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

[locutus]

Indeed it is.

I will leave it. This is costing more and more and more with no guarantee to get anything back.

If the bank defends (which they probably would), wins and then makes an application for costs I'd be well snookered

If CAG comes up with an excelent POC, we all ammend our cases to show this. We will then get to the point before the test case where banks just folded and paid up OR the banks will defend another "Test case". Either way if you're stayed, keep it that way for now.

[yourbank]

The Banks have NOT won. Please be clear on this. The OFT cannot investigate the fairness of the charges, that is irrelevant to the issue of fairness challenges before the debarcle that is the Test Case, as they were brought in Court - nothing has changed, there.

 

The OFT have conceded. Reasons for that are currently unknown.

They have said why they have conceded for now and why other arguments were not persuasive enough for them:

http://oft.gov.uk/shared_oft/personal-current-accounts/oft1154

As for the Government, remember that a General Election is just around the corner - what the Government of today says is designed to pull in votes. We all know Labour's days are numbered, so of course they will try to pull tricks that they can't deliver on to try to bolster their positive post-Election.

I think ALL political parties including the Conservatives and the Liberal Democrats have said things about this. For a change its not just one party saying it.

What the media tells you about this issue isn't true. What the Goverment says about it is even less so.

 

I totally agree on the last point.

 

 

COMPLETELY OFF TOPIC: Merry Christmas to everyone who has posted/still posts/reads this threads. Today is a day for calm and tomorrow the debate continues......

[yourbank]

Admittedly, it's been a while since I read the POC and defences and judgments from the start, so maybe someone will be able to set me straight, because right now, I think I have missed something here. :-?

 

Test case: Are charges penalties? Judge says no.

he said NatWest terms 2001-2003 are incapable of not being penal which could mean that part of the terms from that period were penal but everyone else's is not.

 

Ok.

Can OFT assess them for unfairness? Final decision says no, as core part of contract.

They pointed to regulation 5(1) and to government regulation. Reg 5(1) and the "grey list" realistically has to be sent to ECJ at some point since the SC decided reg 6.2(b) is kinda out of the equation which is price related.

Ok.

But why can't we challenge them on the grounds of significant detriment to consumer and non individually negotiated, as per UTCCR? Have I missed something where we have been told we can't do this somewhere in the judgment?

Reg 5(1) really needs ECJ assistance but a case is required before the SC and referred onwards. I think the directive EC one from 1993 on unfair contracts does have something about financial institutions, at the bottom of the "grey list".

I would really appreciate if someone could point me to that if that's the case, cos I don't recall seeing anything of the kind. Admittedly, I am currently high on codeine, so can't trust my memory too well right now, so I'd be grateful for a direct quote.

Can I do it tomorrow?? I want a sore head tonight

 

Merry Christmas to you as well.

[Bookworm]

Test case: Are charges penalties? Judge says no.

he said NatWest terms 2001-2003 are incapable of not being penal which could mean that part of the terms from that period were penal but everyone else's is not.

Yes I know, I was ticking points off on my fingers so to speak.

Ok.

Can OFT assess them for unfairness? Final decision says no, as core part of contract.

They pointed to regulation 5(1) and to government regulation. Reg 5(1) and the "grey list" realistically has to be sent to ECJ at some point since the SC decided reg 6.2(b) is kinda out of the equation which is price related.

Ok.

Ditto.

 

But why can't we challenge them on the grounds of significant detriment to consumer and non individually negotiated, as per UTCCR? Have I missed something where we have been told we can't do this somewhere in the judgment?

Reg 5(1) really needs ECJ assistance but a case is required before the SC and referred onwards. I think the directive EC one from 1993 on unfair contracts does have something about financial institutions, at the bottom of the "grey list".

Why does it need ECJ assistance? :-?

 

Can I do it tomorrow?? I want a sore head tonight :grin:

 

Hope you are working steadily towards that goal as I type this.

Merry Christmas to you as well.

Likewise.

[yourbank]

guichett - 31993L0013 -

 

The above is the original EC directive. Article 3 refers to the Annex which has what is known as the "grey list"

 

and (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

If Price is out then how does (e) work? That is why ECJ would imho have to assist whichever court referred it to them.

[Bookworm]

guichett - 31993L0013 -

 

The above is the original EC directive. Article 3 refers to the Annex which has what is known as the "grey list"

 

and (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

If Price is out then how does (e) work? That is why ECJ would imho have to assist whichever court referred it to them.

Thank you for that. I am getting more and more confused...

 

Whereas, for the purposes of this Directive, assessment of unfair character shall not be made of terms which describe the main subject matter of the contract nor the quality/price ratio of the goods or services supplied;

is presumably the lynchpin of where the test case failed.. yet, in the next sentence:

whereas the main subject matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms;

would seem to indicate that it is not a completely closed door... Yes, I know these are the 1993 regs, from which the UTCCR 99 arose, but what am I missing here? :-?

 

As for the annex, I would have thought that:

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

would have fallen squarely within what the banks have been doing, or at the very least wuld be challengeable.

[yourbank]

You need to read further down to the bottom on points (j) and (k)

 

"Subparagraph (j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract."

 

I think (k) would fall under the terms of the contract ie that they reserve the right to do so.

 

 

I was looking at other quotes re price/remuneration came from and I finally found it in the preamble. The Directive itself states this:

Article 4

"2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language."

[car2403]

You need to read further down to the bottom on points (j) and (k)

 

"Subparagraph (j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract."

 

I think (k) would fall under the terms of the contract ie that they reserve the right to do so.

 

I would agree with those comments, YB. The issue here is back to one of competition, though - if all Banks have the same/similar T&C's, how can one "dissolve the contract" with your current Bank and move to another that has more favourable terms for consumers? This is the whole reason this flaming test case came about, as the OFT seems to think that the terms are unfair, (or wouldn't have brought the case) but are now incapable of defending consumer rights, seemingly relying on Parliament (snigger...) to solve the issue.

 

My argument would be that, due to the "cartel" nature of all Banking contracts, the point you've raised here should not override the test of fairness that needs to be applied to the terms allowing the charges to be applied, amended and changed over time, rather than looking at the fairness of the actual charges applied, themselves. This is where it becomes a complicated argument for laypersons to hold in front of a Judge and the Banks' barristers, and is the reason we need to await these amended POC's, etc, before taking further action.

 

I was looking at other quotes re price/remuneration came from and I finally found it in the preamble. The Directive itself states this:

Article 4

"2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language."

 

Don't get me started on the definitions of what "plain" and "intelligible" is - have you read the recent round of T&C's for charges?

 

"If you're X amount overdrawn, you'll be charged Y1 if it's agreed over £A1 or Y2 if between £A2 and £A3, or Y3 if it's unagreed"

 

[Bookworm]

You need to read further down to the bottom on points (j) and (k)

 

"Subparagraph (j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract."

 

I think (k) would fall under the terms of the contract ie that they reserve the right to do so.

 

 

I was looking at other quotes re price/remuneration came from and I finally found it in the preamble. The Directive itself states this:

Article 4

"2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language."

I had already read further down and seen these ones, yes.

 

I do wonder whether the "valid reason" argument may not be something that could be used though... As far as we can ascertain, the only reason has been to increase their massive profits further...

 

Also, the opportunity for the consumer to dissolve the contract is all very well in theory, but as we know, when someone lives in and out of their overdraft with charges forever tying them in that overdraft, I do wonder whether that isn't going against the spirit in which the regs were written. (as the recent Halifax debacle has shown)

 

I think another area which needs exploring is the collusion, for want of a better word, of the events which led to our being completely dependent on a bank account, when wages and benefits became compulsory to be paid into a bank account. This took away the effective choice we had of using or nor using a bank account and forced us to "accept" T&Cs over which we had no control whatsoever.

 

another thing (throwing everything in the mix here) is the way the charges operate, as described higher up with the exterminator example. Even if we accept that the charge for going over limit/bouncing a payment is legitimate, core part of the contract etc..., then how can this be the case for subsequent charges wholly created by the first charge?

 

These are all issues that I think we need to look at more carefully, even if it means going to the one by one cases. I fear the OFT took too general a scope and then narrowed it down to certain issues, when the devil was in fact in the details.

[TheyrCriminals]

Haven't they ?:?

To me personally it pretty much looks that way though.

With the help of the OFT they managed to stop any claims and pay-outs for over two years in which they could charge but didn't have to handle any claims or complaints.

After a staggering amount of time the OFT manages to loose their case, which to me sounds as if the banks won their argument.

Claimants are told they have to pay to have their POCs amended or to even lift the stay. More and more costs to people who can ill afford it in the first place with no guarantees to get anything back.

Just imagine someone shells all this out, it goes to a hearing, the bank defends and wins, makes an application for costs...

To me the banks have won, sorry but at the moment they sure have.

Even if I wanted I couldn't continue with my stayed claim due to the costs involved.

It is unbelievable that I have to pay almost £100.- to lift a stay the court put into place due to the ridiculous test case....

 

 

The stay was placed on all claims due to the OFT test case on unauthorised overdraft charges. The test case has concluded and the final outcome in the test case is now known, therefore the stay should be automatically lifted without application. However most County Courts appear not to be lifting these stays but that may well be to do with OFT anouncement being made on the 22nd December 2009 and us entering the Chrsitmas holiday period. In the New Year stays on all bank charges claims may be lifted generally. If the banks try to get claims dismissed the Court will have to inform you and a hearing should be set. However the concern arises where County Courts lift stays and make an Order of their own motion ordering the claim to be struck out as the OFT have 'lost'. I hope this wont be the case.

 

Stays should be allowed to be lifted and claims proceed to trial based on current POC's (if worded originally excluding specific section numbers of the UTCCR's) or be allowed to proceed based on amended POC'S incorporating Section 5 of the UTCCR's and, if applicable to your claim, the new argument found in S.40 of the Consumer Credit Act 1974. Very importantly for Natwest and RBS customers stays should be lifted and claims proceed to trial where part of the claim is made up of charges incurred between 2001-2003 using the original penalty argument. In a hearing earlier this year Mr. Justice Andrew Smith (in the High Court) was not convinced that one of Natwest/RBS terms was not capable of being penal.

 

TheyrCriminals

[yourbank]

I had already read further down and seen these ones, yes.

 

I do wonder whether the "valid reason" argument may not be something that could be used though... As far as we can ascertain, the only reason has been to increase their massive profits further...

The problem lies in the SC decision that the rises are not relevant because they are core terms of the contract. Yet that seems to be contradicted with the reg 5(1) which is article 3 of the directive and the grey list(which is why I think ECJ needs to be referred to).

Also, the opportunity for the consumer to dissolve the contract is all very well in theory, but as we know, when someone lives in and out of their overdraft with charges forever tying them in that overdraft, I do wonder whether that isn't going against the spirit in which the regs were written. (as the recent Halifax debacle has shown)

Halifax made the change over 12 months ago and I am unaware of anyone taking them to court in spite of the templates you have written(please correct me if someone has as I don't read in much detail that specific thread).

They can switch accounts and we have to remember that not everyone incurs charges for "consideration".

I think another area which needs exploring is the collusion, for want of a better word, of the events which led to our being completely dependent on a bank account, when wages and benefits became compulsory to be paid into a bank account.

I personally do not think that area does need exploring because the reliance on a bank account does not automatically mean that you will be charged. It is kinda on the peripheral since we are talking about charges. There is a competition commission issues re historic charges but that was ruled out by the OFT

 

This took away the effective choice we had of using or nor using a bank account and forced us to "accept" T&Cs over which we had no control whatsoever.

But you have to take an individualistic approach rather than a group approach since the counter argument is that if you didn't agree with the terms and conditions you could have closed the account/switched account etc,etc. I do agree with you that today a bank account is the same as a utility since it is a necessary tool for receipt of wages/benefits.

another thing (throwing everything in the mix here) is the way the charges operate, as described higher up with the exterminator example. Even if we accept that the charge for going over limit/bouncing a payment is legitimate, core part of the contract etc..., then how can this be the case for subsequent charges wholly created by the first charge?

The charges are for consideration of whether to pay or not pay but this point is the crux of the argument for individuals. If there are multiple considerations that the consumer has no chance of agreeing or disagreeing to. That is where I think individuals may well have a case in terms of that specific issue. I know that many people argue today that you should check your account via ATM, Internet etc,etc, but how many people used internet banking historically? I would say not that many and ATM balances were not necessarily taking into consideration other transactions due to go out or uncleared cheques giving a false impression of the balance and leading to charges.

These are all issues that I think we need to look at more carefully, even if it means going to the one by one cases. I fear the OFT took too general a scope and then narrowed it down to certain issues, when the devil was in fact in the details.

 

I think the OFT believe historic charges to be unfair but that there are a number of issues. Their remit is about what is happening today and to the whole of the market, and not everyone incurred charges(in fact it was a minority of consumers who did incur charges). Furthermore, if they took action on current charges, all banks have lowered charges and changed the way they work which could exclude them on the historic charges side of things. I still think that there are huge concerns on this issue and I hope CAG et al will continue to have contact with the OFT going forwards as is detailed in the OFT's document with regards to why they didn't progress further on the charges litigation.

[yourbank]

The stay was placed on all claims due to the OFT test case on unauthorised overdraft charges. The test case has concluded and the final outcome in the test case is now known, therefore the stay should be automatically lifted without application. However most County Courts appear not to be lifting these stays but that may well be to do with OFT anouncement being made on the 22nd December 2009 and us entering the Chrsitmas holiday period. In the New Year stays on all bank charges claims may be lifted generally. If the banks try to get claims dismissed the Court will have to inform you and a hearing should be set. However the concern arises where County Courts lift stays and make an Order of their own motion ordering the claim to be struck out as the OFT have 'lost'. I hope this wont be the case.

 

Stays should be allowed to be lifted and claims proceed to trial based on current POC's (if worded originally excluding specific section numbers of the UTCCR's) or be allowed to proceed based on amended POC'S incorporating Section 5 of the UTCCR's and, if applicable to your claim, the new argument found in S.40 of the Consumer Credit Act 1974. Very importantly for Natwest and RBS customers stays should be lifted and claims proceed to trial where part of the claim is made up of charges incurred between 2001-2003 using the original penalty argument. In a hearing earlier this year Mr. Justice Andrew Smith (in the High Court) was not convinced that one of Natwest/RBS terms was not capable of being penal.

 

TheyrCriminals

 

It was only NatWest terms 2001-2003 and not RBS Bank if memory serves me right. Personally I think any court hearing a claim should take a reference to the ECJ, since any court can make a referral based on the OFT test case and UTCCR regulation 5(1) and the grey list.

[frettful38]

Hi all, just a quick question please. I have logged a refund for bank charges claim against HSBC in court and is currently stayed. I have been reading a lot about the OFT V Banks final result but still cannot understand what to do next.

Should I withdraw my claim or do I wait for the bank to, or will the court just strike it out? If so will I be liable to pay any costs. Sorry for so many questions but I am really confused with all this.

[The Phantom]

The stay was placed on all claims due to the OFT test case on unauthorised overdraft charges. The test case has concluded and the final outcome in the test case is now known, therefore the stay should be automatically lifted without application. However most County Courts appear not to be lifting these stays but that may well be to do with OFT anouncement being made on the 22nd December 2009 and us entering the Chrsitmas holiday period. In the New Year stays on all bank charges claims may be lifted generally. If the banks try to get claims dismissed the Court will have to inform you and a hearing should be set. However the concern arises where County Courts lift stays and make an Order of their own motion ordering the claim to be struck out as the OFT have 'lost'. I hope this wont be the case.

 

Stays should be allowed to be lifted and claims proceed to trial based on current POC's (if worded originally excluding specific section numbers of the UTCCR's) or be allowed to proceed based on amended POC'S incorporating Section 5 of the UTCCR's and, if applicable to your claim, the new argument found in S.40 of the Consumer Credit Act 1974. Very importantly for Natwest and RBS customers stays should be lifted and claims proceed to trial where part of the claim is made up of charges incurred between 2001-2003 using the original penalty argument. In a hearing earlier this year Mr. Justice Andrew Smith (in the High Court) was not convinced that one of Natwest/RBS terms was not capable of being penal.

 

TheyrCriminals

 

I have started my own thread now so any help would be apprecaited if someone wants to take a look, as at the moment I can't afford to pay £75.- to lift the stay and the POCs may have to be amended for some stronger ones once available on the site.

So I'll hang in there for a short while longer and see what happens

[The Phantom]

I have started my own thread now so any help would be apprecaited if someone wants to take a look, as at the moment I can't afford to pay £75.- to lift the stay and the POCs may have to be amended for some stronger ones once available on the site.

So I'll hang in there for a short while longer and see what happens

 

 

PS

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/238578-phantom-hsbc-after-judgement.html#post2665086

[yourbank]

Hi all, just a quick question please. I have logged a refund for bank charges claim against HSBC in court and is currently stayed. I have been reading a lot about the OFT V Banks final result but still cannot understand what to do next.

Should I withdraw my claim or do I wait for the bank to, or will the court just strike it out? If so will I be liable to pay any costs. Sorry for so many questions but I am really confused with all this.

 

If your case is stayed there are two things you need to do:

1) look at the wording of the stay

2) I would contact the county court and ask them what is happening with the case being stayed.

[gezwee]

I think the position will be to argue as an individual layperson.

 

Rightly or wrongly I have a hearing in February with no strike out requested or submitted by Natwest.

 

Included in original POC's were collusion (as previously posted by myself and others) POCA not appearing to offer security vs certain benefits along with argument based on servicing value/costs of multiple 'other' account holders.

 

Have requested evidence of budget forecast for default accounts to identify whether I (as an individual) when in default would procure ample revenue for the bank to service all other current account holders as submitted to the SC.

[frettful38]

If your case is stayed there are two things you need to do:

1) look at the wording of the stay

2) I would contact the county court and ask them what is happening with the case being stayed.

 

 

Thanks yourbank I will do that and let you know and hopefully get some further advice

[TheyrCriminals]

Hi Guys,

 

Can someone please confirm whether Mr. Justice Andrew Smith's January ruling on the penalty argument was just in relation to Natwest (charges incurred from 2001 - 2003) or whether it also extended to its owner Royal Bank of Scotland.

 

Thanks.

 

TheyrCriminals

[hacksaw]

It doesn't extend to RBS, only Natwest:

 

20.

I therefore remain unpersuaded that the Relevant Term in the NatWest 2001 conditions is not capable of being penal.

Conclusions

33.

Therefore,

i)

I shall strike out from the OFT’s pleading (Annex G2 to its Defence to Counterclaim) the references to Abbey’s May 2005 conditions.

ii)

I shall grant Lloyds TSB the declaratory relief that it seeks.

iii)

I shall grant RBSG declaratory relief in respect of the NatWest 2004 conditions, the RBS 2005 conditions and the NatWest July 2003 leaflet, but not in respect of the NatWest 2001 conditions.

The full text can be found here:

 

http://www.judiciary.gov.uk/docs/judgments_guidance/oft-abbey-national.pdf

[TheyrCriminals]

Hi Hacksaw,

 

Many thanks for that.

 

TheyrCriminals

[srfrench]

It appears to me that the Abbey "Penalty Charges" issue 2005 and before was NOT ruled on one way or the other?

 

God!...I wish this was clearer.

 

What about all the pre-2005 T&C's?

[TheyrCriminals]

Hi Guys,

 

Spoke to the Torquay and Newton Abbot County Court today and was informed that either party can now apply to have the stay in their bank charges claim lifted. If neither party has requested the stay be lifted by 30th November 2010 the Court will strike out the claim. Apparently many County Courts will be adopting the same approach.

 

TheyrCriminals

Edited December 31, 2009 by TheyrCriminals

[speedtrip]

So for those of us where the banks are claiming repayments of current accounts wholly or partly contain bank charges where does this leave us.

 

If it does get struck out (if the bank drop the ball) can they bring the case again.

 

I wrote to the courts prior to OFT press release requesting a stay to allow me time consider appopropriate response once OFT had made their position known.

 

I am awaiting a formal response from the court

 

ST

 

Hi Guys,

 

Spoke to the Torquay and Newton Abbot County Court today and was informed that either party can now apply to have the stay in their bank charges claim lifted. If neither party has requested the stay be lifted by 30th November 2010 the Court will stike out the claim. Apparently many County Courts will be adopting the same approach.

 

TheyrCriminals

[Dougal16T]

Hi Guys,

 

Spoke to the Torquay and Newton Abbot County Court today and was informed that either party can now apply to have the stay in their bank charges claim lifted. If neither party has requested the stay be lifted by 30th November 2010 the Court will strike out the claim. Apparently many County Courts will be adopting the same approach.

 

TheyrCriminals

Morning all,

A VERY happy new year to everyone.

 

My thought to end 2009 on:

 

Why are the stays remaining in place, [unless either party applies for them to be lifted], until November 2010? [almost 11 months away!]

 

I have read elsewhere that an announcement 'will be made by the OFT next year' - is this why?

 

As always, best wishes,

Dougal