prior to January 2013. As I took out my contract in November 2012 neither mobiles.co.uk nor O2 had informed me of the above.

 

Thanks

[CerberusSco]

Admin, can this be moved to the legal forums please?

 

Thanks.

[maroondevo52]

Admin, can this be moved to the legal forums please?

 

Thanks.

 

[genie101]

1. By filing an acknowledgment of service, the defendant has 28 days from "deemed service" to file (at court) and serve (on you) a defence. The court can confirm the date of deemed service for you, which is usually the second day after it posts the claim form to the defendant.

2. It depends what you mean when you say "add to". If the defend the matter, you will be given the opportunity to file and serve the documents and information you want to rely upon before trial. You can then add more detail as to what was said, your legal authority, calculation of losses etc. What you might not be able to do easily, is change the sum you are seeking to recover - that might need an amendment to your claim.

[CerberusSco]

1. By filing an acknowledgment of service, the defendant has 28 days from "deemed service" to file (at court) and serve (on you) a defence. The court can confirm the date of deemed service for you, which is usually the second day after it posts the claim form to the defendant.

2. It depends what you mean when you say "add to". If the defend the matter, you will be given the opportunity to file and serve the documents and information you want to rely upon before trial. You can then add more detail as to what was said, your legal authority, calculation of losses etc. What you might not be able to do easily, is change the sum you are seeking to recover - that might need an amendment to your claim.

 

Thanks for that, much appreciated.

 

Basically I filled in the Particulars of Claim when making my claim against them using MCOL. Upon reflection, I thought that it was good enough and should of given a bit more detail or better detail. However, if they (O2) defend and it goes to court, then I am happy that I will be able to submit more evidence to support my claim against them.

[genie101]

MCOL is quite restrictive on the length of particulars of claim.

[andydd]

The POC should/can only be quite short and should spell out the basics of your claim.,

 

You can then file statement of case/witness statement/evidence normally after its been transfered to your local court.

 

Generally you cant add to already handed in POC/SOC/WS without asking for courts permission, there may be a hearing for this and the other side could charge costs so it can be expensive.

 

I'm not convinced that you actually have a strong case, have you all the evidence and case law you require ?. For example, you say it wasnt made clear that prices could rise, but the T&C's are bound to mention this. Not sure point 2. has legal signifigance and even then 0.7% surely would not add upto much.

 

Rises may be of 'material detriment' to you but that doesnt mean they are not allowed.

[CerberusSco]

The below shows any future price rises was not clearly and adequately drawn to my attention when ordering via mobiles.co.uk in November 2012. The O2 website openly admits that prior to January 2014 their advertising DID NOT reference price rises!!!

 

· I was already in contract with you when you announced your price rise. Are you allowed to put my prices up whilst I'm in contract? It's not the price I signed up to

 

Customers who signed up pre-23rd January 2014

 

Ofcom's guidance on "fixed means fixed" is only applicable to contracts made on or after the 23rd January 2014 and does not apply to contracts that were entered into before that date. For customers who joined or upgraded before this date, our terms and conditions at the time you signed up stated that we are entitled to increase your monthly subscription charge by no more than RPI and no more often than every 12 months and are compliant with the body of general consumer protection law. Our advertising has also said 'tariff prices may go up' since January 2013.

 

 

http://www.o2.co.uk/desktop/prices

 

I am also intending to mention the following:

 

1. The contract, point of sale material, and the salesperson did not make it clear that a price rise would or could occur during the contract.

 

2. Raising prices in line with the Retail Prices Index causes me material detriment because (a) my own income has not risen by 2.7% and/or (b) in March 2013 the Office for National Statistics said RPI is no longer a national statistic which can be relied upon. The official measure of inflation is the CPI which rose by only 2%.

 

3. Therefore I am free to leave the contract without penalty under EU law.

 

I also intend to claim the price rise was unlawful under the Unfair Terms in Consumer Contracts Regulations 1999. As they protect people where a company imposes a term which limits the customer's rights but retains similar rights for the company. So it is free to raise prices but the customer cannot leave without paying a large penalty and is thus trapped into paying the higher price. That seems the essence of a one-sided and therefore unfair term.

 

Also, from 23rd Jan they only apply RPI to the airtime part of the contract - not to the phone. Conclusive proof that by charging RPI on the full cost of my contract including the provision of the phone (which can't possibly have inflation applied to it as they had already paid for the phone), then they have used RPI to increase their profit line and not to reflect the increase in their costs as they claim!!

 

If O2 are going to try to say that I agreed to the price rise by ticking a box (when I ordered online), then I also intend to argue the following:

 

http://www.oft.gov.uk/business-advic...oups/Group18e/

 

18.5.4 Declarations can be acceptable if they are of matters wholly and necessarily within the consumer's knowledge (for example, their age), and a free choice is given as to what to say. But whether any declaration is in fact fair will depend on how it is used. If consumers are routinely told or given to understand that they must say one thing for the contract to go ahead, the declaration is just as likely to be considered unfair and legally ineffectual as if the written words gave no apparent choice. The Regulations apply to unwritten as much as to written terms.

 

18.5.5 'Have read and understood' declarations. Declarations that the consumer has read and/or understood the agreement give rise to special concerns. The Regulations implement an EU Directive saying that terms must be clear and intelligible and that consumers must have a proper opportunity to read all of them (see Part IV). Including a declaration of this kind effectively requires consumers to say these conditions have been met, whether they have or not. This tends to defeat the purpose of the Directive, and as such is open to serious objection.

 

18.5.6 In practice consumers often do not read, and rarely understand fully, any but the shortest and simplest contracts. It might be better if they tried to do so, but that does not justify requiring them to say they have done so whether they have or not. The purpose of declarations of this kind is clearly to bind consumers to wording regardless of whether they have any real awareness of it. Such statements are thus open to the same objections as provisions binding consumers to terms they have not seen at all – see Group 9.

 

I also contend that the price variation clause is not compliant with the UTCCRs and is therefore unenforceable. A summary of the reasoning and relevant sections of the UTCCRs and the associated OFT guidance groups is below.

 

Under the UTCCRs and the associated OFT guidance on variation clauses, price variation clauses are unfair and unenforceable if:

 

The Price variation clause is discretionary (Schedule 2 Para 1 (L))

Schedule 2 Paragraph 1 (J) and OFT Group 10 guidelines especially Paragraphs 10.2 and 10.3b

It has been used for a purpose other than stated in the contract (Schedule 2 Para 1 (J))

Schedule 2 Paragraph 1 (L) and OFT Group 12 guidelines especially Paragraphs 12.1, 12.2 and 12.3

It is transferring a risk that a provider is better able to control or anticipate than the consumer

Group 18b of the OFT Guidelines especially paragraphs 18.2.1, 18.2.3 and 18.2.5 and 12.3

Has not been clearly and adequately drawn to the consumers attention

Schedule 2 Paragraph 1 (i) & (L) and OFT Group 9 guidelines especially Paragraphs 9.2 and 9.4 and Group 12 especially 12.4

The contract in relation to the price variation clause and its reasoning are not transparent and therefore are unfair and unenforceable

Group 19 of the OFT Guidelines (Regulation 7) especially Paragraphs 19.7, 19.8, 19.9 and 19.10

 

Because of all of the above does not comply with the overriding principles of good faith.

 

Additionally O2 rely on the provisions of GC 9.6 as a source of power to give it the right to increase prices. However O2 would be aware that GC 9.6 is supposed to be the embodiment of Universal Service Directive (USD) into UK law which allows consumers to exit their contracts without penalty if any modifications to the terms are made. By not having due regard to the source and ultimate meaning of GC 9.6 EE has relied on my ignorance (at the time) of the protection offered to me under the USD and this goes against the principle of acting in Good Faith.

[andydd]

Surely O2's reply says that the new "fixed means fixed" takes effect from jan 2014, you signed up before that, therefore when O2 say "For customers who joined or upgraded before this date, our terms and conditions at the time you signed up stated that we are entitled to increase your monthly subscription charge by no more than RPI and no more often than every 12 months and are compliant with the body of general consumer protection law. Our advertising has also said 'tariff prices may go up' since January 2013.", then they are correct, they are entitled to increase charges by RPI once every 12 months, which is what they have done.

 

The website may not of made reference to price rises but all T&C's I have seen do mention them, you would have to show you didnt sign any T&C which I believe is unlikely.

 

Its irrelevant what the National Statitics say, the contract says rates will go up by RPI if they said they will go up by the number of goats in a field it would still be legal, for example, I deal with leasehold issues and many leases say costs and interest will go up by Barclays Base Rate + 5% or something similar, this is perfectly valid.

 

I find the rest of your points very hard to follow and I suspect a Judge may too, for example "principles of good faith" is not a legal argument.

 

We here at CAG are all for encouraging consumers to start court action for wrong-doing but I think you may be dissapointed, I urge you to find some very clear case law or examples to put before the Judge.

[CerberusSco]

I appreciate your input andydd, but I intend to use the arguments above to back up my case against O2. I'd already, some months ago in fact, informed O2 that I was currently suffering hardship due to loss of employment and they kindly lowered my tariff to the very lowest tariff they could put me on. How can they then justify an above inflation increase (if we take the use of CPI & not RPI) and not expect that to cause me material detriment?

 

I'm not doubting your knowledge in anyway at all andydd, but there must be something that I can do to stop this. Unfortunately, O2 have responded with the same copy & paste stuff they sent out to customers the last time they raised their prices (March 2013 I think) and have blatantly used 2 loopholes to raise prices following OFCOMS decision to say fixed means fixed. The Ombudsmen as always are on the side of the company and not the consumer and despite all attempts to resolve this in an amicable matter, small claims is the only way to go at this stage.

 

When I upgraded with mobiles.co.uk in November 2012 I wasn't informed at the point of sale that any price increases would take place during the term of my contract, nor was I sent any contract with my new handset or anything like that to state the same.

 

Also, O2 has stated that they have effectively communicated the price increase with their customers. No they haven't. I haven't received any form of communication to state that O2 will be increasing prices. Not a text, email or letter.

 

The cost of out of bundle prices do cause me material detriment in my eyes and especially the increase in costs to make international calls. I now have relatives that live in Canada and I was going to use my monthly contract to call them and to keep in touch. Unfortunately, due to the increases this won't happen. The whole sorry scenario stinks to high heaven.

[SuperVillain]

Hmmmm....

 

At Section 5 the UTCCR says

 

5. (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer

 

I don't think an increase in line with RPI can be construed as causing a significant imbalance in your obligations in your detriment, as the company has set a defined limit to which prices can rise. If for example it was a non-negotiable term that said the price could be increased by any amount without notice, then I can see where a significant imbalance may arise.

 

Also UTCCR at s6 (2) says:

 

In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate–

 

(b)to the adequacy of the price or remuneration, as against the goods or services supplied in exchange

 

Even in the examples of unfair terms in the schedule to these regulations the only time when price changes are mentioned are in para 1 (l) (a term) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;

 

But further down in the schedule - (d)Paragraph 1(l) is without hindrance to price indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.

 

What you have is a price indexation clause.

[CerberusSco]

 

But further down in the schedule - (d)Paragraph 1(l) is without hindrance to price indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.

 

What you have is a price indexation clause.

 

So it may be in my best interest to look into this part of the schedule and approach from that angle as opposed to the angles I have been looking at?

[SuperVillain]

My interpretation of that schedule is that price indexation clauses won't generally be viewed as unfair in the context of this particular piece of legislation.

[andydd]

My views are that..

 

1. The OP says he wasnt informed of the right of O2 to raise prices when he purchased the phone, it is normal though for some sort of T&C's to be attached/read/agreed by the phone purchaser, clearly if there is no signed agreement with the T&C's attached or referenced then the OP may have a case, but I suspect that O2 will have a signed copy eitjher by pen or electronically.

 

2. As above, I cant see that there is any merit to the RPI point.

 

3. It certainly is standard practise to inform phone uers of any rise, Im not sure if a breach of that is enough for the user to cancel his contract, it may come down to O2 saying they did send this out and the OP claiming he didnt receive it.

[CerberusSco]

My views are that..

 

1. The OP says he wasnt informed of the right of O2 to raise prices when he purchased the phone, it is normal though for some sort of T&C's to be attached/read/agreed by the phone purchaser, clearly if there is no signed agreement with the T&C's attached or referenced then the OP may have a case, but I suspect that O2 will have a signed copy eitjher by pen or electronically.

 

1. I actually logged into the mobiles.co.uk website last night and checked what I got with my order. My package contained my Note 2, Microsim & mobiles.co.uk welcome pack (of which I have a pdf copy). I certainly did not receive a copy of any T's & C's (yellow copy) from O2 which I would of normally got had I of upgraded in an O2 store or other store. I certainly do not recall anything on their website at the time of upgrading regarding price rises. Even if it did mention it, which I'm pretty sure it didn't, then I intend to use the following as per my original post.

 

18.5.4 Declarations can be acceptable if they are of matters wholly and necessarily within the consumer's knowledge (for example, their age), and a free choice is given as to what to say. But whether any declaration is in fact fair will depend on how it is used. If consumers are routinely told or given to understand that they must say one thing for the contract to go ahead, the declaration is just as likely to be considered unfair and legally ineffectual as if the written words gave no apparent choice. The Regulations apply to unwritten as much as to written terms.

 

18.5.5 'Have read and understood' declarations. Declarations that the consumer has read and/or understood the agreement give rise to special concerns. The Regulations implement an EU Directive saying that terms must be clear and intelligible and that consumers must have a proper opportunity to read all of them (see Part IV). Including a declaration of this kind effectively requires consumers to say these conditions have been met, whether they have or not. This tends to defeat the purpose of the Directive, and as such is open to serious objection.

 

18.5.6 In practice consumers often do not read, and rarely understand fully, any but the shortest and simplest contracts. It might be better if they tried to do so, but that does not justify requiring them to say they have done so whether they have or not. The purpose of declarations of this kind is clearly to bind consumers to wording regardless of whether they have any real awareness of it. Such statements are thus open to the same objections as provisions binding consumers to terms they have not seen at all – see Group 9.

 

2. As above, I cant see that there is any merit to the RPI point.

 

2. Maybe not, but RPI is not recognised as a measure of calculating inflation and as you may be aware the government use CPI to calculate this as it is more accurate. Current CPI is at 1.7%. I can't see how O2 can justify using RPI to hike up prices and it is another point I wish to contest.

 

3. It certainly is standard practise to inform phone uers of any rise, Im not sure if a breach of that is enough for the user to cancel his contract, it may come down to O2 saying they did send this out and the OP claiming he didnt receive it.

 

3. I have been on the O2 forums and every user has had an email regarding the price rises. I have never received anything regarding them and I first learned about the price hike initially on a forum and then the BBC website (if I recall). I have mentioned this in my initial complaint to O2, who have failed to answer as to why I haven't received it. Any other emails from O2 go straight to my inbox, especially about my bills. By not emailing me or sending me a SMS or letter they have failed to give me 30 days notice regarding their price increase, which I pretty sure OFCOM's rules state an operator has to do.

 

Another question that sits at the back of my mind is why are PAYG customers of O2 not having a price hike? Obviously it is because if they did do that, then people would more than likely get a giff gaff PAYG sim.

 

I am more annoyed at OFCOM regarding this although my utter contempt for O2 is plain to see. OFCOM should of closed these loopholes so that providers cannot exploit customers in the way that O2 have done. It seems a case of the very people that are there to protect consumers are in fact all for the company.

 

The fact that I am either left to pay the increased hikes each month or the remaining monthly line rental to cancel my contract to me is an unfair term.

 

Having informed O2 back in September-ish that I had lost my job and was experiencing financial difficulty and then O2 putting me on the lowest tariff available at the time was a good thing for them to do. However, I hardly ever used my mobile after that as even at £23 per month I couldn't really afford and especially as I needed to call premium and local rate numbers all of which are outside the contract bundle. The price increase for these is a little over 14% putting them over their 10% material detriment rule. It works out as getting a 2.7% baserate rise + a further 14.3% rise on those calls. However, I would expect that given the fact I rarely used my contract phone after experiencing financial difficulty and as such avoided dialling these numbers and used my landline to make such calls to these numbers more often than not, that I probably won't be able to argue material detriment for this.

 

I'm caught between a rock and hard place here, but I think O2 have played dirty here and I think they are wrong in what they are doing. Hence why I want to take this matter to court. My partner has home insurance which I am sure has some form of legal cover on it, so I may try and look into that, explain my circumstances and see what else I can do. It seems pretty adamant from the replies here that my case is weak and I am desperately trying to strengthen it. Unfortunately, I find the law very confusing sometimes. Especially SuperVillain's reply:

 

My interpretation of that schedule is that price indexation clauses won't generally be viewed as unfair in the context of this particular piece of legislation.