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

[elsinore]

 

£5 for a bounced cheque, down from £38, who nare they kidding.

 

Who uses cheques these days, most retailers have stopped accepting them.

 

 

It's not £5 for a bounced cheque, SJ, it's £5 per unpaid item, which includes DDs and BOs.

 

I don't have cheque book but, if my bank refuse to pay a DD, I'd sooner be charged £5 than £38.

 

Mind you, I still wouldn't trust them as far as I can kick an anvil.

 

Els

[InformedSearcher]

There's actually NO manual intervention regarding the charges and letter sending for a failed D/D or S/O. All nicely done with bespoke software. Manual intervention normally follows when you call them or they call you.

 

I can remember years ago when Barclay's first introduced On Line banking and wanted you to pay to use it. I can also remember (I was a man with cash those days!) asking why I should pay for something with no human intervention. Shortly after all banks allowed on line banking for free, well as lond as in credit.

Michael

[Aequitas]

Call me cynical but is it beyond the realms or realism that they all reduce their charges from here on in but past charges are given an amnesty?

 

I suggested elsewhere that this is a more than likely scenario. It reflects economic and political reality.

[hilaryfrances]

;)would this be allowed?

[Aequitas]

Wittgenstein tells us that the words we use define our experience of the world itself and change it (er...I think so, anyway).

 

What he did say was : "What can be said at all can be said clearly, and what we cannot talk about we must pass over in silence." Quite apart from the fact that he wrote a largely impenetrable philosophical treatise to make his point, he was clearly no lawyer! Whilst basic principles of law may be expressed clearly, the problem comes when you have to apply the law. The law has to reflect the rich diversity of human affairs; there have to be exceptions and exceptions to exceptions. Simple laws strictly applied lead to injustice. The history of the law is a record of how the courts have resolved the tension between the need for certainty and the need to do justice.

[Aequitas]

;)would this be allowed?

 

Money is everywhere and we take it for granted, but it is in essence a huge confidence trick. The way the world is currently organised we cannot do without it nor can the economy operate without a stable banking sector. No government, left, right or centre is going to allow anything that destabilises the banks: see recent history.

[Aequitas]

What amused me from the Halifax site was, 'Following further hearings, the Court also decided that HBOS’ and Lloyds TSB’s historic terms and conditions can’t be penalties, but like the banks’ current charges they can be assessed for fairness'. Deliberate wording to confuse as I see it.

 

This is in fact a correct statement of the law as it currently stands. It is, with respect, only confusing if you fail to appreciate the distinction between:

 

(a) Assessing whether a contractual term gives rise to a contractual penalty; and,

 

(b) Assessing whether a contractual term is unfair within the meaning of the UTCCR.

 

The notion of the contractual penalty arises because it is a principle of English law that damages for breach of contract may not exceed the loss incurred. There can be no penalty if there is no breach. The court decided that on a true construction of the terms it considered no bank charges arose as a result of a breach of contract and therefore did not involve contractual penalties.

 

Assessing whether a contractual term is unfair within the meaning of the UTCCR is not primarily concerned with whether the term allows a charge to be made which exceeds the cost of supplying the service or by how much; to allow that would be to allow the court to examine every contract subject to the UTCCR to determine whether an excessive profit is being made and that is expressly excluded from the UTTCR by Regulation 6 (2) (b) which says:

 

 

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

• (a) -
   
  (b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
  

Rather, the UTCCR are concerned with whether a contractual term is intrinsically unfair. The question therefore becomes not so much whether the charge made exceeds cost or whether it is excessive, but whether any charge should be made at all.

[InformedSearcher]

This is in fact a correct statement of the law as it currently stands. It is, with respect, only confusing if you fail to appreciate the distinction between:

 

(a) Assessing whether a contractual term gives rise to a contractual penalty; and,

 

(b) Assessing whether a contractual term is unfair within the meaning of the UTCCR.

 

The notion of the contractual penalty arises because it is a principle of English law that damages for breach of contract may not exceed the loss incurred. There can be no penalty if there is no breach. The court decided that on a true construction of the terms it considered no bank charges arose as a result of a breach of contract and therefore did not involve contractual penalties.

 

Assessing whether a contractual term is unfair within the meaning of the UTCCR is not primarily concerned with whether the term allows a charge to be made which exceeds the cost of supplying the service or by how much; to allow that would be to allow the court to examine every contract subject to the UTCCR to determine whether an excessive profit is being made and that is expressly excluded from the UTTCR by Regulation 6 (2) (b) which says:

 

 

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

• (a) -
   
  (b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
  

Rather, the UTCCR are concerned with whether a contractual term is intrinsically unfair. The question therefore becomes not so much whether the charge made exceeds cost or whether it is excessive, but whether any charge should be made at all.

 

 

Thank you for that ..

My comments were really as to the way banks will issue public statements on their web sites and anywhere else. For example if they lose the statement to the public would make the bank out to be really attentive as do-gooders. Showing whilst they wanted to give it all back they were restricted. What of course they'd omit to mention was that they could not believe their luck when their friends at the OFT and FSA 'helped them out'.

Sorry cynic mode was 'on' then.

Michael

[Stornoway]

Tick .... Tock ....

 

Have we got a date yet for the hand down of the Judgement next month ?

[InformedSearcher]

Tick .... Tock ....

 

Have we got a date yet for the hand down of the Judgement next month ?

 

There's a problem even when there's a date because it'll still have to be decided how to proceed I believe.

Michael

[srfrench]

How do you mean?

[InformedSearcher]

How do you mean?

 

Because it'snot the final part but only to decided if charges are unfair. That in no means that the next day, week or even month you get anything back. A little going back in the thread will (sadly) reveal all.

Michael

[car2403]

Fallen in to a trap, there, IS.

 

There's nothing listed for this yet.

[Stornoway]

Once it is listed how long after that will the hearing take place - i.e if the listing appeared on Monday would it be for 1 days time, 1 weeks time or 1 months time ?

 

Cheers

[car2403]

We've already had the hearing - this is the publishing of the Judgment.

 

It's not clear from their site as to when in October it's expected, as it isn't listed on their site/Diary. (Should have been clearer)

[InformedSearcher]

LOL 'car2403' - I meant that the way people are perceiving the judgement means we will all be smiling. However that's not quite the case is it whatever it is?

Michael

(wrestling off the trapping devices)

[car2403]

LOL 'car2403' - I meant that the way people are perceiving the judgement means we will all be smiling. However that's not quite the case is it whatever it is?

Michael

(wrestling off the trapping devices)

 

Yes, quite, but the smilie after the question indicated he knew what the answer was...

 

Some might shoot me down, but I still think this can't go all the way - the OFT need to get their finger out and come to a sane agreement that means we don't have to wait another 3 years for a result. Already been through this in the thread, though, so I'll shurrup... for now, anyway.

[InformedSearcher]

Well having seen the 'convient' manners the banks have started to charge lower amounts my cynical view (due to age probably) is that they know something that we don't. No one doubts that financial institutions are profit making but there's a reasonable margin and one we all know verges on 'rip off'. Sadly they have been able to trade on the latter for too many years. This makes me wonder if when I was 16 I should have gone into the legal or finance professions rather than now being unemployed.

Michael

[kennyh]

IS - 'unemployed' - me deah chap, if you weren't asking and answering some of the questions then things would not be so lucid; we cannot expect Car et al to 'spoon feed' us, although they do suffer us and manage just that, on occasion.

I know - you meant paid employment, well, be lucky on that front and thanks for chipping in.

[London000]

We've already had the hearing - this is the publishing of the Judgment.

 

It's not clear from their site as to when in October it's expected, as it isn't listed on their site/Diary. (Should have been clearer)

 

Hi there,

 

Are we sure it is October 09 and is not another one of their tactics...excuse my french - mistake:D????

DD8-)

[InformedSearcher]

IS - 'unemployed' - me deah chap, if you weren't asking and answering some of the questions then things would not be so lucid; we cannot expect Car et al to 'spoon feed' us, although they do suffer us and manage just that, on occasion.

I know - you meant paid employment, well, be lucky on that front and thanks for chipping in.

 

ROTFL ... dear chap! ... but thanks ref the job front!

Michael

[Sammythebest]

Well having seen the 'convient' manners the banks have started to charge lower amounts my cynical view (due to age probably) is that they know something that we don't. No one doubts that financial institutions are profit making but there's a reasonable margin and one we all know verges on 'rip off'. Sadly they have been able to trade on the latter for too many years. This makes me wonder if when I was 16 I should have gone into the legal or finance professions rather than now being unemployed.

Michael

 

 

I agree with this. I feel that the banks barristers have already had feed back from HOL and RBS have stepped in to try and steal a march on the others. If what the RBS has done is going to be the verdict then £15.00 will be deeed a reasonable charge.This may complete b.....ks I know, but just a thought.

[alex_the_lad]

Will the HoL decision be the end of this part of the litigation? Given that the Unfair Contract Terms Reg's are based on a European Directive - does anyone think that the Banks will string this out by going to the European Courts?

Edited September 22, 2009 by alex_the_lad
Typo

[car2403]

Ok, a brief plotted history of time of this litigation, for the masses;

 

This is in two parts; a) can the OFT judge the fairness of the charges and b) are the charges fair?

 

This is part a)

 

The Court said yes, the OFT can judge the fairness of charges. The Banks disagreed, so have appealed to the Court of Appeal. The Court of Appeal also said yes, so the Banks appeal to the House of Lords. The HOL have heard the appeal and are considering their judgment (replace that with building sand castles at the seaside, as they are in summer recess) and are due to give their Judgment in October.

 

It's highly likely that they will confirm the Court's/Court of Appeal's decision, in that the OFT can judge the fairness of the charges, IMHO. It's, unfortunately, possible they will agree with the Banks.

 

Once that is done and dusted, the second part of the litigation will begin.

 

Now, the Government has asked all parties to "play nicely and try to agree the fundamental issue, to save the consumer loads of hassle". (Replace that with "oh dear, this is going to blow up in our faces and we really, really need to get some votes in as there's an election soon, some time, probably, and we will lost")

 

That's the plotted history.

 

On the question of Europe, the answer to the question you've asked is no. It's no, because the Banks cannot go to a European Court to decide their cause. EU legislation states that each Member State should decide "how" EU law should be interpretated, within it's own legal system, and they should act accordingly when enforcing it. Europe can be referred to, meaning that the HOL themselves can refer the issue in question - that would be, which part of EU law needed clarifiying, to allow them, the HOL, to decide the question before them, of how to apply EU law in this case, to the Banks argument - so that they can get direction from Europe as to how to proceed. A European Court will not decide how to apply EU law in this case, they will only offer guidance on how it should be applied - how it is applied is down to the HOL as the ultimate UK Court of Appeal.

 

It's worth noting that the HOL don't have to justify how they applied EU law in their Judgment, but they have a duty to ensure their judgment complies with EU law.

 

It's quite confusing, I agree, but Europe isn't really an issue in this case, then...

 

HTH

[the_shadow]

What is good to see is the EU also getting in on the act and slamming charges overall.... a report today from the EU states the fees arent clear across the EU and dont allow customers to jump ship to another bank.

 

From beeb website....

 

BBC NEWS | Business | Banking fees 'incomprehensible'

 

 

 

S.

 

Due to copyright laws we can place the link but not the content.. so apologies, I have removed the text and peeps will have to follow the link kindly provided by shadow. Citizenb

Edited September 23, 2009 by citizenB
removed content of link.