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

[car2403]

If there's an open ended timeframe, I suspect they will allow a reasonable time to pass before striking you out, or trying to.

 

What is reasonable will depend on the Court, though.

 

I'd suggest ringing them to ask if there's any guidance they can offer based on what they know at that time. They'll soon get sick of that, though.

[bornrich]

Just phoned the county court and the judge was handed my case on 1t December for deliberation.

 

Presumably the court has to notify me that the stay has been removed? And that the 7 days run from that notification?

 

The timeframes are good – for the case to start moving just a week after the supreme court ruling is pretty good in terms of our wonderful legal process, at least I think so. And now the judge is perhaps researching all aspects of the test case thoroughly.

 

Or it's just sitting in a large pile among hundreds of other cases gather dust.

 

Bornrich

[fzrkitten]

subscribing. .. .

[MATTYFEZ]

If there's an open ended timeframe, I suspect they will allow a reasonable time to pass before striking you out, or trying to.

 

What is reasonable will depend on the Court, though.

 

I'd suggest ringing them to ask if there's any guidance they can offer based on what they know at that time. They'll soon get sick of that, though.

 

Thanks for that

 

I guess I'll be calling the CC then... I bet they are suddenly getting lots of phone calls

This had occured to me before (to ring the court) but I wasn't sure weather a clerk/receptionist would be well placed to offer reliable advice with something potentially so critical (for me!).

 

But a phone call certainly would not hurt... watch this space...

[MATTYFEZ]

Just phoned the county court and the judge was handed my case on 1t December for deliberation.

 

Presumably the court has to notify me that the stay has been removed? A

 

You would think so, but I have a sneaking suspision that they may just start striking stuff out if they do not hear from you (if you have a time limit imposed) just to clear the caseload.

 

Or maybe i'm being a pessimist...

 

Any news on the amended POC templates anyone?

[kennyh]

Any news on the amended POC templates anyone?

Sweating also!

[car2403]

We're still waiting for an update from the QC's reviewing the POC - I can tell you I'm pestering the powers that be on a daily basis, as I'm in the same boat as all of you, so it's not going ignored.

 

Keep an eye on the Announcements section and we'll get around to posting any update in there on here when we can.

[srfrench]

Probably end of this week MATTY......if not more than likely next week.

 

Please don't quote me, but from what I understand of the site team, they instructed QC to compose a new POC and that was over 9 days ago. They said it was going to be @ 2 weeks to draft one....so anytime soon bud

[srfrench]

Also, just been informed by the Leeds Mercantile Courts that my claim hasn't been struck out and is in front of the Judge for re-listing on the 26th January 2010.

[kennyh]

Thanks Car

[MATTYFEZ]

I've Just spoken to (Halifax) County Court, they say they have had nothing news wise yet and my case is still stayed. (phew)

No strike out application from the bank and no orders from the Judge.

 

The lady said if the bank goes for a strike out, I will have chance to object - she seemed to be aware of the possible POC amendment and the Supreme courts 'suggestions'.

 

She did say she couldn't advise what my options would be if the Judge decided to strike me out, but surely I would have to be notified so I could object/appeal...?

 

I asked if the the case had been resolved (as in the terms of my stayed case) and she said no.

I'm not sure wweather she was refering to the test case or my individual case.

 

Bear in mind my notice of stay simply states

'until final resoloution of the test case'

 

I would advise anyone with a stayed case to ring the court, especially those with limited days, to get some clarity.

 

Keep the faith people!!

[Aequitas]

Ever since my first post in this forum I have been in some difficulty because I have had to argue the law with those whose aims I support. It is the duty of a lawyer to say it as he sees it and not as his client would like it to be. Whilst no longer practising the law, I still consider myself bound by this principle.

 

Before wandering into this forum I had had no occasion to consider the legal issues surrounding bank charges. My immediate reaction on finding the site and seeing the views expressed was to say to myself that the UTCCRs were not going to help and that no bank charges were contractual penalties. Indeed, any lawyer with whom I discussed the matter agreed with me. Nothing has happened and no one has said anything since to persuade me that my initial reaction, which I have considered hard and long, was incorrect, though I am currently considering the SC decision carefully to see if there are any grounds for modifying my views.

 

The reasons for the debacle are I think twofold. The first is that the non-lawyers involved misunderstood the law and the second that the lawyers involved on the customers' side, perhaps unduly influenced by the non-lawyers, over-elaborated.

 

The non-lawyers' misunderstanding was in large measure entirely understandable. The plain fact is that banks overcharge and that many of those who pay are in no position to pay. The cause was entirely noble, but the mistake was to fight the battle on the wrong ground and using the wrong weapons. The main error was essentially one of language. It was assumed that because bank charges are manifestly unfair that they would be unfair in law, and that because in everyday language bank charges could be considered penal they were necessarily contractual penalties.

 

The law is often accused of being complex, but it is rarely more complex than is needed to take into account human ingenuity. Two legal arguments were put forward. The basic fact about contractual penalties is that there has to be a breach of contract: The basic fact about the UTCCR's is that their main thrust is to protect consumers against “small print” clauses and not to control prices. Now although the lawyer's duty is to say it as he sees it, that does not stop him arguing against what he believes to be the case. Indeed, it goes to the heart of being a lawyer that you do your best to argue against the odds if you have to – it was what makes lawyers unpopular, especially when they are not on your side. Clever arguments were put forward as to why an element of breach of contract should be assumed when an account went into the red, and as to why bank changes should not be considered a main part of the consideration for banking services. The contractual penalties point never got beyond the High Court. As to the UTCCRs however the High Court and Court of Appeal were impressed by the arguments put forward by the OFT's lawyers. The SC though said that the lower courts were wrong to be impressed and that the whole matter was really quite straightforward having regard to the plain language of the UTCCRs. The law in this case was simple and any complexities imagined.

 

If I come across as negative, at least in relation to the UTCCRs, it is because, at least for the present, I do not see them as providing the solution. As I indicated in another post, the best I think an individual can do is to consider his own case and see if he can establish that the charges were unfairly applied, rather than being intrinsically unfair. Arguing that the customer has no real choice is theoretically possible, but it is difficult to see how an individual arguing his case in front of a County Court judge is going to be able muster sufficient evidence to prove anything.

 

If my comment that any first year law student would have seen that the contractual penalties argument was flawed came across as inappropriate, it was born of frustration. I have to say it, but since the SC decision was announced this thread has been marked by backtracking and head-in-sandism. Indeed, every court decision that has gone against the customer has been shrugged off in some way.

 

In the Lloyds Bank case, it was that the customer had not argued his case properly or that the judge was plain wrong.

 

In the High Court case when the contractual penalties argument was lost it was never a main plank of the case. (“Yeah, right!” as my godson would say.)

 

Having had the Supreme Court's decision handed down we now hear that it was never really an important point; that the OFT argued the wrong point and should have listened to us (like he did on the contractual penalties point?); that the banks winning really meant they lost; and that last refuge of the unsuccessful litigant: it was all a conspiracy!

 

The truth as I see it is this:

 

The Supreme Court's decision was a crushing hammer blow to the aspirations of many thousands.

 

I do not say that the position is hopeless, but if there is a solution I do not see it, except as mentioned above. I accept that for many the decision of the SC was both unexpected and disappointing, and the refusal to accept it is perfectly understandable. But I think people need to wake up and slap themselves round the face a bit.

 

I return again to the comments of Lady Hale as they admirably encapsulate the whole sad story. I shall not repeat them, but instead give you my “between the lines” version of them:

 

It is clear that many people, and with some justification, think that bank charges are excessive. However, we are being ripped off left, right and centre and to a degree we collude in this. Banks, like any other business, exist to make a profit. There is no real reason why banks should have been singled out as the institution which is ripping us off more than any other. We live in a society where there is on the whole a consensus that the best system is capitalism controlled by social democratic principles. The present thinking is that whilst price controls are not a good thing, business must operate fairly. If you want to start controlling what banks charge it is a small step to controlling prices generally. Not unreasonably, people have been persuaded that bank charges should be controlled, and perhaps less reasonably, that the law allows such control. However, there is probably no legal mechanism in place by which bank charges can be controlled. The only possible argument is that there is some sort of cartel in operation. It is up to Parliament to change the law if it thinks it is right to do so.

 

Finally, if anyone thinks there is anything in the SC decision that does help would they please refer me to the relevant paragraph of the judgement.

[noomill060]

Bearing in mind the suberbly reasoned argument above, if this was so clear cut, why did the banks refund approx £1billion out of court, when a properly defended claim would have put a lid on this?

[the_shadow]

Bearing in mind the suberbly reasoned argument above, if this was so clear cut, why did the banks refund approx £1billion out of court, when a properly defended claim would have put a lid on this?

 

I think more than a few of these settled cases were due to banks not wanting the public and competitors know how much it actually costs the banks involved to bounce a cheque/payment and subsequently the fact that a poor persons charges keeps a rich persons banking free.

 

S.

[Bookworm]

Personally, I think the comment which "admirably" encapsulate the whole story is this:

 

Lord Phillips also noted that in the absence of the charges the banks would not be able profitably to provide current account services without a fee

 

Para 88). He stated that it might be open to question whether it is fair to subsidise some customers whose accounts always remain in credit by levies on others who experienced events they did not foresee when they opened their accounts

[yourbank]

For clarity

Paragraph 88 states this:

"88. When the relevant facts are viewed as a whole, it seems clear that the Relevant

Charges are not concealed default charges designed to discourage customers from

overdrawing on their accounts without prior arrangement. Whatever may have been the

position in the past, the Banks now rely on the Relevant Charges as an important part of

the revenue that they generate from the current account services. If they did not receive

the Relevant Charges they would not be able profitably to provide current account

services to their customers in credit without making a charge to augment the value of the

use of their funds."

 

Prior to that there is paragraph 80(which is not referenced by the quote but is within the quote):

 

"80. It seems to me that this reasoning is relevant not to the question of whether the

Relevant Charges form part of the price or remuneration for the package of services

provided but to whether the method of pricing is fair. It may be open to question whether

it is fair to subsidise some customers by levies on others who experience contingencies

that they did not foresee when entering into their contracts. If it is not it may then be open

to question whether the Relevant Terms fall within Regulation 5(1). These questions do

not, however, bear on the question of whether the Relevant Charges form part of the price

or remuneration that is paid in exchange for the services provided to the holder of a

current account. In agreement with Lord Walker, and for the additional reasons that he

gives, I am not persuaded by the Court of Appeal’s reasons for excluding the Relevant

Charges from the “price or remuneration” in Regulation 6(2)."

 

 

The paragraph 80 is where the big issue arises. You cannot consider price or cost if you are looking at 5(1).

I wish I had an interpretation different to that but at the moment, I am struggling to find one---and yes I have been looking for it for days.

[Aequitas]

Bearing in mind the suberbly reasoned argument above, if this was so clear cut, why did the banks refund approx £1billion out of court, when a properly defended claim would have put a lid on this?

 

Any one or more of the following:

 

1. The expense of defending the claim exceeded the claim.

 

2. A refund was justified because the charges had been unfairly applied.

 

3. The arguments now defeated were being shouted from the rooftops so loudly that the banks' in house lawyers began to worry there might be something in them. I am sure there was a fear that a key case would be lost and a precedent set.

 

Ironically, I think the success of the campaign led to its downfall. So many claims were being made that the banks just had to do something. If the number of claims had been kept to a number that the banks considered reasonable and controllable they would probably still be paying out.

[MATTYFEZ]

Any one or more of the following:

 

1. The expense of defending the claim exceeded the claim.

 

2. A refund was justified because the charges had been unfairly applied.

 

3. The arguments now defeated were being shouted from the rooftops so loudly that the banks' in house lawyers began to worry there might be something in them. I am sure there was a fear that a key case would be lost and a precedent set.

 

Ironically, I think the success of the campaign led to its downfall. So many claims were being made that the banks just had to do something. If the number of claims had been kept to a number that the banks considered reasonable and controllable they would probably still be paying out.

 

Are you saying that law is an opinion rather than a consensus?

[Aequitas]

Are you saying that law is an opinion rather than a consensus?

 

An interesting question, but I am puzzled what there was in my post that prompted you to raise it.

[bornrich]

Aequitas, you say:

 

The SC though said that the lower courts were wrong to be impressed and that the whole matter was really quite straightforward having regard to the plain language of the UTCCRs. The law in this case was simple and any complexities imagined.

 

Doesn't the interpretation of a law depends on how it is approached also? Lower courts interpreted the wording as it stood and with reference to a business arrangement between creditor and debtor. Some might argue that a flaw was found in the syntax. Others would say it was an opportunity to challenge unfair practice. Whereas the Supreme Court took a wider view of the law and reasoned what the general implications would be for all involved parties. They decided that it was better to keep the status quo on this occasion.

 

So I think Mattyfez has a point. It seems to me to have been a ruling grounded on the opinions of 4 men and 1 woman, but one which went against the general consensus. And I found it interesting that the judges thought it necessary to placate the general public over the issue with a few comments that basically said "yes, you are being treated badly by these nasty banks, and yes you do deserve better."

 

Whether a new avenue of attack is discovered or not doesn't really matter. What matters is that there's a little crack in the dam that will ever so slowly grow and grow as people make a decision to take their finances into their own hands and become less reliant on the UK banking system. Not such a bad thing really.

 

Only today I read an article saying there has been a marked increase in demand for £50 notes – a clear indication that people are turning their back on the banks. Of course this may only be a short term blip – I think the Tax man will hope so too – but the trend for people to be less reliant on credit (just like generations past) will grow significantly.

 

It's my personal belief that the moral issues will (eventually) win through. When people started taking their banks to court it was because there was no choice, no competition and the charges seemed unfair. Now we have seen competition return, hopefully to stay.

 

I just find the whole macro ripple really interesting – I can't wait for the next twist, the suspense, the players, the moral issues and the complex legal arguments – and it's great that we have an opposing view to this initial episode. I welcome it, thanks Aequitas.

[kennyh]

Having read the last 2 pages best I stay away from tall buildings and sharp objects.

[Bookworm]

Only today I read an article saying there has been a marked increase in demand for £50 notes

We must have been listening to different reports, the one I heard was the one saying there was a call for more FIVE pound notes and in particular that more ATMs should offer £5 increments.

[bornrich]

... and bankers.

[MilkTrayMan]

We must have been listening to different reports, the one I heard was the one saying there was a call for more FIVE pound notes and in particular that more ATMs should offer £5 increments.

BBC News - The fiver is set for a comeback in UK cash machines

 

 

[bornrich]

Sorry bookworm that last post was in response to 'who killed Kennyh'.

 

Yeh, I heard the five pound story too. Again I think it's an indication that people are using hard cash more instead of having it going through a bank account.

 

The phrase 'cash is king' is so true and if the bank doesn't have the cash in the account to grab who's to blame them?

 

Anyway, I'm getting off track, where are we going with a counter argument to Aequitas? Anyone?

 

bornrich