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

[JonCris]

How big ..................... It's huge & the banks can stop such activity if they chose to do so. They simply cancel the DD

[TheyrCriminals]

JonCris,

 

I'm sorry I dont think I understand what you mean. Are you saying that companies are attempting to apply a direct debit for the same item several times in one day? And with regards to cancelling any direct debit, surely the bank will cancel it immediately/within 24 hours on receiving such an instruction from their customer?

 

TheyrCriminals

[MilkTrayMan]

£8 per uncleared item unlawful Penalty Charge per day X 28 Charging days = £224 (...the single person's Dole money for 28 days is ONLY £242 btw)

 

£35 per uncleared Charge would have to be re-presented SEVEN times in that particular same 28 Charging day period to be MORE expensive.

I suggest that this would simply NOT happen...A couple of times perhaps...but SEVEN??...nah

 

As NO doubt U will appreciate, a person on limited funds would NOT be able to Credit their current account as quickly, nor sufficiently enough, to be able to cover the Cost of the enforced unlawful Penalty Charge, the same as what a person in F/T employment could.

Therefore the original £8 per day unlawful Penalty Charge per uncleared item would continue 'infinitum', regardless of the number of times the uncleared item was ever re-presented, until such time as the O/D was brought back into Credit so as to allow the next months DD's etc to clear.

 

Thus the poor become even poorer...to help finance those that MAY save the odd bob or two under the NEW T&C's...

[TheyrCriminals]

MilkTrayMan,

 

Barclays will not charge you £8 per day for the same bounced item!! It will charge you £8 per day if you bounce 1 item every single day!

 

You said:

 

Thus the poor become even poorer...to help finance those that MAY save the odd bob or two under the NEW T&C's...

 

Please elaborate.

 

TheyrCriminals

[MilkTrayMan]

...Barclays will not charge you £8 per day for the same bounced item!! It will charge you £8 per day if you bounce 1 item every single day!...

BARCLAYS' NEW OVERDRAFT CHARGES

£22 for each five-day use of the Personal Reserve

£8 for each guaranteed but unauthorised payment

£8 per day for each bounced payments above overdraft limit (up to five per day)

 

It is the early hours of the morning, but the above is my understanding of the proposed NEW Costs.

I have only briefly looked at the OLD Costs, but on reflection they seem astronomically exorbitant if the person's O/D limit is exceeded...

 

BARCLAYS' CURRENT OVERDRAFT CHARGES

£30 for each guaranteed but unauthorised payment (up to three a month)

£35 per day for bounced payments above overdraft limit

27.5% interest rate when paying back each unauthorised payment

 

At 2nd glance there DOES seem to be a significant reduction per day in the unlawful Penalty Charges aspect...

...That will teach me to check the small print...

 

However...That STILL doesn't explain nor excuse, the STILL unnecessarily complicated + high unlawful Penalty Charges that Barclays have concocted as a replacement, in answer to the financial dilemma's that face it's 'less profitable' Customers.

 

 

 

...

[JonCris]

JonCris,

 

I'm sorry I dont think I understand what you mean. Are you saying that companies are attempting to apply a direct debit for the same item several times in one day? And with regards to cancelling any direct debit, surely the bank will cancel it immediately/within 24 hours on receiving such an instruction from their customer?

 

TheyrCriminals

 

The customer will know nothing about it as the banks have dispensed with the need to advise you of the rejection & you will only discover it either when you check your balance or your card is rejected at some retail outlet

 

Also sometimes when trying to cancel a DD the bank clerk will tell you (even though it's rubbish) you can't as that instruction has to come from the receiver

[JOSH_IOU]

It dose not matter how much they charge us if we were not given the chance to negotiate the price it is an unlwful amount.

 

As the contract can not be enforced in a court of law.

 

If a judge enforces an unlawful contract he is infact breaking the trust he is implidely given by the court through an employment contract he has signed witht he court in good faith.

 

The words your hounor should not aply as delaying this process is breaking our human rights.

 

This is a court of law they are abuseing "NO" person is above the law in the UK.

 

If you play this way with the banks you play into there hands.

[patrickq1]

perhaps we could call this breach of contract by dissemination methinks

patrickq1

[JOSH_IOU]

UCTCR's

 

Why it is so improtant that these regulations apply as well as other regulations. There seems to be some confusion as to what the terms mean.

 

I dont no why because it looks like plain intelligeble English to me

 

The Unfair Terms in Consumer Contracts Regulations 1999

 

Unfair Terms

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

[JOSH_IOU]

I thought this was important to include as the banks seem to be relying on some of this as a defence.

 

Assessment of unfair terms

6. - (1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

 

(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate-

 

 

(a) to the definition of the main subject matter of the contract, or
 
(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

[JOSH_IOU]

Sorry for clogging this thread up firther but I do belive this si relavant to the topic of this thread. Have a look at (I)

 

 

SCHEDULE 2Regulation 5(5)

 

 

INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

 

1. Terms which have the object or effect of-

 

(a) excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier;

 

(b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;

 

© making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

 

(d) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

(f) authorising the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract;

 

(g) enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;

 

(h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early;

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

 

(l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

 

(n) limiting the seller's or supplier's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

 

(o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

 

(p) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement;

 

(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

[rdm2006]

was it today we were supposed to hear about the historical terms??

[TheyrCriminals]

No

[Bookworm]

was it today we were supposed to hear about the historical terms??

 

http://www.oft.gov.uk/shared_oft/personal-current-accounts/banksqa300508.pdf

 

 

Timeline of test case

 

-------Date .............................Milestone

 

7 September 06 .............. Initial review into unarranged overdraft charges

26 April 07 --------------- Launched market study and UTCCRs investigation

26 July 07 --------------- Commenced test case proceedings

17 January 08 ------ ----- First High Court hearing on preliminary issues

24 April 08 --------------- Judgment delivered on preliminary issues

22-23 May 08 ------------ Case Management Conference

7-9 July 08 ---------- ---- Further High Court hearing on preliminary issues

[SELV]

Cheers Bookworm, nice to see a bit of activity on here again and understand the post you put on, they were getting a bit complicated.:? XX..

[rdm2006]

Thanks Bookie

[TheyrCriminals]

Hi rdm2006,

 

Please accept my apologies. I think the following sentence would have been a little more helpful!!!

 

No. Judgement on historic terms and conditions - 7th and 8th July 2008.

 

TheyrCriminals

[rdm2006]

Its OK TC No problem

[Aequitas]

It dose not matter how much they charge us if we were not given the chance to negotiate the price it is an unlwful amount.

 

What is your authority for that proposition?

[JOSH_IOU]

What is your authority for that proposition?

 

 

What?

 

That view comes after reading the unfair contract terms act.

 

The master of rolls has strategically paused thousands of claims on the basis of an idustry that is in virtual crisis due to its own devlopment.

 

I am a british citizen I have the power to vote for who ever I see fit.

 

I did not get to choose the current Primeinister.

 

If you think this has no rellavence then there is something definatly wrong somewhere.

 

I have the right to choose I was denied that right how can I trust these people who take that right away from me?

 

They talk about libities and they pick and choose which ones we can and can not have. That is not liberalism thats republicanism.

 

You talk about what right I have well i have the right of expression.

[Bookworm]

Calm down, Josh, I think Aequitas is not criticising your right to post your opinions, he's asking you the legal authority on which you base your assertions (precedents, etc...)

 

For example, if I were to talk about the 6 months reverse burden of proof in a consumer case, the authority would be the Sales of Goods Act 1979 (as amended). You get the gist. ;-)

[JOSH_IOU]

;)Well bookworm,

 

 

I remember somewhere it said the UTCCR's gives the judge the authority to make that judgement through the Sales of Goods Act 1979.

 

Was that in the OFT defence?

[Aequitas]

Sorry if the way I posed my question caused offence. You are of course free to make whatever assertions you like about the law.

 

I do not think there is any authority to back up your proposition and it is not to be found in the UTCCR. Indeed, it is my view that the UTCCR do the exact opposite. Regulation 6 (2) says:

 

In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate...to the adequacy of the price or remuneration, as against the goods or services supplied in exchange

 

So, the Regulations specifically exclude the possibility that any enquiry can be made as to the level of any charge. What the Regulations do permit (at least according to the current state of play) is that any of the banks' term imposing charges can be subject to assessment as to fairness - something quite different.

[JOSH_IOU]

Terms to which these Regulations apply

3.—(1) Subject to the provisions of Schedule 1, these Regulations apply to any term in a contract concluded between a seller or supplier and a consumer where the said term has not been individually negotiated.

 

(2) In so far as it is in plain, intelligible language, no assessment shall be made of the fairness of any term which —

(a) defines the main subject matter of the contract, or

 

(b) concerns the adequacy of the price or remuneration, as against the goods or services sold or supplied.

 

(3) For the purposes of these Regulations, a term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has not been able to influence the substance of the term.

 

(4) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of the contract indicates that it is a pre-formulated standard contract.

 

(5) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Is the above section the section you refer to?

 

Lets take this one for starters.

 

(4) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of the contract indicates that it is a pre-formulated standard contract.

[yourbank]

JOSH IOU, have you read the test case judgement?Paragraph 328 onwards deals with the 1999 regulations which seems to incorporate some of the things you have mentioned.