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

[barry_2008]

Again.. The supreme court has been discussing weather or not the banks TOC'S/contracts can be tested for fairness under the UTCCR's Act.

 

The Common Law argument on Penalty Charges were removed.

In my view it was not correctly argued if you read the lecture I have just posted.

[patrickq1]

so if the supreme court go against the banks, then the oft are free to decide whether they think charges are fair or not, which they should give a decision on in the new year? so what exactly is it the banks will be fighting next time, the decision of the charges being unfair or the level the oft decide to be fair? way i see it, if the banks lose this final appeal then there shouldn't be any argument whether the oft's decision is right or wrong according to the banks, because the courts have decided to leave the decision in the oft's hands. or am i missing something:confused:

the oft are free to decide whether they think charges are fair or not

the oft have already decided in their thinking that bank charges are unfair and even more so the NEW HALIFAX charging regime is far worse ....

patrickq1

[yourbank]

Again.. The supreme court has been discussing weather or not the banks TOC'S/contracts can be tested for fairness under the UTCCR's Act.

 

The Common Law argument on Penalty Charges were removed.

In my view it was not correctly argued if you read the lecture I have just posted.

What do you mean it was not correctly argued?

[barry_2008]

What do you mean it was not correctly argued?

 

I believe the argument should have been the charge was totally and fully unlawful. Not just part of it.

 

If under contract a party levies service fees from one party to another the

party that has suffered the distress should be entitled to claim compensation.

 

Thus due to the levels of the charges that are applied in my opinion they are unfair and the charge is in effect inhumane according to Article 3.

 

Further The term that allows the levying party to levy charges would therefore become unenforceable as the term would be unlawful.

Edited November 22, 2009 by barry_2008

[yourbank]

I believe the argument should have been the charge was totally and fully unlawful. Not just part of it.

It is the argument. let me explain it again, IF the term is unenforceable under UTCCR 1999 it is unenforceable and is UNLAWFUL under UTCCR 1999. It would mean that a court should define how a term is FAIR since previous to the date that a court decides then the term would be unlawful(reference to the Injunction measures under UTCCR 1999 with regards to later litigation)

If under contract a party levies service fees from one party to another the

party that has caused the distress should be entitled to claim compensation.

You are talking about an imbalance in the contract, yet it would still be UTCCR 1999 that applies to that and the next part of the case would deal with compensation etc. etc. for the unfair term if it is deemed as such.

Thus due to the levels of the charges that are applied in my opinion they are unfair and the charge is in effect inhumane according to Article 3.

Isn't Article 3 about interpretation of the legislation which is what the current OFT test case is about ie whether the terms that causes charges can be assessed for fairness.

Further The term that allows the levying party to levy charges would therefore become unenforceable as the term would be unlawful.

 

But that is still UTCCR 1999. I'm sorry, but I still don't follow your argument on this one.

[barry_2008]

Please read my post before responding.

 

There is no reference to Article 3 of the European Convention in this judgement.

 

http://www.oft.gov.uk/shared_oft/personal-current-accounts/appealjudgment.pdf

[yourbank]

Please read my post before responding.

 

There is no reference to Article 3 of the European Convention in this judgement.

 

http://www.oft.gov.uk/shared_oft/personal-current-accounts/appealjudgment.pdf

Article 3 is about interpretation of the law so what are they doing if they are not doing that since UTCCR 1999 is about an EC directive from 1993 on unfair contract terms?

If Article 3 is about interpretation then what is a court doing if it is not interpreting that EC directive and the application into UK law?

[barry_2008]

The court are interpreting a different directive it even says so in the judgement.

They are saying the Unfair Terms in Consumer Contracts Regulations 1994 (“the 1994 Regulations”), were introduced to comply with article 10 of the Directive,

 

But not to decide if the charge is in breach of our basic European Human Rights.

In my opinion under natural and common law after reading the above lecture and other materials, the definitions in bank contracts can be in breach of our Human Rights and be interpreted as Torture and inhuman treatment.

 

Unlike others on this forum and my self in the past that believe it could possibly be interpreted as theft as the banks are able to alter the charges at will. With unfair consent from the customer.

[barry_2008]

In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

[yourbank]

The court are interpreting a different directive it even says so in the judgement.

They are saying the Unfair Terms in Consumer Contracts Regulations 1994 (“the 1994 Regulations”), were introduced to comply with article 10 of the Directive,

"Article 10 of the Unfair Contract terms Directive is this:

 

Article 10

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 31 December 1994. They shall forthwith inform the Commission thereof.

These provisions shall be applicable to all contracts concluded after 31 December 1994.

2. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

3. Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission."

 

But not to decide if the charge is in breach of our basic European Human Rights.

In my opinion under natural and common law after reading the above lecture and other materials, the definitions in bank contracts can be in breach of our Human Rights and be interpreted as Torture and inhuman treatment.

"Prohibition of torture

 

No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

How is someone tortured with back charges?

How is someone degraded with bank charges?

How would you equate bank charges with punishment?

 

Unlike others on this forum and my self in the past that believe it could possibly be interpreted as theft as the banks are able to alter the charges at will. With unfair consent from the customer.

 

The charges are the consequence of an action not the catalyst to that action. If the OFT wins their case, then terms that cause charges to occur can be considered for fairness under UTCCR 1999.

I personally am in favour of what the US have recently brought out with regards to "overdraft services" in that if you do not opt in then every transaction that takes you over your limit is declined and no charges are made as a result.

[barry_2008]

The charges are the consequence of an action not the catalyst to that action. If the OFT wins their case, then terms that cause charges to occur can be considered for fairness under UTCCR 1999.

I personally am in favour of what the US have recently brought out with regards to "overdraft services" in that if you do not opt in then every transaction that takes you over your limit is declined and no charges are made as a result.

 

I have no concerns over the way the UTCCR's are being dealt with. I believe it is currently being dealt with in the correct and popper way.

 

But the Common Law argument was taken out.

 

A good basis for understanding common law is to look at each country's constitution or rule of law and work out a mutual and lawful balance.

 

If a service charge is levied and the charge has not been pre negotiated it could be unfair. Especially if this charge is applied to a persons account that is on benefits. This can cause all sorts of Mental health Problems. Stress being one of the. Under Common Law because it enhances our liberties then it could be suggested that this was a penalty as the other is at mass applying the charges to our account which we have no control over the amount of charge within contract.

[yourbank]

I have no concerns over the way the UTCCR's are being dealt with. I believe it is currently being dealt with in the correct and popper way.

 

But the Common Law argument was taken out.

 

A good basis for understanding common law is to look at each country's constitution or rule of law and work out a mutual and lawful balance.

 

If a service charge is levied and the charge has not been pre negotiated it could be unfair. Especially if this charge is applied to a persons account that is on benefits. This can cause all sorts of Mental health Problems. Stress being one of the. Under Common Law because it enhances our liberties then it could be suggested that this was a penalty as the other is at mass applying the charges to our account which we have no control over the amount of charge within contract.

 

The banks' won the penalties in law argument so the OFT did have the common law argument in when they started the case. The above link is to the Appeal by the banks on whether the charges could be assessed for fairness under UTCCR 1999. To be honest, I think we are discussing a moot point, since Wednesday is going to be whether the charges can be assessed for fairness under UTCCR 1999 not penalties in law and not under the Human Rights Act either.

[barry_2008]

Again.

 

I have already addressed these points.

 

If you read the posts I have posted.

[InformedSearcher]

Heck there's been a lot to swallow in the last few posts. Personally I've always considered 'The House of Commons' (as in many of its members) to be biased on the grounds of current or potential personal interests.

 

For example take a situation whereas an MP knows that eventually have the opportunity of say working at a high level for a bank (or any commercial business). Now without influence that person might know he/she will make a small fortune once his position as an MP is ended. This is not a 'dig' but simple human reaction to us all when offered to distant 'carrot'.

 

He/she knows that if they vote the results of each individual will be in the public domain. He/she also knows that by voting one way or another might impede/influence their personal future. How would you vote?

 

We should all consider that the HoL case result is one that can have many implications both politically and commercially. The earlier comment regarding the 'Treasury' pushing for certain closure might ask the question of why they never did this initially? To the layman the whole case gives a different message. To me, for one, I find it shocking that these financial institutions can and have done what they have. They show no shame and have however we look at it tried to circumvent using law, what they can and cannot do for their own benefit.

 

Whilst they will now know the outcome and if that is they lose they'll probably ride roughshod and progress. The fact that losing versus winning (at any cost) seems a very procedural manner with the attitude they expect to win at the end of the day. There was comment about the court system being blocked when in reality it's just on hold. One of the reasons for the whole case was that when courts needed to decide that's when they were clogged up. Courts work on budgets and there's certainly not enough people within to have continued pre 'stay'.

 

Michael

[car2403]

Ooo, 'eck. There's me thinking we were all on the same side.

 

This is the system we have to live with, so let's allow it to at least make the decision before we go for each others jugulars on what we think - it's what the Court thinks that is important.

[barry_2008]

The H.O.L are sadly not a democratically elected body and should not have the last say.

 

I bet the outcome will be like the credit card case if the banks loose the appeal. I agree with the leaders of this site. I assume there will be a compromise and the banks will be able to levy a charge from us and the OFT will do dandy all if we complain about these charges using the argument the OFT used.

[yourbank]

The H.O.L are sadly not a democratically elected body and should not have the last say.

Are you suggesting that Judges should be elected??? Sorry, but I don't believe in Mickey Mouse Judgements otherwise we might have Jordan being a judge(now some of us might be more interested in going to the courts if she was)

I bet the outcome will be like the credit card case if the banks loose the appeal.

What credit card case since the OFT have not litigated on that issue(but everyone is still winning )

I agree with the leaders of this site. I assume there will be a compromise and the banks will be able to levy a charge from us and the OFT will do dandy all if we complain about these charges using the argument the OFT used.

 

If the leaders of this site are advocating this then they are delusional. I do not for one second believe that an unenforceable term can be made partially enforceable or to want of a better word, unfair then fair post a judgement that the charge is unfair. Now that is Mickey Mouse justice.

[barry_2008]

Where are you getting you're information from?

[yourbank]

Where are you getting you're information from?

Which bit?

[barry_2008]

The OFT agreed they would not chase credit card charges under £12

 

I said the H.O.L not judges.

[yourbank]

The OFT agreed they would not chase credit card charges under £12

 

I said the H.O.L not judges.

 

The HOL I had assumed you meant the Law Lords since that is the topic of the conversation or are we moving back to Policitians again?

 

I think the issue of OFT is in their report(for reference OFT842).

 

"13 The OFT, like other enforcers of the UTCCRs, has a discretion as to how best to allocate its resources to discharge its general duties. For us to take action against charges that are set at a low level (solely on the basis that the costs incurred by the bank in collecting them appear to be even lower than would justify the charge) would be to misuse resources better directed at cases involving more serious economic detriment"

(footnote on page 28 of OFT 842)

[ncf355]

I frankly couldnt give a toss what the OFT say (assuming the ruling goes in our favour)

 

If the OFT say £5 is fair, I, like many others shall say "balls to that" and carry on as I was pre test case

 

More than likely this would be the case anyway as I cant see the OFT agreeing charges +CI +damages for each and every Claimant, which is what I want

 

My mind boggles every time I try and calculate the amount they owe me and I will take great pleasure in taking that from them

[yourbank]

I frankly couldnt give a toss what the OFT say (assuming the ruling goes in our favour)

 

If the OFT say £5 is fair, I, like many others shall say "balls to that" and carry on as I was pre test case

 

More than likely this would be the case anyway as I cant see the OFT agreeing charges +CI +damages for each and every Claimant, which is what I want

 

My mind boggles every time I try and calculate the amount they owe me and I will take great pleasure in taking that from them

 

Totally agree with you on this as they have already said before that ONLY a court can decide what the level of a charge that is fair amounts to.

[barry_2008]

The HOL I had assumed you meant the Law Lords since that is the topic of the conversation or are we moving back to Policitians again?

 

I think the issue of OFT is in their report(for reference OFT842).

 

"13 The OFT, like other enforcers of the UTCCRs, has a discretion as to how best to allocate its resources to discharge its general duties. For us to take action against charges that are set at a low level (solely on the basis that the costs incurred by the bank in collecting them appear to be even lower than would justify the charge) would be to misuse resources better directed at cases involving more serious economic detriment"

(footnote on page 28 of OFT 842)

 

They still have to use the court system to make the ruling law.

[yourbank]

They still have to use the court system to make the ruling law.

 

The OFT 842 report was on credit cards and they also said in point 1.14

 

"It must be stressed that this is a statement of our position and reflects the exercise of our discretion as an enforcement agency. Only a court can decide finally whether a term is unfair, or at what level default charges should be set to meet the requirements of the UTCCRs. It should be kept in mind that other enforcers may apply for injunctions under the UTCCRs and that the UTCCRs may be relied upon by consumers in private claims."

(for reference: Page 4)

I would always advise that as there is no hold on credit card reclaiming that you should reclaim the charges including the threshold that they agreed to because of the bit in bold above which I would say the same about bank charges.