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

[UK26]

I have

 

[UK26]

No, this has not be decided yet

 

Sorry - i've read all of todays posts and am abit confused!

 

The OFT ruling means that potentially

 

A) £25 bounced check charges

B) £20 unauthorised OD bank charges

 

are unfair...

so??

 

Sorry if i am being a bit dim...

 

Though i joined this group late - WELL DONE!

[nicsussex]

I say the OFT/FSA /HMRC arrange for a lift of all stays.

 

Whats it got to do with them?

[UK26]

from what i understand, the FSA stays dont control the courts.

 

Its only the courts that can decide if they wish to allow claims be heard

 

might be wrong

[star_scream]

TO THE TUNE OF THE BEVERLY HILLBILLIES

 

Let me tell you a story about Dorothy Knight

Always saying that charges are right

Going on the telly and giving it all

I knew she was heading for a great big fall

 

 

The 24th April came along

The judge of the case deserves a gong

He said’ you know they are unfair’

And left Dorothy knight pulling out her hair

 

Back on the telly with a patronising smirk

Dorothy said’ Well it’s not going to work’

You see they’ll charge for something new

Like any of the staff going out for a poo

 

She smiled, but really she was dying a death

Muttering ‘obscenities under her breath

She was sat there squirming around in her chair

You could really tell she didn’t want to be there

 

So Dorothy please tell us all right now

Who was right you daft old cow

It’s a real bad shame you didn’t know too

Cos Now you’ve landed in all that doo

 

So next time we see you on the TV

Tell ‘em how banks have NEVER been free

Cos all those lies and no truth from you

But it’s really good to sit and watch you stew

 

 

 

The names have been changed to protect the innocent. Any similarity to any person living or dead is pure coincidental

[UK26]

Hey guys look at this

 

From the Bank

 

Dear Mr ***********

 

I am writing to you to explain the Society’s position relating to your claim for the recovery of bank charges.

 

As you are aware, following unprecedented numbers of complaints some banks and a building society and the OFT agreed to refer issues relating to bank charges to the High Court.

 

In the meantime, the Financial Services Authority has waived the obligation of the Society to deal with complaints relating to bank charges in accordance with the normal time scales. This waiver lasts until the earlier of 26th July 2008 or resolution of the test case (which is when judgment has been entered and either cannot be appealed or has not been appealed in circumstances where the time for so doing has expired).

 

This means we cannot try and settle your complaint for the time being. It does not mean that your complaint will be ignored; it is just being shelved temporarily. Once the waiver has been lifted, the time scales for complaints handling will be reinstated.

 

You have sent several conflicting emails and letters over the last few weeks offering to settle your court claim and complaint. However, for the reason stated above the Society cannot consider them for the time being. We are sure you will appreciate the Society’s position and bear with us until such time as we can give your complaint the attention it deserves.

 

At the same time, all relevant claims currently before the courts have been stayed.

 

You have advised the Society that Northampton county court has decided to lift the stay in relation to your claim. This is surprising, as the courts are generally acting under direction, as well. We have not as yet received any such communication from the court and therefore cannot comment. The Society has, however, received a notice of transfer of the claim to King’s Lynn county court. The paper file has not yet been received by King’s Lynn, but once they are in receipt of the file from Northampton, the court staff will be in a position to advise us.

 

If and when we are able to discuss the complaint/claim with you in a constructive way or need to communicate regarding the claim we will be in touch with you.

 

Yours sincerely

 

David Presland

Banking Operations Manager

 

 

My Reply

 

Thanks David for your reply

 

From my understanding the waver agreed by the FSA does not have any bearing on the courts.

 

However most courts have agreed to stay any claims once a defence has been filed until the test case is completed.

 

However, there have been quite a few cases where cases where allowed to be heard.

This is decided on a per case bases on application to have the stay lifted.

 

From communications received David, it would now appear to me that the society is trying to hide behind the waver.

 

The waver does not say, you have to put all complaints on hold, its still down to the Banks on a per case bases what they wish to do.

 

All the waver means is basically the banks are not required to process any complaints, which of course are two different meanings.

 

This is also clearly stated on the FSA website

 

Of course it’s the banks right to say we will not process the complaints until the test case as per the waver, But saying we are not allowed too or we can’t is another issue.

 

Anyway, you have made this clear now that you would like to wait until the waver is lifted.

 

I believe I’ve given you everything now I’m required in terms of court documents and wait for the court hearing.

 

Please also consider this formal notice to close this account as it will no longer be needed as I have no faith or confidence in the Society to act fairly.

 

A notice of account closure will be sent in the post aswell

 

Regards

 

 

 

What do you think to this then. Im trying to fight back

[star_scream]

waver = waiver

[UK26]

You know what i mean lol

[star_scream]

Sorry UK, not being pedantic, just didn't want you to send it out like that.

[JonCris]

TO THE TUNE OF THE BEVERLY HILLBILLIES

 

Let me tell you a story about Dorothy Knight

Always saying that charges are right

Going on the telly and giving it all

I knew she was heading for a great big fall

 

 

The 24th April came along

The judge of the case deserves a gong

He said’ you know they are unfair’

And left Dorothy knight pulling out her hair

 

Back on the telly with a patronising smirk

Dorothy said’ Well it’s not going to work’

You see they’ll charge for something new

Like any of the staff going out for a poo

 

She smiled, but really she was dying a death

Muttering ‘obscenities under her breath

She was sat there squirming around in her chair

You could really tell she didn’t want to be there

 

So Dorothy please tell us all right now

Who was right you daft old cow

It’s a real bad shame you didn’t know too

Cos Now you’ve landed in all that doo

 

So next time we see you on the TV

Tell ‘em how banks have NEVER been free

Cos all those lies and no truth from you

But it’s really good to sit and watch you stew

 

 

 

The names have been changed to protect the innocent. Any similarity to any person living or dead is pure coincidental

 

Excellent so the name 'Dorothy' is poetic license......right?

[credit allergy]

If breach of T and C is not a breach of contract for penalty purposes then surely this will be the same with mortgage and credit card charges. In other words how is a late payment claim likely to suceed I am confused. Also has it been determined whether mortgage and credit cards are governed by UTCCR 1999.

[UK26]

just been watching Dorothys video on Utube, I really feel like picking up a lump of wood and [EDIT] it around her head.

[UK26]

What about the mortgage when you wish to pay it off sooner. You have to pay a lump sum of Money. They use the word "penalty"

 

 

 

Corrupt Banking System

 

YouTube - 3. Corrupt Banking System - Money is Debt (3/5)

[star_scream]

Excellent so the name 'Dorothy' is poetic license......right?

 

Yes. We don't want law suits do we?

[DoctorWhat]

Before we all get carried away, there are some nasties in this judgment - I've only skim read it, but while we might be happy that the UCTRR are to be applied to bank charges, at 323 he says:

 

'I therefore conclude that none of these provisions which the OFT has identified means that the customer is under a contractual commitment such that Relevant Charges could be a penalty for breach of the commitment, and so unenforceable at common law.' (emphasis mine)

 

Now that reads to me that anyone claiming that bank charges are penalties are stuffed by the judgement, and we can now only rely on the fact that the charges are unfair.

 

Have I got this wrong? Penalties, it would appear, they are not!? Now that's a huge reversal for us.

 

The devil's in the detail!

 

Having read the judgment, my understanding is this:

 

Mr Justice Smith did indeed rule that the charges were not penalties in as much as no breaches of contract have occurred.

 

But - and this is the crucial point - he also held that the charges were not a fee or remuneration for a specific service provided by the banks (indeed, he held that in the case of unpaid item charges no service actually existed).

 

My understanding, therefore, is that if a bank charge is neither a penalty nor a fee for a specific service, there is only one thing that it can ultimately be, and that is a liquidated and ascertained damage and as with any LAD the only charge that can be levied is one which is at a level which is a genuine estimate of the bank's actual financial loss in respect of that specific transaction. And I trust that that is what the OFT will be seeking to establish during the next phase of this process.

[paulwlton]

Having read the judgment, my understanding is this:

 

Mr Justice Smith did indeed rule that the charges were not penalties in as much as no breaches of contract have occurred.

 

But - and this is the crucial point - he also held that the charges were not a fee or remuneration for a specific service provided by the banks (indeed, he held that in the case of unpaid item charges no service actually existed).

 

My understanding, therefore, is that if a bank charge is neither a penalty nor a fee for a specific service, there is only one thing that it can ultimately be, and that is a liquidated and ascertained damage and as with any LAD the only charge that can be levied is one which is at a level which is a genuine estimate of the bank's actual financial loss in respect of that specific transaction. And I trust that that is what the OFT will be seeking to establish during the next phase of this process.

 

But if the amount of the charge exceeds the liquidated ascertained damage it surely then becomes a penalty, but then again there's no contractual breach. Confused.

[credit allergy]

The difficulty is that the common law penalty and UTCCR overlap. If the OFT decide that a charge is fair then all that is in question is the amount. Now when a fairness test is applied surely some investigation as to what cost has been incureed should play a part. However I agree that the penalty issue is confusing it will be very hard to claim it is a penalty if oft set a figure and the banks apply it under UTCCR. I also dont understand why failing to comply with t and c is not a breach of contract.

[steven4064]

I also dont understand why failing to comply with t and c is not a breach of contract.

You and me both. Also, remember that this only applies to current T&Cs which have been carefully crafted to engender this very confusion.

 

I have some old NatWest ones that say "You must keep your account in credit" - a charge based on that has to be a penalty!

[newbody]

just read through some of judgement from justice smith and the bit i found funny was this

130. Abbey National plc was converted to a public company in 1989 and acquired in 2004 by Banco Santander, SA, Spain’s largest financial services group. It offers a range of different accounts to customers, and now has two main types of personal current account for new customers, the Abbey Current Account and the Basic Account. This judgment, as I explained at paragraph 37 above, is concerned only with the former, the account used by about 80% of Abbey’s personal current account customers. Accounts of this kind are opened by customers over the telephone, online or – most commonly – by completing an application form at a branch. However the account is opened, it is Abbey’s practice to provide the customer with three documents: a booklet called "Abbey Bank Account Terms and Conditions", a leaflet called "The Abbey Personal Current Account Key Features and Price List", and a User Guide. The current contractual documentation was introduced by Abbey last year, being sent to customers in late July and early August 2007 and coming into effect on 10 September 2007. (There have since been some immaterial revisions by way of up-dating, but I need not be concerned about them.)

 

amazing how the terms and conditions being used in the test case happened to be the ones released as cases went to stays and the OFT TEST CASE WAS ANNOUNCED as abbeys is near enough a complete re-write of what i was up until then

[noomill060]

I think the judge left the penalty charge aspect open to appeal on purpose.

 

He is so obviously out of step with centuries of convention that I can see only other reason.

 

Note that he didnt describe the path of reasoning he used to come to his conclusion that penalty charges for a breach of contract, were not actually penalty charges for a breach of contract.

[paulwlton]

If there is no breach of contract - then the banks couldn't rely on section 5 Limitation Act 1980 to dismiss our claims. Could we rely on UCTA 1977 to bring pre 1995 claims?. Just a thought.

[tomterm8]

Well, if there is no breach of contract, the action is money recoverable under statue (i.e. the UTCCR) and so 6 years still stands... short of mistake, concealment or fraud. (and there's a great mistake argument;)

[steven4064]

And it would still be an action based on simple contract (so s5 would apply)

[InformedSearcher]

At the hope of not sounding retrospective one wonders if the permitted stay from the 'FSA' which I believes ends in June was somewhat 'wishful'. I suppose (well paid) financial institutions have legal teams ready to pounce at a moments notice.

One could even venture to associate this with Branson (Virgin) vs. BA years ago. BA - 40 strong legal team vs. Branson (Virgin) - 6 strong at a push. The moral is though that he eventually won. I'd dread to think though that we all have to wait years for the final hudgement.

I think with hindsight the 'FSA' thought they were doing us all a favour including the courts system with the 'stay'. Then they found the 'opposition' a little stronger (and more cute) than they initially thought. There again Banks paying out 100 million vs. 2 million legal costs (with damage limitation) might just be a too good to miss tempter. Let's just hope all this is settled sooner than later.

Just my personal views.

Michael

[UK26]

I think its unfair the FSA allowed the banks to stay our claims but still allowed them to continue adding there charges.

 

its not fair to both parties