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

[TheyrCriminals]

I am now thoroughly confused about what appeal, whose appealing to whom for what.

 

Let me get this straight, for me and I am sure I am not the only one:

Bank loses in Appeal Courts.

Appeals court deny them the right to appeal their decision.

Bank go straight to HOL to appeal against the Appeal court's decision.

HOL grants them the right to appeal.

 

Soooo... the submission is for the HOL to reconsider the Appeal Courts verdict, right?

 

Now, correct me if I am wrong (I often am), but isn't it the case that for an appeal to be heard it has to be on a point of law and not simply because you disagree with the decision? That being the case, doesn't it mean that the HOL must have already heard a decisive argument for them to allow the appeal to go ahead? Or are the banks being allowed to submit their argument to be granted an appeal? (Yes I know, I confuse myself too)

 

What I am trying to say is: is the submission coming up a plea to be allowed to proceed with the appeal in the HOL, at the end of which the HOL would say: "yes, you make a valid point, we'll hear it" or "no, you have no new grounds, stop wasting everyone's time" or is it the actual appeal against the appeals court?

 

Does anyone understand what I am asking here? :-|

 

This is an excellent post and deserves commendation. The matters you raise Bookworm are highly important but yet none of us can find an answer. How unjust is this? You are absolutely right Bookworm you can not just appeal a decision on the grounds you simply don't like the deicision, there has to be genuine grounds for an appeal. As far as I can see a hearing has taken place at some stage, it may well be a hearing based on written submissions, and in that hearing the Law Lords have concluded that the banks do have grounds for a further appeal. When, where and how that hearing was conducted is anyone's guess!!!!

 

Does anybody know what the hell is going on?

 

TheyrCriminals

[TheyrCriminals]

Written submission needs to be made by April 15th. There is no way that the submission is allowed to be made late by even 1 day.

 

I was referring to written submissions in a hearing that may or may not have taken place, because something sure had to come before the Law Lords' eyes to grant the banks their new appeal.

 

TheyrCriminals

[TheyrCriminals]

Hi,

 

The OFT's investigation into bank charges began in April 2007. We are now in April 2009, they have already had two years to 'investigate' this matter. It does not take this amount of time. A public enquiry would take less time than this. The latest response from the OFT and their new 'streamlined investigation' is to continue delaying until the outcome of the House of Lords appeal is known. It is the most ridiculous situation, the OFT cant do or enforce anything regarding unauthorised overdraft charges until the final outcome in the Commercial Court litigation is known. Yes they will continue the longest ever running investigation into a financial product they may even reach a conclusion this year (that would be nice) but they will not be able to do anything. They are trailing behind the test case and will have to continue to do so.

 

So what has the OFT done in two years? They have issued a prelimary report - welldone OFT you're really effective. They have been investigating all of the banks for two years but today we are told that they now intend to just focus on three banks, excuse me for pointing out the obvious but what's wrong with looking at all of the banks terms and conditions and conduct, afterall they have been doing this for TWO YEARS!!! So again I ask what the hell is going on?

 

TheyrCriminals

 

P.S Does anyone know yet on what grounds the banks were given the right to appeal to the House of Lords?

Edited April 3, 2009 by TheyrCriminals

[TheyrCriminals]

Hi,

 

How do you know this and which point of law was being appealed?

 

TheyrCriminals

[TheyrCriminals]

Hi,

 

Ah sorry I think you mean the banks were entitled to appeal as they argued successfully that the judge in the High Court and the three Appeal Court judges misinterpreted the law on the UTCCR. How do you know this?

 

TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Can anyone help with this query. Two of my friends are going through a divorce at the current time. They commenced a claim for the recovery of their bank charges on a joint account. I am assuming as their is joint liability then any payouts would be to both of them too. However obviously when the divorce comes through they wont be Mr. and Mrs. anymore so would the bank, if the time comes, pay any refund half and half to each of them equally?

 

Thanks.

 

TheyrCriminals

[TheyrCriminals]

Hi Guidot,

 

Where did you get this information. I can't see it on the OFT website, its probably me, can you post up a link please?

 

Cheers,

 

TheyrCriminals

[TheyrCriminals]

Hi Guidot,

 

Sorry just re-read your post, got it now!!

 

TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Thanks for the update yourbank. So is it fair to say we are looking at an Autumn judgement?

 

TheyrCriminals

[TheyrCriminals]

Informed Searcher,

 

Yes of course they may be able to appeal to the European Court of Justice most of us all know this remains a possibility. I was asking whether it is likely that the judgement in the House of Lords appeal will be delivered in autumn?

 

TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Sorry to post this here. My mate has just had a PPI claim won against Lloyds TSB. It was on his loan he took out in 2004. They have decided to refund all of the monthly insurance instalments he paid which is great. However there is one bit that he doesnt understand and that is the bank has said in addition to the refund of instalments that:

 

'I have calcualted and paid the difference between what the settlement balance would have been on your loan account at the date of cancellation, had the insurance not been included on your loan. I have deducted this from the actual settlement figure net of your insurance rebate. This means that had you not purchased insurance you would have reduced your settlement figure of £675.80.'

 

That is the first point of the letter and that's what he doesn't uderstand. I have never done one of these and so I don't understand either. The letter then goes on to the second point which talks about the amount paid in premium instalments which obviously we understand. So is he also going to get £675.60 refunded as well as the premium instalments he paid. They are also giving him a few hundred quid statutory interest which is quite good.

 

Any help appreciated.

 

TheyrCriminals

[TheyrCriminals]

Stewpot,

 

I accept it's looking good for consumers and I am pretty confident of the right result from the Lords in the test case. However it's not in the bag yet, don't automatically assume the Law Lords will return the verdict we want to see, there is still the possibility the Lords will return a ruling in favour of the banks. The House of Lords have returned many a judgement in the past that have been challenging and unfair.

 

TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Anyone seen this?

 

BBC News - Lloyds to ask local courts to dismiss overdraft cases

 

TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Sky news sources are reporting OFT will not pursue banks regarding unauthorised overdraft charges.

 

http://news.sky.com/skynews/Business

 

TheyrCriminals

Edited December 22, 2009 by TheyrCriminals

[TheyrCriminals]

Haven't they ?:?

To me personally it pretty much looks that way though.

With the help of the OFT they managed to stop any claims and pay-outs for over two years in which they could charge but didn't have to handle any claims or complaints.

After a staggering amount of time the OFT manages to loose their case, which to me sounds as if the banks won their argument.

Claimants are told they have to pay to have their POCs amended or to even lift the stay. More and more costs to people who can ill afford it in the first place with no guarantees to get anything back.

Just imagine someone shells all this out, it goes to a hearing, the bank defends and wins, makes an application for costs...

To me the banks have won, sorry but at the moment they sure have.

Even if I wanted I couldn't continue with my stayed claim due to the costs involved.

It is unbelievable that I have to pay almost £100.- to lift a stay the court put into place due to the ridiculous test case....

 

 

The stay was placed on all claims due to the OFT test case on unauthorised overdraft charges. The test case has concluded and the final outcome in the test case is now known, therefore the stay should be automatically lifted without application. However most County Courts appear not to be lifting these stays but that may well be to do with OFT anouncement being made on the 22nd December 2009 and us entering the Chrsitmas holiday period. In the New Year stays on all bank charges claims may be lifted generally. If the banks try to get claims dismissed the Court will have to inform you and a hearing should be set. However the concern arises where County Courts lift stays and make an Order of their own motion ordering the claim to be struck out as the OFT have 'lost'. I hope this wont be the case.

 

Stays should be allowed to be lifted and claims proceed to trial based on current POC's (if worded originally excluding specific section numbers of the UTCCR's) or be allowed to proceed based on amended POC'S incorporating Section 5 of the UTCCR's and, if applicable to your claim, the new argument found in S.40 of the Consumer Credit Act 1974. Very importantly for Natwest and RBS customers stays should be lifted and claims proceed to trial where part of the claim is made up of charges incurred between 2001-2003 using the original penalty argument. In a hearing earlier this year Mr. Justice Andrew Smith (in the High Court) was not convinced that one of Natwest/RBS terms was not capable of being penal.

 

TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Can someone please confirm whether Mr. Justice Andrew Smith's January ruling on the penalty argument was just in relation to Natwest (charges incurred from 2001 - 2003) or whether it also extended to its owner Royal Bank of Scotland.

 

Thanks.

 

TheyrCriminals

[TheyrCriminals]

Hi Hacksaw,

 

Many thanks for that.

 

TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Spoke to the Torquay and Newton Abbot County Court today and was informed that either party can now apply to have the stay in their bank charges claim lifted. If neither party has requested the stay be lifted by 30th November 2010 the Court will strike out the claim. Apparently many County Courts will be adopting the same approach.

 

TheyrCriminals

Edited December 31, 2009 by TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Just a thought. If the following was used as a POC and nothing more, would in actual fact an amendment to the POC be required?

 

'The Claimant contends that the charges applied constitute an unfair penalty and as such are not enforceable under common law. In addition the charges applied are contrary to the Unfair Terms in Consumer Contracts Regulations which state: “A term is unfair if it requires any consumer who fails his obligation to pay a disproportionately high sum in compensation”. The amount charged does not reflect the cost of the breach'.

 

The reason I ask is that many of us have used this in our claim forms and the wording does not specifically limit the claim to S6 of the UTCCR's. Could we not continue with the claim and in a court bundle or at trial argue under S.5? Therefore taking away the need to pay £75 for an amendment to the POC. The OFT were obviously very specific in their terms, POC and arguments but if the above wording has only been used for individual claims perhaps the claim could still proceed and the stay be lifted without the need for an amendment?

 

TheyrCriminals

[TheyrCriminals]

I'll dissect it for you, so you can see why it needs amending;

 

'The Claimant contends that the charges applied constitute an unfair penalty and as such are not enforceable under common law.

 

This was ruled in the Banks favour, they don't amount to contracural penalties.

 

 

 

This part is ok, but actually needs massively expanding on, IMHO. If we were to rely solely on the cost of the breach being disproportionate, we're effectively arguing that the charge itself is unfair. Unfair in this case would depend on the circumstances, as the SC has basically said that the charges aren't unfair, but the relationship bringing them about may be unfair, but that is a much bigger issue - this is where the CCA comes in to play, which isn't something we had prior to the test case.

 

 

 

This depends on the Court you're with, but mine hasn't asked for a fee to be paid.

 

I'd suggest waiting for more direction from above and from the QC's

Thanks for this Car but you state that the SC stated the charges weren't unfair, I have read and heard countless times that the SC did not say if the charges are fair or unfair, as I understand it has not been legally determined yet.

 

TheyrCriminals

[TheyrCriminals]

Hi Car,

 

Just re-read your post, I got it now thanks. And thanks for your reply.

 

TheyrCriminals

[TheyrCriminals]

Hello again Car,

 

You say that the Court hasn't asked you for a £75 fee to amend the POC, so has the stay on your claim been lifted now?

 

TheyrCriminals

[TheyrCriminals]

Hi,

 

Am I allowed to post a link on here to Martin Lewis's money saving expert website?

 

TheyrCriminals

[TheyrCriminals]

Hi Guys,

 

Ok this is what Martin Lewis's website is stating as the reason why there is a chance you may be able to reclaim charges as a result of the Supreme Court ruling last November.

 

Unfair Terms in Consumer Contract Regulations 1999 (UTCCR)

The chief judge of the Supreme Court thought it important enough to say this ruling didn't stop people challenging fairness under 'Regulation 5' of the Unfair terms in Consumer Contracts Regulations (which the Supreme Court cases did not cover) – we believe this was a deliberate hint to look at this option.

Here's what Regulation 5 actually says:

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

All the test case did was rule out that the price of bank charges could not be used to assess fairness under this regulation. So the old argument that charges are levied at £35 but it only costs the banks £2' has gone. Yet there are many other arguments other than price which can indicate unfairness – especially in combination...

 

• Customers can't opt out
   
  Bank accounts cannot be 'individually negotiated', you get what you're given. This also applies far more specifically to bank charges – there is no ability to opt out of having charges, eg, to have an account where there is no function to go beyond your overdraft limit. This is a significant imbalance between the parties.
  
• Unfair cross subsidy
   
  While it's accepted some cross subsidy is acceptable within business, here, the minority of customers are paying an excessive proportion of costs of the structure of banking. This creates a significant imbalance between the parties.
  
• Effect on vulnerable consumers
   
  It is arguable that banking is a public service or at least has a public service element, more people have bank accounts than telephones – and we are strongly encouraged by the Government to use banking services. The workings of the original UTCCR directive mention this pubic service remit.
   
  Yet this is a pubic service where there is a cross subsidy that has to be met by the most vulnerable, least affluent members of society.
  
• Charges snare and are designed to multiply
  
  The structure of £35 transaction bank charges are such that they effectively generate more charges – thereby trapping people in a charges spiral. In other words, you go beyond your limit, get a charge or charges, and then due to being unable to afford that charge, incur more.
   
  Many people who've had small numbers of charges initially have seen them multiply into the thousands and been unable to do anything to stop that process continuing.
  
• Lack of competition
   
  Until very recently, since the advent of the bank charges test case, no bank marketed its accounts based on the charges a customer could be expected to pay. There has never been any competition on this – there is no choice for consumers to go elsewhere for a different level of charges.
  
• Incomprehensible nature
   
  Consumers are not told clearly what the cost of their bank account will be in different situations and the interaction of those charges.
   
  Understanding when and how much you will be charged is not transparent, and while the terms and conditions lay it out, the practical impact of this is not explained – some banks often have difficulty interpreting these rules themselves.
   
  The name 'unauthorised' overdraft is a fallacy, banks do permit people to take money beyond their overdraft limit (and it is extremely profitable to them) and in fact have a second hidden ‘unpaid' limit beyond which they won't allow customers to take more money from – though they still levy more charges.
   
  Yet customers are not told when this will occur, or at what level their transactions will no longer be paid. Nor are they told the amount they can spend, nor given the ability to opt out of transactions once they know it will occur a charge – the information is only ever retrospective.
  
• Money Management
   
  The entire structure of charging people repeatedly when they have little money, runs counter to the ability to fairly manage a bank account.
   
  One true example of this unfairness is a woman who thought she had £50 left of her overdraft – yet unbeknown to her, and not indicated by the bank, that day a cheque from two months earlier had just been cashed putting her over the limit.
   
  She then spent £40 in six different transaction (including a sub-£2 bag of carrots) and incurred £35 charge for each a total of £210. Yet had she been told of the situation, she could've funded the account, or even chosen just to take out £40 in cash – leaving only one £35 charge.
  

The OFT's view on this

 

In its announcement on 22 December, the OFT said it had looked at these arguments and thought there was only a limited chance of success using them with the UTCCR, part of the reason it decided not to continue the fight.

 

It may or may not work but certainly worth a try. There is also the new legal argument under the Consumer Credit Act 1974 which goes into detail too but unfortunately will be limited to certain consumers only.

 

Hope this is of some help.

 

TheyrCriminals

[TheyrCriminals]

Do we know which?

 

Hi Kenny,

 

This is the explanation Martin Lewis's website gives for claiming under the new legal argument under S.140 Consumer Credit Act 1974.

 

Section 140 a-d of the Consumer Credit Act (CCA) 1974

This is a piece of law that wasn't looked at in the test case, and in some ways it could be much easier to argue, though it applies to less people.

The specific piece of law is comes from an amendment made to a 1974 law made a few years ago...

Section 140a of the Consumer Credit Act says: The court may make an order … in connection with a credit agreement if it determines that the relationship between the creditor and the debtor … is unfair to the debtor...

Here are the key points:

 

• Fairness can be about price
   
  As well as looking at all the same fairness issues as above, this can also rely on the issue already discounted by the Supreme Court under the UTCCR regulations. That is whether the cost of charges are disproportionate to the service provided in other words the “they charge £35 for a letter, but it only costs them £2” argument.
  
• The banks must prove they're fair
   
  This is the brilliant bit about this argument, here the burden of proof is on the banks to prove that the relationship is fair and not the consumers to prove the charges were unfair.
  
• This doesn't apply to everyone
   
  This piece of law applies to new charges from 6 April 2007, but only applies to people who had charges before April 2007 if the borrowing was still outstanding on 6 April 2008.
  
• Provisions for redress
  
  The act also includes detail on what a consumer can be awarded if the charges are found to be unfair, which can include full or partial amounts – so the refund would depend heavily on a consumers particular circumstance.
   
  This means it is potentially a much more valuable route for those trapped in a charges spiral and have suffered other loses as a results eg, defaults on their account, bankruptcy and repossession caused heavily by charges.
  

The OFT's view on this

 

In our submission to the OFT when it was reviewing its decision whether or not to carry on with the bank charges fight - we explained these arguments.

 

In the end it decided that as the Consumer Credit Act is framed in such a way that the law specifically applies to the relationship between an individual and a lender - it wasn't suitable for it to carry out a collective action (see 3.16-3.18 of OFT explanation. However that in no way kiaboshes individual's ability to take action based on this legislation.

 

 

Hopefully this is of some help to some.

 

 

TheyrCriminals