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

[caro]

It was ruled in the test case that bank charges are not penalties, which the OFT failed to appeal, so that route is lost I'm afraid.

[yourbank]

Playing Devil's advocate here, pls feel free to shoot this down, but when you apply for an o/d, c/c, loan etc... the bank does a credit search and depending on how you score, you will be offered a different rate of interest, couldn 't the banks then argue that THAT shows an "individual" negotiation?

Credit card rates are not individually priced on the interest rate. I'll explain. When you apply for a credit card you get the rate set at the time it was taken out and is fixed at that point(yes you might be able to get 0% deals within that for balance transfers but the interest rate you get at the end is the original rate you applied under). Some people will have got better interest rates and some worse depending on the time they opened the card. With overdrafts, it's the same and interest rates are increased/decreased giving notice.

Having said that, Loans are most definitely risk based pricing which means that while there is a typical APR based on the perceived risk of the borrower.

Ok, so your only negotiation tool is to accept their terms or walk away, but still... We know they'll; try anythign to derail us.

 

Discuss.

 

See above with regards to OD and credit cards. The problem with all of this is that even if you look at consideration of whether to pay or not pay, there is evidence the banks' do pay items out in a way that is not to the detriment of the consumer(OFT 1154).

[freethemice]

Sorry if this has been asked before.

What are the rules regarding dsar with banks when you have had the account for many years?

Do they still have to show and agreement or even a frankenstien of what an agreement would have looked like after Carey v Hsbc.

I.e. What proof do they have to provide that you agreed or were aware of the charges.

[popeye1]

No negotiation in terms when you sign,are you fully aware of them though,i suppose you should be.If you are aware of the terms and sign could they say you could have negotiated at that time

[popeye1]

Of course they cannot ,its take it or leave,go to the next bank and it will be the same

[means2anend]

Remember what s5(2) is saying....

 

....to be able to individually negotiate AND influence the substance of the term otherwise that term will ALWAYS be regarded as not having been individually negotiated.

 

This suggests an informal 2 way communicative street.

 

The scenario Bookworm is talking about would fall outside the 2 mutually inclusive required elements above that the banks would have to prove.

 

Terms to which these Regulations apply

 

4-(1) These Regulations apply in relation to unfair terms in contracts concluded between a seller or a supplier and a consumer.

 

Bookworm's scenario is ex-hypothesi and falls short of a concluded contract...the above provisions would therefore not be triggered off.

 

The use of the past tense 'concluded' is ex-post facto.Once a contract is concluded then the issues in these Regulations fall to be decided.

 

Also just out of interest please look at......

 

Schedule 2 Indicative And Non-Exhaustive List Of Terms Which May Be Regarded Unfair Reg 5(5)

 

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

 

.....(I) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract.

 

I should welcome comments

 

Rgds

 

M2ae:)

Edited January 17, 2010 by means2anend

[srfrench]

The only comment I can add is PRECISELY!!!!!

 

I think it would be easy to to attach a two way meaning to their T&C's BUT NOT to the UTCCR's (or the LAW) especially after the SCoJ advised claimants of Reg 5 (which they really don't normally do!).

 

My take is that the Bank's are going to face a wave the force of a Tsunami in the light that they will have to show that all the contracts were individually negotiated, fair and in relation to the charge, that it is NOT disproportionately excessive.

 

Trying not to giggle ahead of their submittance and the risk of proving I'd lost my marbles.

[means2anend]

Council Directive

 

of 5th April 1993

on unfair terms in consumer contracts

(93/13/EEC)

THE COUNCIL OF THE EUROPEAN COMMUNITIES.........

HAS ADOPTED THIS DIRECTIVE-

ARTICLE- 1

1 The Purpose of this Directive is to approximate the laws,regulations and administrative provisions of THE MEMBER STATES, relating to unfair terms in contracts concluded between a seller or supplier and a consumer.

 

2 The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States of the Community are party,particularly in the transport area,shall not be subject to the provisions of this Directive.

 

ARTICLE-2

For the purposes of this Directive-

(a) ''unfair terms'' means the contractual terms defined in Article 3;

(b) ''consumer'' means any natural or legal person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;

© ''seller'' or ''supplier'' means any natural person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession,whether publicly owned or privately owned.

 

ARTICLE- 3

1 A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, if 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 individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term,particularly in in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated contract.

 

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.

 

3 The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

ARTICLE-4

1 Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

 

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 supplied in exchange, on the other, in so far as these terms are in plain intelligible language.

ARTICLE-5

I In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language.Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail.This rule on interpretation shall not apply in the context of the procedures laid down in Article 7(2).

 

ARTICLE-6

1 Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.

 

2 Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States.

 

ARTICLE-7

1 Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.

 

2 The means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.

 

3 With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms.

 

ARTICLE-8

Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.

 

ARTICLE-9

The Commission shall present a report to the European Parliament and to the Council concerning the application of this Directive five years at the latest after the date in Article 10(1)

 

ARTICLE-10

1 Member States shall bring into force the laws,regulations and administrative provisions necessary to comply with this Directive no later than 31st Dec 1994.They shall forthwith inform the Commission thereof.

These provisions shall be applicable to all contracts concluded after 31st Dec 1994

 

2 When Member States adopt these measures,they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication.The methods of making such a reference shall be laid down by the Member States.

 

3 Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission.

 

ARTICLE-11

This Directive is addressed to the Member States.

Done at Luxembourg, 5th April 1993

 

This Directive 93/13/EEC was initially implemented by UTCCR 1994 SI 3159 but then was revoked by;

UTCCR 1999 SI 2083 which is now the current regulation.

 

Rgds

 

M2ae

Edited January 17, 2010 by means2anend
reasonemphasis on terms not being drafted in a plain or intelligible manner then it's intepretation must construed in favour

[kennyh]

So folks,

where does this leave UK customers? Presumeably we use UTCCR (bits not nullified by SCOJ) and CCA et al., as we've been discussing.

[means2anend]

Are there any caggers out there who know or a familiar with any case law authorities in the Commonwealth that have decided on similar provisions and or circumstance (individually negotiated...) within their own Country's respective jurisdiction.

 

We may be able to use those Judges ratios as obiter in connection with our situation and start the 'firing gun'so to speak.Provided of course the decision was favourable to the consumer.

 

Also banks were settling long before the OFT actually took it to THE court and lost.

 

Maybe the 'threat' of S5(1)(2) without going to court may once again be tactically correct in getting refunds BEFORE any PRECEDENT one way or the other.

 

If so we better act quickly

 

Comments please

 

Rgds

 

M2ae

[means2anend]

AAANNNNNNNDDDDDDDDDD!!!!!

 

It's been upheld by the OFT and the Courts that the way a charge and interest is worked out is NOT clear and even caused the Banks a few problems to explain how it's worked out in Court.

 

Thus, even if you were to put funds into your account, the addition of charges and even the interest on toip of that would send you back into unauthorised o/d area again!!!!!! FAIR!!!!

 

Hence the contract should be 'in a plain and intelligible language' interest and charges are definitely terms that are core they MUST be drafted in a manner that is INTELLIGIBLE as per Reg 5

[yourbank]

Hence the contract should be 'in a plain and intelligible language' interest and charges are definitely terms that are core they MUST be drafted in a manner that is INTELLIGIBLE as per Reg 5

 

The PIL(plain and intelligible) argument was settled prior to the SC judgement so am not sure that you have an argument just on the basis of PIL.

 

You need to post up the annex as well since 5(1) has the grey list.

[means2anend]

The PIL(plain and intelligible) argument was settled prior to the SC judgement so am not sure that you have an argument just on the basis of PIL.

 

You need to post up the annex as well since 5(1) has the grey list.

 

 

No problem...

 

I shall post the annex tomorrow

 

Rgds

m2ae

[means2anend]

Caggers

 

I have found some recent European case law that deals with ...'not having individually negotiated....' as per ART 3(1) and (2) 93/13/EEC or as implemented as Reg 5(1)(2) UTCCR 1999 SI/2083

 

The Case is Pannon v Gyorfi [2009] C-243/08

 

It appears to be good news on interpretation-I shall try to find some specifically within the context of Banking/Credit but the principles should be the same.

 

Here are the links:

http://lawstudentforum.co.uk/eu-law/4593-unfair-contract-terms-pannon-v-gyorfi-2009-c-243-09-a.html

for a fuller information use link below

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0243:EN:HTML

 

I'm off goodnight

 

M2ae

Edited January 17, 2010 by means2anend
correction of links

[yourbank]

Also look at Oceano Grupo http://eur-lex.europa.eu/LexUriServ/...8J0240:EN:HTML

[tcook5]

I, like many people, are quite confused by this whole issue.

I cant understand how the credit card charges were reduced, to 12 pounds, but the bank charges cannot be reduced/scrapped.

What arguement did the OFT use to argue against CC charges and why would they not work with Bank Charges?

[noomill060]

CC charges ARE accepted to be penalties for breach of contract, not fees for a service, however mythical and can and should be reclaimed together with all contractual interest levied thereon, plus 8% judicial interest.

 

Bank charges are not.

 

(Apparently)

[madmuffet]

I got this letter today, dated 31st Dec 2009, giving me 8weeks to respond.

 

"The outcome of these legal proceedings means that the bank charges you have complained about do not amount to penalties at common law and that the level of them cannot be assessed for fairness under the Unfair Terms in Consumer Contract Regulations 1999 (UTCCRs). We do not believe that there is any legal basis on which the amount of the charges can be challenged.

 

We are satisfied that the bank charges you seek to reclaim were properly charged and the outcome ofthe legal proceedings confirms our position."

 

is there a reply template? is there any avenue for me to go down?

My 'bank' is Alliance and Leicester, can I quote facts and figures from this site regarding the refunds they have already made?

is it not a form of 'victimisation' that they have refunded some customers but not all??

HELP!!

[rdm2006]

Its just the bog standard letter that they have sent to every one. just hold tight for the new letters to come out

[madmuffet]

thanks rdm2006, i'll try and stay calm....:o:)

[EricTheRed]

CC charges ARE accepted to be penalties for breach of contract, not fees for a service, however mythical and can and should be reclaimed together with all contractual interest levied thereon, plus 8% judicial interest.

 

Bank charges are not.

 

(Apparently)

 

Didn't the OFT decide that they were unfair as well and put a £12 cap on them?

[Rhia]

OFT didn't put a legal cap on CC charges they just said £12 was the level at which they would intervene. If you take CC charges to court they still have to justify them and you should get them all back (plus contractual interest plus court interest of 8% on the whole debt calculated from the date you start the action).

 

I am going to go after my current account charges. I have an overdraft of £1500 and have calculated charges of £3,500 over the past six years (just charges plus basic 8% interest) and they refuse to give me any statements prior to this so it's clear this is the minimum figure. Once I get my head around it I will start a thread and come back and add the link.

[means2anend]

Here are some of the arguments that may be used under Reg5 UTCCR 1999

 

by courtesy of Martin Lewis...Moneysavingexpert

 

Bank Charges Reclaiming: Fight unfair charges, updated after OFT dropped case...

 

.....and then scroll down and click the link give a more detailed explanation in the new legal arguments section.

[kennyh]

So (as mentioned in #4606 above) it's looking increasingly like a dual-pronged attack using UTCCR1999 Reg 5 coupled with, where-ever possible, Section 140 a-d of the Consumer Credit Act (CCA) 1974?

So far as the Natwest anomoly is concerned, again whereever possible, do we formulate a fresh claim for the period in question (with, presumeably, good odds of success if the t&cs for the limited period were found wanting by justice)

I would still wish to await any revised information but times is 'agettin' tight.

[battyman]

Thanks Kennyh. Yes its still in dispute. The order said 3 months so I am hoping it is still relevant. I will try the letter. Are you waiting for the new templates?