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

[Bookworm]

Angela Knight, from the BBA, was asked whether they would continue to make unauthorised overdraft charges.

"The banks are mindful of their customers, they know the concerns of those who have paid the unauthorised overdraft fees and those who have not," she said.

"Individuals can avoid any charge by putting their overdraft arrangements in place first."

So short answer: "yes"

 

Edit: @ PGH, there's your answer, was typing at the same time, lol. Can't think why., but the site seems to have gone ever so slow...

[Bookworm]

And don't forget that now that the waiver has been lifted, the clock is ticking again on the 6 years limit, so if you have charges getting close to the limit, you'll need to file ASAP or see some of your charges fall behind the statute-barred veil (unless you are prepared to argue s32!)

[Bookworm]

Trust bookie to calm us all down.

 

Nice one bookie.

:confused: where has that come from?

 

There is no question of calming or not calming ayone down. A lot of people have been waiting for the result of the test case before initiating their claim (3 in 5 pple hit by charges haven't claimed, according to a report I saw the other day) and this is a reminder that if your claim isn't in the system, then the stay wouldn't have applied and therefore the clock is ticking on limitations.

 

That's all. People should already know this, but the banks' spin machine might have led some to believe that ALL claims were on hold and it would be a shame for some to maybe lose out through this.

 

As for calming things down, I'd suggest that your little digs at this site etc are far more likely to get people agitated than my reminder. ;-)

[Bookworm]

Well, I have to say I am completely confused. Anyone who's ever asked for my advice, take note, because I believe I have completely lost the plot now.

 

I confess that I may have been careless, but I always thought that the OFT's case WAS relying on 5.1 of the UTCCR. It never crossed my mind they were going on something else and ok, so I f***d up by not dissecting the POC more carefully, but, to save my sanity and save me from wading through a pile of paperwork I am now sick of, could someone kindly tell me WHAT part of the UTCCR they were actually using to challenge the banks?

 

Signed: A very migrainy Bookie (since 09.50 this morning, no coincidence, I believe that might have been when the first of the veins in my brain burst!) who hasn't felt that confused in a long time. :-?

[Bookworm]

they were using 6.1-6.2

Oooh... duh. I knew that, I hadn't cottoned on that they were using only that part.

[Bookworm]

In post #3439 there's mention about costs having to paid by the OFT. I'm sure I read that 'no' costs were awarded against anyone. 8 QC's and juniors galore - ahem, with whose money did they have authority to do that? You know that's a heck of a lot of cash!

 

Michael

I should think that's the reporter getting away with his imagination. It is indeed expressly agreed in the original set of the test case that each party would carry their own costs.

[Bookworm]

Bookworm???? My god, I never knew she had so much fear attached to her.

 

Bookster, stop scaring peeps

Neither did I. Good to know though.

[Bookworm]

Before anyone gets too carried away, it should be remembered that the only reported case I know of on bank charges in the county court was lost by the customer and the bank did not even present a defence. This should be a warning that the legal hurdles to be jumped to make a successful claim are both high and many.

Errr... :-? *I* won in County Court against First national Motor Finance, a subsidiary of Abbey Bank, at a hearing in Oct/Nov 06, with a decision which clearly ruled that the charges applied were unfair and a penalty. I didn't win by default, the other side had sent representations and the judge ruled according to the T&Cs presented in front of him.

[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. ;-)

[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.

[Bookworm]

Thanks, BM, always nice to hear from you.

 

Here's our next guessing competition:

The OFT are "considering their position" and will be releasing a statement soon to let us, the great unwashed, know what their next step will be.

 

Do we think they will:

 

a - fight on and go to the ECJ despite the SC telling them there is no point?

b - decide that it would be a waste of public resources and throw in the towel?

c - something else?

 

Answers on the back of a £10 note please, I will be counting your votes VERY carefully.

[Bookworm]

Personally, I think the comment which "admirably" encapsulate the whole story is this:

 

Lord Phillips also noted that in the absence of the charges the banks would not be able profitably to provide current account services without a fee

 

Para 88). He stated that it might be open to question whether it is fair to subsidise some customers whose accounts always remain in credit by levies on others who experienced events they did not foresee when they opened their accounts

[Bookworm]

Only today I read an article saying there has been a marked increase in demand for £50 notes

We must have been listening to different reports, the one I heard was the one saying there was a call for more FIVE pound notes and in particular that more ATMs should offer £5 increments.

[Bookworm]

That's what I have been saying for 3 yrs.

 

But then who would subsidise the "always in credit" crowd?

[Bookworm]

If you book into a hotel and the room you take is advertised at £750 per night, do you think that in the morning when you check out you should be allowed to pay less on the grounds that £750 per night is a rip off?

What if when I turn up at the hotel, they say "sorry, you're not coming in, but we are still going to charge you the £750"?

If you buy a jacket in a shop in St James's for £500 and then see the same jacket on sale in a shop in Oxford Street for £150 do you think you should be allowed to go back to the shop in St James's and get your money back on the grounds that you were ripped off?

Bad example, or maybe very good one. You ARE protected by law and you CAN return goods which have a problem with them. You can't return them because you have changed your mind or found them cheaper elsewhere.... Ah, but MOST shops have a policy where they will either match prices or allow you to return the goods for whatever reason on top of your statutory rights. Why? Because the know that if they don't, people will vote with their feet and never come back somewhere which is that intransigeant when there are plenty of other shops which will accomodate THEM, the consumer. Only in the banking sector do we find that inflexibility and reasoning that whether the customer is happy or unhappy makes no odds to them. They work on the principle that we need them more than they need us (there's imbalance for you) and that no matter how unhappy we are, even if we go elsewhere, we'll get the same treatment so in the end, very few people move.

If you sign a contract with a bank that says that if you conduct a transaction that takes you into the red you must pay a fee of £30 do you think you should be able to get the charge refunded on the grounds that you are being ripped off?

Again, depends on the "transaction". Are you saying that it is acceptable for the bank to refuse to pay the transaction, thereby not talking you into the red, then charge you a fee of £30+, which then takes you in the red? Is it acceptable for them to then charge you another fee because thanks to them you are now in the red?

My view is that in all three transactions you are being ripped off, but there is no qualitative difference between them that justifies objecting to one, but not the others.

See above.

[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? :-?

[Bookworm]

Yet another good reason to switch from DD to SO then. With SO, it's YOUR instruction, therefore if there are no funds avaialble to pay it out, there is no more justification for a charge than an ATM refusal, IMO. The onus is on YOU, the customer, to notify the company that you couldn't pay them, not the bank's problem, and it never was.

[Bookworm]

And we must entrust our money to these people?

[Bookworm]

7 AM? The OFT? Really?

[Bookworm]

Up bright eyed and bushy tailed on Tuesday then Bookworm ?

Highly unlikely, YB.

I am seriously underwhelmed at the moment to tell you the truth and whatever the OFT are going to come up with is unlikely to make a big difference to any of my actions before the new year, so I'm thinking I might as well make the most of the rare lie-ins I will get during the holidays. ;-)

 

I've had enough disappointments as it is, I think one more can wait until a more decent hour.

[Bookworm]

Bon appetit.

[Bookworm]

Yes it is wrong, Car. As you clearly know the bus will be cheaper and allow you more money and allow you to get me a prezzie .

Awww come on... With all the dosh he'll be getting, he'll be able to do BOTH!!!

[Bookworm]

Oh what a surprise. Not.

 

Bookie, signing in briefly from McDonalds (that's how desperate for news I was!) as Internet has died at home. (snow caused more than likely)

 

Just to say that if you don't see me around, it's not because I have curled up in a ball of despair and given up, but because I can't bloody get on here! (and I can't keep on traipsing to McD).

 

Need to digest and regroup, that's all I can say for now before battery dies on me. Technology is great until it fails.

 

Laters.

[Bookworm]

I love the way some hold on to their beloved theories despite being told otherwise time and again.

 

I repeat: The bank charges movement was not started by laymen. It was started by lawyers, solicitors etc... Furthermore, we know that some judges in the Mercantile court in particular were very much in agreement about both the penalty arguments and the use of the UTCCR.

 

Now standing there saying: "I told you so all along and so did every lawyer I know" flies in the face of the fact that there were plenty lawyers out there who believed our arguments were valid.

 

I'd also add that no-one was ever told it would be that easy to reclaim their charges and one thing people were told over and over was not to be complacent and always expect to have to argue your case in court as you could be the one where the banks wouldn't settle.

 

Finally, there are some who are now rubbing their hands in glee having cosied up to the OFT and criticising previous actions... What they fail to recognise, or conveniently choose to ignore, is that at the time, a) the OFT were NOT interested in talking to us, b) it's only because of actions such as CAG's that the OFT FINALLY decided that they had to be seen to be listening to the little people. It's usually the case in any revolution that the fighters do all the hard work and the ones who come after collect all the glory without ever sticking their necks out once all the groundwork has already been done. Nothing new there.

 

For those who may not have been around then, or those who would rewrite history to suit their purpose, I suggest going back to the responses the OFT used to send out before the movement grew so big that they could no longer ignore us. Have a search on the forum and see the bog-off standard letters they used to send and see how they had no interest whatsoever in taking action.

 

The OFT have been lacklustre throughout, put a half-assed effort at fighting the test case, then caved at every opportunity and anyone who thinks they're going to change are still believing in Santa Claus. If you don't believe me, go back to April 2006 and the way they handled the credit card charges...

 

Office of "Fair trading"? There's a (hollow) laugh.

[Bookworm]

Admittedly, it's been a while since I read the POC and defences and judgments from the start, so maybe someone will be able to set me straight, because right now, I think I have missed something here. :-?

 

Test case: Are charges penalties? Judge says no. Ok.

Can OFT assess them for unfairness? Final decision says no, as core part of contract. Ok.

But why can't we challenge them on the grounds of significant detriment to consumer and non individually negotiated, as per UTCCR? Have I missed something where we have been told we can't do this somewhere in the judgment?

 

I would really appreciate if someone could point me to that if that's the case, cos I don't recall seeing anything of the kind. Admittedly, I am currently high on codeine, so can't trust my memory too well right now, so I'd be grateful for a direct quote.