The legal position

One thing that has surprised me is the blind faith people put in the Videotron contract; what is on those two pieces of A4 is assumed to have been printed by a tablet of stone. Not true, mainly because the contract is a consumer contract. Unlike, say, commercial contracts, there's no free negotiation of terms and conditions; it's take it or leave it. And, as everyone needs a phone, it's take it.

Because of the potentially one-sided relationship between consumer and service provider there are severe constraints on consumer contract terms.

The EU Unfair Terms Directive
with reference to Computer Law and Practice volume 11 number 6 (1995)

This, among many other things, contains a greylist. This is a list of terms that a court must consider as being very suspicious if found in a consumer contract; they will only be considered as legal in exceptional circumstances. A couple of greylist entries:

a term which enables the supplier unilaterally to alter the characteristics of a service. Often service providers give themselves the right to modify or suspend any of the services they do provide

if, contrary to the requirements of good faith, a term causes a significant imbalance between the parties' rights and obligations arising under contract to the detriment of the consumer

And it's not just the contract that the courts take into consideration:

all circumstances surrounding the signing of the contract and inducements thereto will be taken into account

Finally, it's a directive, so it overrides our law:

The EU Unfair Terms Directive should have been implemented throughout the EU by the end of 1994. The Directive required modification of UK unfair terms law and its provisions were introduced through a Statutory Instrument which came into force on 1 July 1995.

There are excellent summaries of this directive by Fox Williams and Reynolds Porter Chamberlain.

Removal of the Combined Service Discount

There are strict constraints, via EU law as described above and other relevant UK law, on variation of terms within an existing contract. Because of these constraints there are serious legal problems with CWC's removal of the Combined Services Discount, as a number of correspondents have found:

I have just been down to the Citizen's Advice Bureau. Their advice was that the removal of the Combined Services Discount was a unilateral variation of contract. I could take them to court and probably win but it would cost a lot and any judgment would not apply to anyone else.

and

I have done further consultation with my family (and told my brother, who is studying law at Nottingham, to take it as a test case to his lecturers). All agree that CWC has committed a breach, and could be in serious trouble if someone was to test them. Their only experience of this happening before in cases is where a company is trying it on, confident that their customers won't have the gumption to take it further.

I have further similar statements from legally qualified people.

But challenges to CWC need not be expensive:
  • A customer, or preferably a Law Centre with the customer, should take their individual case against CWC to the Small Claims Court. The Small Claims Court is deliberately set up not to be expensive and the claimant cannot be liable for CWC's legal costs;
  • Anyone who has Which? Legal Services or similar should take this issue to them as soon as possible;
  • Possibly even more important still: tell your local Trading Standards Officer. They can prosecute, which could force CWC to reinstate the discount;
  • Suggest to your Trading Standards Officer that they take up the issue with the DTI;
  • Complain to OFTEL. They have said that, if enough people complain, they will tackle CWC over the issue.
  • Write to CWC and protest against the removal, giving the arguments stated here. This will protect your legal rights in the future.
It is important that CWC are challenged. The amounts of money to be gained are small, but success would attract publicity and seriously embarrass CWC.

Furthermore, I suggest that attempted removal of the Combined Services Discount may well be a dry run of an eventual attempt to remove unmetered local calls.

Removal of unmetered local calls - how?

The general opinion is that CWC will eventually try to invoke a contract clause to end every Videotron contract:

21.1 The Service or this agreement can be ended by:
a) 1 month's written notice from us to you; or
b) 1 month's written notice from you to us.

They would then impose their own contract. Everything hinges on whether the courts would consider this clause to be fair or unfair ... after considering its relevance to EU law as described above and other relevant UK law.

The Office of Fair Trading has already stated that several clauses in the Videotron contract have 'potential for unfairness'; the OFT is currently negotiating with CWC over the issues explained here.

CWC could avoid a legal wrangle by providing an 'acceptable alternative' to unmetered local calls; I'm sure that they understand this and will try to end Videotron contracts when cable television-based Internet access finally becomes available.

So why is the Videotron contract so badly flawed? My opinion is that Videotron didn't bother too much about the small print because they never had any intention of removing unmetered local calls.
Text by Alastair Scott

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