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

[car2403]

GuidoT, surely you know(or maybe not) that there are unapproved posts on this thread which is why you couldn't get to page 88 or the next page cos those posts are still on the forum but not visible to normal users(only site team and admin).

 

Correct.

 

Page 88 is like Room 101, somewhere from whence you shall never return.

 

(Lets stop talking about it, or the Aliens might come and get us - I'm hoping y'all are wearing your tin foil hats while typing, also!)

 

:-D:-D

[car2403]

kenny look around you There are a multitude of thread were the lenders have suddenly 'discovered' additional evidence which they have then produced in court. It's known as the ambush & as county courts are so lax when it comes to the rules of evidence many Judges allow it. If this happens one should kick up an almighty stink there & then

 

So the answer to your question is yes they shouldn't but they do all of the time

 

Here, here...

 

Happened to my against Barclays - CCA'd an overdraft, and they claimed they didn't have the documentation to comply with the OFT's Determination under s.74. I sent a SAR, and they responded with "everything [i'm] entitled to under the DPA". I even wrote back and said, where is the documentation relating to interest rates, only to be told that "this is everything you're getting".

 

When the claim came to Court, they turned up with everything they needed to defend - the Judge wasn't bothered about failure to comply with the SAR, saying "I only want to deal with the issues on the table, here, today".

 

I didn't push the non-compliance issue, as the case was adjourned for an amended Defence from Barclays, but they settled out of Court before that deadline.

[car2403]

This is only the second time I have mentioned it on the forum so maybe three is the charm

 

Gazumped ya...

 

[car2403]

Surely they won't stop there with Europe to go at - YES I know, Yourbank, it's undoubtedly their God given right to appeal to anyone, anywhere, but I still believe these legal costs should be ringfenced, NOT funded directly or indirectly by Tax payers, and heavily challenged at AGM or even an EGM; really somebody within their tight boardroom circles should be held to account - heaven only knows they don't appear to have been to date!

 

The European Courts can only be appealed to after the HoL if issues of European Community Law are concerned.

 

From Wikipedia;

 

The only further appeal from the House of Lords is to the European courts (the European Court of Justice or the European Court of Human Rights), and only then in matters concerning either European Community law or the European Convention on Human Rights.

 

If there's even a chance that they don't have to repay every charge that has been reclaimed, plus be open to further complaints from anyone that hasn't reclaimed, (like the Mortgage Indemnity Fee issue) surely there's a good business reason to continue to drag it out as much as possible.

 

What they haven't considered is the impact that has on the Public's perception of what they are trying to do - for me, this is beyond repression now, but it's just a shame I can't choose not to Bank in this day and age.

[car2403]

Furthermore, RBS which I am sure you are alluding to stood at 10p in January and today it is at 43.3p as of just now. The option price the government bought them in at was 65p. In time the share price will increase further giving the taxpayer a healthy profit from selling their stake in the bank. UKFI invested in the banks.

 

Not that the taxpayer will benefit from any profits made, but we do see the detriment when we lay out these huge amounts.

 

Public perception is emotionally charged, unfortunately, the law is not about public perception but interpretation of the law. I have always believed that the bank should appeal until they cannot for the simple reason that when they lose the argument, they cannot say that they didn't appeal or did not argue their cause until they could not.

 

Yes, I can just see it now, "we are refunding charges applied as a goodwill gesture, as we disagree with the Legal binds placed on us, but we will comply with them anyway, without admission of liability", etc, etc.

 

indemnity fee issue what is that car .... i am getting close to the end of my MI and am thinkin i am some 15,000 short so i can see this being a big issue since i had no alternative but to take it not once but twice ?

i digress sorry guys

 

Mortgage Exit Fees: Reclaim £100s if you've switched or repaid a mortgage...

 

you missed one

 

The Consumer Forums - Announcements in Forum : OFT Test Case Updates and Discussion

 

Yes, there's quite a bit of updating to be done and only so many site team hours available to do, unfortunately...

[car2403]

Hi yourbank,

 

All I can say to that is ....(as they say in those places) "Hear" "Hear" I would get banned from the internet as a whole.

 

sparkie

 

If I posted what I'm thinking I'd be CAGbotted!!!

[car2403]

I apologise for being stupid in advance, but I thought these proceedings were Civil not Criminal does that make a difference?

 

The Act applies to any Court, Civil or Criminal.

[car2403]

Banks are the same as shops, they are retail outlets. That is always the bottom line, a bank is there not for customer service but to sell you things. If you were unfortunate to have charges then you were unlikely to be sold to, so the bank evolved non credit products to sell to those who they couldn't sell to before. In fact, today they will sell you package accounts because like gym memberships, we probably don't know whats on offer, and might use them maybe once or twice. Once the hook is there, then you have them.

 

Should that be "then they have [us]"?

 

Your ex-"them", now, right?

[car2403]

Reading that last line made me think of the Nationwide ad where the customer complained about the interest rates. The bank guy (his face is familiar but I can't remember the actors name) explains how it is like a big hook to catch customers with.

How true to life that ad was.

 

It wasn't meant to be funny ...

 

I thought it was a documentary on the daily life of branch staff, eh, YB?

[car2403]

The only appeal from the HoL is to the European Courts, (European Court of Justice or the European Court of Human Rights) but those appeals only happen when the issues are concerning European Law. (Appellate Jurisdiction Act 1876) I can't see how European Law is involved in this issue, as you've already mentioned the ECJ has said member states should decide this issue, but we've seen funnier things happen.

 

Once all this is over we still need to decide what is a fair charge - unless the OFT are prepared to make an agreement with the Banks over that, more likely they will have this investigative limit set where they won't take action under that amount, plus the Banks are willing to agree it, there'll be another round of litigation to decide what level of charge is fair.

 

Of course, if you disagree with the OFT's view, if they go that way, you're still entitled to go to Court to have the fairness of the charges assessed - it's for this reason that I can't see the OFT being in a strong position, as they were with Credit Card charges, to apply their investigative limit in this instance.

 

In short, there's still some work to be done before we get what we want, using the Courts.

 

There is always the possibility that the OFT demands the charges be paid back after this decision, though. It seems the Banks are willing to take at risk.

Edited June 14, 2009 by car2403

[car2403]

However (if) the decision goes the OFT's way following the HoL appeal then that settles the matter regarding the OFT can rule on the UTCCR issue.

 

End of this matter, yes. There's then the question of who sets the fair rate for Bank Charges - what I'm saying here, is that, if the OFT has been clever (no reason why they shouldn't have been) and have agreed, a level that they won't investigate under, behind the scenes with the Banks, that where they win the TC that's what they will abide by. Fair enough. Bear in mind the OFT's study on Bank Charges has been underway for some time - some would say that it's complete and they are holding that particular Ace up their sleeve for when they do win...

 

The other point, though, is that you don't have to accept the OFT's view if that happens, leaving you to take Court action, if you so wish. The OFT can't stop you taking Court action. Admittedly, the lower Court will probably just accept the OFT's level as being fair, but if there's an appeal on that issue to the higher Courts, we're back at square one with stays again.

 

It would be nonsensical to think that after all this the OFT will find the Bank's T&C's fair!

 

Agreed, but that isn't the issue - the issue is, has the OFT agreed (or is it capable of agreeing) an amount that it considers is fair and won't take action under it.

 

The second stage will happen to determine what level would be deemed fair.

 

Yup, covered this above.

 

On a point of law, the level decided applies from the day it is agreed NOT retrospectively.

 

Well, I don't know if that is right, but if the level is unfair under the UTCCR the level was unfair right back to the inception of the Contract. If order to make it not retrospective, they would need to change the UTCCR, which I can't see happening. (It's very good law, IMHO)

 

Also, if the OFT/Banks agree a level after the OFT can judge fairness under the UTCCR, the Law will be irrelevant unless you're taking Court action to ask a Court to determine that level, in which case what I've said above applies.

 

Thus it goes without saying that the test case is effectively over once the HoL Appeal Judgement is given (if it goes the OFT's way) and claims would have the stay lifted.

 

I think this is very presumptious, IMHO. We're relying on the OFT being able to agree something with the Banks, (history suggests that won't happen) which will speed up the process, or taking a further test case to have the Court set the fair level if it's unable to do so.

 

The Master of the Rolls had already indicated following the Court Of Appeals ruling earlier this year that the Appeal to the HoL would be a pointless and ill-advised adventure. Only he is responsible in determining if the global stays are lifted.

 

Agreed, but the issues above are still outstanding.

 

If I am wrong on any substantive issue, please correct me

 

I can't correct you, as you're right to have your own opinion, I just happen to have a different one.

 

All in all... "If I were a rich man........."

 

Indeed...

[car2403]

Hi I'm not sure if this has been asked elsewhere...

So far there has been a lot of discussion over wether the bank charges are penalties- and I understand that, legally, they have been found not to be.

My bank, Halifax, imposes a charge of £35 for failed DD's. For example, I paid a cheque into my account on Friday 22 May. Because of the bank holiday, this cleared on Friday 29 May. My account showed the cheque as uncleared funds. However, a direct debit attempt was made on Thursday 28 May, which the bank refused, and charged £35.

So I'm still unclear - how is that not a penalty? If they'd honoured the DD (after all it is reasonable to assume that the cheque would clear and my salary is always paid in on the last Friday of the month) - they could argue that is was a fee for unauthorised borrowing. But in this case, there was no borrowing!

 

The difference is feeling "penalised" and having them declared as legally unenforceable penalties under contract law.

 

The Legal definition is a lot more narrow than you'd think, but there is a whole load of reading to do to fully understand the fundamentals of contractrual penalties. Maybe you can come back here and educate us, once you've done that, T2upNorth?

[car2403]

Can we have that in lights, please?

 

[car2403]

Lets keep the conversation on topic and about bank charges, rather than making accusations that can't be substantiated please. This is a very important thread and posts need to adhere to forum rules or they will be edited and member accounts may placed on moderation if the rules are breached.

[car2403]

I'm sure they will argue that they have your permission by including a term in the original agreement and you accepting it by using the account.

 

The answer is to not "bank", but we all know that isn't possible in this day and age.

[car2403]

The customer must have entered into their banking contract after July 1st 1995 to fall under the scope of the regs........Just my luck.... March 1995.

 

I don't think so. The regs aren't retrospective, (so don't apply prior to enactment) but they will apply from the day they came in to force, regardless of when you entered the contract.

 

In short, any charges that were unfair after enactment of the regs will be recoverable. Put it another way, the Banks should have made sure that they complied with the regs when they were enacted.

[car2403]

OMG in that case I'm thinking Barclays, the year 2000. After holding a current account with them since 1975 and 2 failed payments they closed my account. They then told me I'd had my 5 minutes of discussion and anything else to be in writing. Why do I think they no longer have details of my account?

Michael

 

I confess this is a point, which must surely be correct, that had not previously occurred to me. It would seem therefore that not a few people who have put in claims based on the UTCCR may end up disappointed.

 

As to whether amendments are covered is a moot point.

 

Although I agree with the principle enunciated by paulwlton, a serious question arises as to whether the date he cites is correct.

 

Here is what Regulations 1 and 2 of the 1999 Regulations say:

 

Citation and commencement

1. These Regulations may be cited as the Unfair Terms in Consumer Contracts Regulations 1999 and shall come into force on 1st October 1999.

 

Revocation

2. The Unfair Terms in Consumer Contracts Regulations 1994 are hereby revoked.

 

 

Clearly clause 2 did not take effect until 1st October 1999 and so the 1994 Regulations were revoked on that day. The revocation does though appear to be absolute. There is no "saving" provision in Regulation 2 such as: ...except that they shall continue to have effect in relation to contracts made while those Regulations were in force.

 

This raises the alarming prospect that anyone who enjoyed protection under the 1994 Regulations ceased to have that protection on or after 1st October 1999 but (applying paulwlton's principle) could have no protection under the 1999 Regulations, an effect that surely cannot have been intended.

 

I hasten to add that I am no expert on the interpretation of statutes, but going solely by the words of the 1999 Regulations it seems that it may be the case that you need to have entered into your contact on or after 1st October 1999 to have any sort of "unfair terms" protection.

 

 

I have just been reding up on Interfoto v Stiletto (1987) - this basically says that if a term is financially overly onerous on a party it needs to be made clear to the party. Is this a well known case? - Ahh yes I see it's in the case library.

 

It appears to pre-date UTCCR!

 

Could this be used if UTCCR does not apply? - especially if the banks have admitted their charges are extortionate?

 

 

I hate to point out the obvious, here, but there's some confusion on this clearly, so bear with me.

 

The Unfair Terms in Consumer Contracts Regulations (UTCCR) applies to terms of Contracts between Consumers and their Banks, in this instance.

 

IMHO, the inception date of the contract is irrelevant. What is relevant is was the enforcement of the term in question compliant with the UTCCR, after it was enacted?

 

I could be wrong, but I can't see how the date the contract was entered in to was relevant, as the unfairness of the terms go back to when the contract was entered, but the regs aren't retrospective. Presumably, the Banks will rely on this to limit the impact when (not if!) the decision goes against them.

[car2403]

Agreed, PM.

 

Also, if you have a look at the European directive, it's clear the European meaning of the Unfair Terms regulations was meant to be retrospective, plus, as Parliament have enacted it under same provisions of Law from which European Directives have been enacted retrospectively previously, there's definately an argument that Parliament intended it to have retrospectivity, even if it isn't clearly stated. (It isn't clearly stated that it isn't, neither)

[car2403]

I have read the Directive. I only read it once and not that slowly and so may have missed it, but could not see any indication that the intention was that it should be retrospective. I did though find a statement in Article 10 to the effect that the provisions should be applicable to all contracts concluded after 31 December 1994, which seems to be a contraindication that the provisions should be retrospective.

 

The statement does seem to remove any doubt as to whether any contracts concluded after the 1994 Regulations came into force but before the 1999 Regulations came into force are subject to the Directive. There does though seem to be a bit of a problem since the Directive says it should apply to contracts concluded after 31 December 1994, whilst the UTCCR 1994 were expressed to come into force on 1st July 1995.

 

Whatever the date for the commencement of protection may be, I remain to be convinced that protection is available in respect of any contract concluded before the relevant date. It may be that a distinction should be made between "one off" contracts, such as a contract to provide a holiday, and contracts to provide a continuous service, such as a contract to provide banking services. However, I can see nothing in either the Directive or the Regulations that justifies such a distinction being made.

 

It may also be that there is something blindingly obvious that I am just missing.

 

You've obviously read it in more detail, or were paying more attention then I did, as I missed that.

[car2403]

I have the right to blow my neighbours head off with a sorn off shotgun!

Who is going to stop me doing it? Will he still die if I do?

 

The point is, I'll be (well, if they catch me, it's not like me that, plus some of the other neighbours may well enjoy watching it, but... I digress) caught and brought to justice for my actions. He's still dead. I might go to jail. I might get off on a technicality.

 

The Banks have been blowing peoples heads off for years. They probably do have a right to do it. The Banks are in the docks.

 

So, yes they have a right, but only because we give it to them. If it's unfair to exercise that right, the right will be taken away.

 

I've had too many McFlurries again, haven't I?

[car2403]

Well of course-but you asked for a yes/no answer.

That does not allow for an explanation as to why they should or should not have a "right".

 

Yes, but no, but yes, but no...

 

And so it goes on...

[car2403]

Your only possible argument is that the bank had standing instructions not to let your account go into the red.THIS WAS THE SITUATION....

problem arose when they returned a cheque i had paid in with a single line statement account terminated and returned with it was the cheque i had paid in on the previous friday.....

patrickq1

 

My issue with this is that the Bank chose to pay these cheques, when they know the funds were not available and the agreement had came to an end, thereby putting themselves in a very silly position if you choose not to repay that amount.

 

They could have just returned the cheques refer to drawer - the fact they've paid it, to increase your indebtedness to them, is irresponsible lending.

 

Lets not forget that any decision to pay/or not pay is a lending decision, based on an algorithm designed to enrich the bank as much as possible with profit.

 

It's this that surely makes the system unfair - after all, a common definition of insanity is to do the same thing over and over again and expect to get a different result, yet each time a payment is presented, the Banks apply differing lending reasoning on whether to process it - and charge - or whether to return it - and charge. It's win-win for the Banks, lose-lose for the consumer.

 

What we're losing track of, in this technical discussion surrounding the legal reasoning on whether they can/cannot do what they do, or whether it is/isn't fair, is the damage done to the reputations of this institutions - whatever the outcome, public perception of what they are trying to achieve is firmly swinging against their favour. The legal mumbo-jumbo will be the price they pay and if the Lords are at all in touch with public opinion, they will get a serious spanking to boot - if they don't, they still can't carry on as they have been doing so far. If only this was France, we'd have blocked the ports and brought the Government to it's knees, by now!

[car2403]

can someone PM what the edited bit was cos I am crap with hangman.....any chance of a first letter

 

It was a "z"

 

Anyway, you're wise enough to insert your own answers.

 

Oh, bypassing the swear filter is in clear breach of forum rules, also.

[car2403]

how many letters?

Was the z the first letter?

 

apologies but no one is PM'ing me the answer.

 

Who do you think I am, Carol Vorderman?

 

Consonant... Vowel... Vowel... One from the top, please, Carol...

 

[car2403]

ROTFL - did your TV get reclaimed as Countdown has long since had new people in it! That'll be Rach(el) then - Clever (mathematician) girl too it seems. She might actually be some help here too!

Michael

 

Really? I can't afford to turn my telly on until these Bank charges are repaid, see...