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

[car2403]

This is from MSE's weekly email;

 

Bank Charges Result Thurs & 2,000,000 Thanks!

Bank Charges Test Case Result Due This Thur 24 April. The result of the Office of Fair Trading and Banks' court case will be handed down on Thurs. This will answer whether it’s possible bank charges can be unlawful under unfair contractual terms rules. If they can, the OFT must then say whether they are unlawful, which it’s likely to do.

 

I thought this wasn't a foregone conclusion, though?

 

Can we make £2million in the next 24 hours? I'm off to the bar! (Maybe)

[car2403]

I think its unfair the FSA allowed the banks to stay our claims but still allowed them to continue adding there charges.

 

its not fair to both parties

 

Until the charges are shown to be unlawful, they were hamstrung in that they couldn't stop them applying them while the stay was in process.

 

The Courts ultimately (in theory at least!) stay their own claims. The FSA can't stay Court claims.

 

Also, think what it would have done to the banks' profits (and probably still will, given the result) if they had stopped them applying charges.

[car2403]

If the OFT loses this case, nothing will happen except the Banks will try to recoup their legal costs.

 

If the OFT wins, free banking will end, the banks will offer us fees for service on each transaction - dependent on the type of 'service' rendered.

 

The parties have already agreed to pay their own costs, whatever the outcome.

 

The banks have already played with their T&C's to cover the situation where the OFT wins, as you've stated. Why is no one interested that this is against the FSA waiver, but yet here we all are with claims that are still stayed?

 

OK - I loose out to a small extent on interest, and £12 per charge, in the early stages, but that is more or less made up for by the 8% SI claimed, as both claims have been issued in Court.

 

I'm not sure why you'd agree to be partially penalised at all, never mind the extortionate amounts they have charged. I still think £12 is too high, which is still to be tested in Court where a true precedent, (not an opinion, which the OFT offers) can be set - we won't get there though, as they are too clever for all that.

 

The banks won't negotiate on this issue until the result is known and any appeal has been dealt with anyway, but you're welcome to try if you want. Personally, I'd rather not bother and continue to hold out - I've been waiting since day 1 of the waiver for over £4k (more now!) from NatWest. If it was as easy as offering to reduce the amount of my claim, in settlement, I would have taken the £1.5k they offered me after the waiver was announced.

 

It's your claim, so you have to manage it yourself, of course - this is just IMHO.

[car2403]

A contractual penalty can only arise in a case where there is a breach of contract. The correct analysis of any banking contract, whatever words may be used, shows that the circumstances in which bank charges are payable never amount to a breach of contract.

 

In your opinion - I have a different opinion.

 

Lets wait until a Judge actually decides the issue and sets that precedent - in the meantime, continue reclaiming, IMHO.

[car2403]

Once the utccr has been settled and we assume a fair amount or charge agreed then the penalty common law issue is not going to be a valid arguement. Purely because the banks will say it is a calculated loss amount. The main point is whether not complying with t and c is a breach of contract. If the t and c says if you go overdrawn we will charge you then this is not a breach surely but failing to comply with terms and condititons. What is needed is a legal explaniation of the term breach of contract. I would suggest as a lay person it will be something along the lines of the following. If the act causes the relationship not to function etc. for example going ten pounds overdrawn or not paying funds in or cancelling direct debits. This is my view for what its worth

 

Won't happen - the law of contract, where the law of penalites resides, has developed over hundreds of years and leaves this as a question of fact for a Judge to decide on.

 

Yes there is precedent for examples of breach of contract, but these can be distinguished from most cases depending on which side of the argument you sit on.

 

As our legal system is based on adversarial means, you put your point across, the other side argues against it, then the Judge decides who is right based on the arguments.

 

The problem with bank charges is that Judges have their own opinions that sway them either way - which is incredibly unfair for claimants. If the decision isn't based on the arguments put forward, the Judges' bias has to play a part. Trying to find the ratio decidendi (the reason for the decision) and distinguishing that from the obiter argument (outside of the reason for the decision) can be difficult. (This is way lawyers make the money they do and why litigants in person will always struggle, if they come across this)

[car2403]

However if they use the word penalty does this mean no charge full stop. Because it is a fine with no cost anaylis?

 

"A rose by any other name still smells as sweet"

 

A penalty is a penalty if a Judge decides that it is - what it is, or is not, called is irrelevant, as it depends on the facts of the case, not an opinion given by the OFT.

 

As soon as claimants go down the penalty route surely banks will say oft agreed £12.00 so this is a liquified loss. Another route is going to court under utccr claiming unfair or disproportiate to loss to the amount in question.

 

The Court would take a hollistic view, IMHO, and would consider the penalty issue before looking at the UTCCR issue - if it is a penalty, thats the end of it. If it isn't, then they'd consider the UTCCR.

 

If you claim on the UTCCR alone, that could scupper the result, as the penalty issue can only be looked at if it is raised by the parties.

 

What will happen is that the banks will agree with the OFT what the level of charges should be - anyone querying that amount in Court (which will be a extremely small number of people, IMHO) would just be paid out and be gagged as to the result. Most people, when told by the banks that "the OFT say this is right", would probably accept it and forget about it.

 

IMHO, of course...

[car2403]

Couldn't agree more...if historical Ts&Cs are not part of the evidence in the test case, then the claims relying on them should not form part of the stays and exclusions...

 

So surely there must be a way to have stays lifted now.

 

I still maintain that more pressure on MP's now should have an effect.

 

If the issues raised in the judgment weren't part of the case, they will still be seen as obiter and persuasive argument, although they aren't binding.

[car2403]

I think that worry probably comes 3 or 4 pages too late, TT.

 

And it's now 4 or 5

[car2403]

so any news yet ?

 

Seems not;

 

Page last updated at 08:12 GMT

 

The banks will make their decision known at a case management conference at the High Court in London on Thursday

 

BBC NEWS | Business | Banks may challenge charges case

[car2403]

Links to that site shouldn't be placed on this forum

[car2403]

set up Co-op account should have welcome pack in 10 days.... put this on front page of CAG and ask Martin Lewis to promote on his many TV appearances... Call it talk with your feet...

 

publicity means numbers

and it is numbers that force change

 

MP's , banks, CRA's , any company will only listen and make changes if their are massive numbers requesting change... This site has a great oppurtunuty to make change... somebody needs to Co-ordinate and use the front page to publicise. If CAG asked for donations to set up Credit unions, create pulicity or take FSA to court to lift waiver etc. I am certain many who could afford to would send donations. why not create a cause which ever is voted on , simple to set up blog vote on here I am sure, ie court action to lift waiver, petition to MP's , Fuel protest, which ever is felt is the most important initially etc etc , let people vote and then ask for donations to take it forward.....

 

That wouldn't work, IMHO.

 

Anyway, the ethos of this site is to help people to help themselves - we aren't here to do it for them.

 

If numbers talking would get results, surely the vast number of cases that have already been heard in the County Court - not to mention the current cases on hold - would have already achieved them, would they not?

[car2403]

The reports are suggesting that the inevitable has happened - the banks have appealed the decision the charges are subject to the test of fairness under the UTCCR, so that will have to go to the Court of Appeal sometime this year and will ultimately end up in the House of Lords sometime next year.

[car2403]

Did we ever expect the Banks not to appeal? Did we expect the OFT to not appeal if it hadn't gone their way? This was always on the cards, so I'm not sure why we are so surprised.

 

We could be jumping the gun about the waiver/stay continuing - it can't be in the interests of the masses for that situation to be drawn out unnecessarily. I suppose we'll have to wait and see what happens.

 

LJ "whateverhisfaceis" has said he will issue some guidance on how the courts should deal with stayed cases. It's unlikely that the stay will be removed, but his advice will probably fall on deaf ears anyway. In the words of the Judge that stayed my case "this decision is taken higher than [insert LJ "whateverhisfaceis" name here] and me, so the case will be stayed regardless". That's something we've tried to attack already - stay removal process, complaints to MP's, the OFT - but yet the stay remains.

 

Personally, I can't see the point in moving banks. The Co-op has a limited number of branches, so can afford to not charge so much in unfair charges.

 

Anyway, even if they make 7-10 billion during the appeal, that will still be recoverable once it's all finalised. Their intention, it seems then, is to "click" the interest on these billions over these years - it's just a shame that the bloody courts won't injunct the charges while the case is still underway.

 

Incidentally, where is the Government on all this? I wonder how many of us will vote for the party that promises to intervene in this whole process - how soon will they start jumping on that particular bandwagon, I wonder?

Edited May 24, 2008 by car2403

[car2403]

The 8% interest can only be claimed once it reaches the court stage and is a set %. The only interest amount that can possibly be altered is the CI interest

 

 

 

Well thats my understanding (but this area is not one of my strong points )

 

There is authority for reclaiming the contractual interest applied to the account, though. I haven't tried it myself, but I've seen threads where it is being reclaimed.

 

Statutory interest is a given once the claim issued and reclaiming contractual interest seems to depend on the circumstances and the opinion of the Judge.

[car2403]

Awww Bless...A 1yr old NEWBIE...

 

http://www.consumeractiongroup.co.uk/forum/cases-library/106112-sempra-metals-irc-july.html

 

...

 

Thanks for that, MTM - I couldn't find it when I looked.

 

Perhaps further thought to the following Thread MAY once again be topical + appropriate car2403??

can we have a new section in the forum for links to claims with contractual interest

 

...Methinks even the most apathetic NEWBIE Claimant is recognising the extra profits that the Banks are raking in when they are doing the basic maths between what they are STILL being Charged + what they would be expected to be able to Reclaim with s69 8%p.a. Simple Interest.

 

Perhaps a MORE concerted push for Daily Compounded Contractual Interest would also make the Banks squirm just a little??...

 

 

...

 

Couldn't agree more.

 

But, then, as I'm neither apathetic nor a newbie claimant, I don't benefit from having the link.

 

Lets start a compound interest fire under this lot then!

[car2403]

Im sorry to keep asking this but no one has helped as yet. Can someone please tell me or direct me to the arguments submitted to the Court by the banks that led the judge to grant them an appeal. I have not found a single argument put forward yet and as you know the banks can not simply appeal because they dont like the decision they have to have grounds.

 

Thank you.

 

TheyrCriminals

 

It could be because we haven't seen them, as you haven't.

 

I don't suppose the reasons for appeal will come in to the public domain until the appeal is heard, will it?

[car2403]

To go back on topic

 

Please do

 

are you guys aware that the FSA are proposing that hardship claims are being defined as £500 worth of charges during the year? I have read this across other forums. The topic is interrelated as the OFT test case was the cause of the FSA waiver in the first place.

 

If that's right, we all need to amend our claims to include contractual interest and compound contractual interest at that - once that's in there, the majority of them would be over £500, I would have thought?

 

Can anyone substantiate this view? Where does it come from and how do we use it?

 

Currently, mine is based on 8% interest, but I haven't bothered with it for almost a year now because of the stay situation.

[car2403]

I have the same issue - I'll let the site team know.

[car2403]

Maybe this thread should be combined with this one?

 

http://www.consumeractiongroup.co.uk/forum/oft-test-case-updates/155837-oft-bank-charges-q.html

[car2403]

HSBC have the facility in newcastle upon tyne to deposit money via the ATM. IS this a trial thing or is it widely used?

 

HBOS have been doing that for a while - in fact, because of the type of account I have, (Cardcash, because I was sooooo overdrawn with overdraft fees!) I can only pay cash in via a deposit machine now...

 

Don't use an ATM to pay in, as it isn't funded to the account immediately - these deposit machines actually count the cash, then pay it in immediately, so it becomes available funds straight away. ATM's have to be cleared out, deposits checked, then paid in, which can take a while.

[car2403]

Is this the end of free banking? and the future of banking?

Car is there a limit to how much you can deposit or is it a case that you cant deposit at the cashier counter?

 

Frankly, I don't care about free banking - I'd be happy to pay a fee if (and that's a big if) I get a decent service for the fee.

 

There's a limit of 50 notes per deposit, but you can use the machine over and over again - I often pay in more than £1000 in £20 notes, so it's possible.

 

HBOS will only allow those with "value added" accounts, (i.e., those that you have to pay for, or pay so much in to have the fee waived, etc) to pay in over the counter.

 

Having said that, I have been allowed to use the counter if the machine is on the blink - but that was after the Customer Service Rep tried, twice, to make the deposit for me, then said "oh, the machine isn't working, so you'll have to pay in over the counter" and went on to queue with me to tell the cashier to accept the payment. (Which the cashier promptly did - meaning it is possible for this account to be paid in over the counter, but HBOS frown on it)

 

I can just see it now, as it would be a great advertising coup for the first Bank to use it, "24 hour counter service available at every branch" - but the 24 hour bit is provided by deposit/ATM machines, rather than "real" people. (If you can call them "real"!)

[car2403]

I wonder why the county court is allowing undue influence from the government to interfere with our personal court cases.

 

I of course refer to so-called Judical independance from government.

 

The doctrine of the separation of powers is a complete farce and always had been.

 

Until the Judiciary are completely autonomous from the executive and legislature, we will see these injustices continue. That's the way it's meant to be, by the way.

 

With Lord Chief Justice "Whateverhisnameisthesedays" calling the shots in the Judiciary, as well as taking his salary and policitical connotations from the Government, the little man in the street has no chance.

[car2403]

I think it has to be said that the idea that contractual penalties have any application to any bank charges is pretty much dead in the water.

 

I'd have to disagree with that interpretation.

 

The caselaw on penalties is clear that what is, or is not, a penalty is a matter of fact based on the circumstances. The terms, including the detail of the wording, has to be considered alongside that, also.

 

What is happening here is that we are getting Judgment based on standard terms and conditions and not the individual circumstances of each case.

 

I cannot see the language used in terms and conditions for business customers being significantly different from that used in personal banking terms and conditions.

 

From what I've seen, they can be very different depending on which bank.

 

I hope I can be forgiven a wry smile when reading those posts that say that the argument never was about penalties.

 

I've always thought the question was about fairness - if they are unfair, they would be seen as penalties, in layman's terms, but not technically penalties in Law.

[car2403]

Re Today in Court

 

Interesting that RBS have more representations to make to the Judge and are the last ones left in the court.

 

This is a big IF but wern't they the Bank who the BBC said had prepared a division to pay back charges I wonder???

 

Maybe they are the odd one out who's charges CAN be tested as a penalty?

 

Just a thought!

 

Wasn't this HBOS?

[car2403]

You should check the wording of the original Order staying your claim, skeggs - each order seems to have been worded differently, depending on what was going on in the Court at that time, and some have expiry dates, (after which the claim will be dismissed) while others have open ended dates depending on when final Judgment in the Test Case is laid down. (Including any appeals process being completed)

 

If your Order has a specific date, you should write to the Court asking for further directions to be issued before that date, or you'll face your claim being dismissed without further notice.