Hi all,
Okay, next week the judge in the OFT case is due to make an announcement upon whether or not the sample historic T&C's submitted by the banks could be considered as making the charges amount to penalties at law.
(interestingly, I get the impression that this sample selection has been submitted by the banks themselves, which is IMHO a flawed process, a bit like asking a mass murderer to only show you the plots of land where the bodies haven't been buried)
Anyway, what implications could this announcement have ?
IMHO:
Firstly, if ANY of the T&C's considered are deemed to make the charges amount to penalties, then this raises the issues of the payments having been made due to the banks concealment and/or the claimants conceding to such whilst acting under mistake.
Thus, any bar to restricting a claim to 6 years under the Statute of Limitations is raised, and claims can be brought going back as far as the claimant wishes.
Secondly, this also opens the issue of penalties at common law again, as even if any of the T&C's by your particular bank are deemed possibly so, then it enables business claimants to claim that there own T&C's be examined more thoroughly.
IMHO, even if the T&C's examined are NOT deemed as being capable of making the charges amount to penalties at common law, then as there are fundamental differences and applicable laws regards business account terms, the relevance of this to Business accounts is questionable and flawed, and should not be allowed to also encompass them by default. So (particularly if you have access to them) I personally think that business claimants could then still press to have their own T&C's examined properly.
......... "THERE IS ANOTHER WAY"
(no apologies to Nastywests crap ad campaign):
The Court of Appeal has recently confirmed in Judicial Review Proceedings before it that
the Financial Ombudsman Service ("FOS") fair and reasonable jurisdiction does not require it to follow the law, nor is it obliged to hold a hearing or, as a matter of course, make its decisions public.
See this case:
Heather Moor & Edgecomb Ltd, R (on the application of) v Financial Ombudsman Service & Anor [2008] EWCA Civ 642 (11 June 200
Also:
It appears that it has now been upheld by the court of appeal that
the FOS has the right to charge the respondent (ie: the Bank) a case fee for dealing with every single complaint brought to it (regardless of the outcome, and whichever way the decision goes).
The FOS, and is also not obliged to just dismiss cases in order to save the respondent such fees.
See this case:
Financial Ombudsman Service v Heather Moor & Edgecomb Ltd [2008] EWCA Civ 643 (11 June 200
Also, the FOS is obliged to follow the banking code:
See this case:
Norwich and Peterborough Building Society, R (on the application of) v Financial Ombudsman Service Ltd. [2002] EWHC 2379 (Admin) (14 November 2002)
The FOS' official line (from it's website) at the moment regards bank charges complaints is, that as it intends to consider the law when dealing with Bank charges complaints, so it is holding back on considering individual complaints until the current OFT case is concluded.
Quote (from FOS website):
We need to know the final outcome of this important legal action, before we can make decisions in individual complaints about unauthorised overdraft charges. The law is one of the things that the ombudsman has to take into account when we decide cases. So we have decided not to continue our work on unauthorised overdraft charges until the legal position has been clarified.
Fair enough,
However, if a Business claimant were to argue that the OFT case bears little or no relevance to their own complaint (as it is brought under common law, and not UTCCR)........ then it may be possible to argue that all the relevant law pertaining to such a case was already decided.
So it could be argued that there was no justification for holding back on an investigation into a business account claim.
This argument could be further strengthened by next weeks announcement. ie; if ANY of the considered T&C's (relevant to your own bank) are deemed as possibly giving rise to the charges amounting to penalties at common law, then a business claimant could then argue that deems their own T&Cs as immediately open to investigation. At the same time, as nothing is submitted, claimed or relates to the UTCCR aspects of the OFT case, then no more delays with regard to the OFT case by the FOS should really be necessary any longer.
So:
1/ By taking the FOS route a business claimant may possibly be able to get some current progress.
Or at the very least they would still be able to bring a complaint to the FOS upon conclusion of the case.
The FOS could then still consider the case as they would not be bound to dismiss it based upon the OFT case outcome (as the courts may do), nor would they have to adhere to the ruling in the case.
Taking this route would also protect the claimant from the potential costs involved in losing in a court.
2/ By raising a complaint with the FOS, you would be costing the bank considerable fees to deal with such (regardless of the outcome).
So (dependent upon claim size) even just threatening to take the case to the FOS may be enough to prompt the bank to settle beforehand (in order to save itself what may be a greater expense in fees).
So, even if the conclusion of the OFT case were to shut the door on bringing complaints through the courts, then a business claimant (in fact anyone, so this even includes personal account claimants) could still take the FOS route, as the FOS are not bound to abide by the outcome of the case.
Also (up to a certain claim level) if faced with the cost implications of a complainant taking such the FOS route, then (regardless of the outcome of the OFT case) the bank may then consider settlement before it goes that far as being more cost effective.
.................
Comments anyone ??
PM
Re: Claiming on a Business account? Lets join forces? 
