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

[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...

[yourbank]

Hi Carr

 

To a point I agree with you.

 

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.

They can't rule on it, they can identify terms that they believe are unfair and the banks can disagree and we will see further litigation.

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

If the OFT find the Banks' terms and conditions fair, then quite frankly they have been litigating for no reason.

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

That's completely wrong. The second stage is to litigate whether a term is fair or not under UTCCR 1998. It is not to determine the level. If the term is unfair then my understanding is that all charges made under that term is null and void and therefore refundable.

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

See above, however, if it gets to this stage then there has to be a point in which the clock stops on stays, ie that when the term is struck out that the time for paying out with interest stops. With the number of claims already in the system there has to be a fair way of paying out and clearing cases.

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.

No, the OFT test case first part is over. There is no argument as to whether the terms of bank contracts fall under UTCCR 1999. The issue is identifying terms that are unfair and further litigation is expected.

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.

And I doubt that if they lose the HoL that it will be lifted until the substantive issues have been resolved. It would be pointless otherwise. The Master Of Rolls agreed with the points of law given by Justice Smith and refused permission to appeal the decision(it's not an uncommon practice to petition the HoL to appeal so its not a huge surprise).

I'm sure you may know most if not all I prattle on about, but to those peeps who don't, hopefully this will make it a little clearer.

 

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

 

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

 

If the OFT set a threshold then it simply doesn't change a thing, the term is either fair or not(providing the HoL back the previous 2 courts and their own ruling). If its not then that term doesn't exist in the contract and all monies paid with it are refundable.

[srfrench]

Robot Roo...... NO!

 

Get your claim in ASAP!

[srfrench]

Thanks Carr and YourBAnk

[Robot_roo]

Robot Roo...... NO!

 

Get your claim in ASAP!

ok will do thanks, have had all the charges statements from them was just hanging on to see how things panned out!!!

[gillypam]

hi. so what your saying it looks like the banks are going to win again:confused:

[srfrench]

LOL....Sorry?....Win again?.....when they did they win the first time?

 

So far they have lost all Court cases and 4 judges have ruled unamimously against them.

 

5 Judges in the House of Lords will be determining whether the original Judgement and it's subsequent appeal is to be upheld. The process for this starts on June 23rd.

 

No-one in the legal circles will ever give you a 100% guarantee that the HoL will rule in our and the OFT's favour... but conservatively it looks a dead cert!

 

You don't have to file your claim now or ASAp , you can just leave it till it's all sorted legally, but all you will officially receive is just the charges...no interest and no restitutionary recompense.

 

That's why you should submit your claim with a claim for S.69 interest in the very least.

[tcook5]

Robot Roo...... NO!

 

Get your claim in ASAP!

Hi, do you mean HMCS claim or claim to the Bank?

I have one claim stayed with HMCS and didn't have the money to appliy for the second court claim.

Instead i sent the claim to the bank.....was this the right thing to do?

[InformedSearcher]

Just thought I'd add my twopennith FWIW....

Now the ruling - Am I not right in thinking if it goes against the banks they can appeal to EU Courts?

I think after 19 months of little publicised tooing anf frooing and the prevebrial cat and mouse game that at some time someone has to give. On one hand the banks are embarassed but are now claiming poverty. The HoL understand that if the ruling goes wrong the floodgates of County Court claims will swamp the system. If we think back the OFT took up the case because of exactly that.

The court system at all levels operates to targets and budgets. The banks have made more enemies with the general public than they could have envisaged to say the least. There again MP's expenses took precident over literally millions of people, often by a small error being 'fleeced' by these so called 'honourable' institutions. Heck even 'loan sharks' give people over a week before the calls (and in their cases visits) begin.

Personally I've been called so many times by HSBC from varying parts of the world. Whatever you say the end is always the same, 'So how much are you going to pay today?' To top it all I've often asked whoever calls me, 'Do you think it's fair to charge me £25 for going overdrawn £11', and the answer has always been 'Yes sir'.

Winge over

Michael

p.s. We should have get togethers with copious amounts of booze if we all win!!

[Mr lex]

Hi, do you mean HMCS claim or claim to the Bank?

 

I have one claim stayed with HMCS and didn't have the money to appliy for the second court claim.

Instead i sent the claim to the bank.....was this the right thing to do?

 

Hi Tcook5

 

Get your claim off to court, that way your protecting all your claim and the 8% interest.

 

Lex

[InformedSearcher]

I never claimed through the courts but the (HSBC) bank itself. The lady assured me that if I was succesful our account would 'not' be closed.

Michael

[yourbank]

Hi Tcook5

 

Get your claim off to court, that way your protecting all your claim and the 8% interest.

 

Lex

Mr Lex, you know I don't agree with this because of the limitations issues being put within the FSA Waiver(plus compensatory amounts), and the fact that the FSA wrote to the banks on 19th March 2009 with regards to 13.5 within the FSA Waiver on bank charges and data retention. I can't advise anyone to take their claim to court as a result(I do on credit cards though )

[yourbank]

I never claimed through the courts but the (HSBC) bank itself. The lady assured me that if I was succesful our account would 'not' be closed.

Michael

It's in the waiver, but I personally want some changes to it when it is renewed in July this year, with specifically the clause about closing accounts. I think it should be a stipulation that if there is a bank charges claim logged that it cannot be passed on nor closed until the conclusion of the stay period.

[T2upNorth]

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!

[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?

[Aequitas]

The Legal definition is a lot more narrow than you'd think

 

Can we have that in lights, please?

[car2403]

Can we have that in lights, please?

 

[shakespeare62]

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.

 

Well...the contracts and terms of the following 8 banks listed in the case below were examined to see if the clauses were penalties at Common Law.

 

So if a Bank is not in that list or belong to a group in that list, then it's contract has not been examined as part of this series of test cases :-

 

Office of Fair Trading v Abbey National plc and others [2009] EWCA Civ 116; [2009] WLR (D) 69

 

(1) Abbey National plc; (2) Barclays Bank plc; (3) Clydesdale Bank plc; (4) HBOS plc; (5) HSBC Bank plc; (6) Lloyds TSB Bank plc; (7) Nationwide Building Society and (8) Royal Bank of Scotland Group plc

Edited June 18, 2009 by shakespeare62

[Thailand]

So any Bank not on that list could argue penalties (or does the ruling affect all - precedent?). Is that bit no longer subject to the test case, just UTCCR, or still both (since it's being appealed). Lost on this, what I mean is, is only the UTCCR element being appealed, since save HSBC pre 2006 (was it) the Banks (and seemingly the OFT are happy with that?) I'm not in any case, but god bless UTCCR.

 

Wondering because I haven't seen anyone go for a claim in this vein.

 

Even if they could, I can see why it might still be stayed by a judge not understanding, so I think it's all still pending?

 

If that makes sense!

 

Edit..I've baffled myself.

[shakespeare62]

Well ...put it like this, for penalty charges it boils down to whats in the contract.

 

To take an analogy from say an employment contract, if you sign a contract that states you will dismissed when you reach 50, or if you become pregnant, or which states you cannot work if your are of white or black ethnicity, then clearly there may be legal consequences about the lawfulness of the contract itself.

 

The standard contracts of the 8 banks mentioned, as far as I know have been cleared for unlawful penalty charges. But they had to be examined first. And there was a proviso (I believe) for older Nat West Contracts.

 

It doesn't mean that terms & conditions of the Bank of every Banana Republic for example have been cleared for penalty charges at common law.

 

The issue of whether the OFT has the right to determine what is fair under the Unfair Terms in Consumer Contracts Regulations 1999 is a different issue - to be decided by House of Lords on 23rd June onwards....

Edited June 18, 2009 by shakespeare62
edited typos

[Thailand]

Bear with me, my confusion knows no bounds....

 

So, the other Banks can't have penalties in their contracts, yes, but they never were(!) and none of them would be silly enough to dress them up like that now, and cloak them as a service (my belief in any case). I said 'they could argue penalties'... I meant could customers of them still argue penalties, my bad, or does it all fall under this test case.

 

HSBC terms (some dates) were proven to be penalties, hence why I was wondering why I had seen no-one go for it.

 

The more I think about it, I think I remember reading that this whole case would impact on that, and it is still now statute barring those potential claims, unless somehow section 32 can be invoked later via concealment, possibly.

 

I'll get all this one day!...

[shakespeare62]

In short, I believe unless the contract in question is from one of the 8 banks mentioned, then if challenged over the issue of penalty charges at common law, a Court would first need to examine the particular contract at its outset (precedent case law in the House of Lords and Court of Appeal: Dunlop Co Ltd v New Garage Ltd [1915] AC 79;Murray v. Leisure play [2005] EWCA Civ 963; CMC Group Plc And Others V Zhang [2006] EWCA Civ 408)

[Bookworm]

Let me clarify this for you:

 

The charges as set in the T&Cs for the 8 banks in the test case were found not to be capable of amounting to penalties, but they were not found to be for a service either, which leaves us to wonder what they are for.

 

Some of the charges included in the T&Cs for Natwest some time in 2001 however were found to be capable to amount to a penalty, maybe.

 

Hang on, I am not finished.

 

The other banks not involved in the test case never got their T&Cs examined, so you could still try to claim under the penalty argument, though you can bet your sweet asp that the bank in question would try to use the test case result as an analogy to their own. Also Barclays new T&Cs don't come under the test case either.

 

Is that any clearer now?

[shakespeare62]

Well said Bookworm .

[Thailand]

Cheers the Bookie-muncher.

 

leaves us to wonder what they are for

 

Hmmm, I wonder. I know it can't be profiteering.