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

[Guest Puff]

Bookworm,

 

I have had to log in as Puff because I am having problems with logging in under my BigBudgie username.

 

With regards to your earlier post.

 

Don't believe all the negative propaganda, this is what the Banks are trying to do to us.

 

After being at the CMC for two days and picking up on the ambience it's very easy to put a much more positive spin on things.

 

Come 7th and 8th July, the OFT's new QC, Jonathon Crow will wipe the floor with the Banks QC's ( have a look at his resume, that'll make you feel better ( http://www.4stonebuildings.com/members/9.html ) . We know that the UTCCR judgment will be applied to historic terms and when some of those historic terms are also confirmed as penalties under common law we will all be jumping up and down with joy again.

 

The OFT will publish the results of their market study within the next couple of weeks and their PCA report during July. The Banks appeal over the UTCCR aspects will be thrown out by the appeal Court in the Autumn ( thanks once again to Mr Crow ) and they will not be given permission to appeal the forthcoming decisions on historic terms.

 

The first "phase two" hearing will be held in the Autumn ( probably September ) and the Banks will put up a bit of a fight but will then capitulate and fall into line with the OFT's recommended resolution.

 

So please get your finger out and stop with the negativity !!!

 

Budgie

 

 

 

and just in case you doubt my predicitons here is what I posted ( on this thread ) the day before the CMC.

 

 

BigBudgie

Basic Account Customer

 

Join Date: Mar 2008

Posts: 9

 

 

Re: OFT v Banks - Round One to OFT

The stays are all on claims which are / were governed by historic terms and the Judge hasn't made a decision on those historic terms yet so there is no chance of stays being lifted tomorrow.

 

Even if , by some miracle, he has had time to go through all the Banks historic terms I very much doubt if he will hand judgment down on these tomorrow. He might though set a date for doing so. After he eventually makes his decision known regarding the historic terms and assuming that things go our way then the Banks will have time to decide whether they wish to appeal on those decisions.

 

The Judge may actually issue some guidance to the County Courts regarding the stayed claims tomorrow. However I suspect it will only be that they should remain on hold at present.

 

The only glimmer of light we might have would be if the never ending delays can be turned to our advantage in that we can persuade the FSA to remove the waiver owing to the lack of progress being made in the test case.

 

Budgie

Last edited by BigBudgie; 21st May 2008 at 15:25.

 

 

AND

 

 

BigBudgie

Basic Account Customer

 

Join Date: Mar 2008

Posts: 9

 

 

Re: OFT v Banks - Round One to OFT

Quote:

Originally Posted by Bookworm

No, that's correct, but I suspect that what Spicey meant was that if the banks appeal the part they're not happy about (the UTCCR), then the OFT will be likely to appeal the not-a-penalty part, whereas if they don't, the OFT will be more likely to let things be as they are and concentrate on then establishing the unfairness of the charges as per their remit.

 

I very much doubt if the OFT will appeal the penalty aspect ( they were not actually seeking a declaration about this in their original POC anyway) the OFT may appeal the PIL judgment though. Although there isnt really anything for the OFT to gain by doing so as they got the declaration they actually wanted wrt UTCCR anyway. The OFT may just prefer to put all their effort into defending the UTCRR judgment should the Banks appeal that particular point.

 

Personally I would rather see the OFT concentrate on the Job in hand, defend against the appeal, forget the penalty and PIL aspects for present terms and get on with other things ( IE issue the bloomin reports into personal current accounts etc ) Some help for those of us with stayed claims ( IE Some good work by the OFT on the historical aspects would be also be extremely well received ).

 

Budgie

 

Last edited by BigBudgie; 21st May 2008 at 18:05.

Edited May 26, 2008 by Puff

[Bigmac versus]

persuade the FSA to remove the waiver owing to the lack of progress being made in the test case.

 

Human rights issue could challenge that. (within a reasonable time)

[Bookworm]

Bookworm,

 

(...)

 

So please get your finger out and stop with the negativity !!!

 

Budgie

There's no need to be vulgar (or inaccurate for that matter, my understanding of the above expression is that it means "don't be so lazy" and I fail to see the relevance of the epxression in this context. ).

 

"stop" with the negativity? Dear Puff/Budgie, whoever you are, if you had bothered to read previous posts of mine, you would know that this is one of the rare times where I have been despondent about this situation, and I believe that I am entitled to express my doubts and opinions on the subject.

 

As for the impeccable CV of the new QC, if you care to check the just as impeccable CV of the previous one, I think you'll find that it is no guarantee of success, if the lacklustre previous performance was anything to go by.

 

Please don't patronise me with the "Don't believe all the negative propaganda, this is what the Banks are trying to do to us." I haven't listened to anything my bank has to say on the subject of bank charges for a long time apart from when they say "Yes, we will settle in full", and it may surprise you that I am actually capable of forming the odd original thought or two by myself without being brainwashed by the very organisations I have been fighting for over 2 years.

 

Maybe it is merely battle fatigue, but yes, I am finding it hard to be optimistic at the moment. I really, really hope I am wrong, and I really, really hope that the consumer wins, I'm just not terribly hopeful about it right now.

 

Tom, when you say that the individual cases were not satisfactory, I think that the thousands of people who got their money back might beg to differ with you. Don't forget that, especially at the beginning, those cases were never ever going near a court anyway. It's only when the tide carried on rising that some cases did make it to court, and most of the time, by accident rather than by design.

 

Regardless of the above, wouldn't you have seen a well presented "real" case go to Mercantile rather than having this taken out of the consumers' hand altogether? Don't you think that there'll always be suspicions of done deals when a government agency gets together for consultations with the institutions prior to launching a test case with some of the issues pre-agreed? I know what I'd have preferred.

 

As for the decision as to whether to appeal the penalty charge argument, it is quite possible to take it out of the OFT's hands. If you don't agree with it, include it in your reasons for your case, and appeal to the high court. You will lose, but this will give you an appeal to the appeal courts and ultimatly, the house of lords.

If I were Richard Branson or the Sultan of Brunei, I probably would... But even it I could, why should I, or anyone else for that matter? My understanding was that the OFT was supposed to be there to do the job for all consumers! If they were not prepared to fight this to the death, why take the job on in the first place? See? That's where the doubts creep in...

 

But... i actually believe that for the current contracts, the judgement of the judge is actually likely to be correct. i think that any judgement other than that the historic terms included clauses that late payment was not a breach of contract would have a devistating effect on the banks, since it would invalidate huge numbers of county court judgements in my opinion.

Possibly, after all, they re-wrote those contracts quickly enough... It leaves the question of cloaking the penalty, and as I have said before, looking at the current T&Cs without looking FIRST at the historical ones (out of context, so to speak) and see the changes rewritten very suddently is like saying that the invasion of Poland caused WW2 and that if Poland hadn't been invaded, WW2 wouldn't have happened, and not looking at all the events that led to the invasion of Poland.

 

As for the invalidation of CCJ, I doubt it very much, as ultimately, there were very few judgments actually handed down, as very few cases ever made it to court for a judge to decide on, and again, most of them by default anyway, so the impact on decided cases would be minimal. On the other hand, one can only guess at what would happen to all those currently stuck in the system.

[TheyrCriminals]

Hi Bookworm,

 

Profoundly off topic here but could you slightly elaborate on your thoughts that there was more to trigger World War 2 than just the invasion of Poland.

 

Many Thanks.

 

TheyrCriminals

[Bookworm]

Hi Bookworm,

 

Profoundly off topic here but could you slightly elaborate on your thoughts that there was more to trigger World War 2 than just the invasion of Poland.

 

Many Thanks.

 

TheyrCriminals

Ask me again in the Bear Garden, I know this thread has gone OT many a time, but there are limits!

[Guest Puff]

 

Originally Posted by Puff

Bookworm,

(...)

So please get your finger out and stop with the negativity !!!

Budgie

 

There's no need to be vulgar (or inaccurate for that matter, my understanding of the above expression is that it means "don't be so lazy" and I fail to see the relevance of the epxression in this context. ).

 

"stop" with the negativity? Dear Puff/Budgie, whoever you are, if you had bothered to read previous posts of mine, you would know that this is one of the rare times where I have been despondent about this situation, and I believe that I am entitled to express my doubts and opinions on the subject.

 

I intended nothing vulgar in my post, and was not implying what I believe you may have interpreted.

 

To pull or to get your finger out is to hurry, to get a move on. This is a nautical saying and comes from the times of the Men'o'War. When the cannon were loaded a small amount of powder was poured into the ignition hole near the base of the weapon. In order to keep the powder secure before firing, a crew member pushed a finger into the hole. When the time came for ignition, the crewman was told to pull his finger out.

 

and yes I have read a significant number of your posts, not all 17k odd of them I must admit. However, my post was intended so as to put a more positive slant on matters. New members, reading your post could easily be led to believe that all hope of a successful reclaim of their charges was rapidly disappearing.

 

Budgie

Edited May 27, 2008 by Puff

[tomterm8]

Tom, when you say that the individual cases were not satisfactory, I think that the thousands of people who got their money back might beg to differ with you.

 

Bookie, as I am sure you know, many more people were put off from reclaiming money through the complexity of the court process than ever reclaimed money. Many people in desperate need never even knew about the ability to reclaim, however hard sites like CAG put the word out. The amount of money reclaimed logged by ALL the penalty charge advice websites is insignificant compared to the 6 billion estimated that losing the test case would cost the banks, not to mention the 1.5 billion per year the banks are estimated to have at risk. CAG has official records of helping consumers reclaim £20 million. The actual amount reclaimed could easily be five times that, and it wouldn't even scratch the money that the banks make in a single month through penalty charges.

 

Now, I know that before the test case, most people were having their cases settled, after a great deal of (basically unnecessary) hastle... eventually... but individual small cases would never solve the underlying issues unless the banks took the matter to the high court.

 

and, if they did take it to the high court, precisely the same process we are now experiencing would occur... because the process is the way civil litigation works at this level. It's frustrating, and slow, but... we know that anyway.

 

The only difference is something like equality of arms exists between the OFT and the banks, whereas, if the banks wanted to they could have set up a scategoat to take the fall. Imagine a person in the fast track or multitrack against a £20 million pound legal team. There would not have been any justice, they would have been bankrupted before the case got to judgement... and the news would have spread.

 

 

Don't forget that, especially at the beginning, those cases were never ever going near a court anyway. It's only when the tide carried on rising that some cases did make it to court, and most of the time, by accident rather than by design.

 

 

I am aware of that, but eventually the banks would have been forced to take it to court. Either by accident or design. In which case, I think their policy would not have been based around legal argument, but absolutly financially destroying the poor sucker that was chosen

 

 

Regardless of the above, wouldn't you have seen a well presented "real" case go to Mercantile rather than having this taken out of the consumers' hand altogether? Don't you think that there'll always be suspicions of done deals when a government agency gets together for consultations with the institutions prior to launching a test case with some of the issues pre-agreed? I know what I'd have preferred.

 

If I were Richard Branson or the Sultan of Brunei, I probably would... But even it I could, why should I, or anyone else for that matter? My understanding was that the OFT was supposed to be there to do the job for all consumers! If they were not prepared to fight this to the death, why take the job on in the first place? See? That's where the doubts creep in...

 

Most people generally concentrate their arms where they will be most effective. The OFT obviously believe this is in UTCCR, rather than the common law arguments. Ultimatly, they may be right or wrong. Even if the OFT loses this case, it isn't over. The OFT has resources that are beyond those used so far... particularly, they can bring to bear european competition law to bear, or even change the law.

 

i think so far, they have done at least as well as could reasonably be expected.

 

Possibly, after all, they re-wrote those contracts quickly enough... It leaves the question of cloaking the penalty, and as I have said before, looking at the current T&Cs without looking FIRST at the historical ones (out of context, so to speak) and see the changes rewritten very suddently is like saying that the invasion of Poland caused WW2 and that if Poland hadn't been invaded, WW2 wouldn't have happened, and not looking at all the events that led to the invasion of Poland.

 

I don't believe that any judge would be able to find these terms were cloaking penalties on the basis they differed from previous terms:???: The judgement has to be made on the basis of whether the current terms are intended to punish contract breakers or not.

 

 

As for the invalidation of CCJ, I doubt it very much, as ultimately, there were very few judgments actually handed down, as very few cases ever made it to court for a judge to decide on, and again, most of them by default anyway, so the impact on decided cases would be minimal. On the other hand, one can only guess at what would happen to all those currently stuck in the system.

 

I'm not talking about CCJs on the charging issue. I am talking about CCJs where the customer couldn't pay on time, and the bank took them to court.

[JonCris]

tom as for cloaking penalties I'm with BW If I simply change the wording but not the cause & effect then it's the same thing & this has been recognised by the courts for many years

 

Also if I'm not mistaken the OFT made specific reference some time ago to not accepting the banks cloaking of penalty charges

[tomterm8]

But, the point is the construction of the terms is not the same, and has different legal implications. If you have a contractual right to delay payment, or to go overlimit, then this has certain specific implications in terms of credit law. In particular, closing the account because you exercise your contractual rights is probably unfair within the meaning of the Consumer Credit Act 2006. Closing an account because you breached a term is not unfair.

 

recording a termination without cause as a default is probably a breach of the Data protection act 1998.

 

That's what the judge means by the terms being constructed to the advantage of the consumer... the judgement has huge legal implications, and we have just scratched the surface of them as yet.

[TheyrCriminals]

Im sorry to keep asking this but no one has helped as yet. Can someone please tell me or direct me to the arguments submitted to the Court by the banks that led the judge to grant them an appeal. I have not found a single argument put forward yet and as you know the banks can not simply appeal because they dont like the decision they have to have grounds.

 

Thank you.

 

TheyrCriminals

Edited May 27, 2008 by TheyrCriminals

[Guest Wild Billy]

TomTerm8 and Puff both make a lot of sense. It's good to have balanced views expressed and an appreciation of the bigger picture.

[tomterm8]

My understanding is that they asked for the appeal on the grounds that the conclusions had a significant affect on their business, that the judge came to the incorrect conclusion as a matter of law, and that the issues require clarification in an authoratative court (i.e. that the judge had to effectively create law, and that this should be done in a superior court).

 

The appeal is very limited, anyway, and does not significantly affect the outcome of the test case... it is a side show issue.

 

EDIT: it is normal for the reasons to be given in brief at the case management conference, we won't see the details until the appeal is actually submitted. Unfortunatly, I am not aware that any official transcripts of the CMC have been provided yet.

Edited May 27, 2008 by tomterm8

[car2403]

Im sorry to keep asking this but no one has helped as yet. Can someone please tell me or direct me to the arguments submitted to the Court by the banks that led the judge to grant them an appeal. I have not found a single argument put forward yet and as you know the banks can not simply appeal because they dont like the decision they have to have grounds.

 

Thank you.

 

TheyrCriminals

 

It could be because we haven't seen them, as you haven't.

 

I don't suppose the reasons for appeal will come in to the public domain until the appeal is heard, will it?

[BigBudgie]

Im sorry to keep asking this but no one has helped as yet. Can someone please tell me or direct me to the arguments submitted to the Court by the banks that led the judge to grant them an appeal. I have not found a single argument put forward yet and as you know the banks can not simply appeal because the dont like the decision they have to have grounds.

 

Thank you.

 

TheyrCriminals

 

Hiya,

I actually attended both days of the CMC so will try to answer your question.

Full write ups regarding the CMC appeared on another web site mentioned earlier in this thread.

The Banks appeals on the UTCCR 1999 aspects of the judgment were on various and differing grounds on a Bank by Bank basis. The main ones being that the Banks did not accept the Judges decision and felt that they had a reasonable chance of success if their grounds were heard in the Appeal Court. Detailed grounds were contained in skeletal argument documents which have not been made public.

However the OFT indicated that they did not object to the Banks grounds and the Judge agreed to give his permission for the Banks to appeal without requiring either side to discuss the matter. This is quite normal Court procedure.

Bear in mind that just because the Judge has given permission to appeal doesnt actually mean that an appeal hearing will go ahead. The appeal Court may decide not to allow it anyway.

Hope that helps !

Budgie

[TheyrCriminals]

Hi tomterm and Big Budgie,

 

Thank you very much for your information, things becoming more clearer now!

 

TheyrCriminals

[BigBudgie]

Hi tomterm and Big Budgie,

 

Thank you very much for your information, things becoming more clearer now!

 

TheyrCriminals

 

 

No problem !

 

Most of the Banks involved in the Test Case are now putting up updates on their websites regarding the CMC. Some are including some detail as to why they have appealed the UTCCR judgment.

 

However obviously bear in mind the "spin" aspects applied by the Banks.

 

Tomterm raised a very relevant point

"The appeal is very limited, anyway, and does not significantly affect the outcome of the test case... it is a side show issue."

 

I totally agree with this and also remember that the OFT were not very worried about the Banks appeal as they decided not to attempt to have the appeal request dismissed.

 

Budgie

[BigBudgie]

A couple of pages back the conversation had touched on Compound Interest.

 

I am personally at a fairly advanced stage with a compound interest claim against Capital One. I am of course using Sempra but also found a 2004 report by the Law Commission which may be of interest to those people considering compound interest claims.

 

The Draft Bill's status is currently listed as pending, so this bill hasn't got very far upon it's journey through Parliament yet. However it does make very interesting reading and gifts one or two useful points for inclusion in POc's and witness statements in connection with any claim.

Final Report.pdf

Draft Bill.pdf

Summary of recommendations.pdf

[elliesnan]

l've just caught a brief news item that Barclays are dropping their o/d charges to £8.00

[kennythecelt]

Posted in the media forum, but here is a link so it can be accessed easily.

 

Barclays cuts fees for overdrafts - Times Online

[rdm2006]

Must have been the threat that we would all move to the co-op lol:D

 

The rest will probably follow now (Thats what leamings do )

Edited May 29, 2008 by rdm2006

[stonedecroze]

Dramatic About Turn As Barclays Cuts Overdraft Charges |Sky News|Business

 

 

 

 

"Barclays says it has been able to reduce its charges as a result of breakthroughs in its handling systems, with a far greater automated service."

 

 

reading this it would appear that Barclays have got computerised. :eek: Or is the start of a war for customers? :???:

Edited May 29, 2008 by stonedecroze
missed the important bit !!

[rdm2006]

Barclays says it has been able to reduce its charges as a result of breakthroughs in its handling systems, with a far greater automated service.

 

Of course these systems have been there for some time. So it looks like a war for customers and about time too:D

[JonCris]

I'm not sure but haven't Barclays, in keeping with the rest, already 'changed' their fee structure to more than compensate for any loss or reduction in penalty fees........ Also 'beware! Greeks bearing gifts'

[rdm2006]

Looks like it has had a change of heart on this one. But lets wait and see

[fergal71]

this stinks of a deal between banks and OFT....

 

I look forward to July court date...