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

[hacksaw]

I've waited this long, a few more years doesnt bother me, but obviously there are a lot of people desperate for the money and the banks will take advantage of that wherever they can

 

 

I see,

 

Hungry for another 2 year court case and stay that takes us nowhere are you?

 

Personally I'd be more than happy if the OFT just dissapered up its own jacksy and left us to it

ncf355 you said in a previous post (above) that a few more years waiting doesnt bother you. What made you changed your mind?

[srfrench]

Ha ha.....he changed his mind after seeing his bank balance I bet

[emandcole]

How on earth are the British people putting up with this nonsense. At least you know where you are with a mugger. 40k per family and the *ankers are sulking about bonuses, absolute disgrace. Thing is they'll get their way...again. Why? The public are soft and don't fight for anything any more. Thank God Hitler tried to invade when the country still had a spine. Can't we all riot or start huge protests in London on Threadneedle Street?

[srfrench]

Just a briefy...again....

 

Unfair Terms in Consumer Contracts Regulations 1999

The UTCCR 1999 replace the 1994 Regulations of the same name. They derive from an EU Directive and apply only to consumer contracts (Reg 4). A term will be regarded as unfair under Reg 5 if:

• It has not been individually negotiated

  
  

• It is contrary to the requirement of good faith

  
  

• It causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer

  
  

• Sch 2 contains an indicative but not exhaustive list of what may be regarded as unfair

  
  

Reg 6 the fairness of a term shall be assessed with reference to:

• The nature of the goods and services

  
  

• All circumstances attending to the conclusion of the contract

  
  

Where the term is clear the fairness of the term can not relate to

• the definition of the subject matter of the contract or
  
• the adequacy of the price or remuneration
  

See also:

Director General of Fair Trading v First National Bank

[2001] UKHL 52

Case summary

Reg 8 If a term is found to be unfair it is not binding on the consumer. The rest of the contract remains valid

Further reading:

 

Law Commission Report - Unfair Terms in Contracts 2005

[InformedSearcher]

How on earth are the British people putting up with this nonsense. At least you know where you are with a mugger. 40k per family and the *ankers are sulking about bonuses, absolute disgrace. Thing is they'll get their way...again. Why? The public are soft and don't fight for anything any more. Thank God Hitler tried to invade when the country still had a spine. Can't we all riot or start huge protests in London on Threadneedle Street?

 

Because they do! Who would you complain to anyway? I often as of late look in dismay at things. From the Somalien lady (and kids) rehoused by Westminster CC in the news at a cost of £1600(!!) per week (and saying she does not want to move again-I wonder why) to the RBS bonuses (for jobs I've NEVER seen advertised in the 1st place). We could go on!

 

Michael

[Stornoway]

Nice to see that the audit office estimate of the total cost to the taxpayer to bail out the banks will be around £850bn

 

WT (naughty word) couldnt we plumb this into the post office/ giving cash to those that lost out when the banks went tits up and just let all but say 1 or 2 smaller banks fail?

 

RBS and the like shouldve been left to go to the wall, I dont believe for a minute we would have had the doomsday scenario the govt. use to justify this disgrace that has befallen us over the last year or so

 

Guys

 

If there is one thing I've learned since the credit crunch started then its that you cant believe the media. The £850bn is not a cost that will never be recovered;

1) purchased £37bn of shares in RBS and Lloyds Banking Group and, in November 2009, agreed to purchase up to an additional £39bn of shares in both banks. THESE SHARES HAVE REAL VALUE AND THE GOVERNMENT IS LIKELY TO GET THEIR MONEY BACK AND MAKE A PROFIT.

2) protected the Bank of England against losses by providing over £200bn of liquidity support. THESE WERE SHORT TERM LOANS TO THE BANKS BACKED BY ASSETS AND IN MANY CASES THE LOANS HAVE ALREADY BEEN REPAID

3) agreed to guarantee up to £250bn of borrowing by banks AS STATED THESE WERE GUARANTEES (THAT HAVENT BEEN CALLED).

4) provided approximately £40bn of loans and other funding to building society Bradford & Bingley - those assets not sold to Spain's Santander - and the Financial Services Compensation Scheme AGAIN THESE ARE LOANS BACKED BY ASSETS FROM B&B. THE MONEY WILL BE REPAID AS B&B'S LOAN BOOK S UNWOUND

5) agreed in principle to provide insurance for over £600bn of bank assets, reduced to just over £280bn in November 2009. THIS IS PROBABLY THE MOST RISKY PART OF THE PACKAGE BUT AGAIN ITS ASSET BACKED AND VERY UNLIKELY THAT THE FULL AMOUNT WILL BE LOST.

 

RBS is one of the largest small business lenders in the country - if you let it go to the wall then what would these businesses have done. What about all the people that had savings with RBS ?

 

S

[InformedSearcher]

Well actually the same as other UK commerial businesses. Where there any bailouts for other places - erm, that'll be a 'no' then. This by the way did not come cheap as the government filled the pockets of unknown 'advisors' to the tune of many millions. So where did the treasury fit into this share of events? Where did the quango's detailed to ensuring this could never happen fit into it? I take it all the 'helpers' are still in business or employed?

Many of us tend to miss the point in the fact it should never have happened. These people remember are the mainstay of society keeping the UK economy afloat are they not? That does not mean at the cost of the taxpayer not on the backs of people getting to paid to solve problems that should have been both forseen and audited to avoid this. Did these same etities give the UK government (as in the taxpayer) anything back in their succesful years - The answer yet again is no and they are even cute enough to avoid paying taxes the average business cannot escape from.

 

Michael

[JonCris]

Guys

 

If there is one thing I've learned since the credit crunch started then its that you cant believe the media. The £850bn is not a cost that will never be recovered;

1) purchased £37bn of shares in RBS and Lloyds Banking Group and, in November 2009, agreed to purchase up to an additional £39bn of shares in both banks. THESE SHARES HAVE REAL VALUE AND THE GOVERNMENT IS LIKELY TO GET THEIR MONEY BACK AND MAKE A PROFIT.

2) protected the Bank of England against losses by providing over £200bn of liquidity support. THESE WERE SHORT TERM LOANS TO THE BANKS BACKED BY ASSETS AND IN MANY CASES THE LOANS HAVE ALREADY BEEN REPAID

3) agreed to guarantee up to £250bn of borrowing by banks AS STATED THESE WERE GUARANTEES (THAT HAVENT BEEN CALLED).

4) provided approximately £40bn of loans and other funding to building society Bradford & Bingley - those assets not sold to Spain's Santander - and the Financial Services Compensation Scheme AGAIN THESE ARE LOANS BACKED BY ASSETS FROM B&B. THE MONEY WILL BE REPAID AS B&B'S LOAN BOOK S UNWOUND

5) agreed in principle to provide insurance for over £600bn of bank assets, reduced to just over £280bn in November 2009. THIS IS PROBABLY THE MOST RISKY PART OF THE PACKAGE BUT AGAIN ITS ASSET BACKED AND VERY UNLIKELY THAT THE FULL AMOUNT WILL BE LOST.

 

RBS is one of the largest small business lenders in the country - if you let it go to the wall then what would these businesses have done. What about all the people that had savings with RBS ?

 

S[/quote

 

Considering the current WW economy just where did they get the money to pay back anything Sure they didn't just substitute one loan for another by using tax payers money creatively ...... a sort of massive Ponzi scheme ......... much like their securitization

[Beck1968]

Considering the current WW economy just where did they get the money to pay back anything Sure they didn't just substitute one loan for another by using tax payers money creatively ...... a sort of massive Ponzi scheme ......... much like their securitization

 

 

 

Yup.....................

[yourbank]

Just a briefy...again....

 

Unfair Terms in Consumer Contracts Regulations 1999

The UTCCR 1999 replace the 1994 Regulations of the same name. They derive from an EU Directive and apply only to consumer contracts (Reg 4). A term will be regarded as unfair under Reg 5 if:

 

• It has not been individually negotiated

  
  

• It is contrary to the requirement of good faith

  
  

• It causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer

  
  

• Sch 2 contains an indicative but not exhaustive list of what may be regarded as unfair

  
  

Reg 6 the fairness of a term shall be assessed with reference to:

 

• The nature of the goods and services

  
  

• All circumstances attending to the conclusion of the contract

  
  

Where the term is clear the fairness of the term can not relate to

 

• the definition of the subject matter of the contract or
  
• the adequacy of the price or remuneration
  

 

See also:

Director General of Fair Trading v First National Bank

[2001] UKHL 52

Case summary

Reg 8 If a term is found to be unfair it is not binding on the consumer. The rest of the contract remains valid

 

Further reading:

 

Law Commission Report - Unfair Terms in Contracts 2005

 

 

 

Stop it, we might just talk about this which is clearly OFF TOPIC

[caro]

I fear that apart from the legalities, the current economic climate, banks behaviour, politics, and quite possibly many other issues are all relevant, and it would be naive to think otherwise.

 

When the banks had to be bailed out it gave them more leverage to avoid paying back what they owe their customers, so yet again they've wriggled out of paying everyone back - for now.

 

And the credit industry accuse CAG of encouraging debt evasion!!!

[yourbank]

I fear that apart from the legalities, the current economic climate(improving), banks behaviour(questionable), politics(oh god, are we really going there), and quite possibly many other issues are all relevant, and it would be naive to think otherwise.

Apologies but people are concerned TODAY and this month on the legalities only since many CAGGERs have claims stayed in the courts that require action within 28 days of the end of the case at the latest(which is December 23rd). Other issues, whilst important for the future are not relevant today. Apologies for my naivety but I am very very naive.

When the banks had to be bailed out it gave them more leverage to avoid paying back what they owe their customers, so yet again they've wriggled out of paying everyone back - for now.

Are you saying the Supreme Court judgement was politically and economically influenced rather than based on the law?(it is how I am reading the statement).

And the credit industry accuse CAG of encouraging debt evasion!!!

The credit industry mentioned about 6 sites including CAG so thankfully you were not alone on this occasion.

The issues are about the way forward re Reg 5 but the problem is that you have to be able to contest it without 6.2(b) which I think Aequitas has said is a tough nut to crack.

 

My question directly to Aequitas is that if UTCCR's is thrown out the window, what is left perhaps?

If UTCCR's is not out of the window, how does Reg 5 allow historic charges to be contested(given that some terms could be penal for NatWest 2001-03--which could throw up something completely different)?

[Bookworm]

Are you saying the Supreme Court judgement was politically and economically influenced rather than based on the law?

Are you saying it wasn't? And you know that for sure?

 

High court judges, appeal judges, ALL agreed that the OFT was right. Even the lawyers for the other side expected to lose (see the "it would be terrible for us if we lost" given as mitigation at appeal). The OFT lawyers themselves went to court on that premise and one has to assume they were slightly more knowledgeable than a 1st year law student. Yet, the SC judges found that everyone else was in fact wrong with the result that the banks got away with this again, and you believe that their judgment was purely motivated by the law?

Apologies for my naivety but I am very very naive.

You said it buster. ;-)

[HSBCrusher]

Are you saying it wasn't? And you know that for sure?

 

If I was a betting man...

 

the whole system is bent and morally bankrupt.

[noomill060]

The whole charade was choreographed from the start, FFS.

 

(IMHO)

[HSBCrusher]

http://www.consumeractiongroup.co.uk/forum/show-post/post-2069242.html

 

yup.

[yourbank]

Are you saying it wasn't? And you know that for sure?

Well, as far as I am aware they based their decision on the Law, and on the EC directive which it came from. On that basis I am certain that it was based on law. If you have evidence of the contrary and not some unproven and unsubstantiated musings then please post it up.

High court judges, appeal judges, ALL agreed that the OFT was right. Even the lawyers for the other side expected to lose (see the "it would be terrible for us if we lost" given as mitigation at appeal). The OFT lawyers themselves went to court on that premise and one has to assume they were slightly more knowledgeable than a 1st year law student. Yet, the SC judges found that everyone else was in fact wrong with the result that the banks got away with this again, and you believe that their judgment was purely motivated by the law?You said it buster. ;-)

 

The reason I was asking Aequitas the question is because I do think he has a very valuable input to make. He was, the first on this site, to state the penalty argument under common law was questionable and unfortunately was proven correct. Furthermore, I am interested now in the fact the Regulation 5(1) is in yet price considerations are out so the question in my mind is really, is there a case for a refund of charges based on UTCCR 1999 or is there another avenue?

I think the question is case law being required for unenforceability of a contract based on Reg 5(1).

Bookster, If you have some, it would be good to see since at the end of the day, the SC case is OVER, the banks' won on UTCCR 1999 s.6.2(b).

I never spotted the OFT's err in their thinking or the case looking more at the overall fact that a win was a win. You make those mistakes only once so the question is how to support an argument in law and whether that consequentially means that refunds can have a basis in law. We had one door locked so I want to make sure that we have the key to the other one and that the bank does not have wood to board it up.

At the moment, I am still not yet convinced of the argument and if someone is to go before a judge which, in the early days of CAG, you had to be prepared to do, then we need to have the argument nailed down so that everyone understands it and can argue it.

[kennyh]

First posted by YB

I never spotted the OFT's err in their thinking

You and many many others!

if someone is to go before a judge which, in the early days of CAG, you had to be prepared to do,

How does the song go - 'Let's go round again'

then we need to have the argument nailed down so that everyone understands it and can argue it.

Will not the revised temps give us a start point on this quest?

[paulwlton]

The reason I was asking Aequitas the question is because I do think he has a very valuable input to make. He was, the first on this site, to state the penalty argument under common law was questionable and unfortunately was proven correct. Furthermore, I am interested now in the fact the Regulation 5(1) is in yet price considerations are out so the question in my mind is really, is there a case for a refund of charges based on UTCCR 1999 or is there another avenue?

I think the question is case law being required for unenforceability of a contract based on Reg 5(1).

Bookster, If you have some, it would be good to see since at the end of the day, the SC case is OVER, the banks' won on UTCCR 1999 s.6.2(b).

I never spotted the OFT's err in their thinking or the case looking more at the overall fact that a win was a win. You make those mistakes only once so the question is how to support an argument in law and whether that consequentially means that refunds can have a basis in law. We had one door locked so I want to make sure that we have the key to the other one and that the bank does not have wood to board it up.

At the moment, I am still not yet convinced of the argument and if someone is to go before a judge which, in the early days of CAG, you had to be prepared to do, then we need to have the argument nailed down so that everyone understands it and can argue it.

 

To open a bank account one has to agree to the charges subsumed in their standard terms and conditions, but! all banking t&cs are analogous so, the customer has no real choice....bankers got their heads together on this one.

 

The poor and vulnerable have been shafted. The banks have sought and obtained judgments on accounts that were predominantly made up of unlawful/ immoral charges knowing full well the ignorant recipient would not have the know how, or knowledge to forward a challenge.

 

Of course bank charges are unfair.

[Bookworm]

Well, as far as I am aware they based their decision on the Law, and on the EC directive which it came from. On that basis I am certain that it was based on law. If you have evidence of the contrary and not some unproven and unsubstantiated musings then please post it up.

We could go round in circles for a long time here. You see, as far as I am aware, the previous judges based their decision on the law and on the EC directive from which it came. On that basis, I am fairly certain their decision was based on law. The fact that the upper ranks then turned on its head when it's the most convenient does make me wonder, yes.

The reason I was asking Aequitas the question is because I do think he has a very valuable input to make.

 

He was, the first on this site, to state the penalty argument under common law was questionable and unfortunately was proven correct.

I wish I could agree, but unfortunately, all I have ever seen in his posts have been of the "you're wrong, you're wrong" variety without ever coming up with anything in the way of an alternative. More recently, he has been saying things like "the penalty argument was so flawed that a 1st yr law student could have spotted it", which I am sure Justice McKay would have been delighted to hear as it was obvious that he firmly believed in the penalty argument. People like Mike Dailly, Marc Gander, Steven Hone and other students, practitioners and teachers of the law also quite obviously believed in its merit, so the gratuitous insults of these people after the event I can not see as constructive in any manner. And frankly, if we go down the conspiracy theory route, the "proven" argument about penalties is no less fishy than the failure of the OFT to pursue it.

Furthermore, I am interested now in the fact the Regulation 5(1) is in yet price considerations are out so the question in my mind is really, is there a case for a refund of charges based on UTCCR 1999 or is there another avenue?

I think the question is case law being required for unenforceability of a contract based on Reg 5(1).

why don't we wait and see what the lawyers working behind the scenes have to say in that respect?

Bookster, If you have some, it would be good to see since at the end of the day, the SC case is OVER, the banks' won on UTCCR 1999 s.6.2(b).

Some what? :-?

I never spotted the OFT's err in their thinking

Well, the fact that they narrowed down their test case to one narrow point of the UTCCR feels pretty erratic to me if they were determined to go all out and secure a win for the consumer. Of course, IF we think put-up job, then it's not erratic at all...

Think about all the missed opportunities: They could have appealed the penalty aspect... and didn't.

They could have based the UTCCR case on many sections, instead of which confined themselves on s.6.

 

Even the lesser lawyerly amongst us (supposedly!), used s.5 in our POC, yet the OFT didn't???

 

Put it this way: I took the DWP to appeal on Thursday because they didn't deem my son disabled enough to qualify for the higher rate of mobility. Because he's autistic and is physically capable of walking and running, it was a really difficult case to convince the panel. I had 2 possible approaches: The "virtually unable to walk" one, and the "mental impairment" one.

Do you know what I did? I chose BOTH. I argued both and provided case law and examples for both. I gave the tribunal the opportunity that if they said no to one ground, they could always say yes to the other one. (and I can report that against overwhelming odds, I DID win)

 

The OFT burnt their bridges and took one single narrow lane, and for my life, I can not understand why they did this.

 

We had one door locked so I want to make sure that we have the key to the other one and that the bank does not have wood to board it up.

Which is precisely what the OFT did, and that doesn't strike you as odd?

At the moment, I am still not yet convinced of the argument and if someone is to go before a judge which, in the early days of CAG, you had to be prepared to do, then we need to have the argument nailed down so that everyone understands it and can argue it

Well, there is that of course... What makes you think that the banks would be any keener to defend that argument now than they were 3 yrs ago?

 

It seems to me that this all stinks of damage limitation. The failure of the test case and the slant given by the media, following 2 years of stays, have made sure that the wind has been taken out of the bank charges revolt's sails, so to speak, and apart from us hardcore campaigners, the great consumer revolt is all but over. The banks couldn't want a better result. Even if a few of us still go against the banks on a one on one basis, it will be easy enough for them to pay out quietly... This kind of movement, once it loses its momentum, unfortunately can never pick up in quite the same way. We have been steamrolled, well and truly, make no mistake about it.

[HSBCrusher]

This kind of movement, once it loses its momentum, unfortunately can never pick up in quite the same way. We have been steamrolled, well and truly, make no mistake about it.

 

I hope you are wrong on that one Booky.

[car2403]

These arguments are circular, though, Paul;

 

1) Bank charges are recognised as being unfair

2) Unfair claims brought by claimants

3) Banks panic and the OFT steps in to "protect" consumers

4) Claims stayed during the process

5) The OFT makes a right balls up and argues the wrong points

6) The Courts say that the OFT can't judge fairness, only the Courts can do that

7) Stays lifted

8) Return to 1)

 

Now, if the OFT cannot judge fairness and protect the consumer in a vicious market where the market itself rigs the situation in it's own favour, what use is the OFT?

 

Ashtray on a motorbike?

Chocolate fireguard?

Trying to knit fog?

 

This could go on.

 

If we get rid of the OFT, the savings may just cover the 8% interest I'll be claiming on my outstanding claims, now I'm back in the game and the time out has came to an end

[rdm2006]

I have this piece of information saved to My Documents and a case picked out to explain it

 

 

do you still have it ? can it be posted / emailed ?

[rdm2006]

hsbc failed to credit my account with insurance payments and charged me £1270 for the pleasure. I proved them wrong with a letter from their subcontractors (on HSBC Headed paper LOL) saying that the bank were wrong. when i tried to charge them the same amount they refused and offered me £100 (less than 1/12) so it is clearly there for their own profit and i still have copies of the letters to prove it. Perhaps i should send that to the high court lol

[gezwee]

I think those with limited claim values should continue to seek damages via county court track where costs cannot be awarded. Regardless of recent judgement there is an opening for small claims to continue or to be effected with little or no risk to LIP.

 

It only takes the minority to win a decision for the majority to follow.