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

[credit allergy]

Sorry have re read last post. The two examples I gave I feel would not be a breach of contract. However if you stopped paying your wages in that could be breach. The ironic thing is that the more serious your behaviour they cant charge a penalty but a minor mistake they might charge £12.00. However if they use the word penalty does this mean no charge full stop. Because it is a fine with no cost anaylis?

[credit allergy]

I agree that any defination can be interpreted in many different ways just look at the bible. At present a penalty whether 2p or £100.00 is unlawful unless shown as a liquified loss or amount. As soon as claimants go down the penalty route surely banks will say oft agreed £12.00 so this is a liquified loss. Another route is going to court under utccr claiming unfair or disproportiate to loss to the amount in question.

[Spiceskull]

However if you stopped paying your wages in that could be breach.

How so? What you do with your money forms no part of the contract (unless it is an account where you undertake to pay in a certain amount each month)

[credit allergy]

I agree I was just trying to think a a difference between a breach and a failure to comply with t and c. My thinking being that if no money went in the relationship or contract has finished. I know it is a weak arguement however I have read many of the threads and posts of recent days and there is as much confusion and difference of opnion as before. i just feel that it will be a challenge arguing that whatever they are called in the t and cs the courts will not regard them as penalties if they comply with utccr. Even more so if it cannnot be determined whether it is a breach of contract.

[patrickq1]

£12 is of course much too high, but thats the level thats now become the norm with credit card a/c's, and any level ultimatelly set for personal bank a/c's is very unlikely to be higher that this, IMO.

as i see it even the 12 pounds is a change in the origional contract and was never agreed nor nor offered the chance to negotiate this sum,this was a figure that was initially pulled out of the hat and was admited at the time even this is admited relatively high

patrickq1

[steven4064]

£12 may have become the norm for CC companies to charge but I can't think of a case where anyone who has tried has failed to get such charges back

[JonCris]

I think that at the end of the day any final Judgment if it's to be widely accepted by the majority has to have a modicum of common sense at it's heart.

 

Even if those that say it's a complicated legal argument (which it is) miss the point

 

If plain commonsense is to prevail then the questions to be asked are

 

Is this charge a penalty & if not why not?

 

The answer of the court to this question is to say the least very convoluted

 

If it's for a service what service?

 

Again the Courts response to this doesn't actually make much sense

 

If it's for a consideration, a consideration of what?

 

See above

 

If it's for the consideration of an overdraft then why is this same charge not imposed on those who, whilst are in credit, successful or not, request an overdraft.

 

In other words if the Judgment is accepted in that it's for a consideration or service would that same consideration or service not apply even more so to a customer in credit than it does to a customer in debit.....................That being the case why is a credit customer not asked to pay the same charge when requesting an overdraft.....Why are some customers being discriminated against?

 

Legalise aside common sense tells us it is a penalty imposed on those who attempt to go overdrawn & any other conclusion is just plane daft.

 

Remember until very recently even the banks referred to these charges as penalties & if the court allows them to escape this simply because they have changed the wording to hide this then the courts will be brought into disrepute.

[Spiceskull]

The £12 charge for credit cards will be a similarly placed "decision" by OFT for bank charges: "This is not necessarily a fair or legal charge, but it is the level at which the OFT will intervene if requested to do so...ultimately only a court can decide whether or not a charge is lawful..."

 

As Steven says, if you think that £12 is unfair, go to court and claim back what you feel you have been unlawfully charged. After all, whatever the outcome of the OFT case, to demonstrate lawfulness banks will still need to disclose costs...something they will never do...

[car2403]

However if they use the word penalty does this mean no charge full stop. Because it is a fine with no cost anaylis?

 

"A rose by any other name still smells as sweet"

 

A penalty is a penalty if a Judge decides that it is - what it is, or is not, called is irrelevant, as it depends on the facts of the case, not an opinion given by the OFT.

 

As soon as claimants go down the penalty route surely banks will say oft agreed £12.00 so this is a liquified loss. Another route is going to court under utccr claiming unfair or disproportiate to loss to the amount in question.

 

The Court would take a hollistic view, IMHO, and would consider the penalty issue before looking at the UTCCR issue - if it is a penalty, thats the end of it. If it isn't, then they'd consider the UTCCR.

 

If you claim on the UTCCR alone, that could scupper the result, as the penalty issue can only be looked at if it is raised by the parties.

 

What will happen is that the banks will agree with the OFT what the level of charges should be - anyone querying that amount in Court (which will be a extremely small number of people, IMHO) would just be paid out and be gagged as to the result. Most people, when told by the banks that "the OFT say this is right", would probably accept it and forget about it.

 

IMHO, of course...

[UK26]

Hi

 

When i made a claim at CCBC i sent in the court bundle from this site which i think was written by a QC.

 

Would this have to be redrafted since the news of OFT TEST case?

[steven4064]

The various documents (POCs) in particular are being rewritten as we speak

[photoman]

Remember until very recently even the banks referred to these charges as penalties & if the court allows them to escape this simply because they have changed the wording to hide this then the courts will be brought into disrepute.

 

 

Totally agree Jon

 

And also, if there can be shown to be any suspicion that the T&C's were changed in response to events or in preparation for an investigation, then they area also guilty concealment.

Which (certainly in the case of some banks) we also have other strong evidence of anyway.

They should be afforded no protection, leeway or pardoning from the law, whatever the age of the challenge.

[credit allergy]

has anyone worked out the breach of contract issue or rather lack of it from the judgement.

[TideTurner]

All eyes on the OFT site. They have stated that the judgement is lengthy, and their lawyers are analysing it prior to issuing a statement.

 

Obviously, before any appeal date (22nd May) no decision will be given, however, the general consensus is that the banks will do themselves more harm by appealing.

 

Tide

[star_scream]

FAQ's from the FSA site in response to the judgement.

What this will mean for you, if you

have a case on hold at the county court

The judge indicated that these cases should continue to be put on hold at least until the next step of the test case process and probably beyond that.

So, it looks as though the waiver is to continue for the near future at least.

[photoman]

All eyes on the OFT site. They have stated that the judgement is lengthy, and their lawyers are analysing it prior to issuing a statement.

 

Obviously, before any appeal date (22nd May) no decision will be given, however, the general consensus is that the banks will do themselves more harm by appealing.

 

Tide

 

From The Times:

 

Banks told to stop stalling and pay up after verdict on charges - Times Online

 

 

Quote from article:

 

The British Bankers’ Association said that it was too early to give a response to the judgment, but an industry insider said that there was likely to be an appeal “against some level of the judgment”.

 

 

Let's hope they see sense, and realise the extra harm (to an industry already struggling with it's image) that doing so at such an early stage would create.

[JonCris]

This is what the Ozzy regulator thinks about their 'penalty' charges.......

 

http://www.crikey.com.au/Business/20080423-how-i-beat-the-bank-with-a-little-help-from-vcat.html

 

Are you reading Mr. Justice Smith & Mr Banker.

 

Don't get out of step with the colonies will you:)

[star_scream]

I see they were also awarded printing & Postage costs as well

[JonCris]

Yes

Open up Nichol Rich's PDF Report on Penalty Fees which is linked in the article (para beneath the picture)

[Chromatix]

I think Mr. Justice Smith has a great deal of common sense in him. Of course he has also written out his (very important) judgement with extreme care and thoroughness, which makes it more difficult to read by a layman.

 

The take-away message from it is threefold:

 

- The OFT may go ahead with it's fairness assessment under the UTCCRs.

 

- The *present* T&Cs used by the banks do not use the breach-of-contract mechanism to levy the charges, and therefore the question of whether they are penalty charges under common-law is moot.

 

- The *historical* T&Cs which were in use a couple of years ago are significantly different in this precise area. These older T&Cs were not examined for this judgement, but *I* personally believe that if they had been, they would have been determined to use the breach-of-contract mechanism. This would have made them suitable for application of the common-law rules (as they are in any case).

[photoman]

I think Mr. Justice Smith has a great deal of common sense in him. Of course he has also written out his (very important) judgement with extreme care and thoroughness, which makes it more difficult to read by a layman.

 

The take-away message from it is threefold:

 

- The OFT may go ahead with it's fairness assessment under the UTCCRs.

 

- The *present* T&Cs used by the banks do not use the breach-of-contract mechanism to levy the charges, and therefore the question of whether they are penalty charges under common-law is moot.

 

- The *historical* T&Cs which were in use a couple of years ago are significantly different in this precise area. These older T&Cs were not examined for this judgement, but *I* personally believe that if they had been, they would have been determined to use the breach-of-contract mechanism. This would have made them suitable for application of the common-law rules (as they are in any case).

 

Agree,

Plus, if it can be shown that the T&C's were changed in response to events or in preparation for an investigation, then they are also guilty concealment.

[JonCris]

The problem with Justice Smiths finding is that he's allowing the banks to hide behind their sham of the rewritten T's C's

 

Whilst his ruling as per the OFT seems sensible his interpretation of the T's & C's argument fails to look behind what's happened.......it fails to take into account his wider knowledge of what has gone before which had he chosen to he would have been perfectly entitled to do

 

As for the historic terms the only sensible interpretation of these can only be that they are penalties......even the banks described them as penalties

 

I ask what has now changed that make them different.....nothing.....just a few words in a document produced at a time when the banks where losing millions

 

I'm sorry as learned as Mr Justice Smith may be it just don't wash.........If it look like an elephant.........walks like an elephant.....then chances are it is an elephant

[JonCris]

The courts are supposed to look behind what's being said & being done in the world at large & not just confine itself to the narrow interpretations of words in a document it knows full well have been changed after the event to avoid liability

 

I'm sorry & I may be alone here, & I stand to be corrected, but the more I study this Judgment the more I become of the opinion that it's full of holes particularly with regard to the T's & C's

[photoman]

I'm sorry & I may be alone here, & I stand to be corrected, but the more I study this Judgment the more I become of the opinion that it's full of holes particularly with regard to the T's & C's

 

No, Your not alone !

[photoman]

Its like ringing up the Police confessing to a crime.

 

Then when they arrive, cleaning up the scene of any evidence in front of their very eyes.

Then asking them to investigate, but to ignore anything they may possibly have seen before you cleaned up.

 

..... and they agree !!