The OFT Case

[shakespeare62]

Dont forget to be aware of DCA 'snoopers' on this site. It may be obvious who they are.

[MARTIN3030]

Hi Guys,

 

Sorry to post this here. But I have asked before and haven't had a response. I have a friend who is claiming on a business account with NatWest. I am fully aware of the business claims situation as regards the test case. However I have been told that in some circumstances some Claimants have recovered charges beyond the 6 year limitation period. I understand it is something to do with concealement, which is detailed in the Staute of Limitations (1980). Can anyone please advise, at least to get the ball rolling with this. His business claim is currently stayed in the County Court.

 

Many thanks,

 

TheyrCriminals

 

 

Yes this is true.

My own business claim with Barclays is using this arguement.

Basically it is section 32 c

That you were mistaken by paying the charges-being oblivious of the fact that they were unlawful until reports in the media.

The problem is that theres been rulings on the Common law elements which was the main points of the claim.

 

In my case,The claim was stayed,after Barclays telling the Court that the decision was expected.

However I successfully argued that the stay should be lifted to first deal with the limitation issue.

Barclays venemously objected-but was not granted their wish.So case listed for Limitation arguement in January.

This is an excellent way around the stay,and allow it to proceed,in the hope that the bank will not be able to properly defend limitation.

There is a 14 day skeleton exchange before the hearing.

It will be very interesting to see what Barclays come up with.

I am aware of 4 cases and in all of them the defence have paid up when forced to defend limitation on sec 32c

 

I suggest you read more in the Business forums.

[Aequitas]

Dont forget to be aware of DCA 'snoopers' on this site. It may be obvious who they are.

 

What signs do you see that suggest to you that they are snooping?

 

Why do you think the DCA are snooping on this site?

 

If they are, why do we need to remember be aware of them?

 

What points are we too look for that can help us recognise DCA snoopers?

[MARTIN3030]

We know that DCAs are active on CAG as are lots of others who have an interest in discussion here-its nothing new.

 

Its not difficult to work out why DCAs should be here.

I thought that would be fairly obvious.

 

Additionally,in some cases,it is not in the interests of a member to post specifics of their issues,where there is a good chance or a potential one,that the DCAs in question are able to monitor how he/she is addressing their issues.Again self explanitory.

 

DCAs are usually easy to spot-their wording of posts,their arguements,and their attempts to justify their means is the usual way to spot them.

[shakespeare62]

What signs do you see that suggest to you that they are snooping?

 

Why do you think the DCA are snooping on this site?

 

If they are, why do we need to remember be aware of them?

 

What points are we too look for that can help us recognise DCA snoopers?

 

 

Well - the spreading of "disinformation" is a classic tactic employed by certain organisations.

 

I think there is a post on the CAG forums warning people to be careful of accepting a PM (private message) from unknown sources. The assumption being they could be "DCA's" seeking to offer wrong advice to a specific individual they have a vested interest in. The disiniformation could also be professionally funded.

 

Thankfully most people are here for genuine reasons rather than attempting to defend banks and DCA's to the hilt.

[Aequitas]

I think it may be the case that I do not understand what DCA refers to. I took it to mean the Department for Constitutional Affairs and hence my perplexity. However, the previous post refers to DCAs in the plural so it seems to mean something different. Can I be enlightened please?

[shakespeare62]

I think it may be the case that I do not understand what DCA refers to. I took it to mean the Department for Constitutional Affairs and hence my perplexity. However, the previous post refers to DCAs in the plural so it seems to mean something different. Can I be enlightened please?

 

DCA means different things to different people. My interpretation would be unprintable. I've heard though some analogys being made to a "bottom feeder" in the food chain.

[Michael Browne]

Can I be enlightened please?

Debt Collecting Agency

[MARTIN3030]

Aequitas,maybe you are suffering from some kind of memory loss ?

If as you say,it is the case that you didnt know what a DCA is,then perhaps this may jog your memory ?

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/142685-advice-letter-dca-re.html

[MARTIN3030]

You are no stranger though to invoking debate.I recall your thread in which you stated bank charges were not a penalty-WELL BEFORE Judge Smith was tasked to decide.

 

 

http://www.consumeractiongroup.co.uk/forum/general-consumer-issues/92975-bank-charges-penalties.html?highlight=Aequitas

[Aequitas]

Debt Collecting Agency

 

Should have been obvious!

 

Perhaps there are those who think I work for a DCA. Well, those who run this site and have access to my IP address will soon be able to tell that I do not live in the UK and that therefore the chances that I work for a DCA have to be remote, though I concede that they cannot be entirely ruled out. For those without such access I draw their attention to the Landlord and Tenant forum where I do most of my posting. It will, I hope, be plain that when it comes to L & T law I can be said to have a firm grasp of the subject and that my claim to be a lawyer cannot summarily be dismissed, though my knowledge of the law could of course have been acquired otherwise than by being a lawyer. If I have come onto this site to spread disinformation I will, given the number of my posts in the L & T forum, have worked pretty hard to provide cover!

 

Once I move away from the L & T forum, which perhaps I would be wise to keep to, I often come up against what is a real problem for me. I find that posters are, for the best of motives, making assertions as to the law which in my opinion cannot be supported or are open to question. Am I just to sit back and let it go? I do not feel I can. If someone has a cause (e.g. high bank charges) with which I sympathise, but they advance legal arguments to support their cause that I do not feel do so, I will say so.

 

Even though I have, once here, concentrated my efforts on the L & T forum, I was, as some will know, first motivated to post on this site because, when surfing the net, I came across the bold assertion that bank charges were contractual penalties. I started the thread referred to by Martin3030. Anyone now re-reading that thread will I hope agree that in view of the decisions of the court to date in the OFT case that the points I made may, after all, have had some merit. Even if the decision on contractual penalties is overturned, at least there is one High Court judge who agrees with me!

 

All I ask is that if anyone comes onto a forum questioning the received opinion of the majority of posters, that their points be given consideration and not dismissed out of hand and hints dropped that they are deliberately spreading misinformation.

[Aequitas]

Aequitas,maybe you are suffering from some kind of memory loss ?

If as you say,it is the case that you didnt know what a DCA is,then perhaps this may jog your memory ?

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/142685-advice-letter-dca-re.html

 

Context is everything!

[MARTIN3030]

Perhaps there are those who think I work for a DCA. Well,

Quote

 

"those who run this site and have access to my IP address will soon be able to tell that I do not live in the UK and that therefore the chances that I work for a DCA have to be remote, though I concede that they cannot be entirely ruled out."

 

I didnt see anything that suggests its the case?

 

Actually most of the big DCAs are owned and operated by overseas venture capitalists.

[Aequitas]

That you were mistaken by paying the charges-being oblivious of the fact that they were unlawful until reports in the media.

 

First of course you need to prove the charges were unlawful. If you do that, then I am not sure it is plain sailing on the LA point. The law distinguishes (or at least used to distinguish when I last came across the point which is a while ago) between "mistakes of law" and "mistakes of fact". We are talking here about mistakes of law. The assumption is that when parties go into a transaction they know the law.

 

However I successfully argued that the stay should be lifted to first deal with the limitation issue.

 

Whilst congratulating you on the success of your advocacy, I confess I find the decision puzzling. Without deciding whether or not the charges were lawfully made, all that can be decided on the limitation issue is whether, if the charges were unlawfully made, they can be claimed back further than six years. The question of whether or not the charges were unlawfullly made remains to be answered.

[noomill060]

I understand that the question of the lawfulness or otherwise was not the purpose of the test case, it was merely concerning the OFT's power to be able to make a ruling of their fairness under UTCCR.

 

The OFT never made any claim as to these charges being an unlawful penalty.

[Aequitas]

I understand that the question of the lawfulness or otherwise was not the purpose of the test case, it was merely concerning the OFT's power to be able to make a ruling of their fairness under UTCCR.

 

The OFT never made any claim as to these charges being an unlawful penalty.

 

It covered both. Here is the part of the conclusion that dealt with penalties:

 

As for the position at common law, I accept the Banks' submission that none of the terms which I have considered (the terms now generally used by the Banks for personal current accounts other than basic accounts and also certain of the terms used until recently by Clydesdale and RBSG) could be unenforceable on the grounds that they are penal (paragraph 323 above).

[MARTIN3030]

First of course you need to prove the charges were unlawful. If you do that, then I am not sure it is plain sailing on the LA point. The law distinguishes (or at least used to distinguish when I last came across the point which is a while ago) between "mistakes of law" and "mistakes of fact". We are talking here about mistakes of law. The assumption is that when parties go into a transaction they know the law.

 

 

 

Whilst congratulating you on the success of your advocacy, I confess I find the decision puzzling. Without deciding whether or not the charges were lawfully made, all that can be decided on the limitation issue is whether, if the charges were unlawfully made, they can be claimed back further than six years. The question of whether or not the charges were unlawfullly made remains to be answered.

 

 

Yes fair call.

The claim relates to unfair penalties on unauthorised overdraft charges.

 

Barclays wanted the stay to remain in place,pending the handing down of the OFT test case decisions.

I was aware of 3 cases whereby the limitation aspects had been introduced to be dealt with seperately.At which point the Bank caved in and settled.

Obviously they didnt feel that they could sucessfully defend on it,for reasons of their own.

 

In my case Barclays argued that it would make little difference to have a hearing to decide on limitation,since even if it was upheld,the case would still need to be stayed pending determination by Smith.

 

The Judge however said something to this effect to the Barclays brief. ;

 

"Whilst I can see your arguements,the Courts are clogged up with cases.If it is decided that limitation cannot indeed be a consideration in this case,then it dismisses further action,and is one less case for the Courts to deal with further down the line."

 

I took this to mean that the Judge had a suspicion that Barclays had a problem with limitation and so was calling the shots....or to put it another way-was on my side.

[brown1950]

Herewith extract from BBC website :-

 

 

The RBS NatWest bank is planning to refund overdraft fees to customers "pro-actively" if it loses the continuing test case over bank charges.

An internal bank document reveals for the first time the preparations banks are making should they lose their case.

The document acknowledges the group may have to refund past charges, which could run to many millions of pounds.

The bank said it was just drawing up contingency plans to deal with one possible outcome of the test case.

Refunds

The RBS NatWest is waiting, with seven other banks, for an Appeal Court judgement on whether or not the Office of Fair Trading (OFT) can decide if their overdraft charges are unfair.

All customer accounts that are due a refund will be calculated as accurately as possible

 

 

RBS/NatWest

 

 

The bank document, passed to the BBC, indicates that many customers can expect refunds if the banks eventually lose their case.

It says a team from the bank is "preparing systems and processes to pro-actively refund charges to the group's customer base."

The bank currently has about 13 million customers, though not all will have been charged overdraft fees in the past few years.

"All customer accounts that are due a refund will be calculated as accurately as possible," the bank document says.

"Any monies will be accurately accounted for and reconciled," it adds.

The document says the bank aims for "avoidance of group reputational damage and/or loss of funds."

Contingency plan

An RBS spokesman denied the bank was planning to throw in the towel if it lost the current appeal.

He said its plans simply reflected the fact that it was obliged by the Financial Services Authority (FSA) to deal "efficiently and swiftly" with the customers' complaints if it eventually lost the legal argument.

"This work stream has absolutely no bearing on how we see the outcome of the test case," he said.

"With an organisation of our size and our different brands, complying with these requirements demands careful contingency planning and this document merely confirms that RBS is taking its obligations in this respect seriously as it has done throughout the whole test case process," he added.

Sharon Coleman of the campaign group Legal seagulls said: "We would welcome a pro-active approach if they intend resolving the matter without further appeals."

"Consumers have become increasingly frustrated by the apparent lack of progress in the test case, especially those affected by financial difficulty," she added.

Unfair?

For the past three years the UK's banks have been besieged by hundreds of thousands of angry customers aided by high-profile internet and media campaigns.

The customers have been demanding the return of high charges, levied by the banks whenever customers go overdrawn without permission.

In 2007, eight financial institutions and the OFT agreed to stage a test case in the High Court to resolve the legal issues.

At that point all cases in the county courts, and with the Financial Ombudsman, were suspended.

The first round of High Court hearings, earlier this year, was a defeat for the banks.

Mr Justice Andrew Smith ruled that the Office of Fair Trading (OFT) had the power, under the 1999 Unfair Terms in Consumer Contracts Regulations (UTCCR), to decide if the banks' charges were fair or not.

A subsequent appeal was heard in October and the judgement is now expected in the New Year.

An analysis of the 2007 annual reports for the five biggest banks suggested that up until the summer of that year, all UK banks had between them paid out £784m in refunds to nearly 378,000 customers.

[mcuth]

And a link to that story:

BBC NEWS | Business | Bank plans for overdraft refunds

 

Cheers

Michael

[phatram]

Don't forget the interest!

[tilly67]

Sharon Coleman of the campaign group Im a banana :-?:-?

[noomill060]

Its a reference to what Ian Hislop said on the steps of the High Court after losing a Private Eye libel case taken by Sonia Sutcliffe, the wife of the Yorkshire Ripper. The court awarded £600k against Private Eye.

 

"If thats justice, I'm a banana!"

[noomill060]

[Bigmac versus]

I wouldnt expect them to do this until all avenues have been exhausted. If one of them started to pay back they would all follow suit. Roll on the new year.

[enaid]

Sharon Coleman of the campaign group Im a banana :-?:-?

Now Sharon Coleman of the campaign group Im an orange

 

If you go here BBC NEWS | Business | Banks plan for overdraft refunds and go to related links, she comes from the site in the middle of FSA and OFT

Hope that helps Enaid x