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

[GuidoT]

How come the templates here are based on Regulation 5 and the OFT lawyers did not even take the point, not even in the alternative.

 

I understand it is easy to blame the lawyers if we are unsuccessful, but the OFT lawyers for missing this must be monkeys.

[simonjohn]

hang on that crap that lloyds have put on their website simply says that the charges cannot be assesed for fairness, if the contract was never negotiated then the contract in its whole would be deemed unfair therefore all terms within would be seen as unfair.

 

 

Just a question with regards to the misleading info that the banks are placing on their websites, with rgards to the test case outcome.... could this be challenged under the Advertising standards Authority.... ie giving out misleading info ?.

[Mr lex]

The POC's have now been amended.

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/113-4-particulars-of-claim-n1-updated-version-now-available

[robnfc]

well lloyds have said that the court has agreed that under utccr we are unable to claim our charges back , this is crap because the case was lost on an argument that conflicts with other clauses within utccr so the oft were always doomed-simple as however under other utccr regs there are clauses that would allow us to mount a challenge, im sure they are not silly enough to think that its over, however under advertising law i doubt this would be classed as advertising

Edited November 25, 2009 by robnfc

[scared001]

well abbey have just informed me that my case is on hold and she will call me next week to discuss further, so what is actually happening now??

 

she also said they were stunned they won, you can imagine my response cant you......

[robnfc]

well the stay has been lifted so nothing is on hold in the view of the courts

[scared001]

she said that there are people specifically looking at all the financial hardship cases so im holding a little hope....for now anyway.....OFT need to step on the gas again me thinks.

[Having_A_Knightmare]

Can this Country get any worse!!!

 

Somebody needs to get some Balls and deal with these so called banks!!!

[robnfc]

well the case doesnt really change things alot , basically we can no longer use the oft as they cannot rule on the "fairness" and we cannot claim back charges using the utccr argument that they are penalties as the court ruled they are classed as a service and therefore not open to challenge.

 

So we use a different utccr reg ie 5 and 8 read this:

 

 

 

The Consumer Forums - Announcements in Forum : OFT Test Case Updates and Discussion

[adamski]

See this post from the Mods I think all who have claims nbeed to amend their POCS without delay and all who have not claimed claim now

The POC's have now been amended.

 

http://www.consumerforums.com/resour...-now-available

[loverboy74]

Yes As I understand it the only ruling made by the so called Supreme court is that the OFT do not have the power to investigate bank charges in terms of fairness. This does not mean that they are lawfull, indeed they still fall fowl of UTCCR, and common law states penalty charges in contratcs are not allowed, only a recovery of real expenses .

[loverboy74]

What about credit card charges? how do they differ legally from bank charges?

[robnfc]

the court has ruled that these are not classed as penalties they are classed as a service which we pay for therefore can not be challenged under the fairness rule hence reg 5 and 8 now being used for POC , as for credit cards this wont make any difference as this case has no bearing on credit cards

[Deso]

OK,

Ive not got a claim in court (Im in Scotland) but my claim resides with RBS who have kindly posted this announcement on their website:

 

 

Summary

On 25 November 2009 the Supreme Court ruled that the level of unarranged overdraft charges in personal current accounts cannot be assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). The Court decided that current account customers receive a package of services and unarranged overdraft charges are part of the price paid by customers in exchange for that package.

 

The judgment focused on the banks’ current terms but the banks and the OFT have agreed that the judgment should apply also to historic terms.

 

Earlier hearings established none of RBS’s terms was capable of constituting a penalty clause.

 

RBS and the other banks involved in the test case are currently in discussions with the FSA and the Office of Fair Trading (‘OFT’) as to whether, following the Supreme Court judgment, there remain any outstanding issues requiring resolution.

 

We will publish further information here as soon as we receive it.

 

Test Case Background

On 27 July 2007 the Office of Fair Trading (‘OFT’), seven UK banks, including RBS, and one building society (‘the Banks’) started a court case to resolve certain issues regarding the fairness and legality of unarranged overdraft charges. This has become known as the ‘test case’. This is a complex area of law on which there is limited guidance; it is therefore important for the issues to be properly and fully examined. The Banks believe that the charges are both lawful and fair and that the Unfair Terms in Consumer Contracts Regulations 1999 (‘UTCCR’) do not apply to these types of charges.

 

The first phase of the test case was heard in January and February 2008 in the High Court in London, with judgment being issued in April 2008.

 

In summary:

 

The Court decided that the current charges are not penalties.

The Judge also found that the Banks' current terms are sufficiently clear to enable the typical consumer to have a proper understanding of them for sensible and practical purposes.

The Judge found that the terms and conditions relating to unarranged overdraft charges are assessable for fairness under the UTCCR. However, the Judge was explicit in stating that this does not mean they are unfair; he was not asked to rule on whether the Banks' terms were fair.

The Banks appealed the decision that unarranged overdraft fees are assessable for fairness under the UTCCR. The appeal hearing took place in the autumn of 2008. The Court of Appeal handed down its judgment in February 2009 reaching the same decision as the High Court, although for slightly different reasons. The Banks applied for and received permission to appeal this decision to the House of Lords (now called Supreme Court). This hearing concluded on 25 June 2009 and the judgment of the Supreme Court was handed down on 25 November 2009.

 

A short hearing took place in July 2008 to consider whether terms and conditions previously used by the Banks were capable of being penalties and in October 2008, the High Court issued its judgment in relation to this part of the test case. The Court invited RBS to make further submissions in relation to some of the terms and conditions previously used by it. Following a further hearing in December 2008, the Court issued its decision in January 2009. It found that all RBS terms considered were incapable of being a penalty.

 

All judgments in the test case are available via Judgments - Abbey National - Office of Fair Trading.

 

1. What will happen to customer complaints about unarranged overdraft charges?

RBS and the other banks involved in the test case are currently in discussions with the regulators to ensure that the outstanding customer complaints are brought to a swift conclusion. Once these matters have been finalised we will write to all affected customers to advise them of how we will resolve their complaint

 

2. What will happen to my court claim for a refund now?

Most county court cases have now been stayed, i.e. the county courts have decided that no further action should be taken in respect of them at this stage, while the test case proceeds. These stays have been put in place because the test case will give important guidance to the county courts as to how they should approach individual consumer cases as a matter of legal principle. It is important that all county courts adopt similar approaches to ensure fairness between claimants.

 

3. What will happen to customer complaints made through the Financial Ombudsman Service in the meantime?

We are currently in discussion with the regulators to ensure that customers are dealt with on a consistent basis in line with the judgment from the Supreme Court. For further information and updates please check the FOS website - Financial Ombudsman Service

 

4. What will happen next in the test case?

As the Supreme Court has found that RBS’s unarranged overdraft charges cannot be assessed for fairness under the UTCCR the test case proceedings are now concluded. RBS and the other banks involved in the test case are currently in discussions with the regulators to ensure that any outstanding matters are brought to a swift conclusion.

 

5. How long will it take until customer cases are finally resolved?

At this stage, it is impossible to say. The Banks are working closely with the regulators to understand how we can most appropriately and swiftly apply the Court’s decision to individual customer cases.

 

6. I am in financial difficulty - what can I do?

If you have financial problems, come and talk to us, and we will try to help you solve them. Depending on your circumstances, we could set regular or fixed repayments for debts, or we could reduce or suspend your repayments for a certain period.

 

If you have a more serious debt problem, we will work with you and put you in touch with organisations that offer help and advice to sort out your repayments and overcome your difficulties.

 

If you feel you need independent financial advice, we will be happy to direct you to someone, or to work with your chosen adviser.

 

The sooner you come to us, the more likely it is that we will be able to help.

 

7. Where can I find out more?

We will update this page with any developments in the proceedings.

 

You can contact us by calling on 0845 3030 442. Lines are open 9.00am-5.00pm Monday to Friday or 9.00am-1.00pm Saturday.

 

Alternatively you can find out more at the following websites:

 

The Financial Services Authority

The Office of Fair Trading

The Financial Ombudsman Service

Judiciary website

BBA press release

 

Can i take it that they will probably send me a letter telling me Im getting nothing?.

If so, Can I claim by other means either in court or FOS bearing in mind Im in Scotland?

 

Thanks for any advice

[fergal71]

why are the media stating very different things to the people on here?

[loverboy74]

the court has ruled that these are not classed as penalties they are classed as a service which we pay for therefore can not be challenged under the fairness rule hence reg 5 and 8 now being used for POC , as for credit cards this wont make any difference as this case has no bearing on credit cards

Credit Cards charges have always been unlawful and never argued to be fair

[Mr lex]

See this post from the Mods I think all who have claims nbeed to amend their POCS without delay and all who have not claimed claim now

Quote:

The POC's have now been amended.

 

http://www.consumerforums.com/resour...-now-available

I have just been told that the existing POC's will stand up, the changes are only minor and wont effect your claim.

Lex

[PGH7447]

Just emailed my bank and put them on notice they have 14 days to refund the charges or my court claim will proceed

[robnfc]

they are trying to blag ppl into thinking that all is lost which we now know is crap , just ignore what banks are putting on their websites

[scared001]

do i wait to hear back from abbey in next few days or do i take action of any sort? dont know whats best.....

[barry_2008]

Ok this sounds great actually.

 

Dose this mean cases wont be stayed now?

[robnfc]

................

Edited November 25, 2009 by robnfc
.........

[scared001]

PGH...what exactly did you write, im going to do the same with abbey now

[Seminole]

according to the fsa all stays should be lifted as the case is over

 

Careful. The only thing that's been lifted is the waiver enabling banks to not deal with complaints. Claims are stayed in the courts and as I understand it they won't be automatically lifted. The Announcements section includes a template letter that each claimant should submit asking for their stay to be lifted.

[robnfc]

apologise ill remove that statement , just heard on sky about the fsa saying that if there is no case to answer anymore so there will be no need for the stay