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

[yourbank]

Paul, would the amendments to the contracts be covered though?

[Michael Browne]

For protection under the regs the customer must have entered into the contract after 1st July 1995.

On that basis, one of the bank a/c's I've had since 1976 is still not covered

Edited June 27, 2009 by Michael Browne

[T2upNorth]

A slight twist to the topic but, given the arguments about fairness, cross-subsidy and price of the service - bank charges appear to follow a similar path to coucil tax and, indeed, all taxes.

[InformedSearcher]

OMG in that case I'm thinking Barclays, the year 2000. After holding a current account with them since 1975 and 2 failed payments they closed my account. They then told me I'd had my 5 minutes of discussion and anything else to be in writing. Why do I think they no longer have details of my account?

Michael

[Aequitas]

For protection under the regs the customer must have entered into the contract after 1st July 1995.

 

I confess this is a point, which must surely be correct, that had not previously occurred to me. It would seem therefore that not a few people who have put in claims based on the UTCCR may end up disappointed.

 

As to whether amendments are covered is a moot point.

 

Although I agree with the principle enunciated by paulwlton, a serious question arises as to whether the date he cites is correct.

 

Here is what Regulations 1 and 2 of the 1999 Regulations say:

 

Citation and commencement

1. These Regulations may be cited as the Unfair Terms in Consumer Contracts Regulations 1999 and shall come into force on 1st October 1999.

 

Revocation

2. The Unfair Terms in Consumer Contracts Regulations 1994 are hereby revoked.

 

Clearly clause 2 did not take effect until 1st October 1999 and so the 1994 Regulations were revoked on that day. The revocation does though appear to be absolute. There is no "saving" provision in Regulation 2 such as: ...except that they shall continue to have effect in relation to contracts made while those Regulations were in force.

 

This raises the alarming prospect that anyone who enjoyed protection under the 1994 Regulations ceased to have that protection on or after 1st October 1999 but (applying paulwlton's principle) could have no protection under the 1999 Regulations, an effect that surely cannot have been intended.

 

I hasten to add that I am no expert on the interpretation of statutes, but going solely by the words of the 1999 Regulations it seems that it may be the case that you need to have entered into your contact on or after 1st October 1999 to have any sort of "unfair terms" protection.

 

[sailingman321]

I just wanderred - since the banks have in most cases varied the terms of contracts since acounts were opened. Would this have any implications to accounts opened before 1999.

If they vary the terms - does this mean there is a new contract in effect -therefore falling from that time into the newer regulations?

[sailingman321]

I have just been reding up on Interfoto v Stiletto (1987) - this basically says that if a term is financially overly onerous on a party it needs to be made clear to the party. Is this a well known case? - Ahh yes I see it's in the case library.

 

It appears to pre-date UTCCR!

 

Could this be used if UTCCR does not apply? - especially if the banks have admitted their charges are extortionate?

Edited June 27, 2009 by sailingman321
just found in cases library

[car2403]

OMG in that case I'm thinking Barclays, the year 2000. After holding a current account with them since 1975 and 2 failed payments they closed my account. They then told me I'd had my 5 minutes of discussion and anything else to be in writing. Why do I think they no longer have details of my account?

Michael

 

I confess this is a point, which must surely be correct, that had not previously occurred to me. It would seem therefore that not a few people who have put in claims based on the UTCCR may end up disappointed.

 

As to whether amendments are covered is a moot point.

 

Although I agree with the principle enunciated by paulwlton, a serious question arises as to whether the date he cites is correct.

 

Here is what Regulations 1 and 2 of the 1999 Regulations say:

 

Citation and commencement

1. These Regulations may be cited as the Unfair Terms in Consumer Contracts Regulations 1999 and shall come into force on 1st October 1999.

 

Revocation

2. The Unfair Terms in Consumer Contracts Regulations 1994 are hereby revoked.

 

 

Clearly clause 2 did not take effect until 1st October 1999 and so the 1994 Regulations were revoked on that day. The revocation does though appear to be absolute. There is no "saving" provision in Regulation 2 such as: ...except that they shall continue to have effect in relation to contracts made while those Regulations were in force.

 

This raises the alarming prospect that anyone who enjoyed protection under the 1994 Regulations ceased to have that protection on or after 1st October 1999 but (applying paulwlton's principle) could have no protection under the 1999 Regulations, an effect that surely cannot have been intended.

 

I hasten to add that I am no expert on the interpretation of statutes, but going solely by the words of the 1999 Regulations it seems that it may be the case that you need to have entered into your contact on or after 1st October 1999 to have any sort of "unfair terms" protection.

 

 

I have just been reding up on Interfoto v Stiletto (1987) - this basically says that if a term is financially overly onerous on a party it needs to be made clear to the party. Is this a well known case? - Ahh yes I see it's in the case library.

 

It appears to pre-date UTCCR!

 

Could this be used if UTCCR does not apply? - especially if the banks have admitted their charges are extortionate?

 

 

I hate to point out the obvious, here, but there's some confusion on this clearly, so bear with me.

 

The Unfair Terms in Consumer Contracts Regulations (UTCCR) applies to terms of Contracts between Consumers and their Banks, in this instance.

 

IMHO, the inception date of the contract is irrelevant. What is relevant is was the enforcement of the term in question compliant with the UTCCR, after it was enacted?

 

I could be wrong, but I can't see how the date the contract was entered in to was relevant, as the unfairness of the terms go back to when the contract was entered, but the regs aren't retrospective. Presumably, the Banks will rely on this to limit the impact when (not if!) the decision goes against them.

[Aequitas]

Whilst sometimes financial legislation is retrospective to close loopholes, it is an accepted principle that legislation ought not to be retrospective in its effect. Indeed, Article 7 of the HCHR forbids it in the criminal law. Legislation is only retrospective when it makes it clear that it is intended to be retrospective. If retrospection were introduced into the law of contract it would mean that no one could ever be certain that a contract he made that conformed with the law when it was made would not be unravelled.

[JonCris]

quite Hadrian's mate but what about the abolishment of double jeopardy I think that's retrospective

[Aequitas]

I have just been reding up on Interfoto v Stiletto (1987) - this basically says that if a term is financially overly onerous on a party it needs to be made clear to the party. Is this a well known case? - Ahh yes I see it's in the case library.

 

It appears to pre-date UTCCR!

 

Could this be used if UTCCR does not apply? - especially if the banks have admitted their charges are extortionate?

 

I do not think so. The point of the case was that the onerous terms were not properly brought to the attention of Stiletto. It was stated obiter that if the terms had been properly brought to their attention they would have been enforceable even though extortionate.

[Aequitas]

quite Hadrian's mate but what about the abolishment of double jeopardy I think that's retrospective

 

I cannot comment on that except to say that if true it would not breach the HCHR because the point is whether or not what you did was a crime when you did it and not how many times you are tried for it.

[Crapstone]

But didn't they introduce anti-terrorism laws that were retrospective? I'm sure there was something else, a sexual crime(?), that was also made retro.

[Crapstone]

A contract does not need to be fair for it to be a contract. The UTCCR could also be viewed as an addition to be used in conjunction with current case-law and should prevail but not prevent the use of the states own legislation or decision making.

[Aequitas]

A case confirms what the law is, but a statute changes the law.

 

Example:

 

People who enter into agreements for letting paddocks for grazing believe that "horse" includes "donkey". The point is tested in court and the court holds that "horse" does not include "donkey". Following the decision, it is as if it had never been case that "horse" includes "donkey". Those who believed otherwise were mistaken as to what the law was.

 

If following the decision the Grazing Contracts Act 2009 is passed which says:

 

1. In all grazing agreements, unless a contrary intention is declared, "horse" includes "donkey".

 

2. This Act shall come into force on 1st January 2010.

 

then, the Act will only apply to agreements made on or after 1st January 2010

[photoman]

If you own a Public house, and just prior to the smoking ban coming into effect, had drafted and signed agreements with all your customers allowing them to smoke in your pub, does this then allow them to continue smoking after the ban came into effect?

 

No.

 

The effect of a statute is absolute and comprehensive.

It covers not only new contracts drafted after the date of its' effect, but also requires that all existing contracts also comply.

They must either be adapted or new contracts issued.

Otherwise, any terms that do not comply with the statute are remiss, and can be challenged.

[car2403]

Agreed, PM.

 

Also, if you have a look at the European directive, it's clear the European meaning of the Unfair Terms regulations was meant to be retrospective, plus, as Parliament have enacted it under same provisions of Law from which European Directives have been enacted retrospectively previously, there's definately an argument that Parliament intended it to have retrospectivity, even if it isn't clearly stated. (It isn't clearly stated that it isn't, neither)

[barry_2008]

So to summarise again what did the ruling say on the 23rd june.

 

I was in court myself that day and missed the news.

 

Theres talk about the EU directives so dose that mean the Lords ruled there unlawful?

 

I just dont want to loose the will to live im already in a Mental Health Hospital.

[yourbank]

There is no ruling in the HoL since the hearing was the appeal by the banks' to the HoL.

[Aequitas]

If you own a Public house, and just prior to the smoking ban coming into effect, had drafted and signed agreements with all your customers allowing them to smoke in your pub, does this then allow them to continue smoking after the ban came into effect?

 

This is different. The contract is frustrated or impossible to perform.

[Ibsys]

A contract does not need to be fair for it to be a contract. The UTCCR could also be viewed as an addition to be used in conjunction with current case-law and should prevail but not prevent the use of the states own legislation or decision making.

 

I had the benefit of speaking to a barrister once (for free!) and she said , "A contract is not valid in law if it does't duely protect both parties in law"

I don't know where she drew this from but she assisted a company in the South on bank charges when this all came to light in 1997.

[Aequitas]

Also, if you have a look at the European directive, it's clear the European meaning of the Unfair Terms regulations was meant to be retrospective

 

I have read the Directive. I only read it once and not that slowly and so may have missed it, but could not see any indication that the intention was that it should be retrospective. I did though find a statement in Article 10 to the effect that the provisions should be applicable to all contracts concluded after 31 December 1994, which seems to be a contraindication that the provisions should be retrospective.

 

The statement does seem to remove any doubt as to whether any contracts concluded after the 1994 Regulations came into force but before the 1999 Regulations came into force are subject to the Directive. There does though seem to be a bit of a problem since the Directive says it should apply to contracts concluded after 31 December 1994, whilst the UTCCR 1994 were expressed to come into force on 1st July 1995.

 

Whatever the date for the commencement of protection may be, I remain to be convinced that protection is available in respect of any contract concluded before the relevant date. It may be that a distinction should be made between "one off" contracts, such as a contract to provide a holiday, and contracts to provide a continuous service, such as a contract to provide banking services. However, I can see nothing in either the Directive or the Regulations that justifies such a distinction being made.

 

It may also be that there is something blindingly obvious that I am just missing.

[car2403]

I have read the Directive. I only read it once and not that slowly and so may have missed it, but could not see any indication that the intention was that it should be retrospective. I did though find a statement in Article 10 to the effect that the provisions should be applicable to all contracts concluded after 31 December 1994, which seems to be a contraindication that the provisions should be retrospective.

 

The statement does seem to remove any doubt as to whether any contracts concluded after the 1994 Regulations came into force but before the 1999 Regulations came into force are subject to the Directive. There does though seem to be a bit of a problem since the Directive says it should apply to contracts concluded after 31 December 1994, whilst the UTCCR 1994 were expressed to come into force on 1st July 1995.

 

Whatever the date for the commencement of protection may be, I remain to be convinced that protection is available in respect of any contract concluded before the relevant date. It may be that a distinction should be made between "one off" contracts, such as a contract to provide a holiday, and contracts to provide a continuous service, such as a contract to provide banking services. However, I can see nothing in either the Directive or the Regulations that justifies such a distinction being made.

 

It may also be that there is something blindingly obvious that I am just missing.

 

You've obviously read it in more detail, or were paying more attention then I did, as I missed that.

[patrickq1]

I have read the Directive. I only read it once and not that slowly and so may have missed it, but could not see any indication that the intention was that it should be retrospective. I did though find a statement in Article 10 to the effect that the provisions should be applicable to all contracts concluded after 31 December 1994, which seems to be a contraindication that the provisions should be retrospective.

 

The statement does seem to remove any doubt as to whether any contracts concluded after the 1994 Regulations came into force but before the 1999 Regulations came into force are subject to the Directive. There does though seem to be a bit of a problem since the Directive says it should apply to contracts concluded after 31 December 1994, whilst the UTCCR 1994 were expressed to come into force on 1st July 1995.

 

Whatever the date for the commencement of protection may be, I remain to be convinced that protection is available in respect of any contract concluded before the relevant date. It may be that a distinction should be made between "one off" contracts, such as a contract to provide a holiday, and contracts to provide a continuous service, such as a contract to provide banking services. However, I can see nothing in either the Directive or the Regulations that justifies such a distinction being made.

 

It may also be that there is something blindingly obvious that I am just missing.

would this render my contract as a valid conrtact signed in ninety two

[gillypam]

Hi all. its ok going on about what happened in the test case but all l wont to know is it looking promising for us who l have claims on hold or the banks going to get away with this as well and to say we own part of the banks .