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

[Bookworm]

Lots of threads merged and duplicates removed, apologies to anyone who's been CAGbotted in the process!

 

It was felt that it would be easier to keep to one thread so that people do not miss one another's comments or information.

[Bookworm]

Penalty Charges has someone posting an update more or less daily, and MSE also sent someone (but not sure if it was every day or not, I think maybe not). Both of these are by members of the public, not legal people or trained to report objectively, so whatever you read will be a personal view of the reporter, with all it entails in the way of bias, but you can still get a view that way.

[Bookworm]

I'm not one of them.

[Bookworm]

Nope. I used to play a mean game of pools in my youth though. ;-)

[Bookworm]

You'd be wrong, as we speak, I have half a wild salmon with coconut milk, lime juice, pepper, chilli pepper, ginger, garlic, tomatoes in the oven, should be ready in about 10 mns. First time I am trying the recipe.

 

(Now we're REALLY off the OFT case topic! )

[Bookworm]

I've been told today that someone who works at the Halifax (obviously I know who this is - I'm being vague to hide their identity) - has been told to reduce the charges to £15 across the board as the banks have lost the test case but have come to a compromise agreement with the OFT of £15 per charge

 

This is going to be announced at the end of April - Now at the moment it is completely speculative - I don't have any written evidence of this but this person has been told something and it looks to be in our favour - I really hope so because I really really need the cash back

 

That sounds like rumour and speculation. Let's look at it closer, shall we?

"the banks have lost the test case" - Considering that the judge's decision is not expected until May at the earliest, and possiby even not until July, we have to assume that your contact at the Halifax has such a close relationship with the judge that the judge told that person what his decision will be a minimum of 2 months before it gets officially revealed.

 

"compromise agreement at £15 per charge" - If we look at that happened last time the OFT cracked down on the credit card companies, it is highly unlikely to be any compromise agreement, in fact, the banks screamed blue murder at the time about the £12 charge and only reluctantly complied with the OFT's directives when they had no other choice.

 

I'm sorry, but however nice a story it is, I don't believe it.

[Bookworm]

Furthermore, if the OFT win, they will then be able to publish their findings into the overdraft charges, the report having been postponed due to the test case, and fix a maximum charge at ehcih they themselves they will take action the way they did with the credit card charges, effectively capping those charges. I personally think these charges will be closer to the £20 mark. Regardless, these charges will still be challengeable under common law as not being a true pre-estimate of costs and recoverable through the courts.

[Bookworm]

It's £12 and it's not a "rule".

 

http://www.oft.gov.uk/shared_oft/reports/financial_products/oft842a.pdf

[Bookworm]

So much for it being kept under wraps until the judge handed judgment then!

[Bookworm]

Don't know about "not long to wait", HF, it's pretty much a given that the losing side will appeal... I do however believe that a judgment in favour of the OFT would increase the chances of things changing drastically, after all, the court of appeals would only overturn his ruling if the other side could come up with very convincing arguments to show that his decision was wrong!

 

I wonder whether, if the OFT wins, whether the banks will then start refunding more easily even before the decision of Appeals... Ah well, a girl can dream...

[Bookworm]

I can see it now photoman, everyone claiming the fees back under UTCCR

Well, not the business ones for starters... ;-)

[Bookworm]

Correct, up to a point.

 

Whilst today's result is indeed as you describe, don't forget that part of the bank's defence/counterclaim was asking for a declaration that the charges are lawful, which will be dealt with at a later stage.

 

If the banks lose the UTCCR arguments both now and on appeal, the OFT's decision will not be part of another legal case. If the OFT are found to have sway over the banks by virtue of the UTCCR, then they will be able to release their enquiry into bank charges (which is now complete but they have held off releasing it because of the test case) and the likely outcome is that they will then set an intervention threshold the way they did with the credit cards.

[Bookworm]

http://www.consumeractiongroup.co.uk/forum/bank-charges-consumer-issues/139901-breaking-news-oft-wins.html#post1489352

 

Really.

[Bookworm]

Very true... except This is Money seems to think they started it in December 2005, according to their article! Funny that.

[Bookworm]

Yes.

[Bookworm]

The Banks are pleased that the Court has agreed that their current charges are not unenforceable penalties. The Banks believe that the same analysis will apply to charges under their historic terms.

I'm sure they believe that, or rather that they are mightily relieved the judge fell for that one, but thankfully, what they believe or choose to believe is not necessarily what a judge would believe and therefore, nothing changed for charges pre-changes to T&Cs, except the bank will do its upmost to convince you that it applies.

 

In relation to the UTCCRs, the Court has emphasised in the judgment that the question of whether the Banks' charges satisfy the fairness requirement of the UTCCRs has not been determined by the Court. That is a question that can only ultimately be decided by the Court and not, for example, by the OFT.

Well, that's one way of spinning it. Of course, the OFT have never said that, nor that it could determine what would be a fair amount, and have always said that ultimately, it would be a court's decision.

 

It would seem that they won't accept capping by the OFT or have I read it wrong?

Maybe they will, maybe they won't... When the OFT set an intervention threshold for credit card charges (NOT a cap, although it ended beign a de facto cap, of course), they said the same, they all would appeal, they were being hard done by, oh, woe is us, we'll starve to death, so unfair, bla-di-bla... and then complied. Unless the OFT sets their intervention threshold at a - for us realistic, for the bank unconscionable - low level, it is likely they will knuckle down and will try to recoup their lost profits elsewhere.

[Bookworm]

BW where you bin girl?

 

The banks have already introduced many new charges to compensate for any loss of penalty charges:mad:

 

Maybe they will Charge you for withdrawing money out of your account, Paying money in (£0.70p per £100)

 

£0.50p for a direct Debt / Standing Order and £0.38 for using your debt card (Per item charge)

 

I noticed this has already happend to me with NatWest

That's the kind of thing I meant, JC, not the new fangled system, which let's face it, we must hope the OFT is going to stamp on with hobnailed boots once this is over. You tease.

[Bookworm]

Besides, what would have happened if the banks had been told to stop applying the charges and the OFT lost? The banks would have had then thousands and thousands of charges backdated to go into accounts, and who could pay these? You'd end up with thousands of people instantly made bankrupt!

 

Whilst I don't think the waiver was fair for consumers, stopping the banks from keeping on levying the charges on and on would not have been the wisest move either.

 

[2p]

[Bookworm]

Thank you, though it begs the question why the Banks chose to pay out at least £1bn without a whimper, when they could have simply paid any solicitor in the phone book, half an hour's fee to point this out to a DJ.

... Or why some judges up and down the country DID find that there was a breach of contract and therefore a penalty.

[Bookworm]

To put it another way, is there not something slightly odd about someone vehemently insisting that he is in breach of contract taking the moral high ground? (I do not say there necessarily is, I simply pose the question.)

There certainly is something odd about that, and it was one of the hardest things to get my head round, here I was arguing that I was in breach of contract, surely that makes me in the wrong? Well, yes, but to coin a cliche, 2 wrongs don't do a right, and the fact that I done the bank a wrong didn't give them the right to do me an even bigger one.

 

I think if you start going into "moral high ground" territory, you are going to get into even more slippery grounds, tbh. ;-)

[Bookworm]

As I understand it, Mr. Justice Smith was not asked to rule whether the charges were illegal or unfair - only whether the present T&Cs could be assessed for unfairness under the UTCCRs *or* the common-law rules about liquidated damages.

Not true. The OFT's case asks for a ruling about whether the UTCCR, but the banks' defence and counterclaim included the request for a declaration that the charges are not penalties. :-|

[Bookworm]

JC, you and I may disagree on many a thing, but not on this one... But you're not Justice Smith, and neither am I, and we can agree all we like, he doesn't...

[Bookworm]

Yes, everything is being worked on as we speak, but it's lots of docs and few people, so bear with us! ;-)

 

Star Scream, if you want to send in your letters, you might just want to remove the reference to the charges being unlawful at common law, but keep the reference to the UTCCR and send them like this, they don't read the letters anyway, and it's more important to get your complaint in than whether the wording is polished just right. ;-)

[Bookworm]

I think that BF actually meant to say FOS, not FSA, Jansus, I could be wrong, but it makes more sense if it's the FOS. ;-)

[Bookworm]

Hi

 

Are you saying then that it is still all Work on progress?

I thought the title:

 

Bank Charges at April 2008 - draft work in progress

 

would have been a bit of a clue. ;-)