OFT v Banks - Round One to OFT - Page 64

JOSH_IOU · 9th October 2008, 22:56

The way the system works from my point of view a subject must first be brung to claim.

Then the judge has the duty to make a judgement. If the system is not used then there will be no need for the doctrine.

My point is it must be in essense used as a part of the claim to mean something. Otherwise it is down to the judge to make a judical decision.

bernie the bolt · 9th October 2008, 23:05

Determindator: I totally agree lets get our money back then spend spend spend what credit crunch

stonedecroze · 10th October 2008, 10:07

least these seem to be optomistic

Customers could still reclaim 'unfair' bank charges

Bookworm · 10th October 2008, 10:20

Well, considering their vested interest, they would say that, wouldn't they?

... But as it goes, that's pretty much what I have been saying too, so I am not going to disagree with them too loudly.

TheyrCriminals · 10th October 2008, 22:48

Hi,

Sorry to post this again but here goes.

A solicitor has pointed out to me that even if the judgement on the historic terms is that they do not equate to penalties at common law it should not be assumed that business claims now have no legal basis. The solicitor pointed out that the judge hearing the test case has not considered a single business contract or any business terms and conditions during the test case, and so reliance on the judgement would be unjust for business claimants. Any judge would need to consider the contract between the business customer and bank and the business terms and conditions before a fair ruling can be delivered.

Any thoughts?

TheyrCriminals

JOSH_IOU · 10th October 2008, 23:15

There are difrent views here mine is.

The Solicitor is right.

The test case is there to determine personal current account terms and condition cases.

However im more than sure the banks would like to try it on and say they are linked.

Bookworm · 10th October 2008, 23:41

Quote:

Originally Posted by TheyrCriminals

Hi,

Sorry to post this again but here goes.

A solicitor has pointed out to me that even if the judgement on the historic terms is that they do not equate to penalties at common law it should not be assumed that business claims now have no legal basis. The solicitor pointed out that the judge hearing the test case has not considered a single business contract or any business terms and conditions during the test case, and so reliance on the judgement would be unjust for business claimants. Any judge would need to consider the contract between the business customer and bank and the business terms and conditions before a fair ruling can be delivered.

Any thoughts?

TheyrCriminals

Well yeah, surely it's obvious, isn't it? The OFT case is specifically about personal accounts, so the test case result doesn't apply to business accounts, in the same way that we have been able to keep on claiming off credit cards since the test case doesn't apply to them.

TheyrCriminals · 15th October 2008, 20:24

Hi Bookworm,

It certainly isn't obvious to some who are very confused with this personal/business account issue, further compounded by the courts themselves. The fact that penalties at common law are in question are being interpreted by some judges as extendable to business claims.

TheyrCriminals

TheyrCriminals · 29th October 2008, 23:14

Hi Guys,

If anyone is interested in the current state of play regarding the bank charges appeal hearing currently being heard in the High Court have a read:

BBC NEWS | Business | Bank charges ruling 'was wrong'

TheyrCriminals

brown1950 · 30th October 2008, 10:01

Just to remind people the Court isn't sitting today and resumes again on Monday through to Thursday.

ANDENA · 30th October 2008, 20:04

Quote:

Originally Posted by brown1950

Just to remind people the Court isn't sitting today and resumes again on Monday through to Thursday.

ANDENA Thank you

Aequitas · 2nd November 2008, 21:34

Quote:

Originally Posted by TheyrCriminals

A solicitor has pointed out to me that even if the judgement on the historic terms is that they do not equate to penalties at common law it should not be assumed that business claims now have no legal basis. The solicitor pointed out that the judge hearing the test case has not considered a single business contract or any business terms and conditions during the test case, and so reliance on the judgement would be unjust for business claimants. Any judge would need to consider the contract between the business customer and bank and the business terms and conditions before a fair ruling can be delivered.

Any thoughts?

Whilst it is the case that the judge only considered personal banking terms, I think it has to be said that the idea that contractual penalties have any application to any bank charges is pretty much dead in the water. I cannot see the language used in terms and conditions for business customers being significantly different from that used in personal banking terms and conditions.

I hope I can be forgiven a wry smile when reading those posts that say that the argument never was about penalties.

car2403 · 2nd November 2008, 21:57

Quote:

Originally Posted by Aequitas

I think it has to be said that the idea that contractual penalties have any application to any bank charges is pretty much dead in the water.

I'd have to disagree with that interpretation.

The caselaw on penalties is clear that what is, or is not, a penalty is a matter of fact based on the circumstances. The terms, including the detail of the wording, has to be considered alongside that, also.

What is happening here is that we are getting Judgment based on standard terms and conditions and not the individual circumstances of each case.

Quote:

I cannot see the language used in terms and conditions for business customers being significantly different from that used in personal banking terms and conditions.

From what I've seen, they can be very different depending on which bank.

Quote:

I hope I can be forgiven a wry smile when reading those posts that say that the argument never was about penalties.

I've always thought the question was about fairness - if they are unfair, they would be seen as penalties, in layman's terms, but not technically penalties in Law.

Aequitas · 2nd November 2008, 22:32

Quote:

The caselaw on penalties is clear that what is, or is not, a penalty is a matter of fact based on the circumstances. The terms, including the detail of the wording, has to be considered alongside that, also.

What is happening here is that we are getting Judgment based on standard terms and conditions and not the individual circumstances of each case.

Obviously there may be cases of individually negotiated contracts which provide for contractual penalties, but if the standard terms of business contracts are similar to those of personal contracts then it will be futile to pursue the penalty point.

Quote:

I've always thought the question was about fairness - if they are unfair, they would be seen as penalties, in layman's terms, but not technically penalties in Law.

Of course the law on contractual penalties is there to prevent unfairness, but not all unfairness can be put down to contractual penalties. The whole problem here has been people considering bank charges to be "penalties" in some everyday sense of the word and therefore assuming they must be penalties in the sense used in contract law. The essence of a contractual penalty is that it is a provision that purportedly allows you to claim more than the amount of your loss - it is not about making excess profit.

TheyrCriminals · 3rd November 2008, 19:40

Hi Guys,

Does anybody know if the court was sitting today, and if so what happened?

TheyrCriminals

Michael Browne · 3rd November 2008, 19:48

Quote:

Does anybody know if the court was sitting today, and if so what happened?

See post 215 onwards here:
The OFT Case

CAG Products - We think that these will help you to make your claim or Reclaim your Right These sales also help us to keep helping YOU and keeps this site free of third party adverts!

Small Claims Kit	Small Claims Court Guide New Edition	CallBurner - Skype CallRecorder Review	Last Will & Testament Kit	Fight a Motoring Ticket

Alternatively you could purchase a CAG email address here, or maybe you'd prefer our address labels here
UPDATE: Consumer Forums ConsumerWiki is now LIVE - click here: ConsumerWiki N.B. Please note - due to postage costs these products are only available in the U.K.