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

[locutus]

I think you are missing my point.

 

Let's take two imaginary scenarios:

 

Scenario A

 

1. In 1990 XYZ Bank sues Mr Smith for bank charges. The court rules that bank charges are lawful.

 

2. Between 1995 and 2004 Mr Jones pays bank charges because he believes, having regard to the decision in XYZ Bank v Smith, that bank charges are lawful.

 

3. In 2005 the decision in XYZ Bank v Smith is overruled.

 

4. The limitation clock now starts to run and Mr Jones has 6 years to sue for the refund of bank charges. He can claim a refund of charges going back to 1995 because the rule in the Kleinwort Benson case applies.

 

Scenario B

 

1. XYZ Bank v Smith never happened.

 

2. Mr Brown has been paying bank charges for the last 10 years in the belief that they are lawfully payable.

 

3. He logs onto CAG and decides to sue his bank for a refund.

 

4. He wins.

 

5. Since XYZ Bank v Smith never happened Mr Brown's case could not overrule it. It only established what the law always was. It did not suddenly become the law when the court made its decision. Mr Brown must be deemed throughout the 10 year period to have been able to discover what the law was even if he may have had difficulty in discovering it. He can only claim a refund of charges paid during the last six years because the rule in the Kleinwort Benson case does not apply.

 

*

 

The crucial difference between the two scenarios is that in scenario A Mr Jones paid on the basis of settled law which was overturned, but in scenario B Mr Brown did not.

I think Mr Brown would probably have put his charges on his expenses account anyway

 

I appreciate listening to your points Aequitas. You have to have balance in a discussion, and only by understanding both sides do you have the ability to change someones mind.

[rdm2006]

As far as this legal stuff goes I am completely at a loss.

 

Lets assume for one moment someone wins a case on the basis that they were misled into thinking that these charges were administrative.

 

as this is generic to all how would it affect the "Personal" claims situation, ie I have to show that MY contract was unfair and imbalanced?

[Aequitas]

I think this may be an opportune moment for me to set out again the words of Lady Hale. She did not say much, but what she said encapsulates the problem of bank charges succinctly and exquisitely:

 

...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.

 

For the moment I would like to home in on the words: "Should financial services be treated differently from other goods and services?" The problem may be phrased thus:

 

When you sign up for a bank account you agree to pay certain charges in certain situations. To what extent, if at all, is the law available to cancel or reduce those charges? Is it relevant what the banks say about their charges? To what extent are they required to justify their charges? Is it relevant, from the legal point of view, if the banks are making excessive profits? What relevance is the level of the bank's profits? Is there a cartel in operation? In a nutshell, are bank charges any different from the price of bread?

 

It seems to me that the campaign could just as easily have been about:

 

The price of bread - or anything else you buy.

 

Legal fees.

 

Estate agent's commission.

 

Funeral expenses.

 

Hundreds of other things.

 

Since we live in a system that is essentially capitalism controlled by social democratic value judgements, to what extent is it reasonable to propose, if you accept that system, that financial services should be controlled? I think that once you argue for the control of financial services it is a short step to argue for price control generally and from there to wage control. Now, if you had asked me some 30 years ago I would have been all in favour of controlling "big business". (Anyone remember the mantra of the left of the Labour Party, to which I subscribed: "Control the commanding heights of the economy"?) I am still firmly on the left, but if there is any lesson I have learned over the last 30 years it is that people are quite happy with the idea of socialism so long as they do not have to give up what they are used to. So, if you are a plumber or the proprietor of a corner shop who thinks that there should be no control over what you charge you customers, you cannot really complain if the same privilege is accorded to big business, including the banks.

 

As someone suggested above, if you really want to change the whole system, none of the mainstream political parties is with you.

[rdm2006]

That is the problem we live in a social democratic society, however, the banks are operating in a dictatorial manner, you may not have an account which does not allow for these charges to be raised and with all the other other examples there is a REAL choice to do without or opt out. we no longer have a society that allows you to be paid in cash when there was these charges didn't exist!!!. The banks have a club the BBA they get together and copy each other in what other industry or service does that happen ? or think back to virgin and BA they got together to set prices and what happened....

 

There is no need to change the whole system just bring those who operate outside it into line...........

Edited March 3, 2010 by rdm2006

[rdm2006]

when i started work you could be paid in cash but then the businesses would be robbed, we have now automated this step to reduce the robberies but now the banks are both the people who secure your money in one hand and rob you of it in the other.

[royboy68]

Bread = 30p to over a pound

Legal fees can be negotiated or you can shop around

Funeral expenses can be negotiated and you can choose the level of the service you require and can afford

Estate agents have different fees

Banks are a service that you have been forced as rdm quotes. No longer can you manage YOUR own money thanks to the capitalist society we live in. To my mind this situation has been planned since the early to mid seventies when the banks started to persuade us that being paid directly in the bank was beneficial. The situation was made worse during the Thatcher years when bank deregulation came in and TSB was sold to the people that owned it if they could afford to pay extra for their own company. Then the building society and friendly societies were allowed to convert into banks. In a nutshell, we have been forced into contracts that quite a few dont want and no way to get out of it.

[rdm2006]

Bread = 30p to over a pound

Legal fees can be negotiated or you can shop around

Funeral expenses can be negotiated and you can choose the level of the service you require and can afford

Estate agents have different fees

Banks are a service that you have been forced as rdm quotes. No longer can you manage YOUR own money thanks to the capitalist society we live in. To my mind this situation has been planned since the early to mid seventies when the banks started to persuade us that being paid directly in the bank was beneficial. The situation was made worse during the Thatcher years when bank deregulation came in and TSB was sold to the people that owned it if they could afford to pay extra for their own company. Then the building society and friendly societies were allowed to convert into banks. In a nutshell, we have been forced into contracts that quite a few dont want and no way to get out of it.

 

I don't think it was planned, I think it was more some devious git saw an opportunity and took advantage of it and the rest followed like lemmings, no other industry has had this chance.

 

Aequitas mentions price control, as far as i can see the banks have effectively created their own price control and in the same way that BA/Virgin were prevented from operating such a control the banks should also be prevented from doing so. Are bank charges any different from air fares?

 

Is it not dual standards to allow the financial industry to get away with it but not the airways industry where is the fairness in that? Where would we be if all makers of bread etc. got together and charged £30.00 per loaf or one did it and the rest followed suit?

 

In my opinion lady hales speech was a bit of engaged mouth before putting brain into gear, in that it was not thought out to the fullest extent.

 

If any price control is allowed to exist it should NOT be run by the people who are in a position to exploit it.

 

Or in short - it is not a matter of creating a price control it is more of getting rid of one!!!!!

Edited March 4, 2010 by rdm2006

[rdm2006]

In my opinion lady hales speech was a bit of engaged mouth before putting brain into gear, in that it was not thought out to the fullest extent.

 

I want to explain this comment.

 

It is all very well to apply this reasoning to one area, but suppose this then moved to all other industries could the country function ? I don't think so....

 

like charging for a paper bill - what if the retail industry followed that of the communications industry you go into xbury's do your shop go to the till when all is scanned the assistant says i can email your bill or you can pay £5.00 for a paper copy oh and an extra £1.00 to have it itemised and a further £5.00 if you wish to pay by any other means than direct debit.

If they then adopted the banks methods - by passing me an item to scan you are requesting a paper bill.

 

Is it a matter of at what point do you stop it or more a matter of how far do you allow it to go!!?

 

or do you just prevent it from happening for the better of society.

 

what a mess we would be in!!!

 

I am not a banana nor a learned scholar i am just your average joe with a bit of common sense

 

perhaps we need a common sense act of 2010.

 

sod windows 7 the common sense act was my idea :grin:

 

Rant over! lol

Edited March 4, 2010 by rdm2006

[Bookworm]

I think this may be an opportune moment for me to set out again the words of Lady Hale. She did not say much, but what she said encapsulates the problem of bank charges succinctly and exquisitely:

 

...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.

There speaks someone whose feet have not been planted in the real world for a very long time, if ever.

 

I have highlighted the only truly relevant part of her Pontius Pilate speech.

 

What she failed to/chose to ignore is that in this instance, we don't want the "product". Most of us (and I am talking of the well less off here) would even happily do without a bank for day to day living. But no, it has been decided that our wages and benefits must be paid in a bank account, thereby reinforcing the incestuous relationship between the banks and the government, regardless of which party is in power at the time. No matter what, OUR money is being processed BY the banks, FOR the banks, and they get first dibs on them no matter what we say.

 

Maybe the unfair relationship happens not at bank contract point, but even before that, when the only choice we are given is which evil to pick. Maybe the imbalance in the contract is created then, when we are funnelled in a system from which we can not opt-out. Now there's a thought.

[royboy68]

In actual fact Bookworm, after reading and digesting your highlighted point that Lady Hale made, personally I would rather have the situation in reverse regarding bank accounts, with my eyes wide open I would want the money in question more than I would want the product.

[Bookworm]

Exactly. Who would want such a flawed product, where the cost outweighs the benefit, where the poor subsidise the better-off, where you get little if any consideration for your money, where service is appalling?

 

We get encouraged to be green, ethical, eat better, treat people fairly and kindly, donate to the under-privileged, yet here we have a system which actively takes from the poor to give to the rich, and that gets condoned by both the government and the "justice" system?

[hsbcfiddled]

when i started work you could be paid in cash but then the businesses would be robbed, we have now automated this step to reduce the robberies but now the banks are both the people who secure your money in one hand and rob you of it in the other.

 

 

Brilliant RDM- I am laughing but mad at the same time because it summarises banks so well.

[JGJ]

Keeping it short and not so sweet.

 

"Bankers" = *ANKERS

 

 

 

"EXEMPLO DUCEMUS"

[GuidoT]

Exactly. Who would want such a flawed product, where the cost outweighs the benefit, where the poor subsidise the better-off, where you get little if any consideration for your money, where service is appalling?

 

We get encouraged to be green, ethical, eat better, treat people fairly and kindly, donate to the under-privileged, yet here we have a system which actively takes from the poor to give to the rich, and that gets condoned by both the government and the "justice" system?

 

Oh Bookie, such dramatics, you still drunk from your birthday or maybe your load bearing wall fell on you.

[Bookworm]

[Aequitas]

There speaks someone whose feet have not been planted in the real world for a very long time, if ever.

 

I have highlighted the only truly relevant part of her Pontius Pilate speech.

 

You have ignored the words that preface that comment, thereby taking it out of context:

 

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.

 

What she failed to/chose to ignore is that in this instance, we don't want the "product". Most of us (and I am talking of the well less off here) would even happily do without a bank for day to day living. But no, it has been decided that our wages and benefits must be paid in a bank account, thereby reinforcing the incestuous relationship between the banks and the government, regardless of which party is in power at the time. No matter what, OUR money is being processed BY the banks, FOR the banks, and they get first dibs on them no matter what we say.

 

Maybe the unfair relationship happens not at bank contract point, but even before that, when the only choice we are given is which evil to pick. Maybe the imbalance in the contract is created then, when we are funnelled in a system from which we can not opt-out. Now there's a thought.

 

But that is what Lady Hale said:

 

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?

 

What Lady Hale is saying and what I tried to say is this: the question of bank charges needs to be considered in the wider context and the present state of the law is that if there is a solution it is not immediately apparent what it is, except possibly to attack the lack of choice. Any solution looks like being political. Do not expect a political solution bearing in mind that a political solution is unlikely given the current socio-economic zeitgeist - the consequences are just too far reaching.

 

I am more than happy to engage in a discussion about fundamental changes in society, but this is a forum that deals with the practicalities of consumer rights. I am sure that some compromise can be worked out, but the bank's recent victory has not put them in the mood to compromise.

 

The decision was made to attack the banks using the law, but the weapons chosen have proved as effective as throwing a handful of gravel at a man in a suit of armour. Someone may come up with a weapon like those daggers they used to slip between the plates of armour; I hope they do.

 

I cannot help feeling that the whole approach has been wrong.

 

First, I think it would have been far more effective to have adopted a less belligerent approach. Whilst I am not suggesting that we should all have adopted the stance of an El Greco saint and looked up to heaven hoping to melt the hearts of those who run banks, something along those lines might have had some effect. You may say that that is hopelessly naive, but there does come a point when even the wickedest of capitalists have to take notice of what their customers are telling them. And if there is anything that is naive it is the apparent insistence by some that banks should operate bank accounts on the basis that they only charge what it costs them. Indeed that insistence lay at the heart of the penalties argument because if a charge is a penalty it cannot be made at all. The simple fact is that the banks were being asked to pay back huge amounts to their customers and they had to be expected to resist.

 

Secondly, rather than concentrating on whether the charges were excessive or intrinsically unfair, attention should have been paid to the fact that, whether the charges were reasonable or not having regard to the service supplied, banks were engineering situations to generate charges.

 

Thirdly, there should have been a more "where do we go from here" approach. Concentrating on how the system could be made more equitable may have seen some progress. The banks do not mind how their profits are generated as long as they generate them. We must not forget (and it is important so I put it in red) that the present system is the result of consumer pressure. What people are asking for is to put the clock back to what we had 30/40 years ago. I am old enough to remember when you paid for every transaction. It is the old story - be careful what you ask for, you may get it. We asked for free-if-in-credit banking;we got it; now we do not like it.

[rdm2006]

I am old enough to remember when you paid for every transaction. It is the old story - be careful what you ask for, you may get it. We asked for free-if-in-credit banking;we got it; now we do not like it.

 

I don't know where you banked but i didn't have this - i remember when we had to keep a minimum of £100 in the account, that was then abolished and for a short year or two we had free banking if in credit without huge charges then a situation arose where you had to have your monthly salary paid into an account and those paid by a weekly wage could still have cash charges started to come in but at a more sensible level, then the weekly wage departed and became a monthly wage also paid directly to an account and that was when some one realised that they had a captive audience and the rest we all know.

 

As i said before, it is not a matter of creating a price control, it is more a matter of getting rid of one.

 

One which has been falsely created and run by the very people who are in a situation to abuse it, and frequently do so.

 

Regarding this being brought about by consumer demand, I beg to differ, most people even now would like to be paid in cash and not bother with a bank account but other businesses and government have seen the benefits of pay day robberies disappear (and replaced with daylight robberies of Mr Joe Taxpayer)

Edited March 5, 2010 by rdm2006

[means2anend]

I don't know where you banked but i didn't have this - i remember when we had to keep a minimum of £100 in the account, that was then abolished and for a short year or two we had free banking if in credit without huge charges then a situation arose where you had to have your monthly salary paid into an account and those paid by a weekly wage could still have cash charges started to come in but at a more sensible level, then the weekly wage departed and became a monthly wage also paid directly to an account and that was when some one realised that they had a captive audience and the rest we all know.

 

As i said before, it is not a matter of creating a price control, it is more a matter of getting rid of one.

 

One which has been falsely created and run by the very people who are in a situation to abuse it, and frequently do so.

 

 

 

aaahhhh!!! memories...the weekly wage..not so long ago..and yet it feels like another time altogether.

[Bookworm]

RDM is spot on. The present system is NOT the result of consumer pressure.

 

If everyone had a choice to get their wages cash in hand first and then put it in the bank (or not, as the case may be), the banks would be falling over themselves to try and entice us through their doors, because without that constant cash flow, they can not exist. A bank which doesn't get enough deposits through the doors soon is no longer a live bank, it joins the heavenly choir, it ceases to be, it is a dead bank. OTOH, a bank which gets to our dosh before we get a chance to has all the trumps and indeed a very captive audience.

First, I think it would have been far more effective to have adopted a less belligerent approach. Whilst I am not suggesting that we should all have adopted the stance of an El Greco saint and looked up to heaven hoping to melt the hearts of those who run banks, something along those lines might have had some effect. You may say that that is hopelessly naive, but there does come a point when even the wickedest of capitalists have to take notice of what their customers are telling them.

It IS hopelessly naive, and it IS desperately out of touch, and evidence proves that those wickedest of capitalists DIDN'T take a blind bit of notice and just tightened the screws further and further. Your argument is no more than a thinly disguised version of what the BBA et al have been feeding to the media: "talk to us and we'll try to help"... when in reality they would do nothing of the kind.

 

Less belligerent? Don't you think most of us had tried that for years? Don't you think that most of us had to leave their dignity at the door and go cap in hand beg for extensions on overdrafts the banks themselves had created with their charges? Do you KNOW what it feels like to be treated like a diseased maggot because you have the front to ask for a tenner to pay for the shopping and some snotty bank teller then gives you a lecture on how you should manage your finances better when it is his employer which has put you in that position? Have YOU ever been in that position? If not, please do not presume to tell us we should have been less belligerent.

 

Apathy is what comes to people naturally. Belligerence only happens once the camel's back is broken. And this particular situation is solely of the banks' making.

And if there is anything that is naive it is the apparent insistence by some that banks should operate bank accounts on the basis that they only charge what it costs them.

Yet again you misinterpret what we have been saying all along. No-one said the banks were not allowed to make a profit. The vast majority were even content with being charged more than what it would cost the banks because after all "it was my fault", and never under-estimate our own capacity for mea culpa-ing to the hilt. If the banks hadn't decided to bleed the cash cow as well as milking her, the bank charges revolt would probably have never happened.

 

You know, it's weird. With you Aequitas, it's just like starting the whole thing all over again like we did 4 years ago. You use the same arguments as the banks did, you try to turn the blame on us in the same manner the banks did, you completely disregard the banks' part in this whole fiasco... Oh sure, you make a small concession that you think the bank charges are too high, but then everything else you say is meant to put the blame on everyone but the banks. It's all very odd.

[Mr Silver]

Good morning fellow Caggers.

 

I’ve been following this thread with fascination over night! Compelling reading!

 

 

But I am now somewhat confused on my next course of action in relation to re-claiming past unfair credit card charges and specifically the number of years that I can claim for in the past?

 

 

Now, it was my previous understanding that you could only reclaim unfair credit card charges for up to 6 years from the date of claim?

 

 

Or rather you could only request a breakdown of charges from a bank / credit card company for a maximum 6 year period in the past using SAR under the DPA route?

 

 

But is there another route that gives you more years? Like fraud by the bank (see below)?

 

 

The limitation period regarding a new decision in consumer law is from 2006 – the update to the CCA unfair credit card charges gives a claimant up to the year 2012 to commence legal court action?

 

 

However when my credit card company- bank took me to Court and issued a CCJ in 2007 for the alleged credit card debt which included several hundred £ pounds in unfair charges they were not only acting unlawfully in demanding unfair (penalty) charges, they were also committing an act of fraud by virtue of the credit card bank knowing that the previous charges from pre-2006 were now in fact unlawful and unfair yet demanded and got (when I paid) those unlawful charges!

 

 

They surely can’t plead ignorance??

 

 

Therefore, based on Kleinwort Benson case and decision cited above, can I claim for ALL the unfair and unlawful charges back to the year 1995 under the CCA?

 

 

Moreover, can I prosecute the Directors of the credit card Bank for fraud too?

As well as damages, distress, and subsequent injury to ‘credit worthiness’ and defamation / libel in processing and passing inaccurate debt information to third parties e.g. Credit References Agencies and DCAs and the County Court and the Registry Trust. Also breach of the Data Protection Act.

 

 

European Consumer Law: having briefly looked at the two ECJ judgements on EU Consumer law, cited above, surely even the Supreme Court OFT v Banks Test case judgement is should have be null and void since the Supreme Court should by its ‘own motion’ look at unfair terms in national Consumer cases and follow the EU consumer law and case law of the ECJ?

 

 

Am I missing something?

 

 

Any thoughts and advice?

 

Thanks.

Edited March 5, 2010 by Mr Silver
Typos and tidying up paragraphs for ease of reading!

[rdm2006]

Posted By Bookworm

You know, it's weird. With you Aequitas, it's just like starting the whole thing all over again like we did 4 years ago. You use the same arguments as the banks did, you try to turn the blame on us in the same manner the banks did, you completely disregard the banks' part in this whole fiasco... Oh sure, you make a small concession that you think the bank charges are too high, but then everything else you say is meant to put the blame on everyone but the banks. It's all very odd.

 

That is extremely tame, I am so glad you are exercising restraint

 

Lets leave the mud slinging for the politicians - after all it is the ONLY thing they are good at.

 

whats the betting I am told to sod off lol

Edited March 5, 2010 by rdm2006

[ncf355]

Hi all,

 

so, just had a letter from Lloyds re the overdraft balance

 

Basically we told all their bully boys we wouldnt pay a penny due to the charges and interest exceeding the amount owed, and it would seem Lloyds have given up on getting the DCA's to do their dirty work

 

They have now written giving us 10 days to repay the full balance "to avoid legal action"

 

New tactic, or have others seen this?

[emandcole]

I am being chased for an £1100 OD when their charges amount to more than £3000 for an old student account (which incidentally they can't produce any T&C's for) and I've been holding them off for more than 18 months.

 

Have had various pay within X days or else and other than a few DCA's getting involved and passing it back, including the involvement of their in house solicitors they've not followed it up with litigation.

 

Ask them for the T&C's as Lloyds sometimes struggle to provide them if the account is old (mine was opened sometime around 1993 before being converted into different types of account as my needs changed) and also ask them for the OD paperwork detailing the terms of any OD they gave you.

[ncf355]

I am being chased for an £1100 OD when their charges amount to more than £3000 for an old student account (which incidentally they can't produce any T&C's for) and I've been holding them off for more than 18 months.

 

Have had various pay within X days or else and other than a few DCA's getting involved and passing it back, including the involvement of their in house solicitors they've not followed it up with litigation.

 

Ask them for the T&C's as Lloyds sometimes struggle to provide them if the account is old (mine was opened sometime around 1993 before being converted into different types of account as my needs changed) and also ask them for the OD paperwork detailing the terms of any OD they gave you.

 

 

Hi EandC,

 

I did a CCA on them some time ago, they have failed to produce the terms (citing the usual "too long ago" bull) and have also failed to show either a CCA or the alternative letter sent at inception (as possibly allowed by the CCA 74' regs for overdrafts)

 

I'm not overly concerned at their actions as in fact if they did take action they would save me the cost of starting the claim as the S140a and UTCCR arguments would be in my defence and counterclaim

 

Will be interesting to see how this pans out

[emandcole]

Great .