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

[noomill060]

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

 

 

You are most certainly not on your own.

 

The "test case" was, in retrospect, a less than subtle method of taking the pressure off the County Courts who were swamped with claims and was clearly choreographed between the OFT, FSA and the Banks.

 

In the end it has simply delayed the inevitable.

 

Reg 5 rocks.

 

(Which could be the reason the OFT dropped it from their "test case"- too close to the bone.)

 

OFT: "Oh dear, we'd win- and thats not the idea"

Edited November 27, 2009 by noomill060

[Thailand]

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.

 

I think we're on different pages.

[Thailand]

Thanks, Noom. I thought I was going mad.

[bornrich]

Noom, agree with you that Reg 5 rocks.

 

The more you look into it the more interesting it gets.

 

This is what I've found so far...

 

 

Regulation 5 (1) states that a term is unfair ‘if contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations... to the detriment of the consumer.’

For a term to be fair these three factors – the good faith requirement, the procedural element and the substantive element – must be satisfied.

1. The test of unfairness in the UTCCR explicitly incorporates the good faith concept. Disclosure and choice are principal elements of good faith (Aspects of Fairness in Contract, Brownsword et al 1996); there is a greater opportunity of satisfying the good faith requirement if the terms are clearly disclosed to consumers (Banks have won this argument already) and if consumers are offered choices of terms (Oh dear).

In Director General of Fair Trading v. First National Bank PLC ([2001] UKHL 52), Lord Steyn rejected the notion that the good faith requirement is predominantly procedural (para 33), and indicated that there was a substantive element. These would include duties of disclosure (see Interfoto Picture Library Ltd. v Stilleto Visual Programmes Ltd. [1989] QB 433); rules which encourage the bank as a contracting party to offer alternative packages of terms to the customer; and generally by any rules which require good faith in some form.

2. The procedural element is concerned with how the term or terms are imposed and serve to prevent the absence of a genuine choice through an unfair surprise.

3. A substantive element, as far as I see it, relates to the essential principals that a court applies and not to the rules of procedures and practice. In other words, the court will make a decision based on its own framework, observations and opinions and not the words within the terms and conditions set out by the banks.

 

The only problem I foresee is that lower courts may gloss over the relevance of the substantive element compared with the Supreme Court. It was the Supreme Court who hinted that Reg 5 would open the door to a successful challenge.

I hope I'm wrong.

bornrich

[tcook5]

Hang on am i missing something. From what i understand the HOL did not rule that the Fees are fair or unfair. What they did say is that the OFT cannot rule if they are fair/unfair.

Aren't our claims based around a European directive of UTCs?

If so the banks cannot stop any court case and they have to defend them.

In doing this they will have to proove that the Fees are fair and on this arguement they will lose.

Barclay's defence showed that the fees are there to ensure free bank charges for eveyone, hence the Robin Hood in return comments, and therefore charging 30% of cutomers over-inflated fees to pay for the remaing customers is Plainly Unfair.

Case closed in my opinion, i really cant see how the banks can defend this.

 

Another thought......Cast your minds back to a week ago when the banks announced maybe charging for cash machine withdraws and also refunding people recent charges with no explaination.

We all thought that this was a sign that they had lost this case, as they won the case why announce the cash withdraw charge threat?

Well the Banks had the case results one week ago and must have read the section regarding Clause 5.

I think that they know full well that when the Clause 5 aguement is used then they have lost and cannot defend. This is why the head of BBA woman did not look as smug as usual and why we are hearing of additional charges threats.

Edited November 27, 2009 by tcook5

[InformedSearcher]

'TIGGERCAT' - I can relate to that. Then the banks thought 'lets accept the lowlifes in and make a fortune because they will pay'. That's not a cynical or detrimental responce but how people thought, and by god did they strike lucky!

 

'alanfromderby' and 'Thailand' - could not agree more, my thoughts exactly!

 

'tcook5' - Agree with you also however EU laws seems a 'strain' to UK government/law to accept.

 

In the end all these 'characters' know that for many to pay County Court fees is a strain/inability and they rely on this to restrict possible cases. Whoever said County Courts were for the people is rather dissalusional (sp?). The fact that something like CAG exists is also a nightmare to these operations and so they have met a bit of a match! I can only say 'thank you' yet again to many who have helped me and others 'Free Bono'. If I ever have some half decent lottery win my contribution will be substantial.

 

Thank you again (sincerely)

Michael

[robnfc]

This doesnt result in ppl getting there money however could this help with regards to customer not claiming because of threats that their account will be closed if they do.

If the terms are unfair and a customer claims their money back would the reg below not restrict the bank from closing their account

 

Effect of unfair term

8. (2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.

[srfrench]

Adamski....

 

Sorry I didn't reply earlier as I'd gone to bed and only just woken up...whoops!

 

In response to your post then...

 

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.

 

As you can see if refers to the contract as a whole or in parts. So hopefully everyone can now see that that is the route to explore! IMHO only

[MilkTrayMan]

This doesnt result in ppl getting there money however could this help with regards to customer not claiming because of threats that their account will be closed if they do.

 

If the terms are unfair and a customer claims their money back would the reg below not restrict the bank from closing their account

 

 

Effect of unfair term

8. (2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.

The following Thread deals with the act of retalitory action by a bank in closing a Claimants current account......

http://www.consumeractiongroup.co.uk/forum/general/63646-alliance-leicester-fined-fos.html

 

...That said, it is always advisable to set up a 'parachute' current account BEFORE embarking on to road to reclaiming what is rightfully yours, even if it is only a basic current account, to remove any percieved duress that a Claimants current bank may try to put them under to dissuade them from claiming.

[adamski]

sfrfrench thanks for that

 

so they cannot use the core term argument on regulation 5 then

[RHOOD]

Cause created on facebook...

 

with both links to the petition on 'Number 10' and 'consumer action group' websites...

 

For those of you who have a 'Facebook' account, the cause can be found under 'Support the thousands of bank charges claimants'... Becoming a member will help circulate the information throughout the web...

 

 

Thank you very much

[missdpd]

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.

 

Have just checked my paper work and it states:

 

'The Defendant shall within 28 days of the final decision in the test case file at Court and serve on the Claimant (a) a case summary of not more than 500 words setting out the effect of that decision; (b) their proposed directions in this claim.'

 

It then goes on to say that the documents will then be referred to the District Judge to consider further directions.

 

So looks like I shall be hearing sumit within the next 4 weeks or so, hmmm great Xmas pressie lol.

[pblackie]

So Lloyds is going for the mass strike out option

 

BBC News - Lloyds to ask local courts to dismiss overdraft cases

 

wonder who else will follow

[Bigredbus]

They will all follow... HSBC has amended their T&Cs from 01 November 2009. Sent to customers on or after SC ruling. Taps are open!

[HSBCrusher]

you just beat me to it pb.

 

strike out?

 

on what basis?

 

they want to strike them out because the OFT cant rule over the issue on one clause? Thats nothing to do with a case in court brought by a private individual who maintains the charges are unfair.

 

this is utter rubbish.

 

the case wasnt to decide if charges are fair, and the judgement was quite clear on this. In fact the OFT were more or less encouraged to pursue this issue by a different means.

 

By extension, if they can, then so can we.

 

this decision stregthens our position in a lot of ways.

[hsbcfiddled]

you just beat me to it pb.

 

strike out?

 

on what basis?

 

they want to strike them out because the OFT cant rule over the issue on one clause? Thats nothing to do with a case in court brought by a private individual who maintains the charges are unfair.

 

this is utter rubbish.

 

the case wasnt to decide if charges are fair, and the judgement was quite clear on this. In fact the OFT were more or less encouraged to pursue this issue by a different means.

 

By extension, if they can, then so can we.

 

this decision stregthens our position in a lot of ways.

 

Hi Crusher,

 

All this 'we won' claptrap by the banks needs addressing in the media.

Please can someone from CAG get onto the BBC and give them the truth that it is only a win against the OFT and not a win against the consumer.

 

Lets knock them out of their cocky stride!

 

THIS IS NOT THE END

 

fiddled

Edited November 27, 2009 by hsbcfiddled
add text

[Seminole]

Crusher, it all seems to be part of a concerted effort by the establishment to misrepresent the decision of the Supreme Court and squash any more complaints. The banks will move for mass strike outs (that hopefully most claimants and county court judges will resist) and the Financial Ombudsman Service has said (on its website) that it plans to dismiss most of the complaints that have been on hold.

 

This is all on the back of a decision that the OFT can't assess fairness on the grounds it brought before the court rather than any decision about fairness. It says an awful lot about this country that this government brings a deeply flawed legal case against the banks, stops people from claiming in the meantime, loses and then through another agency says that the complaints are invalid. At the same time the banks get away with misprepresenting the decision and will try to steamroller ordinary members of the public.

 

Consumers are entitled to expect protection from the state but what we actually get is the state aiding and abetting those who rip them off and treat them with contempt.

[HSBCrusher]

All this 'we won' claptrap needs addressing in the media.

 

oh it does, it does.

 

they have won a victory, but in my opinion a totally irrelevant one.

 

lets boil the judgement down shall we?

 

"we are not saying charges are fair, but we care saying you cant use this clause to prove it. Use this one instead."

 

OK, this is tongue in cheek, but this result is NO basis whatsoever to strike out claims.

[HSBCrusher]

Crusher, it all seems to be part of a concerted effort by the establishment to misrepresent the decision of the Supreme Court and squash any more complaints. The banks will move for mass strike outs (that hopefully most claimants and county court judges will resist) and the Financial Ombudsman Service has said (on its website) that it plans to dismiss most of the complaints that have been on hold.

 

This is all on the back of a decision that the OFT can't assess fairness on the grounds it brought before the court rather than any decision about fairness. It says an awful lot about this country that this government brings a deeply flawed legal case against the banks, stops people from claiming in the meantime, loses and then through another agency says that the complaints are invalid. At the same time the banks get away with misprepresenting the decision and will try to steamroller ordinary members of the public.

 

Consumers are entitled to expect protection from the state but what we actually get is the state aiding and abetting those who rip them off and treat them with contempt.

very, very well put.

[d1cky]

It was no basis to freeze our claims in the 1st place, this whole process could have gone ahead, without the need to freeze the claims, because this ruling makes little difference to our claims. If the oft had won it would have been great for us, but because the banks won this case it makes little difference to anyone!

[emmasot]

i beging think we fighting a losing battle here!

[fernack]

Decision 25 November 2009

 

The Supreme Court has ruled that the level of the bank's current unarranged overdraft fees are not assessable for fairness under the Unfair Terms in Consumer Contracts Regulations (UTCCR).

The ruling means the Office of Fair Trading (OFT) is not able to continue to investigate the level of unarranged overdraft charges as part of their investigation into the fairness of those fees.

first direct and the other banks involved in the court case will continue to work with the Financial Services Authority (FSA) and the OFT to determine the next steps in resolving this issue. Our website will be updated once the next steps are agreed.

Complaints relating to unarranged overdraft fees will remain on hold under the terms of the FSA waiver (see below) and the banks will continue to apply normal processes to any new complaints.

Q: What does this decision by the Supreme Court mean?

A: Legally, it means that level of unarranged overdraft charges is not assessable for fairness and, therefore, that the OFT is not entitled to assess the cost of unarranged overdraft fees for fairness.

Q: Does this mean the banks won't be refunding charges?

A: We are working with the OFT and other banks on the implications of the decision. In the meantime claims for overdraft refunds remain on hold and we will get back in touch with all customers as soon as the next steps are agreed.

Q: What happens now?

A: The next steps are to be agreed with the OFT and the FSA. Claims for unarranged overdraft fee refunds remain on hold.

Q: When will the case be concluded?

A: The banks will work with the OFT and FSA to agree next steps to conclude matters.

 

This is from First Direct website

[reallymadwoman]

I thought the FSA waiver had already been lifted?

[fernack]

yes it has - the above was put on FD's website after the Supreme court decision

[HSBCrusher]

Q: What does this decision by the Supreme Court mean?

A: Legally, it means that level of unarranged overdraft charges is not assessable for fairness and, therefore, that the OFT is not entitled to assess the cost of unarranged overdraft fees for fairness.

 

what a misrepresentation of the true facts!