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

[d1cky]

Great stuff, I think we could do with a few more CAG'ers involved. I could pick a few ppl id like to see in there, some from site team and some not from site team!

[gezwee]

Woohoo, I still get a hearing in February 2010 - think the 17 pages did the trick and they got tired of trying to complete the response. Mines a relative tiddler at 2k so may not get too far but will report if it gets a full hearing with the DJ.

 

Will ring the court manager in the morning and try to find out how many others are still being heard (if she'll tell me)...... if anybody wants to know which court (I'm in Kent) please PM me and i'll respond as soon as I can.

[Aequitas]

There is a concern that it will be difficult to litigate on fairness of structure, good faith or cross subsidy under 5(1) without touching on the adequacy of price which has been ruled out by the Supreme Court under regulation 6(2).

 

That is what I have been saying. The difficulty approaches the squaring the circle level.

 

Depending on counsels opinion, there is a possiblity of referring directly to the UTCCR greylist from EU directives and taking the case on consumers failing to fulfill an obligation under the contract to keep the account in credit or within an agreed limit.

 

That sounds to me rather like the contractual penalties argument thinly disguised.

Edited December 9, 2009 by Aequitas

[Aequitas]

What if when I turn up at the hotel etc.

 

With respect, you have homed in on points that are irrelevant. A few other posters have made points that seek to emphasise that contracts for banking services are different from any other types of contract. Of course they are different, but they are not so different that, as people seem to want to be the case, there are special rules that only apply to them. The point I was trying to make is this: what is it about bank contracts that singles them out so that the cost to the bank of supplying the service is all important and must be subject to some test of reasonableness that does not apply to other contracts?

 

Lady Hale asked the question: Should financial services be treated differently from other goods and services? She gave no answer but suggested that the law did not treat them differently and that if they were to be treated differently it was a matter for Parliament.

 

For myself I have always felt that the UTCCRs do not sit very happily with contracts for financial services. They are aimed at contracts for holidays, car hire, double glazing and the like. A completely separate set of regulations ought to have been drawn up for financial services and (whilst we are on the subject) also for residential tenancies.

[elsinore]

For myself I have always felt that the UTCCRs do not sit very happily with contracts for financial services.

 

Why? (Not provocative, just interested).

 

They are aimed at contracts for holidays, car hire, double glazing and the like.

 

How are you able to be so specific?

 

Els

[gezwee]

One of my points raised the issue of POCA's/vs Bank/vs State but only really relevant if in receipt of certain benefits...... would give any sane DJ reason to pause for thought though.

[Aequitas]

Why? (Not provocative, just interested).

 

You only have to read the "grey list" to see that it was not drawn up with financial services (or residential tenancies) in mind.

 

How are you able to be so specific?

 

I just put down the first things that came into my head.

[kennyh]

Where else can you earn 8% interest on your money?

Start your County Court claim NOW!!!

 

Shown in margin of Aequitas who seems dead set on discouraging any further action in that sphere.

[Desperate Daniella]

But we don't choose what is in our margin!!

[Bookworm]

With respect, you have homed in on points that are irrelevant.

Points which arose from the examples given by you. ;-)

But I think that they are VERY relevant. Turn the question around: If the charges are for goods/services, I know of no other industry where one can apply charges for NOT supplying the service/goods in question.

 

what is it about bank contracts that singles them out so that the cost to the bank of supplying the service is all important and must be subject to some test of reasonableness that does not apply to other contracts?

Well, I'd say the self-generating system for starters. The bank "supplies a service" by not paying, say, a Direct Debit, because you don't have sufficient funds. Fair enough. BUT they then deduct £30 from your account for NOT supplying the service. This is where they start deviating wildly from a "normal" business. It gets worse, because for NOT supplying the service and charging you for it, they then generate that very "service" which they had denied you, and charge you again. And again. And again.

 

In no other business will you get that vicious circle. That alone IMO justifies the test of reasonableness.

 

Another thing is that if we accept the service argument, then the correct way about this is: service supplied -> invoice sent by supplier -> invoice to be paid by customer (with the obvious collateral that if customer is on the breadline, then that invoice should be taking its place in the line of importance of debts, ie: mortgage/rent, council tax, utilities, food, THEN unsecured debts such as credit cards, store cards, loans etc...) The bank blatantly jumps the queue and just takes the money, ahead of priority bills. They then create the situation described above, where they CREATE the "demand" for "service", even though the customer has not asked for it.

 

It's really the equivalent of an exterminator knocking on your door, asking if you have rats. When you say no, he starts letting rats loose in your house so that you will then need him to come in to exterminate the rats. And every time you think the rats are gone, he then lets a few of them go so that they will keep on breeding, and charges you every time of course. The only difference is that when you first opened the door and said "no thanks", he didn't charge you £50 for you saying no.

 

Even if, and it's a HUGE "if", we were to agree that the reasonableness test doesn't apply to the "service" provided, surely it must apply when there isn't one provided? :-?

[srfrench]

Well elucidated BOOKY....:grin:

[HSBCrusher]

good post Booky.

 

If the gas company send me a bill for £6,000,000 I then ring them up and tell them they have made an error. I can argue the charge, they have to fight ME to get the money if they think they are justified. Thank heavens they cant just help themselves to MY money.

 

If my car insurance is higher than I would I like, I can shop around, get a better deal. thank heavens they cant just help themselves to MY money.

 

most services work this way. You can shop around, and you can dispute a bill you dont agree with. You can CHOOSE whether or not you are going to pay the bill, at least there can be a discussion about it.

 

With banks this doesnt work. I cant shop around. The banking cartel all charge the same, and the regulators are ineffectual. (much the same as the water regulator, but thats a bifferent kettle of fish) I cant contest the bill, it gets removed from my bank balance, I have no choice, and so I have to FIGHT to get the money back.

 

Imagine things were different. Imagine banks were prevented from directly charging the account, they like everyone else had to bill you and wait for you to A) pay it or B) contest it.

 

Oh how different the banking industry would be!

[elsinore]

I just put down the first things that came into my head.

 

That's disappointing. I had hoped for a more analytical explanation.

 

Els

[srfrench]

CRUSH....another well elucidated argument and scenario.......hell...you're both SMOKIN' today

[elsinore]

It's really the equivalent of an exterminator knocking on your door, asking if you have rats. When you say no, he starts letting rats loose in your house so that you will then need him to come in to exterminate the rats. And every time you think the rats are gone, he then lets a few of them go so that they will keep on breeding, and charges you every time of course. The only difference is that when you first opened the door and said "no thanks", he didn't charge you £50 for you saying no.

 

Now, that's an analogy!

 

Els

[srfrench]

No it isn't.....it's an issue for Pest Control.....and the exterminators!!

[berrylover]

Have the change of POC been decided yet?

[EricTheRed]

I know this may seem to some as a bit of a cowards way out but my claim currently with the CC is worth potentially £7k. I’ve read the arguments put forward about how likely we are to succeed in view of the decision by the Supreme Court which we all know was decided on a very narrow point of law. I’m confident that a very well reasoned argument based on the path available to law will be put forward by Ray Cox QC and I was thinking of engaging a solicitor through an insurance policy on a no win no fee basis based on what is put forward by Ray Cox QC.

 

I’m not a lawyer or confident person but feel I could end up getting trampled by the banks solicitor and end having to pay their costs if they win.

 

Am I a coward?

[HSBCrusher]

No you are not... this is the effect that the banks want to have upon us unwashed masses. They hope we will get bullied into submission.

 

That is why the relationship between customer and bank is so unfair.

 

If you feel you need a solicitor, then who am I to disagree with you. I would say though wait and see what Ray Cox QC comes up with.

[JGJ]

The words ""NIL ILLIGITIMUS CARBORUNDUM" (sorry for shouting) springs to mind.

 

 

"EXEMPLO DUCEMUS"

[the_shadow]

The words ""NIL ILLIGITIMUS CARBORUNDUM" (sorry for shouting) springs to mind.

 

 

"EXEMPLO DUCEMUS"

 

[sigh]

 

Not in my mind! cos I dont speak latin... can we please please please make these forums a latin free zone unless translations are given.. I'm too lazy to google and half the time the latin gets translated differently each search anyway.

 

[rant over]

 

S.

[emandcole]

Had a letter from HSBC this morning informing me that my fiances old student account has had a £25 'service' fee added. Cheers, thanks a lot.

 

Can't we opt out of this so called service provision? Am I being stupid and missing something really obvious? If a window cleaner turns up and says he'll do my windows for £10 and I say no, I am not legally obligated to then pay him if he then chooses to clean my windows.

 

How are the banks different to any other business on the face of the planet? Why are they special and seemingly immune to everyday morals and conventions of business? The only difference is that they already hold our cash and effectively help themselves to it whenever one of their bankers needs to fund the impossibly expensive and rare 'Unicorn skin toilet paper' to wipe their own asses. Or do they have someone to do that for them...oh yes...they're called taxpayers and are the lowest denomination in the social order.

 

Seriously though, if they're calling it a 'service' no-one can inflict the cost of that on you without your express permission. The bank will point to the terms and conditions as your acceptance of that service meaning unless you accept their terms you cannot have a bank account.

 

All of the other banks operate in the same way, each propping the other up in unison knowing that by standing firm they all prosper. The very fact that we are all effectively deprived of a 'fair service' is surely wrong.

 

The very fact that they are already in possession of our funds gives them a direct route to it, surely an abuse of trust? No other party can just help themselves to your money without some form of arrangement, a DD or standing order for example. The banks can purely because you had to agree to their terms and conditions in order to be able to operate and live in the modern world. You tried to get by in the world that the banks have helped to create without one of their accounts? Practically impossible.

 

How can this be right and how is it that the banks have such control over us all and can abuse it so freely? It is effectively a monopoly situation as they all act as one body in order to impose their costs on us. Lots of room for additional argument against them I would have thought?

[JGJ]

the shadow,

 

Apologies for ruffling your feathers. Especially for you ( "never let the *astards grind you down)

 

My signature "EXEMPLO DUCEMUS" ( By example we lead )

[yourbank]

Shown in margin of Aequitas who seems dead set on discouraging any further action in that sphere.

Kennyh, just to clarify something, the bit that is showing on the margin under the name is not put on by anyone else but the site itself. It will say donate to the site, etc, etc,. That bit of the Cag profile is not user generated. The Avatar is and the signature underneath of a post is but not the body. Hope that clarifies the point.

 

With regards to the argument on what service is given. The consideration of whether to pay or not pay or increase an overdraft is what was argued in the courts so that is the service provided.

I have to say I have no idea where this is going at the moment cos I am literally on the fence on this one. Some days I think it will be refund of all charges, then refunds of only some charges and other days no refunds whatsoever. I hope Ray Cox, QC has some good arguments cos I think we could find out that we will head to the ECJ on a test case on regulation 5(1) since it is unclear how imbalance can be arrived at without cost involved.

[EricTheRed]

The Principal Solicitor at Govan Law Centre gave a good interpretation of the Supreme Court judgement and also eluded that there is ample evidence of the banks acting in bad faith in respect of their explanations to their customers about the reaon and purpose of bank charges.

 

He went on to sat that the evidence the banks gave to the House of Commons Treasury Committee on how bank charges were calculated was contradictory to what they told the court in the OFT test case. Is this not admissible as evidence?