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

[photoman]

have a look at

 

The “reasonableness” test

 

downwards

 

Unfair Contract Terms Act 1977 (c.50)

 

You've actually linked to the section that deals with the amendments for Scotland.

 

Here is the link to the area regards the reasonableness test for England

 

Unfair Contract Terms Act 1977 (c.50)

 

 

Notably:

 

SCHEDULE 2

“Guidelines” for Application of Reasonableness Test

 

The matters to which regard is to be had in particular for the purposes of sections 6(3), 7(3) and (4), 20 and 21 are any of the following which appear to be relevant—

(a)the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;

The massive imbalance of power of the parties to the contract, plus our total inability to change or alter the terms, plus the fact that there were no alternative providers offering more favorable terms

(b)whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having a similar term;A promise of "free" banking as inducement, the insistence in some circumstances that loans or mortgages would only be provided if the account was opened, no better alternative terms with other providers

©whether the customer knew or ought reasonably to have known of the existence and the estent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);The customer did not have knowledge at the time the contract was agreed upon; that the other parties response to the customers breaking or other failure to adhere to the term were in fact potentially unlawful (regardless of whether or not the customer had already experienced such actions in prior dealings with the OP, or that indeed it was common practice in that trade), nor did they know the full estent and implications of the term, including how any response could be be for ever made increasingly detrimental, and also that such terms could also just be unilaterally changed by the other party.

(d)where the term excludes or restricts any relevant liability if some conditionwas not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;N/A

(e)whether the goods were manufactured, processed or adapted to the special order of the customer.N/A

 

PM

Edited May 15, 2008 by photoman
potentially libelous word removed

[JOSH_IOU]

Well spoted so i have.

 

We could also say under no circumstances were we offerd the chance to change the level of the fees. This in effect becomes a take it or leave it clause. Which massively effects our ability to alter the terms of conditions.

[JonCris]

I suspect that as the court has ruled that the UCTA does apply then the banks new & exorbitant charging structure may well be open to challenge on the grounds of there reasonableness de ja vue;)

[JOSH_IOU]

Jon you are starting to sound like the bank. (no offence)

 

The courts have not ruled on the UCTA 1977 act.

The courts ruled on the UTCC Act.

 

Which is why there is all of this discussion on this thread.

 

Josh

[JonCris]

Ok typo But my comment remains the same

[MilkTrayMan]

'Typo' on THREE letters of a 4-lettered acronym JC??...

...

[JonCris]

Yeah & your point is what precisely??

[photoman]

.... and also it's déjà vu

[JOSH_IOU]

Extracts from the judgement (which can be found here )

 

 

 

The Relevant Terms and Relevant Charges are being challenged on two fronts: the Office of Fair Trading (the “OFT”) is investigating under the Unfair Terms in Consumer Contracts Regulations 1999 (the “1999 Regulations”) the fairness of the terms under which banks make such charges, and cases have been brought by individual customers in county courts disputing charges levied by banks, many of them relying not only on the 1999

 

The OFT identifies four basic categories of Relevant Charges about which it is concerned: Unpaid Item Charges; Paid Item Charges; Overdraft Excess Charges; and Guaranteed Paid Item Charges. An Unpaid Item Charge is, as the OFT pleads, “levied when the customer gives an instruction for payment or, in some cases at least, withdrawal, that the bank declines to honour because the customer does not have sufficient funds in his account” or, I would add here and in relation to other charges, an arranged facility which covers it. A Paid Item Charge is “levied when the customer gives an instruction for payment or, in some cases at least, withdrawal, for which he has insufficient funds in his account and which the bank honours”. An Overdraft Excess Charge is “levied if, during a specified period (typically a day or a month) … an account is and/or goes overdrawn (and there is no overdraft facility), or… the debit balance is and/or goes above the limit on an existing overdraft facility, and in both cases irrespective of the reason why the excess has occurred”. A Guaranteed Paid Item Charge refers to a charge distinct from a Paid Item Charge which some of the Banks levy when they honour “in accordance with the guarantee, a cheque issued in conjunction with a cheque guarantee card (or, in the case of some banks, a debit card payment made under a guaranteed debit payment system) for which the customer does not have sufficient funds”.

 

Unpaid item charge It is part of the direct debit guartee the bank must hounor these transactions.

[patrickq1]

if it does nt make the guartee could this be construed as libelous action

patrickq1

[fergal71]

anyone any insider news about Thursday ????? any appeals etc????

[JonCris]

yeah fergal ........................... the Judge is gonna av' digestive wiv is tea:)

[RGS1]

BBC NEWS | Business | Banks may challenge charges case

[dannyboy660]

According to yesterday's FT they've already started FT.com / World - Banks appeal against overdraft judgment

[JonCris]

Did anyone think they wouldn't fight on ................ If they did more fool them then

[Bookworm]

That's not a new article (edit: the BBC one, I meant, I was typing at the same time as everyone else), it's the same one that they published after the result of the case, they just have tweaked it to say "thursday" instead of "May 22nd". Sloppy journalism, that.

 

I have a feeling the banks may not appeal, you know. At the moment, they are sitting on a judgment which means that they come under the umbrella of the OFT, but that their charges are not penalties. An appeal could leave them wide open to have that second part challenged, and they stand to lose a lot more should the appeal court find against them on the latter than leaving it at the current status quo.

 

On the other hand, the temptation to drag their feet for a good few more months by appealing must be incredible...

[JonCris]

I'm beginning to think more & more that this action was instigated merely to stop any further compensation payments being made to consumers

[carter56]

good to hear from you bookworm i always appreciate your advice - roll on tomorrow so we will know what the next deadline will be

linda

[Bookworm]

Thank you, but don't take it as gospel, it is just my personal musings, I don't know one way or another!!! After all, I was pretty sure the charges were penalties and yet the judge disagrees, so what do I know?

[matt_smith2000]

It would appear from the BBC website that the banks are likely to appeal.

 

It was highly likely I suppose, but we won't now for sure till tomorrow.

 

BBC NEWS | Business | Banks may challenge charges case

[photoman]

See Bookie's earlier post.

 

 

That's not a new article (edit: the BBC one, I meant, I was typing at the same time as everyone else), it's the same one that they published after the result of the case, they just have tweaked it to say "thursday" instead of "May 22nd". Sloppy journalism, that.

 

I have a feeling the banks may not appeal, you know. At the moment, they are sitting on a judgment which means that they come under the umbrella of the OFT, but that their charges are not penalties. An appeal could leave them wide open to have that second part challenged, and they stand to lose a lot more should the appeal court find against them on the latter than leaving it at the current status quo.

 

On the other hand, the temptation to drag their feet for a good few more months by appealing must be incredible...

[voyager9]

i myself am wondering what they will do, after nearly a year of no action hbos removed all adverse information from my credit file 2 weeks ago,which was part of my poc,the case was stayed like all the rest, so i cannot figure out why they would do this when credit files seem so important to them.but then again i think i have given up trying to second guess the banks.

 

voyager9

[JonCris]

voyager It could be that the bank is tidying up the barn

 

By that I mean they could be getting rid of all those reasons a consumer might have to continue litigation which they might win

[JOSH_IOU]

I think the big picture in relation to direcit debit charges is that the banks have a duty to hounor the direct debit.

 

Its called a direct debit Guarntee.

 

They dont hounor it they charge you instead.

[BigBudgie]

Is anyone from CAG planning to attend the CMC tomorrow.

 

It would be great to have an on the ball, on the spot reporter to pass information back as it happens!

 

What about you Bookworm, are you planning to be there?