The banks will apply to the House of Lords for permission to appeal the Court of Appeal's decision. The banks will work with the OFT to ensure the next stages in the test case process are progressed as quickly as possible."" errr..... don't the last 2 sentences sort of contradict each other ??

The wording has to be read within the fuller context of the statement it is delivered in. ie: 21/09 26 February 2009 The OFT welcomes the Court of Appeal's very clear confirmation today that the unarranged overdraft charging terms for personal current accounts can be assessed for fairness. The Court found that these terms are not part of the core or essential bargain between a consumer and their bank, and therefore consumers do have protection under the Unfair Terms in Consumer Contract Regulations (UTCCRs) for these terms. This judgment confirms the OFT's long-held interpretation of this important aspect of consumer law, and is one that consumers themselves would identify with. It is also relevant to businesses across the whole economy My interpretation here, is that the ruling has wider implications; in that any business (across the whole economy) that attempts to put terms relating to some form of charges (that are not part of the core bargain)into their contracts with their consumers, will too also now find such terms are subject to assessment under the UTCCR. However... I do also agree that the way it has been presented is a bit misleading !! PM

From the BBA: ""The court has not said fees are unfair just that they can be looked at to see if they are fair or not. The banks continue to believe that the Regulations do not apply to these type of charges. The banks will apply to the House of Lords for permission to appeal the Court of Appeal's decision. The banks will work with the OFT to ensure the next stages in the test case process are progressed as quickly as possible."" errr..... don't the last 2 sentences sort of contradict each other ??

On a similar note, an interesting feature in the Telegraph today about the current climate in banking; How banks are pretty desperate to get new customers, how to compare the various providers, the services, and the pluses and minuses of the various accounts suited to your own needs. Quote: But banks are desperate for your custom at the moment, and some are offering good incentives to lure you into their current accounts – knowing that once you are hooked, you could be with them for life. Both First Direct and Alliance & Leicester will pay you £100 if you switch to specific current accounts, while Halifax offers to pay you £5 a month. But how can you tell whether these are the right accounts for you? More here: Bank charges: Find the best bank account - Telegraph

Further to PT's comments about the insurance. Such a policy is deemed as being "self insured". ie: You do not actually pay the premium up front, it is only paid out upon conclusion of the trial. If you win, the premium for the policy is then recovered from the other side. If however you lose, the policy covers you for any costs you may have to pay..... and also the policy pays it's own premium. It's a pretty bizarre concept, and I cannot fathom how they make any money with such.... perhaps PT could explain ? I can only presume that the insurers are very careful about which cases they accept to insure, ie: only those they think have a good chance of winning. If you decide to go down the solicitors route, then when choosing ensure they have the right credentials, and are members of the relevant bodies. Again PT may be able to comment on which bodies etc and how to determine this? PM

Okay, Natwest would say that wouldn't they!! But remember, until such time as they state such in front of a judge, such a statement is pretty much just informal. If they actually continue with this tact in front of a judge, and then if at any later date such a statement is found to have been deceptive, then the person(s) making such could be found guilty of contempt of court, perjury, conspiracy to pervert the course of justice etc etc.... and such acts carry very heavy penalties. What you would be requesting of a judge in a court is a compliance order from him, one that forces the bank to reveal (or even be investigated) for all they have. If such an order is granted, then the bank could even be open to investigation by officers of the court if they feel they have not complied or are lying, so would be in serious do do if it is found that they have been lying and concealing such information or its availability. This is all well and good, if you can get the judge to issue such an order..... ....however, there is one obstacle to this that the bank could raise, blocking such an order being made.... and even possibly creating a liability for costs from you. Simply put, the CPR rules used state that they should only be used in circumstances where a case is in progress, or there is one in preperation that has reasonable chance of success. The problem I encountered was that the banks barrister raised the point that the information being requested was in relation to a stated action of reclaiming bank charges. He then cited that as any such action would only be stayed anyhow (due to OFT case), and/or may not even have a reasonable chance of success, then my call for an order for dislosure was premature, and/or was for an action that had little chance of success. The judge conceded to this argument, and declined to issue an order for compliance at such time, stating that the current proceedings would simply be stayed. He then stated that the action could later be restarted by either party at any point in the future. However, the banks barrister then went on, and tried to claim costs against me for the bank, on the basis that they had incurred such dealing with this. The judge (thankfully) then reposted by stating that he had only stayed the current action, so the case was not decided in either sides favour. Costs would only become liable at the conclusion of the action, and so if any point in the future the action is restarted, and concluded, then any assessment of costs would be made and awarded to the winning party. Now, it's very very very unlikely that the bank would restart such an action (after all why would they want to put themselves into a position whereby that are forcing themselves to comply with a disclosure order on the basis that I may be entitled to make a claim). As for myself, I am actually satisfied with what I presently have, and if I use it as the basis of a claim, and the bank then produce something out of the hat that could undermine my claim; I can then bring to the judges attention in the fact that the bank have previously made a formal declaration in a court stating that all they have given me is all they have. So I would then have a case for fraud, misrepresentation, conspiracy to pervert justice etc etc. Anyhow... I digress.... How does this affect you ? Well, if you actually wind up in court, and the bank start making declarations about how you have not identified a cause of action that has a reasonable chance of success, you could then point out that at some time in the future you may very well have (dependent on OFT case outcome). So if he is unwilling to issue a compliance order at that point, then rather than dismiss your claim, he perhaps instead consider staying the current action pending the final outcome of the OFT case. Then at conclusion of the OFT case, at such point either party would be free to recommence the present action. If this agreed to, then you should also be able to avoid any possible costs implications. If the OFT case presents an opportunity or cause of action for you in the future, then you could recommence the action, and you would then be likely to get such an order (as you have a cause of action). Then in such case you would not have to face any costs. If the OFT case doesn't provide an opportunity, then there's no point trying to get the info anyhow. So the case remains on hold, with no liability or costs for either side. Either way, you still get to avoid any costs implications. PM

Okay, The reason I am asking these questions is in order to make certain that the agreement is a "multiple" agreement. If you read the thread on the subject, you will note that an agreement becomes a multiple agreement if it falls within two different categories of credit. The different categories of credit are defined in sections 8-15 of the CCA 1974: 1. 'Personal credit agreement' or 'Consumer credit agreement' (Section 8 ) 2. 'Regulated agreement' or 'Exempt agreement' (Section 8 ) 3. 'Hire purchase agreement' (Section 9) 4. 'Running account credit' (eg credit card, overdraft) or 'Fixed sum credit' (eg bank loan) (Section 10) 5. 'Restricted use agreement' (eg PPI, car purchase) or 'Unrestricted use agreement' (eg cash loan) (Section 11) 6. 'Debtor-creditor-supplier agreement' (eg PPI) (Section 12) or 'Debtor-creditor agreement' (eg cash loan) (Section 13) 7. 'Credit token agreement' (eg credit card) (Section 14) 8. 'Consumer hire agreement' (Section 15) SO: In this particular case: The main loan was: 1/ "Regulated", 2/ "Consumer Credit agreement", 3/ "Restricted use" 4/ 'Debtor-creditor-supplier agreement' .. and as such needed to have the required terms for each category. These required terms are: 1/ - A term stating the amount of the credit 2/ - A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following: (a) number of repayments; (b) amount of repayments; © frequency and timing of repayments; (d) dates of repayments; (e) the manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable. Then: The PPI. This was: 1/ "Regulated", 2/ "Consumer Credit agreement", 3/ "Restricted use" Then here we need to determine if it was, 4/ 'Debtor-creditor-supplier agreement' or a 'Debtor-creditor agreement' . ie: was the PPI policy actually provided by First National, or was it provided by another insurer, with First National simply providing the funds for it. If the former (PPI provided by First National) then it was a 'Debtor-creditor agreement'. If on the other hand it was provided by another insurer it would be 'Debtor-creditor-supplier agreement' This could be useful in then shoring up the multiple agreement aspect. If it was a 'Debtor-creditor agreement' then we are in a better position, as it would certainly make the PPI a different agreement. If on the other hand it was a "Debtor Supplier Creditor agreement" then they may be able to argue that it fell into the same categories as the main loan...... although the act is a bit ambiguous in whether or not in such circumstances as when there is more than one supplier each loan is a separate agreement? To my mind in such circumstances then (if more than one supplier) then each loan should be considered a being separate, and thus itemised as such. This is because the true underlying intention of section 18 is to allow the borrower to see what exactly they are paying under each agreement,and to whom, and to prevent a lender from rolling more than one agreement into one. So.... any way to find out who actually provided the PPI ? Were any documents or agreements received from a third party insurance company after the loan was underway? If not, then it could reasonably be presumed that First National provide the insurance? However, it would be good to be able to determine this for sure. So any way to find out ? If necessary this may require a call for disclosure under the CPR rules, which I believe you are entitled to do, as there is a case underway. I think it would come under the scope of part 31 of the CPR rules See here: PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS but maybe check and get some advice on this ? PM

Goldlady, Looks pretty good, and well done, but before you proceed can you clarify a couple of points for me here? 1/ Who actually provided the initial ppi policy? I know that First National provided a loan to pay for it, but was the policy actually provided by themselves or by another party (eg: AXA etc). 2/ How was the money for the purchase of the goods provided? Was it paid directly to the store, or was it paid into the lenders account or paid as a cheque to them etc? I've also been doing some more thinking on the multiple agreements issues, in light of the debate on the multiple agreements thread, have you had a look at the thread yourself, it's a hotly debated subject... and although it's a VERY long thread, I'm sorry to say I think you should have a read through it. PM

THE ORIGINAL AGREEMENT IS UNENFORCEABLE !! It has been incorrectly executed, as it has been drafted up incorrectly. The PPI has simply been added onto the loan amount to create a total loan figure. Then this sum total has been used as the basis for calculating the monthly installments. THIS IS WRONG, and so it is unenforceable !! This is because the agreement is for TWO separate agreements (loans): The first being an agreement for the loan to buy the goods. The second being an agreement for a loan to pay the PPI. In such circumstances the loan document should be laid out in such a manner as to demonstrate what the constituent parts of the total monthly figure are. It should NOT be simply drafted to lump the two amounts together as one loan, with the monthly payments then shown. This is because it is a multiple agreement falling under section 18 of the CCA74. See here: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html Therefore each piece of credit must have its own term stating the amount of credit, repayments and all other statutory info. In essence there should be the following eg: Loan Amount of Credit £1000 Repayments 120 payments of £XX Total amount payable £XXXX APR 26.9% PPI Amount of credit £139.49 Repayments 120 payments of £XX Total amount payable £ XXX Apr 26.9% This all means that the original agreement is unenforceable as it stands, and so under section 127 of the CCA. It CANNOT even be enforced by a court. IMHO, This also means that the second PPI policy taken out later, is also unenforceable; as it was a policy taken out to insure against an agreement that was itself void and unenforceable. You may need to amend your defence to make some declarations upon these grounds ? Such defence should be based upon the following contentions: 1/ The loan is unenforceable, as it has been improperly executed by virtue of the fact that as is defined by section 18 of the CCA74 the loan was a "multiple agreement". 2/ Therefore as a multiple agreement, each part of the agreement should be clearly defined and executed in the manner defined by section 61(1) of the Consumer Credit Act 1974. 3/ As it is not properly executed then Section 65 says that it can only be enforced by a court. Quote: 65.--(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only. 4/ However, the Court's powers to enforce an agreement that is not properly executed (and that was entered into before 2006) are limited by Section 127(3) of the Act. Quote: 127.--(1) In the case of an application for an enforcement order under-- (a) Section 65(1) (improperly executed agreements).... (3) The court shall not make an enforcement order under Section 65(1) if Section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner) The prescribed terms for enforceability under s127(3) are given in Schedule 6of the Consumer Credit (Agreements) Regulations 1983: In all cases, each agreement must contain: - A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-- (a) number of repayments; (b) amount of repayments; © frequency and timing of repayments; (d) dates of repayments; (e) the manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable. 5/ The total loan amount in this case therefore consists of two separate and distinct agreements: One for the principal loan of £1000, and another agreement for a loan of £139.49 for a PPI policy. As such each section should have clearly had its own prescribed terms. This is clearly not the case in this agreement. PM

IMHO, I think what is happening in the case in question is that the judge is not quoting the CPR rules, but instead is interpreting how and when part 36 offers are actually to be practically treated. Particularly with regards to how dates are to be assigned. I should think that it would be reasonable for future cases also to quote the case in question as a precedent for determining such matters in other cases. I am guessing in your case that you got a part 36 offer, accepted it, and now they are trying to say the offer is no longer valid, and/or they won't pay up? I don't know what happens in such circumstances ? ie: are they legally bound to pay up if a part 36 offer made by an offerer has actually been accepted by the offeree (ie you)? IMHO, I should think they are. They have used a legal procedure, and so the onus and obligations under such rules should apply to both sides. Do you have any proof that you accepted the offer? eg a leter from them or a proof of postage ? Anyone else wish to comment ?? PM

Unfortunately you won't be able to get these charges back. They are account administration charges, for the regular processing all your transactions etc, rather than individual charges for any kind of defaults. Banks often do periodically charge business account holders for admin under the pretense that a business account requires the sorting and processing of many more transactions than a personal one, and so requires more admin. For many small businesses, this is actually in practice quite often not the case. If you are a sole trader (as opposed to a company), the fact is, that there are no statutory laws or legal requirements to actually run your business through a business bank account. The only legal onus upon you as a small business are the usual ones such as properly accounting for, filing and paying your tax. The only possible benefits of using a business account are that you may be able to get a larger overdraft and maybe sometimes slightly better rates on borrowing. Then of course there are the possible image benefits to your customers and suppliers of having a company name on cheques etc (but most take very little notice of such things anyhow). My suggestion is that you maybe consider opening another personal account elsewhere, and use that to trade, gradually transferring all transactions to this new account. Then close the business account once you no longer need it. No laws are being broken by you in such circumstances. Most banks will simply be happy for the custom (especially in such times), and if the number of transactions are not excessive, then as they will be benefitting from use of your credits, they will turn a blind eye, and be quite content to not rock the boat if they suspect your actually using the account for any kind of business (especially if you threaten to take all your credits elsewhere). You will also have to be completely above board about keeping your business and personal transactions distinct from each other for tax purposes (no trying to sneak your personal weekly food shop through as a business expense), so this is why I would suggest actually having a separate personal account. The other alternative if you have to (eg: your a limited co etc) or feel you really want or need to have a business account, is to shop around. If your company is actually doing okay, then in the current climate you might be able to find a bank that will actually offer free business banking, at least for some term such as a year (and then you can simply switch, or re-negotiate by threatening to switch again once the term is up if you want). This is all of course if your operating mostly in credit. If however, you are mostly operating with an overdraft this could all be more difficult.... but even then, you might be surprised if you shop around, or gradually reduce such borrowing with credits from your new account. If you also perhaps think you need a business account because your also using your business account for merchant services (such as taking online or over the phone credit card payments), then there are some other useful alternative to this offered by such companies as Paypal etc, who provide online terminal facilities, giving you perhaps a cheaper pay as you go means to deal with these. PM

The letter is probably just sat in his "in tray", and he'll probably leave it there in the hope that the whole issue will just go away if ignored. The disdain and total disregard that these institutions have for the government and the laws of the land is frankly quite shocking. The seem to feel they can operate above the law, and have no regard for the government ....... until that is, they need some cash from them !! "History records that the money changers have used every form of abuse, intrigue, deceit, and violent means possible to maintain their control over governments by controlling the money and its issuance." - James Madison, 4th US President "Let me issue and control a nation's money and I care not who writes the laws." - Mayer Amschel Rothschild, 1790

There is also the implications that this brings regards the Statute of limitations ? The fact that the T&C's were obviously changed (after some deliberation on their part) could quite easily be claimed to indicative that they amended them around 2003/4 in order to conceal something? Or that you conceded to them whilst acting under mistake? ie: They realised at some point in 2003 or 2004, that their t&c's meant that such charges were actually being levied for breaches of contract, and were thus contrary to law. So they quickly changed them. From the Statute of limitations: 32 Postponement of limitation period in case of fraud, concealment or mistake (1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either-- (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or © the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.. So.... We have only just discovered this fact today, and so NatWest claimants now have 6 years FROM TODAY in which to act upon such charges. It must be noted though, that this new cause of action only applies to NatWest claimants, who have had accounts that incurred charges at some point between 2001 and 2003. It would also only help with regards claiming under common law (penalties) for charges incurred from 2003 and backwards, as any charges applied since 2004 have already been ruled out as not being penalties for breach of contract. So theoretically, in the first instance, one could bring a claim under common law, and keep it just to those charges incurred between 2001 and upto their change of T&C's in 2003/2004. However, the other important fact to remember, is that the SOL is a forward acting mechanism. It does not specify any bar for any such pleas brought under sec32 as to how far back one can then also go. So, even if the cause of action ( ie: a charge that could be deemed as a penalty under their T&C's) happened in 1980, but you've only just discovered it today (ie: the realisation that concealment or mistake has happened), then you now also have 6 years from today in which to act upon those too. So, in the second instance, if you do manage to get hold of some T&C's prior to 2001, and can clearly see that these could be seen to be of a similar manner to those of 2001-2003 considered by Judge Smith, you could maybe also claim for charges incurred during those earlier periods too. This could then go way back, and if the T&Cs are similar, certainly as far back as 1980 which was when the SOL came into force. PM

Barry, All interesting stuff, and I'm sure all many in agreement, but it's taking this thread somewhat off topic. Do you have a thread of your own, or could you start one along the lines you are talking? regards PM

I have just quickly copied and pasted some stuff I had from some other members posts here. You should really ask around a few others or some advice on this too. (especially as: a/ I can't recall how NatWest present their charges in such circumstances. b/ You must now be wary of using the "charges for breach of contract" angle that Business claimants have been able to use until lately. I'm unfortunately going to be offline for a few days (House move), so you really should get as much advice from all quarters before Wednesday, and compose what you are requesting. You should perhaps include something along the lines of: You respectfully request that the court order the Defendant (NatWest) to provide evidence of the following: a) the dates and amounts of all charges levied by the defendant; b) the reason for the charges (eg unauthorised overdraft); (and if NatWest presented the charges to you as being in regards to "costs" or "losses") c) what the defendant's losses are alleged to be; Then you could maybe also add your reasonings for not believing the Defendants assertions regards "costs": eg: I estimate the loss incurred by the defendant to be in the region of a minimum of £0.20 to a maximum of £1.75 per each single event. I am unable to provide a more accurate figure at this time, due to the fact that the Defendant, and indeed all of the UK banks, remains highly secretive regarding the mechanisms of their systems and the costs associated in the charging process leading to a charge being made. I am aware of in excess of 100 claims similar or identical in nature to the present case which have been brought against the Defendant bank in the last 18 months. In a significant number of these cases disclosure orders have been made obliging the defendant to substantiate its contentions. It is submitted that the Defendant’s charges are applied by a completely automated and computer driven process. This process consists of a computer system; a) sending a computer generated letter if a customer exceeds authorised overdraft limit (even if by only a few pence) to advise the customer of the charges, or b)returning a dishonoured cheque plus notice to the customer, or c) ‘bouncing’ a direct debit or standing order. The costs of Data processing are nominal. Following some research into these processes and their costs I was able to obtain a list of prices from The Data Processing Company UK (Data Processing by The Data Processing Company), which confirm that such costs can be reasonably measured in pence rather than pounds. Please find this list attached in support of this statement as exhibit (insert exhibit number) It is therefore impossible to envisage how the Defendant can incur costs of £35 by carrying out a completely automated process. Note that the letter received notifying of a charge is identical in every instance, and if multiple charges occurred on the same day, a separate letter will be sent in each instance, in separate envelopes. Two samples of these letters are attached to this statement as exhibit No: (insert exhibit number). CYNthesys Disclosures Disclosures were recently made to the BBC and subsequently to Andrew George MP and journalists at a meeting at the House Commons revealing that the Clydesdale, Yorkshire and Northern Banks operated a structured, detailed and auditable system for costing, tracking and refining their costs of conducting various operations within the bank including the processing of such events. The system, which was apparently introduced in 2002 was called CYNthesys- Clydesdale Yorkshire Northern the system. A Yorkshire Bank informant who is a former high level employee at the bank stated on television and in an affidavit that even assuming the highest level of manual intervention any single such process would never cost more than £2.00 and that this cost is calculated and traceable using CYNthesys. It is submitted that it is inconceivable that such a system with the same or similar mechanisms, characteristics and costs is not also employed by NatWest, the Defendant in the present case. Basic business principles and marketplace competition dictate that if such a system is in existence, available and operated by an organisation, that its competitors in the marketplace will also seek to employ a system which is equally efficient and cost effective or perhaps even more so. Further, note the end charge to the customer of the CYNthesys banks (for example Yorkshire Bank) is almost identical to those of NatWest. NatWest charges tariff Unauthorised overdraft fee - £XX (Insert cost) Bounced direct debit/cheque/standing order - £XX Taken from “Tariff of charges” at NatWest Yorkshire Bank charges tariff Debit card abuse fee - £35 Bounced direct debit/cheque/standing order - £35 Taken from “Table of charges” at Welcome to Yorkshire Bank The Competition Commission Northern Ireland Competition Commission report from October 2006 revealed that figures contributed by eight banks, including the Defendant, NatWest, showed that around 12% of the banks annual revenue is generated by "overdraft charges". The report clearly demonstrates that the banks make significant profits from such charges and that they know about it, depend upon it and that they calculate for it. It is submitted that this report is clear evidence that the Defendant is aware that the income derived from its such charges is calculated to generate material profits and is not merely a means of recouping losses incurred in relation to such specific events. Some relevant parts of the report are reproduced as follows; Appendix 4.6 Policies on setting unauthorised overdraft charges 8. We asked the banks to describe their policies for setting charging structures and charge levels; we also asked them what factors they take into account when setting unauthorized overdraft charges. 9. The answers were consistent across all the banks that responded, that unauthorized overdraft charges were set in the same way as other fees and charges. Thus banks tended to look across all their products and all their charges and sought to ensure their products were competitive with their rivals. This would be assessed through price comparisons, and also by monitoring account recruitment and retention. In the main, the clearers paid particular attention to the other clearers. The non-clearers set their pricing UK-wide and so particularly monitored the UK wide banks and the banks based in Great Britain. However, that said, there were clear examples of banks concluding that it would be profitable to raise charges above competitors (eg see paragraphs 20 and 22 in Annex 1). 12. Most of the banks made reference to monitoring of their costs, and sought to recover cost increases through their charges. However, as such costs tended to arise across a range of bank activities there was no direct feed through from particular cost increases to particular charges, but would be spread across the charging structure with regard to competition on these charges. 13. None of the banks told us that their charges were determined mainly by estimates of costs. 24. Some inference on unauthorized overdraft charges can be seen in the banks’ moves to fee-free accounts, as analysed in Appendix 4.8. As covered previously, Ulster’s proposals for fee-free banking rebalanced to an extent the loss of fee-income from transactions with an increase in unauthorized overdraft charges. BoI had developed proposals for a similar fee-free account where income loss would be approximately offset by increased unauthorized overdraft charges. Appendix 4.6 of the report titled “Unauthorized Overdraft charges” is attached in full in support of this statement as exhibit (insert exhibit number) Australian Default Fees report In a study undertaken in Australia, (Nicole Rich, “Unfair fees: a report into penalty fees charged by Australian Banks”) it was estimated that the cost to an Australian Bank of a customers direct debit refusal was estimated to be in the region of 54 cents. By reviewing the charges to the customer against the actual cost to the bank, the study estimated that banks could be charging between 64 to 92 times what it costs them to process a direct debit refusal. The study’s key findings stated that the Australian Bank’s cheque and direct debit refusal fees were likely to be penalties at law. The reports summary is attached in support of this statement as exhibit (insert exhibit number) The penalty charging regimes of the Australian banks as well as the automated systems employed to process default events are similar to those of the UK banks, and the laws relating to contractual penalty clauses are also similar to those in the UK. BBC Commission Report For the recent BBC2 documentary "The Money Programme", the BBC appointed a commission of former senior banking industry figures and business academics to attempt to ascertain the actual costs to the UK banks of processing such an event. They concluded that the absolute maximum conceivable cost that could be incurred by a direct debit refusal or overdraft excess is £2.50, and of a returned cheque £4.50. They did state however, that the actual cost is likely to be much less than this. The commission also estimated that the UK banks collectively derive as much as £4.5billion in profit a year from their charging regimes. The commissions conclusion is attached in support of this statement as exhibit (insert exhibit number)

Bookie, In light of your comments regards using mistake, then one could use the same arguments and approach as I have stated citing mistake instead or in the the alternative. PM

Bookie, Just to note to say that I was composing my own message directly after Barry's post, so it did not see and take on board your own posts, and fair comments. I still think there is some possible mileage in the "concealment" approach though ? PM PM

NO.... Concealment !! Fraud is a VERY serious allegation to make, and also near on impossible to prove. But, the fact that the T&C's were obviously changed (after some deliberation on their part) could quite easily be claimed to indicative that they amended them around 2003/4 in order to conceal something? ie: They realised at some point in 2003 or 2004, that their t&c's meant that such charges were actually being levied for breaches of contract, and were thus contrary to law. So they quickly changed them. From the Statute of limitations: 32 Postponement of limitation period in case of fraud, concealment or mistake (1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either-- (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or © the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.. So.... We have only just discovered this fact today, and so NatWest claimants now have 6 years FROM TODAY in which to act upon such charges. It must be noted though, that this new cause of action only applies to NatWest claimants, who have had accounts that incurred charges at some point between 2001 and 2003. It would also only help with regards claiming under common law (penalties) for charges incurred from 2003 and backwards, as any charges applied since 2004 have already been ruled out as not being penalties for breach of contract. So theoretically, in the first instance, one could bring a claim under common law, and keep it just to those charges incurred between 2001 and upto their change of T&C's in 2003/2004. However, the other important fact to remember, is that the SOL is a forward acting mechanism. It does not specify any bar for any such pleas brought under sec32 as to how far back one can then also go. So, even if the cause of action (a charge that could be deemed as a penalty under their T&C's) happened in 1980, but you've only just discovered it today (the realisation that concealment has since happened), then you now also have 6 years from today in which to act upon those too. So, if you manage to get hold of some T&C's prior to 2001, and can clearly see that these could be seen to be of a similar manner to those of 2001-2003 considered by Judge Smith, you could maybe also claim for charges incurred during those earlier periods too. This could then go way back, and if the T&Cs are similar, certainly as far back as 1980 which was when the SOL came into force. PM

Bookie, I've been musing this limitations issue over, and had the following thought. Would appreciate yours (and anyone else's) views on this? If Justice Smith has declared he feels that NatWest charges from the period 2001-2003 could make the charges amount to penalties at common law... then, in such case, it could be argued that around 2004 NatWest made a change to their T&C's.... why..... well, to conceal the fact that they were penalties of course ! Hence, the 6 year bar to limitation falls away, as ANY act of concealment is sufficient to do so. And this then means that a claimant can submit a claim and ask for ALL charges in perpetuity to be looked at. Did Justice Smith only look back as far as 2001 in all the banks cases (ie: 6 years back from when the test case started)? If so, then there is also the possibility that even earlier charges (certainly in NatWests case anyhow) would also be similar, and so would be deemed as amounting to penalties. Thoughts anyone ?? PM

Looks like some of NatWests' Terms and conditions cold mean that some (at least) of their charges could amount to penalties at common law. The loss of the argument of penalties at common law has been a bit of a blow to business account claimants. However, this ruling would include Business account charges too. So anyone with a business account claim against NatWest from around the period in question should submit a claim. See here: http://www.consumeractiongroup.co.uk/forum/bank-charges-finance-industry/179659-new-natwest-bank-charges.html

You could try this approach ? Issue a CPR for pre-action disclosure. This applies equally so to all information, not just agreements as stated in thread. http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html Have a read of the thread, and pick some brains over there. PM

Thanks for the compliment Steven. DannysDebtBeDamned. Sorry if my post sounded harsh, but I just wanted to put across to you the very serious possible consequences of perhaps going ahead with such an action, as we don't want to end up reading about you being locked up in the Mail on Sunday !! We're actually a very friendly bunch here, and my words of warning were intended more as a way of saving you from the consequences of doing such a thing. Regards PM

It's not just "not cricket" so to speak, it could also be construed as fraudulent behaviour, which carries some very serious legal consequences. CAG's objective is to help with people with debt control and management, and also empowering people to stand up for their rights, getting wrongfully applied charges, debts, defaults etc refunded or corrected. CAG is not about encouraging people to avoid paying their genuine debts, as this could then be construed as conspiracy to defraud, with similar serious legal consequences. So all the membership and team here are are very careful to avoid encouraging or getting involved in such practices. Your proposed plan of action is something that CAG and it's membership frown upon, and will not encourage, condone or help anyone with. If you've borrowed the money (regardless of the circumstances why you did), and the contract was fair and legal, then it is something you really owe ought to repay. Trying to take advantage of a loophole, by switching this to and obtaining the services of another card provider, with the deliberate intention of then making a gain is a fraudulent act (which I believe would come under sec 11 of the 2006 act). If on the other hand your debt contains or consists of some genuinely unfair charges, then there is nothing stopping you contesting and applying for a refund of those. PM

..... However.... what's happened to the little bar that told you who else was on the same thread ? ....Was quite handy to know when posting, that you weren't just talking to the ether !! PM

Just wanted to say that I've just noticed the NEW homepage !! Looks FAB.... well done guys !! Thought, I'd just mention it here to bring more peoples attention to it. There is a link in everyones ID, or just go here: The Consumer Forums - Welcome to the The Consumer Forums Remember, if you win something back, win a fight, or even just get some pressure and strain taken off you as a result of the help and advice here, DO try to give something as a donation. CAG is unique, in that there is no set charge or even % should you win, it knows that everyone's means are different, and also money is tight for a lot of visitors.... but DO please try to give something, whatever you can reasonably afford, so that this site can carry on helping others like yourself. Long live the CAG !! Regards to all. PM