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

[Aequitas]

I remain unconvinced that regulation 5 is going to help in the majority of cases. The point is that for regulation 5 to apply you have to clear the hurdle of regulation 6 (2) (b). If there is one thing that has come out of this case it is that regulation 6 (2) (b) applies to bank charges and also that no bank charges are concealed default charges.

 

I have never felt that the UTCCRs were going to help the cause. They are more than anything about protection of the consumer against nasty clauses sneaked into contracts that the consumer does not have the opportunity to negotiate. They are not about any form of price control and say so clearly. There is nothing in them that allows assessment of whether the price paid by the consumer for goods or services (as opposed to a default charge) is excessive having regard to the cost to the supplier. In short, they allow a man to drive a hard bargain.

[InformedSearcher]

they think we are going to go away and from the comments on here and other forums I think people are just going to go away which is what the banks and the goverment and the courts want, thats half the problem with this country no one has any fight left in them its just eaiser to lie down and accept it.

 

LOL Oh, I'm non too sure. Once people just kept silent, went about their business and go on with life. I think these days people are prepared to speak out 'just' a little more.

 

What seems to have changed are that everything has to be politically correct these days. So it's not always what you say but how you say it. My own problem with that is that I often come over verbally incorrect.

 

Now time for an example of humour today - totally off topic but please bear with me. I went to the JC to sign on. The replacement lady was friendly (now that's a bit of a surprise!). Anyhow she found me a potential job. Looking at the print-out I mentioned that it was headed 'maternity leave'. Although she offered to take it back I said I'll try but had some questions for her. 'It's says on here that you should have good literacy skills, what are they?' She answered my question fully. 'Hmm, it says good numeric skill required, what are they?' Again she answered my question completely. 'Now this maternity leave thing, does that mean I have to get involved with the lady on this maternity leave or look after her kids or something?' She replied that fully what maternity leave was about etc. This is my point you see, it was not until I admitted I was joking that she sat there for a moment then simply smiled. No humour, not an ounce of it and yet she can see my previous work records but she did not even manage to work it out.

 

Michael

[The Phantom]

There was one yesterday under announcements from alanfromderby

Have to drop off my daughter at Browniees, will post it later

 

This is what was posted on the site yesterday to use for lifting the stay, as apparently POCs that refer to the UTCCR would be OK (?)

 

Dear Sir/Madam

 

I refer to my claim number ...... for the refund of bank charges dated ......., which was stayed on

 

I understand that the Judicial Press Office has advised Claimants to write and request a lifting of their stayed claim

 

As my claim for Bank Charges is brought under Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999, and is therefore not affected by the recent Supreme Court Judgement, in fact the Supreme Court has indicated that a challenge to "fairness" of my Banking Contract under Regulation 5 may be an appropriate route to take.

 

I therefore request that the stay be lifted, that any necessary directions be given, and that a date be listed for a hearing of my claim

 

Hope this has now not been changed again within 24 hrs ?

[alanfromderby]

As I understand it, and the argument put forward by the OFT was on the price being disproportionate - to which the banks said yes, but look at 6(2)(b).

 

The regulation 5 argument is more based on the fact that the customer was never able to agree these charges individually, and that they create an imbalance in the position of each party which is unfair to the consumer.

 

Although, please bear in mind that I am only just getting to grips with this myself.

[car2403]

'Car2403' - This might sound a really silly question but why did the OFT 'NOT' use those sections?

 

Michael

 

Well, they must have thought that Regulation 6 was a smoking gun - the Court disagreed. (Well, the Court that matters disagreed )

 

As Alan has said, Regulation 5 goes to the Core of the Contract, rather than just review the charges issue in isolation - it's perhaps more risky, as it's an effective challenge of the whole contract, not just the fairness of the charge, so might need additional supporting argument. This is the reason that those with stayed claims are having it suggested to hold fire on doing anything for a few weeks, until the impact of this decision and the need to amend the POC already used by those on CAG (which includes Regulation 5 - I feel sorry for others that didn't use CAG templates, which didn't include Reg 5) is throughly known.

 

Everyone with a claim must, must, must now go back to their paperwork and review the Courts orders - mine say that I must inform the Court of my intentions of how I want the claim managed within 28 days of the final determination of the OFT Test Case. It's important that everyone complies with the Courts directions, as they risk having their claims struck out, potentially without liberty to apply to reinstate, if they don't. This would make life a hell of a lot easier for the Banks.

[landy_alert]

 

Everyone with a claim must, must, must now go back to their paperwork and review the Courts orders - mine say that I must inform the Court of my intentions of how I want the claim managed within 28 days of the final determination of the OFT Test Case. It's important that everyone complies with the Courts directions, as they risk having their claims struck out, potentially without liberty to apply to reinstate, if they don't. This would make life a hell of a lot easier for the Banks.

 

Hi Chris:)

 

Should this info be put in a prominent place on the forum, just in case a lot of people don't check their paperwork from the court and in doing so risk getting their claims dismissed - just as the banks are hoping will happen?

 

My 2p;)

 

Regards,

 

Landy x

[alanfromderby]

Will look into this further and post something up tomorrow.

[car2403]

As Alan has said, Regulation 5 goes to the Core of the Contract, rather than just review the charges issue in isolation - it's perhaps more risky, as it's an effective challenge of the whole contract, not just the fairness of the charge, so might need additional supporting argument. This is the reason that those with stayed claims are having it suggested to hold fire on doing anything for a few weeks, until the impact of this decision and the need to amend the POC already used by those on CAG (which includes Regulation 5 - I feel sorry for others that didn't use CAG templates, which didn't include Reg 5) is throughly known.

 

I just want to clarify the bit in bold a bit more, for those reading it.

 

When I say it's more risky, there's 2 sides to that thought.

 

Firstly, it's more risky for us (see below, though ) as if the claim gets to a Court, a Judge may be less likely to agree with us, as the whole contract would be challenged, in effect, not just the charges. This could seriously undo the Banks ability to function, effectively saying that no bank customer - aware of it or not - is bound by their agreement with their Bank.

 

On the other hand, and secondly, for those same reasons, the Banks are far less likely to be able to defend the claim - plus the risk is higher for them, if they choose to do so.

 

Me thinks there will be more claims settled and less chance of the Banks turning up to defend their positions, if that was the case. In other words, higher risk, higher reward, for consumers.

 

Please check my signature disclaimer - these are my initial thoughts, and I don't offer legal advice, so please don't read this as being such.

[paulwlton]

Well, they must have thought that Regulation 6 was a smoking gun - the Court disagreed. (Well, the Court that matters disagreed )

 

Why on earth didn't the OFT challenge the charges using broader legislation, which would obviously encompass section 5... pointless exercise imo.

[alanfromderby]

I don't think that it is any coincidence that the OFT and the banks agreed together what would be litigated.

[adamski]

On the other hand, and secondly, for those same reasons, the Banks are far less likely to be able to defend the claim - plus the risk is higher for them, if they choose to do so.

 

Me thinks there will be more claims settled and less chance of the Banks turning up to defend their positions, if that was the case. In other words, higher risk, higher reward, for consumers.

 

I agree 100% this is unknown territory for them as much as us as it was in 2006 when all this started.

 

Why on earth didn't the OFT challenge the charges using broader legislation, which would obviously encompass section 5... pointless exercise imo.

 

This is a very very good question and I would like to know the reason hopefully this will become clear in time

[adamski]

I don't think that it is any coincidence that the OFT and the banks agreed together what would be litigated.

 

I get your point

[robnfc]

Hi just a thought is worth someone sending a CPR letter the banks to stop them putting crap on their websites about not being able to claim

[srfrench]

In response to Alan's post insofar as Reg 5 would challenge the whole Banking Contract, I thought that Reg 5 could be used to assess the whole or part of the core terms of a contract.

 

It's only my opinion and view but it makes logical sense as far as the UTCCR's are concerned in their application?

 

Discussion and put downs welcome

[adamski]

I thought that Reg 5 could be used to assess the whole or part of the core terms of a contract.

 

Sorry but how do you get to that conclusion?

[Aequitas]

In response to Alan's post insofar as Reg 5 would challenge the whole Banking Contract, I thought that Reg 5 could be used to assess the whole or part of the core terms of a contract.

 

It's only my opinion and view but it makes logical sense as far as the UTCCR's are concerned in their application?

 

Discussion and put downs welcome

 

The UTCCRs are The Unfair Terms in Consumer Contracts Regulations and not The Unfair Consumer Contracts Regulations.

 

Regulation 6 (2) is important:

 

(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.

 

This means that the core terms are excluded from assessment as well as the appropriateness if the price.

 

So, if you book a hotel room and agree to pay £150 for it the core term is the provision of the room in exchange for £150. If the booking conditions say that if you do not leave by 12 noon you must pay £75 compensation that is a term that can be assessed for fairness and is likely to be found to be unfair because the amount you have to pay is disproportionate to any loss suffered by the hotel.

 

What this case has decided is that bank charges are the price you pay for the room and not the compensation for staying in the room too long.

[adamski]

The UTCCRs are The Unfair Terms in Consumer Contracts Regulations and not The Unfair Consumer Contracts Regulations.

 

so regulation 5 is The Unfair Consumer Contracts Regulations?

[adamski]

so the OFT challenged the terms of the contract and not the contract as a whole?

[Aequitas]

so regulation 5 is The Unfair Consumer Contracts Regulations?

 

I fear you missed my point. There is no such thing as The Unfair Consumer Contracts Regulations. I was just pointing out that the regulations relate to terms in contracts and not contracts as a whole.

[adamski]

Aequitas in your opinion is regulation 5 the way to win in county court and will the banks be worried about it when faced with this in POCs?

[TIGGERCAT]

Hi all,

I've been reading with interest all your comments re S.5 and it got me thinking.

I am a self confessed hoarder and after a bit of rummageing came up with some old bank statements from both my business and personal accounts from way back.

I had accounts with the BOS from 1984 and from the outset I had an agreed overdraft which frequently became unagreed or unauthorised and was at times £3000+ not once was there a charge on these accounts until 14/11/1989 when I was charged £6 for a returned DD.

 

At that time you went and agreed an overdraft with the manager verbally no signing of contract + terms and conditions etc and you could negotiate a rate of interest.

Over the years these charges crept up from £6 to £12 then £20, £25,£28 finally £38

 

I for one never negotiated these charges and am wondering if anyone else out there is as much of a hoarder as me.

 

I think it would be interesting to find out when other banks started applying charges to accounts?

 

Did the banking cartel sit down in 1989 and decide this was a great way to extract more from their customers?

 

I know that this is a long time ago for most people and way outside the six year limit but if there is a link showing a pattern of monopoly by the banks, it may have more weight when trying to use s5.

 

your comments would be most appreciated tigger.

[Thailand]

I don't think that it is any coincidence that the OFT and the banks agreed together what would be litigated.

 

Wow - I'm not on my own after all.

[kennyh]

A few months down the line the courts will no doubt have a tidying up sessions and dismiss those claims that are still on hold, or the banks will apply en bloc.

Can they really do that Alan, or will they, as you later suggested, individually study each case?

[royboy68]

Wow - I'm not on my own after all.

 

How could this ever succeed. After all it was brought by people with aspirations of greater things. It would have been far better if consumer champions from this and other sites had been involved.

[Camdenite]

Hi all,

 

 

Did the banking cartel sit down in 1989 and decide this was a great way to extract more from their customers?

 

 

Yep, '89/'90 seems to be the year that they collectively had the same lightbulb moment.

 

Prior to that the local branch manager, who invariably went to school with your mum and had played the odd round of golf with your old man, usually phoned you up and asked if everything was OK and checked you were going to get paid as usual on the 28th, and to pop in and see him if things were getting a little tough.

 

Oh, such innocent times.

 

Try telling that to the kids today