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

[barry_2008]

Law is generally inteprested as follows when contract law is decided.

 

The contract sets out terms of an agreement but statute regulates those rules.

I.e Statue law is always considered supreme in this case and should be read as its written.

[bornrich]

Evening Barry,

 

Yes, but when the circumstances surrounding a point of law change there is pressure for the law to change surely.

 

So while individuals may not be able to continue reclaiming unfair charges from now on due to the supreme court ruling, everyone will benefit in the long term as the law will continue to be challenged and will eventually need modification because charging those people in society who can least afford to subsidise those who can is morally indefensible.

 

bornrich

[barry_2008]

Hi bornrich

Its important to bare in mind that the current legal system works as follows.

 

Judges rule on case law and case law is made from statute.

 

Parliament and the House of Lords rule on Statute law and only they can change and its usually public opinion that changes statute law so morals generally hit a centre point.

[kennyh]

Hi Booky,

Yup there's definitely an increased demand for £50 notes (unfulfilled in our house)- 'they're' worried that folk are stashing them under matresses (not mine unfortunately!)

[sparks199]

ok here is the ponit i just dont understand from all theses bank charges and the test case

 

the banks say they are chargeing you because that is what it cost them

therefore it is not a penalty charge ?

 

well if that is the case then why is that Last year the top six High Street banks in the UK made an estimated £4.5bn from penalty charges

 

if its just a charge then they should not be making anythink at all form them .

[hsbcfiddled]

ok here is the ponit i just dont understand from all theses bank charges and the test case

 

the banks say they are chargeing you because that is what it cost them

therefore it is not a penalty charge ?

 

well if that is the case then why is that Last year the top six High Street banks in the UK made an estimated £4.5bn from penalty charges

 

if its just a charge then they should not be making anythink at all form them .

 

And why have some banks reduced these charges- Has it got cheaper to cover the costs incurred? I think not!

[sparks199]

penalty charges are illegal end off . so by them bringing down there charges is like saying

 

guilty as charged

[kennyh]

So-following Aequitas articles yesterday am I to believe that we are to lay down our arms; forget all about UTCCR and SOGA?

[tifo]

the banks say they are chargeing you because that is what it cost them therefore it is not a penalty charge ?

 

The banks say they are charging you because that is the fee you have agreed to pay for the banking services they provide you and everybody else, just that you only pay when you automatically ask them for an overdraft and they decline or give you one, i.e. if they decline your overdraft request then they return the payment and make a charge but if they pay it they have accepted your overdraft request and will then charge you other fees for this 'service'.

 

The point is, none of us were told in the terms and conditions (i wasn't anyway) that the account carries a fee for the services it provides, only payable when a payment is returned. I believe i have been misled in this respect because had i been told, i may not have opened the account. But then every bank was the same and acting like a cartel in an anti-competitive manner. The quote below shows banks work together to charge a certain amount.

 

It was said by a member of Lloyds at the Scottish Affairs Committee into Banking "The banking industry has generally come to an agreement that they will charge certain amounts for overdraft letters".

Edited December 8, 2009 by tifo

[InformedSearcher]

'tifo', well said!

 

Now that nicely brings us onto the subject of is a current account 'free' or not. The answer (also not in the T&C's) is that some will not incur any fees because the ones who have default sums charged to them will pay for you!

The term 'free' therefore, either written or verbally stated is wholly untrue - seriously. There's nothing free because it all requires a cost to operate. Then of course you hear banded around various 'billions' taken for default charges but in fact we need to decide if these amounts are the actual fees received or those disclosed. A small grey area that no doubt comes under the commercial secret umbrella. In the end 'money IS the root of all evil' as the saying goes. LOL

 

Michael

[tifo]

Now that nicely brings us onto the subject of is a current account 'free' or not. The answer (also not in the T&C's) is that some will not incur any fees because the ones who have default sums charged to them will pay for you!

 

The term 'free' therefore, either written or verbally stated is wholly untrue - seriously.

 

Absolutely right.

 

We can use the lack of any pre contract information relating to the service fee (only charged for returning items) for a 'free' account as misinformation (it was free they said) by the bank to induce customers to sign up with them. Combine this with s.5 as stated in the judgment as we were unable to disagree to the clauses relating to default charges.

 

Basically we were told the default charges were for returned items but they turn out to be for the whole account which we were told was free to use and we could not disgree with this. Many account Ts and Cs were changed over the past few years but most people's accounts were opened prior to the test case so there will be no mention of 'service' fees.

[the_shadow]

Absolutely right.

 

We can use the lack of any pre contract information relating to the service fee (only charged for returning items) for a 'free' account as misinformation (it was free they said) by the bank to induce customers to sign up with them. Combine this with s.5 as stated in the judgment as we were unable to disagree to the clauses relating to default charges.

 

Basically we were told the default charges were for returned items but they turn out to be for the whole account which we were told was free to use and we could not disgree with this. Many account Ts and Cs were changed over the past few years but most people's accounts were opened prior to the test case so there will be no mention of 'service' fees.

 

The quotes from the banks when questioned will be key also, the admittance that accounts are paid for by the ones who can least afford it and hence should really be labelled "Free whilst your in Credit and someone else is in Debt picking up your tab"

 

S.

[elsinore]

Hi Booky,

Yup there's definitely an increased demand for £50 notes (unfulfilled in our house)- 'they're' worried that folk are stashing them under matresses (not mine unfortunately!)

 

Daily Express | UK News :: Cash is kingsize for wary savers-

 

Els

[emandcole]

Quick indulgence on my part! Please have a read of this and add your tuppence worth!

 

Let's have a social experiment and start our own DCA!

[d1cky]

Im not thick, but I really struggle to understand law, I really dont think its that clean cut and most of it comes down to a matter of opinion. But I really do beleive and I dont think thats it me bein hopefull, that there is a definate strong argument for us to still proceed in people getting thier moneys back! What that is exactly I dont know but the whole thing jus doesnt add up and there are many cracks to be explored in my opinion. Im sure there is going to be one succesful avenue or another. just mark my words!

[yourbank]

As it stands today, I am currently unconvinced that a route exists for a complete refund of charges. I can't get unfair without price and I can't use price to be unfair. If I get to imbalance, I am drawn to price as the reason.

Can anyone get me from UNFAIR without Price involved?

 

I should add that I don't buy the cross subsidy argument at the moment.

[InformedSearcher]

As it stands today, I am currently unconvinced that a route exists for a complete refund of charges. I can't get unfair without price and I can't use price to be unfair. If I get to imbalance, I am drawn to price as the reason.

Can anyone get me from UNFAIR without Price involved?

 

I should add that I don't buy the cross subsidy argument at the moment.

 

BUT you might to include the reasoning regarding NOT telling people that 'free' is not in fact free at all? So ALL people signing up for current accounts were in fact duped into believing something that was a little economical with the truth. This also goes down the track that 'fees' whilst disclosed never adds the words 'you will be called often and pressured no matter what your situation is into paying'. That's like saying 'we give away money for free' and not quite telling them how they manage to do it.

 

'the-shadow' love your comment - "Free whilst your in Credit and someone else is in Debt picking up your tab". I wonder what all those brilliant people who never have problems would say to that?!

 

Michael

[yourbank]

"free if in credit model" which some people have called "free banking". I don't think anyone believes in that but those being charged are not the only one cross subsidising the current account market, so are those in credit as well.

[Aequitas]

The starting point in contract law is that everyone is free to enter into whatever bargains they wish. The law does not on the whole like to interfere with the market. As I said several posts ago, the law allows a man to drive a hard bargain. However, the law recognises that parties do not always negotiate on a level playing field and there are various safeguards introduced not only by the common law but by statute. Statutory protection comes in two varieties. The first, usually called consumer protection, essentially rewrites contracts either by implying terms or by striking them out and in certain cases may cancel contracts altogether. The second is more collective in nature and is designed to prevent anti-competitive practices.

 

The fundamental problem as I see it is that an individual wishing to challenge bank charges can only plead the law relating to consumer protection and not the law relating to anti-competitive practices since it is not generally concerned with individual contracts. When he is in court and arguing that the UTCCRs apply all he can do is to point to his contract and the Regulations. The fact that several hundred thousand others may have signed the same form of contract is not relevant.

 

If we come to look at the position globally, we are faced with the difficulty that we cannot condemn bank charges outright since that is tantamount to saying that banks should provide banking services free. Further, the existence or not of a cartel is not directly related to whether or not charges are unfair because it would be quite possible to have a cartel with fair charges. If there is a cartel operating to keep charges high it is difficult to see how that fact can be used to get an individual's charges reduced.

 

We have since the SC decision naturally been concentrating on its effect. I think though we ought not to forget that the campaign has had the positive benefit of throwing the spotlight on the banks and getting them to go some distance towards mending their ways. The campaign ought perhaps have concentrated more on looking to get future charges reduced and applied fairly, than to raising expectations that past charges would be refunded.

[car2403]

The law isn't about the law, or opinion - it's about influencing the Judge to think that your way of thinking is more right than the other side. This is why the big guns earn the big income.

[barry_2008]

One says the practices of the banks are unfair within the meaning of statute. Lets not get into Common Law as I know it causes arguments.

 

The contract/toc's are there to form the service the banks give us.

If we look at this globally lets bring the Human Rights convention into equation and forget the Human Rights Act for a while.

 

You no unfair practices could in theory be classed as destroying our private and family life. We have a right to that at least.

[InformedSearcher]

My view is that say for example you miss a ayment for a loan or something else you might have a charge of £5 added. I think no one can say that to have a charge for example £30 for an error of a £1 is expected. The fact say, even though in an agreement that Barclays can charge £22 per day for using any of the £250 'reserve' for 5 days acceptable. It's all a matter yes, of fairness and negotiated understanding.

 

When you sign T&C's you are really signing an agreement where theose terms are the basis of contract. They are possibly negotiable and not set in stone. However as said many times, financial institutions like to believe they are in full control and those T&C's are they simple way of deciding conflicts. Maybe we are now of an age of automation where systems are (faceless) programmed to 'charge' and humans inputted those bits of data initially. However unlike other industries these same companies decided automation was a key to making more profit without human intervention.

 

Michael

[yourbank]

barclays personal reserve is not a good one since you can opt out of their reserve. Personally, I would be in favour of an opt in or out of overdraft services as you can now do in the USA where opting out means ALL payments are declined without charge.

[Bookworm]

That's what I have been saying for 3 yrs.

 

But then who would subsidise the "always in credit" crowd?

[kennyh]

Earlier by Aequitas

that is tantamount to saying that banks should provide banking services free.

Certainly if that's how they are advertising it.

The fact that several hundred thousand others may have signed the same form of contract is not relevant.

Individually negotiated as per UTCCR - don't think so

Never mind 'devil's advocate' are you related to AK?

Previously posted by InformedSearcher

When you sign T&C's you are really signing an agreement where those terms are the basis of contract. They are possibly negotiable and not set in stone

.

Really??