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

[angel_1]

hiya all

 

today was a shock, but maybe we just have to keep the faith,,,, remember Rome was was not built in a day,,,,,,,,

 

and my favourite there are many ways to skin a cat,,,,, we must reflect on today's results and not let the media frenzy cloud all our judgements and beliefs,,,

 

remember no one can ever take your integrity for fairness away from you only if you allow others to change your belief system

 

we are on cag and thus im sure within days there will be a new routes and ways to challenge this news of today,

 

this is too big an issue for the people of britain who are affected to give up so easily

 

when faced with adversity, the time is right to stand and be counted and take our own responsibility to do the right thing:cool:

 

keep positive and let the cag team help us all to continue with all our efforts in getting the right result at the end of all our battles

 

laters have a calm and reflective day everyone Angel x:)

[scared001]

no 10 rejected it? oh well, theres a surprise....not!! i think us caggers defly need to get something in writing and sent to our beloved PM, we cant give up....

[pompeyfaith]

Hi,

 

I'm sorry to inform you that your petition has been rejected.

 

Your petition was classed as being in the following categories:

 

* Outside the remit or powers of the Prime Minister and

Government

 

Further information: The Courts are independent of Government

 

You have four weeks in which to do this, after which your

petition will appear in the list of rejected petitions.

 

Your petition reads:

 

We the undersigned petition the Prime Minister to: 'Overturn

the Supreme Court's Judgement supporting High Street Bank's

Excessive "Penalty Charges"'

 

We would request that the Prime Minister and his Government

overturn the Supreme Court's Judgement regarding the lawfulness

of Bank Charges.

 

There are over one million bank charges claims currently

stayed. There is over £2.3 billion pounds of value claimed.

 

The Prime Minister needs to look into this and fully consider

the implications of the Judgement handed down by the House of

Lords.

 

-- the ePetitions team

 

HAHA Ithough the courts came under the MoJ which is a government department.

 

So if this the case Jack Straws post is redundant

 

PF

[kiltedman]

here is the link from moneysavingexpert.com about the door being reopened for reclaimers

 

NOT ALL IS LOST

 

 

Bank charges Q&A: door reopened for reclaimers? - MoneySavingExpert News

[pompeyfaith]

I wish SKY NEWS and BBC would stop saying the banks have won, that headline puts the wrong message across to the public.

 

Its not over yet not by a long way.

 

PF

[robnfc]

Ok never done a letter before (if your claim is with the bank not court) its a bit ametuer but thought id give it a go

 

Dear Sir

 

I am writing to you in response to today’s decision taken by the supreme court in which Lord Phillips ruled that the Office of Fair Trading does not have the power to pass judgement on the level of the charges applied to current accounts.

 

The judgement also concluded that these charges can not be assessed as penalties and therefore are justified as a charge for service provided by the bank.

 

With these points in mind I hereby request you reopen my complaint as the stay that was in place has now been lifted.

 

Your bank insists it can impose charges in accordance with its terms and conditions of contract. However, those terms and conditions are subject to the common law and the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR).

 

The UTCCR takes precedence over any contractual term where a court finds a term to be ‘unfair’. The court can then treat that term of contract as having no legal effect.

 

Judgement has been passed in regards to the fairness of these charges In so much that a consumer cannot challenge these changes under the argument that they are excessive by comparison with the services which they purchase.

 

However as Judge Phillips advised these charges are not excluded from being challenged under different clauses within UTCCR.

Clause 5:

 

“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.”

 

I have never entered in negotiations with xxxxxxx and clearly these charges are unfair.

 

You have significantly imbalanced the relationship between the bank and myself by applying these charges in such a way that it has had a detrimental effect on myself the consumer.

 

The FSA have now lifted the stay which was in place , therefore you are required by the FOS to investigate this claim and refund all charges allied to my account which are outlined in previous letters to your bank.

 

I look forward to your response within the next 14 days

Edited November 25, 2009 by robnfc

[jclancy]

Sorry if someone's mentioned this already, but if you want evidence (and, indeed, encouragement) that this is not all over, then look at s52 of the judgement when the Supreme Court Justice says just that, and then goes on to blame government for not strengthening consumer protection they way other member states did:

 

Lord Walker:

"52. If the Court allows this appeal the outcome may cause great disappointment and indeed dismay to a very large number of bank customers who feel that they have been subjected to unfairly high charges in respect of unauthorised overdrafts. But this decision is not the end of the matter, as Lord Phillips explains in his judgment. Moreover Ministers

and Parliament may wish to consider the matter further. They decided, in an era of socalled “light-touch” regulation, to transpose the Directive as it stood rather than to confer the higher degree of consumer protection afforded by the national laws of some other member states. Parliament may wish to consider whether to revisit that decision." [emphasis mine]

 

This is not over. We've just been treading OFT water for 2 years. Onwards and upwards Caggers!

 

The media narrative is causing some to lose heart and drop their cases, just like the banks want us to! The media were too quick to judge this one!

 

Bank Charges Case: the Devil's in the detail (Part Two) - They think it's all over: it's not now! - Birmingham Post - Business Blog

Bank Charges Case: the Devil's in the detail (Part One) - rewind, the banks may not have won, after all! - Birmingham Post - Business Blog

 

Earlier, previously linked:

Banks win - but it should still be payback time if the politicians have courage and are on the side of the consumer. - Birmingham Post - Business Blog

[landy_alert]

If we amend our POCs as per the new amended template in the templates library what are the chances our claims will still be struck out - is there any way we can avoid this happening?

[royboy68]

This has been on my mind for quite a time now. Surely the point that the case has been between the OFT and most of the banks points towards the banks collectively operating as a cartel. As cartels are illegal then surely the OFT can act on this.

[the_shadow]

If we amend our POCs as per the new amended template in the templates library what are the chances our claims will still be struck out - is there any way we can avoid this happening?

 

I would have thought they will (if they do this and I've seen nothing say they will other than bank spin at present) do these en masse, its not really practical to pick individual claims.

 

If they do send you notification that the case has been dismissed I'm guessing a letter to the court manager stating why the case should be re-instated and if that doesnt work then an application for the case to be re-instated.

EDIT: Just seen the announcement... wait for the CAG letter

 

S.

Edited November 25, 2009 by the_shadow

[adamski]

can't wait for the CAG letter I think we should all post on our facebook profiles if you have one lets make this bigger than ever peeps!

[means2anend]

This does not accurately describe the issue raised by this appeal, which is very much

more narrow. That issue is whether the Relevant Charges constitute “the price or

remuneration, as against the services supplied in exchange” within the meaning of the

Regulation. If they do not, the attack on the fairness of the terms that is open to the OFT

will not be circumscribed by Regulation 6(2)(b). If they do, they will still be open to

attack by the OFT on the ground that they are “unfair” as defined by Regulation 5(1), but

that attack cannot be founded on an allegation that the Relevant Charges are excessive by

comparison with the services which they purchase, for that is forbidden by Regulation

6(2)(b).

 

ok so we challenge the charges be saying they are unfair , but we cant use the argument that they are unfair because they are excessive , so we challenge the fact that they are unfair because

 

"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.”

 

think thats right

 

Exactly...s6(a) and (b) are deemed to be ESSENTIAL CORE TERMS of the contract and so are not subject to having not being individually negotiated.They are excluded for the purposes of being scrutinised ..i.e unauthorised overdrafts were part of the 'price we were willing to pay for banking services'...

I am currently on p.22 of the JUDGEMENT...

 

means2anend

[robnfc]

should i remove that letter i wrote??

[fergal71]

would this clause 5 in utccr affect lots of other agreements such as those we have with telecoms companies who charge late fees and also carry dominance in there terms and conditions such as not being able to negotiate wether we are able to opt out of allowing them to share our data with credit reference agencies.... Is this part negotiable or is it that if you do not agree they can share your data thene you do not get services??????????????

 

any legals what do you think is this clause 5 got much bigger implications for all non negotiated contracts or agreements?????????/

[ukaviator]

There are other arguments which are being investigated in depth, we need to stick together on this. Now that the waivers been lifted, banks will begin processing the complaints. They will probably inform complainants that due to the judgment the complaint is resolved and you will not be getting a refund.

 

If you are in hardship then you should continue your complaint with the banks for refunds of excessive charges using the fairness regulations. This is under the FSA's new BCOBS rules. The information required is here:

 

Banking Conduct of Business Sourcebook

 

Remember they haven't stated that the charges are unfair. The OFT doesn't have the right to challenge them in the way that they have. Its not up to the Supreme Court to decide on whether the charges are fair or not.

[Bookworm]

And don't forget that now that the waiver has been lifted, the clock is ticking again on the 6 years limit, so if you have charges getting close to the limit, you'll need to file ASAP or see some of your charges fall behind the statute-barred veil (unless you are prepared to argue s32!)

[fergal71]

https://email.number10.gov.uk/Contact.aspx

 

email the prime minister now

 

not over just yet

[landy_alert]

I would have thought they will (if they do this and I've seen nothing say they will other than bank spin at present) do these en masse, its not really practical to pick individual claims.

 

If they do send you notification that the case has been dismissed I'm guessing a letter to the court manager stating why the case should be re-instated and if that doesnt work then an application for the case to be re-instated.

 

EDIT: Just seen the announcement... wait for the CAG letter

 

S.

 

Thanks Shadow - there's so much to read and inwardly digest today!

 

Trouble is my case has not even been allocated to a track yet - I only paid the AQ fee yesterday:( so I'm worried it will get struck out before it even gets that far!

[Bigredbus]

Here's what the 'Solicitors Journal' has to say about this morning ruling:

 

Crash, bank, wallop

Banks aren't exactly popular right now. They have become even less so after this morning's Supreme Court ruling on unauthorised overdraft charges.

It all started when the OFT decided to look into the fairness of these charges under the regulations implementing the EU's directive on unfair terms in consumer contracts.

Unfortunately, the consumer watchdog chose the wrong angle for its investigation: the banks objected that it could not, under regulation 6, question the 'value for money' aspect of the charges.

This minor steering error on the OFT's part eventually sent it crashing out of the race, as the Supreme Court, in its sixth ruling since it was set up in October, has upheld the banks' contention.

It was an awkward case from the beginning, questioning whether the OFT could challenge the banks at all. Predictably perhaps, the outcome is a disappointing win on a technical point.

But the two real shockers are elsewhere. Altogether the banks hired eight QCs between them and a fleet of juniors, which means the costs will be stratospheric – and the OFT will be landed with the bill.

Secondly, the court also suggested that the OFT might nevertheless have a case under a different regulation, regulation 5, which would allow it to assess the general fairness of the charges. It will take a brave chief executive to start all over again on this basis.

Alternatively, some of the Justices suggested, Parliament may wish to amend the law. Though with a general election on the horizon, nobody's going to rush to the bookies to place a bet on anything happening any time soon.

This is not only a costly funeral for a high profile case, it will further erode the status of the OFT as an effective consumer champion while comforting large corporations that they can take on government bodies and win.

* * *

[Seminole]

Here's what the 'Solicitors Journal' has to say about this morning ruling:

 

Crash, bank, wallop

Banks aren't exactly popular right now. They have become even less so after this morning's Supreme Court ruling on unauthorised overdraft charges.

It all started when the OFT decided to look into the fairness of these charges under the regulations implementing the EU's directive on unfair terms in consumer contracts.

Unfortunately, the consumer watchdog chose the wrong angle for its investigation: the banks objected that it could not, under regulation 6, question the 'value for money' aspect of the charges.

This minor steering error on the OFT's part eventually sent it crashing out of the race, as the Supreme Court, in its sixth ruling since it was set up in October, has upheld the banks' contention.

It was an awkward case from the beginning, questioning whether the OFT could challenge the banks at all. Predictably perhaps, the outcome is a disappointing win on a technical point.

But the two real shockers are elsewhere. Altogether the banks hired eight QCs between them and a fleet of juniors, which means the costs will be stratospheric – and the OFT will be landed with the bill.

Secondly, the court also suggested that the OFT might nevertheless have a case under a different regulation, regulation 5, which would allow it to assess the general fairness of the charges. It will take a brave chief executive to start all over again on this basis.

Alternatively, some of the Justices suggested, Parliament may wish to amend the law. Though with a general election on the horizon, nobody's going to rush to the bookies to place a bet on anything happening any time soon.

This is not only a costly funeral for a high profile case, it will further erode the status of the OFT as an effective consumer champion while comforting large corporations that they can take on government bodies and win.

* * *

 

That's a fair assessment and it brings into question the OFT's commitment in bringing this case. The fact that they chose to pursue an unnecessarily narrow aspect of the regulations is questionable. Even more so was their failure to appeal the penalties decision in the lower court.

 

The process that was followed together with the waiver and allowing banks to continue charging whilst the case was decided really does stink to high heaven.

[Aequitas]

There are two villains in this sorry saga: the banks and consumer champions. The OFT, the government and the courts have no case to answer.

 

The banks are clearly villains because the level of bank charges borders on the extortionate.

 

The consumer champions are less obviously villains. They occupy the moral high ground, but have been guilty of over-confidence almost to the point of hubris. What have they really achieved other than to raise expectations that have been cruelly dashed to the ground, and to incite visceral hatred of the banks when there are many other institutions ripping us off that deserve equal disdain?

 

The OFT was essentially brow beaten into the test case. Any first year law student could have told you that the contractual penalties point was unwinnable. The application of the UTCCRs was perhaps a bit more uncertain, but Lord Walker swept away the cobwebs and showed us that the UTCCRs were really quite plain in their meaning and effect. The OFT should have been left to get on with its job quietly. The case has been a huge distraction.

 

None of these problems arise out of government action. The law is how it was when the present government came into power. For the government to have attempted to influence the outcome of the case would have been a wholly inappropriate interference by the executive with the judiciary.

 

The courts have said what the law is. The law is not what a lot of people persuaded themselves it was. Lady Hale did not have a lot to say, but what she did say was greatly to the point:

 

I would only add that, should this or any other Parliament be minded to take up the invitation given in the last paragraph of Lord Walker’s judgment, it may not be easy to find a satisfactory solution. The banks may not be the most popular institutions in the country at present, but that does not mean that their methods of charging for retail banking services are necessarily unfair when viewed as a whole. As a very general proposition, consumer law in this country aims to give the consumer an informed choice rather than to protect the consumer from making an unwise choice. We buy all sorts of products which a sensible person might not buy and some of which are not good value for the money. We do so with our eyes open because we want the product in question more than we want the money. Should financial services be treated differently from other goods and services? Or is the real problem that we do not have a real choice because the suppliers all offer much the same product and do not compete on some of their terms? This is the situation here. But it is not clear to me whether the proper solution is to find some way of forcing the suppliers to compete with one another in the terms they offer or whether the solution is to condemn one particular model of charging for those services.

Fortunately, however, that is for Parliament and not for this Court.

 

She is saying that the whole thing was never properly thought through. In the part I have put in bold she gives a hint of the way any legal challenge ought to have been mounted.

[JonCris]

Just spotted this, the FSA Waiver has been ended! - FSA ends bank charges claims hold - MoneySavingExpert News

 

 

Dam disgrace The already cash strapped consumer will now have to pay again to get their case moving forward & this a result of an arbitrary decision by the courts in the 1st place. What a monumental stitch up this is Either the OFT's legal counsel was very poor or the OFT had no intention of winning anyway

[barry_2008]

Trust bookie to calm us all down.

 

Nice one bookie.

 

Since there has been know other posts on this thread about the judgement here's a statement from the BBA (BBA – British Bankers' Association - Home )

[ukaviator]

Prime Ministers Question Time, have a look and listen at comments made at the time 16.30 on the player:

 

PMQs 2009

[ukaviator]

Trust bookie to calm us all down.

 

Nice one bookie.

 

Since there has been know other posts on this thread about the judgement here's a statement from the BBA (BBA – British Bankers' Association - Home )

 

Barry post 3407 the full Judgment was posted.

 

http://www.supremecourt.gov.uk/docs/uksc_2009_0070_coV2.pdf