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Contracts signed pre July 1995 and The Unfair Terms in Consumer Contracts Regulations
Hi All
An issue has been raised in my bcard thread (see signiture) regarding credit card contracts signed pre july 1995 namely:
I'm sorry to tell you that you may not be able to claim the unfair chrgaes, since as you have said your account was opened in approx. 1992. It may be worth Pmin a moderaotor because I'm pretty sure that I have read on another thread The unfair terms and conditions act does not apply to any contract signed before 1995, so I'm afraid your claim may be struck out.
Now i've checked up on and The Unfair Terms in Consumer Contracts Regulations 1999 came into force on 1st October 1999 and replaced the The Unfair Terms in Consumer Contracts Regulations 1994. The 1994 act came into force on 1st July 1995.
Does this mean that for contracts signed before 1st July 1995 you cannot use the regulations as grounds for getting charges refunded, even if they were applied to your account after the regulations came into force
Victory over Lloyds PPI claim £2606 click! Barclaycard lazygoing - £580 + £398 contractual int at 17.7 % click! (Received partial payment £110 21/11/06) The GF's battle against RBS click! stayed awaiting the end of the world
Re: Contracts signed pre July 1995 and The Unfair Terms in Consumer Contracts Regulations
Personally i doubt it, it does mean that you probably cant quote the UTCC regs since your contract was entered into before they came into force, however, i wonder what impact the changes in T&C over the years would have on that issue?
That is to say that the bank regularly updated your T&C by way of one of the terms in the original T&C so you don't have any choice other than leave the bank but to accept those new terms.
Once the UTCC came into force then it would possibly apply to the contract in force at the time.
For the older charges whilst the UTCC wouldn't apply the law regarding penalty charges and whether they are lawful or not is well established, the case o Dunlop vs new garage often quoted was settled around the 1890s or early 1900s i believe.
In conclusion i think you can still claim it just potentially removes a strand of your argument.
Id be interested if anyone of the mods has any particular views on this issue or my comments, especially if their wrong of course.
JMHO
Glenn
PS the Limitations Act Sec 32.1.b and c would probably still apply i believe.
Kick the shAbbey Habit
Where were you? Next time please
Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless
Abbey 2nd claim, two Accs - claim issued 30-03-07 Barclaycard - Settled cheque received
Egg 2 accounts ID sent 29/07 Co-op Claim issued 30-03-07
GE Capital (Store Cards) ICO says theyve been naughty
MBNA - Settled in Full
GE Capital (1st National) Settled
Lombard Bank - SAR sent 16.02.07
MBNA are not your friends, they will settle but you need to make sure its on your terms -read here Glenn Vs MBNA
Re: Contracts signed pre July 1995 and The Unfair Terms in Consumer Contracts Regulations
Glenns' argument is well made.
And there are additional points which, I believe, make the case untenable for
banks to fall back on.
There will be customers who have held bank accounts at any time since the
second world war forwards [and yes there may still be a few from before the war].
It woild be difficult for a bank,when it changes the terms of its contract, to not
include within those new terms, their customers who had opened accounts with
them before the changes.
For instance when banks introduced the paying of interest on current accounts,
that applied to all their customers, not just the new ones. As new conditions
come into force, the banks inform their customers and I know of no bank whose
contract with an individual customer has remained the same as it was when first
opened, whilst the bank itself has amended, altered or upgraded its T&C's with
more recently joined customers.
So regardless of the time that a customer joined, all of us are subject to the
same T&C's ie the most recent client. Where the time strictures would have no effect is where a contract had been signed prior to 1995, and its terms had
remained unchanged.
The banks furthermore, by increasing the charges for unpaid items for
example, have altered the terms of the original contract. And it would be
inequitable, if by altering that charge by so much after 1995, that it went from not being unfair say in 1994, to being unfair in 2000, that we were not allowed to
challenge the increase under the UTTCR.
Re: Contracts signed pre July 1995 and The Unfair Terms in Consumer Contracts Regulat
Hi can you tell me if i can put UTTCR in my paticulars of claim if my contract was signed pre 94. Some of the charges run upto 2000 but some are before 1994.
Thanks
Karen
Re: Contracts signed pre July 1995 and The Unfair Terms in Consumer Contracts Regulat
Something i never thought of was that if the account is still operating then it would now be subject to the UTCC whenever it was opened.
I am not certain how the 'contract' would be considered in this respect by courts, since clearly the contract between the two parties had changed from one where the UTCC wasn't in effect to one where it was.
i don't think that either party could cherry pick from the terms and conditions nor could they cherry pick from the law.
It seems to me that if the contract is still in force then if the bank wishes to hide behind the fact that the UTCC was not in effect at the beginning of the contract then they should be willing to revert to the pre UTCC charges and terms.
This of course is a layman's view and probably has no basis in law but it does seem logical to me.
Glenn
It seems to me that the 'contract' is in effect the single agreement, albeit changed in some respect, i don't see the
Kick the shAbbey Habit
Where were you? Next time please
Abbey 1st claim -Charges repaid, default removed, interest paid (8% apr) costs paid, Abbey peed off; priceless
Abbey 2nd claim, two Accs - claim issued 30-03-07 Barclaycard - Settled cheque received
Egg 2 accounts ID sent 29/07 Co-op Claim issued 30-03-07
GE Capital (Store Cards) ICO says theyve been naughty
MBNA - Settled in Full
GE Capital (1st National) Settled
Lombard Bank - SAR sent 16.02.07
MBNA are not your friends, they will settle but you need to make sure its on your terms -read here Glenn Vs MBNA
Re: Contracts signed pre July 1995 and The Unfair Terms in Consumer Contracts Regulat
This may seem a stupid point but, I have never signed a contract when opening a bank account, including two weeks ago when I opened a parachute account. So how can you be held to a contract?
I didn't get the T&C's through for two weeks but noticed that the charges are still excessive
Re: Contracts signed pre July 1995 and The Unfair Terms in Consumer Contracts Regulat
Domino: You will be held to the contract. The contract is the agreement you made for them to provide you with banking services. The terms and conditions will be referred to in their paperwork and that is enough (and there is plenty of well-established case law to support this view) for those T&Cs to be incorporated.
On the other UTCCR questions:
UTCCR can be used for any charge since 31 December 1994. The Regulations were a result of an EEC (as it was then) directive: 93/13/EEC which had to be implemented by Member States by that date.
Technically, following the ECJ judgment in Adeneler, the English courts have to do everything they can to apply European law from its date of implementation - and my argument would be that the English courts have plenty of ways to make sure the legislation is followed.
In fact, the 1994 Act wasn't quite up to scratch and the 1999 Act brought it into compliance.
It is irrelevant whether the contract and the offending term(s) existed before the Act (or the directive) - it is the term that offends, not the making of the term.
Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69
1996
PC
Lord Mustill Commonwealth,
Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."
Contracts signed pre July 1995 and The Unfair Terms in Consumer Contracts Regulations
act does not apply to any contract signed before 1995, so I'm afraid your claim may be struck out.
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