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

[srfrench]

Oppressed and abused minority....who's for joining the Tooting Popular Peoples Front?

[robnfc]

power to the people!!!

[popeye1]

Allowing the payment to go out of the account knowing a charge would be levied could be unfair,maybe?

[Bookworm]

Interestingly, received a letter from NatWest stating that my complaint with regards to charges is not being upheld etc.

 

They do say, however, that if my complaint is not in relation to the level of charges but to the fairness or lawfulness of them, to let them know by way of setting out details so that they may consider my complaint further.

 

xx

That's interesting, any chance of scanning and posting the letter after removing your personal info?

[noomill060]

VERY interesting...

 

They appear to be actually pointing you in the reg 5 direction...

[missdpd]

Just re-read the bit I stated and I have made a slight error sorry.

 

It actually says " If your complaint does not relate to the level and, accordingly, the fairness or lawfulness of these charges then please let us know by contacting us setting out the details so we can consider this further."

 

So sorry about that, that will teach me not to shove my glasses on.

 

xx

[rdm2006]

I've just had this letter from A&L

 

We refer to your complaint relating to bank charges which was previously put on hold under the terms of

the Financial Services Authority's Waiver. The Waiver has now lapsed and we are therefore writing to

you to respond to your complaint. We consider your complaint to have been about the level and

accordingly the fairness or lawfulness of these charges.

As you will be aware from when we last wrote to you, several banks entered into agreed legal

proceedings with the Office of Fair Trading in relation to bank charges on 27th July 2007. Alliance &

Leicester were not one of these banks, however we felt this was an issue where our customers and the

financial services as a whole would welcome legal clarity.

The outcome of these legal proceedings means that the bank charges you have complained about do

not amount to penalties at common law and that the level of them cannot be assessed for fairness under

the Unfair Terms in Consumer Contract Regulations 1999 (UTCCRs). We do not believe that there is

any legal basis on which the amount of the charges can be challenged.

We are satisfied that the bank charges you seek to reclaim were properly charged and the outcome of

the legal proceedings confirms our position. We are therefore not upholding your complaint and we will

not be refunding the bank charges you have complained about.

We hope we have resolved the issue you raised with us. However, if your complaint relates to

something other than the level of charges, please contact our Complaints team. You can either write to:

Complaints, Bank Charges, PO Box 6300, Carlton Park, Narborough, LE19 OALorcall us on 0844 561

9726.

If you ultimately remain dissatisfied with our final response, you have the right to refer your complaint to

the Financial Ombudsman Service. Before you decide whether or not to take your complaint to the

Ombudsman service, you may find it helpful to consider the information about this subject on the

service's website at FAQs complaints about bank charges.

If we do not hear from you within 8 weeks we will consider your complaint closed.

 

not quite true there is it A & L

[yourbank]

Which bit isnt true ?

[kennyh]

YB

We do not believe that there is

any legal basis on which the amount of the charges can be challenged.

 

How about that bit?

We are satisfied that the bank charges you seek to reclaim were properly charged and the outcome of

the legal proceedings confirms our position

does it really?

As I understand things (and I'm the first to admit there are an increasing number of areas I'm finding difficult) other avenues of attack quite probably exist and are being clarified.

[gezwee]

Think its what they'd like us to believe.

 

Whilst the OFT can no longer be given any consideration the individual can.

 

Seems perverse that they are seeking set aside, discontinuance etc etc based on the SC's findings when the individuals case has not been heard

[rdm2006]

Which bit isnt true ?

 

The outcome of these legal proceedings means that the bank charges you have complained about do not amount to penalties at common law and that the level of them cannot be assessed for fairness under the Unfair Terms in Consumer Contract Regulations 1999 (UTCCRs). We do not believe that there is any legal basis on which the amount of the charges can be challenged.

We are satisfied that the bank charges you seek to reclaim were properly charged and the outcome ofthe legal proceedings confirms our position.

 

That bit - It was only one section of the UTCCR not the whole of it and the judge himself hinted that another section of the UTCCR may possibly be used.

[yourbank]

Their beliefs and opinions do not have to be true, they are simply opinion.

 

The factual parts are right, they are correct that the level of the charges cannot be assessed for fairness. The charges can be assessed for fairness, just not in terms of the level of them (ie. not in terms of £35 is too much for bouncing a DD )

 

So yes it might be misleading in their favour but its not a lie.

[kennyh]

they are correct that the level of the charges cannot be assessed for fairness.

Under CCA also?

[landy_alert]

Hi everyone:)

 

I received a letter including the following wording from Jatin Patel, LTSB Director of Current Accounts this morning (my claim is stayed at court until end of Feb) -

 

'I promised to keep you up to date about any developments that affected your complaint about unplanned overdraft charges. Your complaint has been on hold while we and some of the other major UK banks have been in legal proceedings with the Office of Fair Trading (OFT) about the level, fairness or unlawfulness of these charges.

 

These legal proceedings came to a conclusion on the 25th November 2009 when the Supreme Court decided that, as long as they are clearly set out, the level of unplanned overdraft charges cannot be assessed for fairness under the consumer fairness legislation known as the Unfair Terms in Consumer Contract Regulations.

 

What this means for your complaint

 

We understand your complaint is that the charges we made are penalties and/or are unfair because you believe they are too high. The outcome of the legal proceedings means that the bank charges you've complained about are not penalties and the Supreme Court has also decided that the consumer fairness legislation means that the level of the charge is not a reason for finding them to be unfair.

 

As a result of these rulings we will not be upholding your complaint or be providing a refund of the bank charges that you complained about.

 

We hope this answers the points you raised with us about your bank charges complaint and you feel there is no need to reply to this letter. If you come back to us and we cannot come to an agreement, I'll give you details of the Financial Ombudsman Service in case you want them to consider your complaint independently.

 

If there's anything other than the level of the charges that you're concerned about, or if there is anything else we can do to help, please contact us. If I haven't heard from you by the 9th March I will close your file.'

 

Last time I had a letter from a LTSB related company (C&G - regarding a mortgage charges complaint) which included the wording 'if you come back to us and we cannot come to an agreement', I wrote one more letter and my charges were refunded - this was in December 2009, btw. I can't see it happening in this particular instance, but who knows..........

 

Landy x

[yourbank]

Kenny - they havent said cca - they have said the level cant be assessed under UTCCR - which is what we are talking about. they also said in their opinion there is nothing else you can test them under - thats just their opinion. they are hardly going to say, you cant test the level under UTCCR but why not try the CCA, misrep, undue influence etc etc are they ? I was just referring to the comment that A&L were lying.

 

Landy - I can't see it happening either.

[rdm2006]

who has said A & L are lying? If you are refering to me i only said it wasnt quite the truth (ie not the whole truth)

[means2anend]

UNFAIR TERMS

 

5-(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of them,

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated,these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

ASSESSMENT OF UNFAIR TERMS.

 

6-(1) Without prejudice to Regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of the conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

 

(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate-

(a) to the definition of the main subject matter of the contract, or

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

 

It appears that the way is still open not to challenge the unfairness of the LEVEL of the charges BUT for the mere fact that it was NOT INDIVIDUALLY NEGOTIATED And THE BURDEN IS ON THEM TO PROVE THAT IT WAS INDIVIDUALLY NEGOTIATED...a much less tiresome route for us all

 

Also the last decision on levels of charges not being fair may on individual basis be open to appeal for NOT BEING EXPLAINED IN A PLAIN INTELLIGIBLE MANNER.That avenue would depend on consumers' personal agreements and on individual circumstances.

 

However most standard pre-formulated agreements are 'generic' in nature so that.to use an example from the request for a 'copy for original agreements' situation ,the courts have said that the banks can reconstitute a copy from 'other agreements that existed at the time' so long it was 'an honest and accurate copy'.

 

Well then the converse can be applied in our situation within the context of bank charges whereby if one consumer's pre-formulated standard contract was not individually negotiated then by virtue of it's 'generic' nature there must be thousands the same 'out there' that were not individually negotiated.THIS IS THE MASSIVE PROBLEM THE BANKS WOULD HAVE IN PAYOUTS.Its elementary my dear WATSON!!!

 

Rgds

 

M2ae

Edited January 16, 2010 by means2anend

[kennyh]

So we try a variety of claims using a variety of alternative Acts/Regs and see which causes the banks most grief.

Somewhere there is surely something that will.

Edited January 17, 2010 by kennyh
spelling's crap

[rdm2006]

Also we may not be able to challenge the level (ie the cost of the charge) but you can challenge the charge itself as it causes a significant imbalance (we can charge you for your errors but you cant charge us for our errors)

 

I think

[rdm2006]

What about those people whos credit rating is crap. to grant an overdraft would be irresponsible lending therefore what is the service provided is it " shall we be irresponsible or not"?

[TheyrCriminals]

UNFAIR TERMS

 

5-(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of them,

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated,these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

ASSESSMENT OF UNFAIR TERMS.

 

6-(1) Without prejudice to Regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of the conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

 

(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate-

(a) to the definition of the main subject matter of the contract, or

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

 

It appears that the way is still open not to challenge the unfairness of the LEVEL of the charges BUT for the mere fact that it was NOT INDIVIDUALLY NEGOTIATED And THE BURDEN IS ON THEM TO PROVE THAT IT WAS INDIVIDUALLY NEGOTIATED...a much less tiresome route for us all

 

Also the last decision on levels of charges not being fair may on individual basis be open to appeal for NOT BEING EXPLAINED IN A PLAIN INTELLIGIBLE MANNER.That avenue would depend on consumers' personal agreements and on individual circumstances.

 

However most standard pre-formulated agreements are 'generic' in nature so that.to use an example from the request for a 'copy for original agreements' situation ,the courts have said that the banks can reconstitute a copy from 'other agreements that existed at the time' so long it was 'an honest and accurate copy'.

 

Well then the converse can be applied in our situation within the context of bank charges whereby if one consumer's pre-formulated standard contract was not individually negotiated then by virtue of it's 'generic' nature there must be thousands the same 'out there' that were not individually negotiated.THIS IS THE MASSIVE PROBLEM THE BANKS WOULD HAVE IN PAYOUTS.Its elementary my dear WATSON!!!

 

Rgds

 

M2ae

 

 

Section 5(2) of the UTCCR's as stated above is very welcoming news to read and extremely important if the S5 argument is to succeed in court. I think we're on the way to determining that the contractual terms regarding charges was not individually negotiated which is critical to any successful claim based on this argument.

 

TheyrCriminals

[means2anend]

Section 5(2) of the UTCCR's as stated above is very welcoming news to read and extremely important if the S5 argument is to succeed in court. I think we're on the way to determining that the contractual terms regarding charges was not individually negotiated which is critical to any successful claim based on this argument.

 

TheyrCriminals

 

Exactly...and if we have not had the opportunity of influencing the substance of a term through individual negotiation we then have not had the opportunity of arriving at a bilateral agreement or individually negotiating at setting the 'price or charge' for the goods or services provided as mentioned in s6(2)...

 

This is quite a separate issue from assessing whether the term itself is fair.

 

Most terms and conditions in the current account agreements have a pre-formulated amount of £35 fixed already for late payments, missed payments etc....or whatever the amount is ...even the £12 now classified as reasonable has been pre-set albeit due to pressure from OFT.

 

Lord Phillips described the price or charge for the goods and services provided by banks as an 'essential core term'.

 

Yet in reality this essential core term was never individually negotiated,in practice can never be individually negotiated nor can the consumer have the opportunity to influence the substance or 'agree' to a level that the charge should be set at.

 

It truly is another legal fiction.

 

The maxim 'CONSENSUS AD IDEM' springs to mind and is used in contract law to mean'A MEETING OF MINDS' so as to a truly arrived agreement.

 

How can this be accomplished with pre-formulated contracts.

 

I think that Lord Phillips was indicating that this was the way to go.It is a quite separate issue from assessing a term for its fairness and is more concerned with a bilateral agreement.

 

After all if the level was not £35 but £100 but individually negotiated by both parties...then who's complaining.

 

If this is truly the way Martin Lewis and Ray Cox QC et al intend to go......THE BANKS HAD BETTER BEWARE!!!

 

And Remember The Burden Is On Them To Prove That It Was Individually Negotiated...

 

How on earth are they going to discharge that burden...it's almost impossible..LOL

 

Get the gist!!!

 

Rgds

 

M2ae

Edited January 16, 2010 by means2anend

[Bookworm]

Playing Devil's advocate here, pls feel free to shoot this down, but when you apply for an o/d, c/c, loan etc... the bank does a credit search and depending on how you score, you will be offered a different rate of interest, couldn 't the banks then argue that THAT shows an "individual" negotiation? Ok, so your only negotiation tool is to accept their terms or walk away, but still... We know they'll; try anythign to derail us.

 

Discuss.

[caro]

Where's the negotiation? Surely you take it or leave it. They're still unilaterally imposed IMHO.

[bornrich]

This is very constructive reasoning and propbably the most positive thing that's come out of this forum for 2 weeks.

 

I'm chasing up my pre-stayed case and wil use these arguments for my own case if I get the chance.

 

I believe that it does have to come back to the 'level' of charges as this is the cause of the outrage.

 

How that is done depends on getting to how the 'contract' between the bank and customer is NEVER nogotiable BECAUSE the customer cannot make a comparison between the charges imposed by the various banks (cartel/lack of competition).

 

This will hopefully lead to the bank having to disclose the actual cost of each penalty which they won't do due to the 'competive sensitivity of disclosure'.

 

To me that's the crux. Getting back to disclosure of the actual cost of penalty so that the customer has the knowledge to negotiate.