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

[kennyh]

Seminole,

In an oblique way I queried this on #3884.

[noomill060]

Just had this from Northern Bank

 

[royboy68]

Noomill. Is your claim still with the bank or has it progressed to court yet. If its with the court under a stay then surely that wouldnt comply with the order as the stays are for the bank to respond in full with a certain number of days. Mine states 28 which is why i asked the official conclusion date in my previous post.

[InformedSearcher]

We should always remembers the fated words 'FSA GUIDELINES'. Like hardship claims these are guidelines, not set in stone and if they are are normally ignored if the bank decides to go its own way. I smiled when I read this article ages ago:

FSA moves in on voluntary banking code

 

Michael

[noomill060]

Its still with the bank. Havent filed a small claim yet.

[EricTheRed]

Nope.

 

This is the bit the Supreme Court was saying the OFT should have used.

 

 

 

What is the difference between "unfair" and ""unreasonable"? UTCCR sends us down the route of a decision based on the unfairness if it creates an inbalance and other legislation (I think) give us the same opportunity but based on a reasonableness basis.

 

A diictionary definition of "unfair" is

 

unfair

adjective

1. not just or impartial; biased; inequitable

2. dishonest, dishonorable, or unethical in business dealings

 

As we now know the Supreme Court has suggested (not directly) that UTCCR part 5 is the way forward. Could we also include the SOGASA provisions in the POC as this would include a reaonabless test? (Stolen shamelessly from somewhere else!)

 

If the charges are for a 'service' that the bank are giving us, does this not now come under the Supply of Goods and Services act?

 

In particular s 15.

 

15. Implied term about consideration.

 

(1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge.

 

(2) What is a reasonable charge is a question of fact.

 

Therefore by analogy unreasonableness is a presumption that they must rebut and further as the defendant they should disclose the true and actual cost to them?

 

unreasonable

adjective

not reasonable; specif.,

1. having or showing little sense or judgment; not rational

2. excessive; immoderate; exorbitant

 

Just a couple of thoughts.

 

 

Thanks

[srfrench]

Makes for a perfectly logically and easy to understand argument....well done.

[rdm2006]

I remember seeing on this site somewhere that there was an EC/EU Directive saying that if there was a possible unfair term in a contract then it was the courts duty to pusue it without cost to the consumer. how will that affect things ?

[kennyh]

srf,

Makes for a perfectly logically and easy to understand argument

c'mon now, since when did logic enter into anything we've been enduring for the past 'n' years?

[srfrench]

Ah....Kenny....there's a blast from the past

 

Well CAG has been logical...hence the ancient inclusion of REG 5 in our original POC's.

 

It was the OFT by dint of being forced to take on a test case that hunted the Banks down on such a narrow remit.

 

Still, I have to say 2.5 years to clarify a regulation that was questionable insofar as if it failed what do you fall back onto.....in the case of the OFT, Penalty Charges, in the case of CAG Penalty Charges and Reg 5 UTCCR.

 

If only some wally in the OFT included CAG into their discussion/advice forum as they did with Mr. Lewis!!

[kennyh]

srf,

Oh yes - looking forward to the resumption of hostilities; still getting my head around the probable change of direction - I was quite comfortable with the 'reasonable' arguments. But, there again, we're not here for my comfort.

[srfrench]

LOL......reasonableness will still be a part of the argument my friend.....it's just a different regulation now.

 

The beauty of this one (Reg 5) is that it is up to the Banks to show that the contract was negotiated AND there was an alternative cheaper product in the market place.

 

I don't think so scruffy puppy!

[srfrench]

Sorry about what's to follow...

 

 

 

 

OH MY GOD!!!....THEY'VE NOT KILLED KENNY!.......

 

Ah...that's better, it's a little of my chest now!

[kennyh]

Wives may come -and go, but no they ain't!!

[Ibsys]

I remember seeing on this site somewhere that there was an EC/EU Directive saying that if there was a possible unfair term in a contract then it was the courts duty to pusue it without cost to the consumer. how will that affect things ?

 

I have this piece of information saved to My Documents and a case picked out to explain it

[Aequitas]

What is the difference between "unfair" and ""unreasonable"? UTCCR sends us down the route of a decision based on the unfairness if it creates an inbalance and other legislation (I think) give us the same opportunity but based on a reasonableness basis.

 

A diictionary definition of "unfair" is

 

unfair

adjective

1. not just or impartial; biased; inequitable

2. dishonest, dishonorable, or unethical in business dealings

 

As we now know the Supreme Court has suggested (not directly) that UTCCR part 5 is the way forward. Could we also include the SOGASA provisions in the POC as this would include a reaonabless test? (Stolen shamelessly from somewhere else!)

 

If the charges are for a 'service' that the bank are giving us, does this not now come under the Supply of Goods and Services act?

 

In particular s 15.

 

15. Implied term about consideration.

 

(1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge.

 

(2) What is a reasonable charge is a question of fact.

 

Therefore by analogy unreasonableness is a presumption that they must rebut and further as the defendant they should disclose the true and actual cost to them?

 

unreasonable

adjective

not reasonable; specif.,

1. having or showing little sense or judgment; not rational

2. excessive; immoderate; exorbitant

 

Just a couple of thoughts.

 

 

Thanks

 

I am afraid dictionary definitions will not always do. In particular they will not do when a term is defined in legislation. "Unfair" is defined in Regulation 5 (1) of the UTCCRs and you do not need to look any further.

 

The problem with section 15 of SOGASA is that the price for banking services is determined by the contract. The fact that the price may vary is not relevant because it can only vary after notice; at any given time the customer knows the price of the service before he asks for the service. I think section 15 covers the type of situation where a customer contracts for a service; no price is agreed; the service is provided. In such cases the customer has to pay something and it has to be reasonable.

 

Having considered the matter since the court's decision I am not convinced that there is any way of challenging bank charges using the UTCCRs, SOGASA or any similar legislation. The only charge I can see Regulation 5 applying to is the unauthorised overdraft fee. All charges payable because a service was provided when the account was in the red would not seem to be covered.

 

As for the argument that it is unreasonable that those who stay in credit are subsidised by those who do not, I think the banks have the perfect reply: the present situation arose because of consumer demand. If you are old enough you will remember the time when you paid a fee for every transaction whether in credit or not. The Great British Public (keener than any other public I know to get something for nothing - and every right) rose up in rebellion and free-if-in-credit banking was born. People have got so used to free-if-in-credit banking that they believe that banks should provide banking services for nothing. Whatever you may think about banks it is unreasonable to expect them to finance banking services from profits they make elsewhere.

 

One possible line that may be available to some is to argue that, whilst they do not challenge the amount of each charge, the charges were applied in such a way as to increase the over all level of charges and that that is unfair.

 

I think it is also important to bear in mind that the higher courts are never keen to rule something out completely. The problem is that when they say something is not ruled out they usually mean they do not wish to rule it out because there may be a situation that no one has thought of where it ought not to be ruled out; they are simply making sure they do not give any hostages to fortune and find they are bound by their own decisions. So, when a court does not rule something out, it does not mean it rules it in.

 

Apart from that, all I can do is to repeat the words of Lady Hale:

 

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.

 

I think what she is saying is that there may be legal arguments available to contest the level of bank charges, but they are not the arguments that the consumer movement and the OFT have chosen to run with.

 

Whatever the law may be, individual decisions are going to be made in the county courts. I do not go so far as to say that the county courts deal out rough justice, but they can be rather robust. Acting as a bit of a devil's advocate, I can imagine a county court judge saying to a claimant: "Now, Mr Smith. You are claiming the refund of £3000 in bank charges from Acme Bank. You have confirmed that you were informed at all times by the bank what their charges would be if you went into the red and asked for any service while the account remained in the red. We can all slip up and run up the odd bank charge, but I would like you to explain to me how you conducted your account so as to incur £3000 worth of charges?" Whilst it is well-known that once you get into debt your problems can spiral out of control, I fear that anyone who cannot give an answer to such a question that shows that the level of charges was wholly or substantially attributable to some unreasonable conduct on the part of the bank is likely to be given short shrift.

 

Before anyone gets too carried away, it should be remembered that the only reported case I know of on bank charges in the county court was lost by the customer and the bank did not even present a defence. This should be a warning that the legal hurdles to be jumped to make a successful claim are both high and many.

[kennyh]

Originally posted Aequitas

Before anyone gets too carried away, it should be remembered that the only reported case I know of on bank charges in the county court was lost by the customer and the bank did not even present a defence. This should be a warning that the legal hurdles to be jumped to make a successful claim are both high and many

Cheery as ever.

However I feel sure this case has been mulled over at some length, long ago, and it was a particularly inept performance by the claimant. CAG has done its best to prepare folk for the courtroom but there remains an element of "you can lead a horse..." where some folk are concerned.

[MATTYFEZ]

Hi guys just a quick one -

 

My stay letter simply states - stayed until conclusion of test case, thats it.

Would that allow time for the OFT to respond, or CAG to make some new templates, or should I try to get my own stay in place to buy more time?

[srfrench]

Normally the losing party has 14 days from the Judgement with which to lodge an appeal or pay-up before the Judgement becomes enforceable. 8)

[EricTheRed]

I am afraid dictionary definitions will not always do. In particular they will not do when a term is defined in legislation. "Unfair" is defined in Regulation 5 (1) of the UTCCRs and you do not need to look any further.

 

The problem with section 15 of SOGASA is that the price for banking services is determined by the contract. The fact that the price may vary is not relevant because it can only vary after notice; at any given time the customer knows the price of the service before he asks for the service. I think section 15 covers the type of situation where a customer contracts for a service; no price is agreed; the service is provided. In such cases the customer has to pay something and it has to be reasonable.

 

Having considered the matter since the court's decision I am not convinced that there is any way of challenging bank charges using the UTCCRs, SOGASA or any similar legislation. The only charge I can see Regulation 5 applying to is the unauthorised overdraft fee. All charges payable because a service was provided when the account was in the red would not seem to be covered.

 

As for the argument that it is unreasonable that those who stay in credit are subsidised by those who do not, I think the banks have the perfect reply: the present situation arose because of consumer demand. If you are old enough you will remember the time when you paid a fee for every transaction whether in credit or not. The Great British Public (keener than any other public I know to get something for nothing - and every right) rose up in rebellion and free-if-in-credit banking was born. People have got so used to free-if-in-credit banking that they believe that banks should provide banking services for nothing. Whatever you may think about banks it is unreasonable to expect them to finance banking services from profits they make elsewhere.

 

One possible line that may be available to some is to argue that, whilst they do not challenge the amount of each charge, the charges were applied in such a way as to increase the over all level of charges and that that is unfair.

 

I think it is also important to bear in mind that the higher courts are never keen to rule something out completely. The problem is that when they say something is not ruled out they usually mean they do not wish to rule it out because there may be a situation that no one has thought of where it ought not to be ruled out; they are simply making sure they do not give any hostages to fortune and find they are bound by their own decisions. So, when a court does not rule something out, it does not mean it rules it in.

 

Apart from that, all I can do is to repeat the words of Lady Hale:

 

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.

 

I think what she is saying is that there may be legal arguments available to contest the level of bank charges, but they are not the arguments that the consumer movement and the OFT have chosen to run with.

 

Whatever the law may be, individual decisions are going to be made in the county courts. I do not go so far as to say that the county courts deal out rough justice, but they can be rather robust. Acting as a bit of a devil's advocate, I can imagine a county court judge saying to a claimant: "Now, Mr Smith. You are claiming the refund of £3000 in bank charges from Acme Bank. You have confirmed that you were informed at all times by the bank what their charges would be if you went into the red and asked for any service while the account remained in the red. We can all slip up and run up the odd bank charge, but I would like you to explain to me how you conducted your account so as to incur £3000 worth of charges?" Whilst it is well-known that once you get into debt your problems can spiral out of control, I fear that anyone who cannot give an answer to such a question that shows that the level of charges was wholly or substantially attributable to some unreasonable conduct on the part of the bank is likely to be given short shrift.

 

Before anyone gets too carried away, it should be remembered that the only reported case I know of on bank charges in the county court was lost by the customer and the bank did not even present a defence. This should be a warning that the legal hurdles to be jumped to make a successful claim are both high and many.

 

(Edited)

 

Thanks for that it is most informative and some makes sense but it is quite clear from the UTCCR.

 

UTCCR

 

5(1)

• Contracts are NOT negotiated individually

• Are contrary to the requirement of good faith – Lord Bingham gave clear guidance on this issue

• Create an imbalance

• To the detriment of the customer

 

5 (2)

• Contracts are drafted in advance

• Consumer not able to influence the term

 

5(3)

• Pre-formulated standard contract

 

 

Supply of Goods and Services Act

 

• The consideration for the service is not determined by the contract

• Left to be determined in a manner agreed by the contract or

•

• determined by the course of dealing between the parties

• There is an implied term that the party contracting with the supplier will pay a reasonable charge.

 

What is a reasonable charge is a question of fact.

 

Whilst your argument is strong in points it was the Supreme Court who pointed in this direction so in Lord Phillips mind I assume that he sees a route using UTCCR and this is further supported by Lord Bingham.

 

I suppose it’s all about opinions.

 

 

I’ll be doing a bit of reading on the rules of statutory interpretation and how the judge is likely to apply those rules and I’ll wait and see what Ray Cox QC comes up with and will probably go with that.

Edited December 3, 2009 by EricTheRed

[noomill060]

"I’ll wait and see what Ray Cox QC comes up with and will probably go with that."

 

That would be a very good idea.

[Bookworm]

Before anyone gets too carried away, it should be remembered that the only reported case I know of on bank charges in the county court was lost by the customer and the bank did not even present a defence. This should be a warning that the legal hurdles to be jumped to make a successful claim are both high and many.

Errr... :-? *I* won in County Court against First national Motor Finance, a subsidiary of Abbey Bank, at a hearing in Oct/Nov 06, with a decision which clearly ruled that the charges applied were unfair and a penalty. I didn't win by default, the other side had sent representations and the judge ruled according to the T&Cs presented in front of him.

[HSBCrusher]

I am convinced personally that bank charges are fully reclaimable, in fact we now have more ammunition given to us by the HOL.

 

there is a lot of negative "spin" in the media peddled by the scaremongers and the banks themselves... but look at the facts.

 

we stand a very high chance of winning this battle... the banks IMHO have scored a home goal on this.

[srfrench]

Hi Crush....yes I fully agree....I for one can't wait for Ray Cox to sort out our "new" POC's

 

Just going over my last two outstandinding claims and I've noticed for ease of argument when claiming back my charges, I've used the compound interest argument and workings out as their unauthorised rate of 28.70%.

 

I've just figured that what I'm expecting, or rather hoping, to get is actually wrong....it works out as more.

 

Since charge, then interest on that charge upo to the day I closed my account. Then since they've had use of the funds I paid as charge and interest on it, I then reciprocally charge them their rate for unlawful use of my funds. So whilst I was expecting @ £58,000, it now works out as £59,785.

 

Me needs a hol after this!!

Edited December 3, 2009 by srfrench
Spelling

[Aequitas]

Errr... :-? *I* won in County Court against First national Motor Finance, a subsidiary of Abbey Bank, at a hearing in Oct/Nov 06, with a decision which clearly ruled that the charges applied were unfair and a penalty. I didn't win by default, the other side had sent representations and the judge ruled according to the T&Cs presented in front of him.

 

But surely this cannot have been a bank charges case?