H.O.L Test case appeal. Judgement Declared. ***See Announcements***

[brown1950]

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

[ANDENA]

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

ANDENA Thank you

[Aequitas]

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]

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.

 

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.

 

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]

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.

 

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]

Hi Guys,

 

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

 

TheyrCriminals

[Michael Browne]

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

See post 215 onwards here:

http://www.consumeractiongroup.co.uk/forum/oft-test-case-updates/135299-oft-case-11.html

[rdm2006]

has something happened i do not know about?

 

i reclaimed charges under hardship a few months ago and they were all refunded.

 

since then i have had the odd one or two more charges but on friday these have been refunded to me without even asking ?????:confused:

[georgieboy]

Congratulations - lets hope the tide has turned at last.

 

All the very best to you...........

[locutus]

As my mother would say......

 

[phatram]

has something happened i do not know about?

 

i reclaimed charges under hardship a few months ago and they were all refunded.

 

since then i have had the odd one or two more charges but on friday these have been refunded to me without even asking ?????:confused:

 

From which bank?

[rdm2006]

rbs

[fergal71]

me too for friends from barclays, only 50% so far rhough its a start

[brown1950]

Extract from the OFT website :-

 

Personal current accounts - UTCCRs investigation and test case

 

The personal current accounts market study provides the context for the OFT's Unfair Terms in Consumer Contracts Regulations (UTCCRs) investigation into the fairness of the level and application of unarranged overdraft charges.

The High Court test case, which is a key part of the investigation, is seeking to establish the preliminary legal principle of whether the provisions of the UTCCRs that deal with unfairness apply. It is also addressing the additional point of law of whether the charges can amount to penalties at common law.

 

Below is a timeline of this work.

5 December 2008

 

There will be a hearing at the High Court at 09:30 on 9 December to deal with further submissions from Abbey, Lloyds and RBSG relating to whether some of their historical charging terms are capable of amounting to penalties at common law.

[SPROUTY]

Re Today in Court

 

Interesting that RBS have more representations to make to the Judge and are the last ones left in the court.

 

This is a big IF but wern't they the Bank who the BBC said had prepared a division to pay back charges I wonder???

 

Maybe they are the odd one out who's charges CAN be tested as a penalty?

 

Just a thought!

[noomill060]

RBS is nationalised and seem to be dancing to a different tune these days.

 

Just a thought.

[car2403]

Re Today in Court

 

Interesting that RBS have more representations to make to the Judge and are the last ones left in the court.

 

This is a big IF but wern't they the Bank who the BBC said had prepared a division to pay back charges I wonder???

 

Maybe they are the odd one out who's charges CAN be tested as a penalty?

 

Just a thought!

 

Wasn't this HBOS?

[elsinore]

RBS

 

RBS plans 'proactive' refund of overdraft fees

 

Els

[SPROUTY]

Well we will know before christmas (judges work load permitting) Could be a very happy Crimbo for NatWest (RBS) clients if their charges can be "tested" as penalties.

 

The "proactive" staff may be busy elves!

[noomill060]

Satan's little helpers?

[adarling2006]

HBOS did something which i thought is odd, I have been offered half the charges complaint i have on hold with them, £1,132.54 is what i've been offered. Point being there could be a mass flood of these offers going out because of the hearing on the 9th.

[noomill060]

I see a pattern forming....

 

Offering everyone half what they're claiming, in anticipation of saving a few shillings when an announcement is made.

 

Methinks they know something...

[ohoh4312]

I wish!?!

 

No movement on the Abbey front - my hardship claim was refused delivery, not even refused consideration.

 

£3-4K would be a fantastic crimbo pressie.................

 

Here's hoping!

[african_igbo]

Hi All... seems a bit better... anyway I just got made redundant like many others a few weeks back.. thus Is there a good thread and am I able to try my hand at hardship.... etc etc..Anyone had any contact with Barclays.... in regards to offering payments prior to antisapation of saving a few schillings...

[adarling2006]

here's hoping for a full refund if they know something, can't fight us for long if the rules are on our side.