Post OFT case: Strategies for Business claims (discussion thread)

[photoman]

I've started this thread with the intention of it becoming a discussion ground for analysing the implications of the current OFT case upon Business claimants.

 

Please post and discuss any ideas and thoughts upon what the case means for Business claims, and how to progress with such from here on in.

 

The purpose of this thread is to try and develop a general strategy for business claims, and to also see if this could be applicable to all institutions or require modification for some.

 

Please keep posts relevant to the aspects of law, legal principles, statutes or case law that might be used to build a case for the unlawfulness of bank charges on business accounts.

 

If you have an ongoing case or are commencing with a Business account claim, please start your own thread in the Business claims forum, rather than posting summaries or updates here. This way we can keep this thread more concise and easier to follow for all.

[photoman]

Just to start the ball rolling, here's some views I posted on the other thread:

Here are some of my own earlier posts on the issues regards Business claims post OFT judgement.

 

Remember, these are only my own views, and are not definitive.

 

 

 

 

Originally Posted by photoman

Quote:

His judgement, stretching to 119 pages, dismisses the idea that anyone who goes overdrawn without permission is in breach of their current contract with their bank.

Therefore, he decided, overdraft fees could not be a penalty for breaking that contract, as no breach had occurred.

But what about old contracts?

Most of the banks have been busily re-writing their terms and conditions since customers in their tens of thousands started demanding that their charges be refunded.

"An initial reading of the judgement suggests that the issue of historic terms and conditions is still wide open," said Marc Gander of the Consumer Action Group.

 

Also Quote:

 

The banks will be even more upset to see that some of their other central arguments were firmly rejected.

They had claimed that their charges were in fact fees for a service, and that their customers received a service even when their cheques were bounced.

"If a bank declines to pay upon a relevant instruction, it supplies no, or no relevant, services by way of considering, processing or otherwise dealing with it," the judge said.

 

 

So...

 

If their not penalties for a breach of contract...

And, their not charges for a service....

 

Then that only leaves the option that they must be Liquidated Damages.

 

In which case by such laws, they must not exceed the actual cost or remuneration involved in dealing with such. Which we all contend that they do, and the Banks continued lack of disclosure only adds weight to the likelihood that this is the case.

 

I believe the judge backs up this contention when he then says:

 

"I am unable to accept that either the paid item charges, and guaranteed paid item charges, or the overdraft excess charges, are the price or remuneration, or even a part of the price or remuneration, that the customer pays," he added.

Quote:

Originally Posted by photoman

I just wanted to post this in regards to my opinion on the recent OFT case judgement.

 

For Business claimants concerned as to how and if this may have any influence upon claiming upon a Business account at common law.

 

This is the statement in the judgement that may have raised some concerns:

 

From the judgement:

"As for the position at common law, I accept the Banks’ submission that none of the terms which I have considered (the terms now generally used by the Banks for personal current accounts other than basic accounts and also certain of the terms used until recently by Clydesdale and RBSG) could be unenforceable on the grounds that they are penal (paragraph 323 above)."

 

However, I do not see this as being the end for Business claims at Common law (or indeed those with personal accounts set up pre UTCR99):

 

Firstly, this is only the judges opinion, and I do not believe it sets any precedent. I think such issues would still need to be decided separately.

 

Secondly, this view only refers to "personal" accounts, and does not cite anything regards other type of (such as Business) accounts.

 

Thirdly apart from some Clydesdale and RBSG terms, this view is only taken with regards current terms (and even then only personal account terms), and ignores historical terms.

 

Lastly, it is also somewhat curios that during the period of the stays many Business claimants had stays lifted, due to their contention that their claims were not subject to the outcome of this case, and were instead based upon common law. In most circumstances they then quite quickly received offers and full refunds (often for very large sums).

 

This would all indicate that the Banks are really not very confident about winning a case brought upon the grounds of common law, particularly one with regards historical terms.

 

(This is why they they all so swiftly changed their T&C's prior to having them subjected to the scrutiny of this case).

 

PM

Quote:

Originally Posted by photoman

On balance, I feel I ought to add that any decision to now continue or pursue a Business account claim (ie; one not reliant upon UTCCR99, but instead purely upon common law grounds), must be taken carefully and with much thought.

 

Although I personally am still of the opinion that contesting such claims on common law grounds for Business claims is achievable (in line with my earlier post), that is perhaps an easy stance for me to take having settled my own Business account claims.

 

The way forward for Business claims could now be more difficult, and should only continued or be entered into after due consideration and with full preparation. One should make sure that any claim is watertight, and you have read and researched all applicable law. And be aware of the potential risks involved, particularly in fast or multi track.

 

I would suggest that for now before making any decision, you watch developments, watch the various discussions and news sites, and and speak to those in the know for advice.

 

Here is Zootscoots posting on the matter generally, which at the end suggests that Business claimants should hold back.

 

OFT v Abbey and others April 2008 - what this means for you

 

This is perhaps good advice, as we are in unsure territory at the moment here.

 

There is speculation that the OFT may apply to have those sections of todays judgment referring to Common law revised, and this would change matters (hopefully more to our benefit) yet again. Although this is just speculation at the moment, and if it does turn out to be the case, who knows how long that could take ?

 

 

PM

[photoman]

Those currently claiming on Business accounts may find this thread interesting?

 

http://www.consumeractiongroup.co.uk/forum/business-claims-bank-charges/146818-enron-nat-west-business.html#post1549807

[photoman]

More Business claims recently settled.

 

http://www.consumeractiongroup.co.uk/forum/business-claims-bank-charges/118741-sytra-hsbc-business-acc.html

 

http://www.consumeractiongroup.co.uk/forum/business-claims-bank-charges/116552-help-needed-bank-error.html

 

 

All very interesting, and also contrary to the Banks recent declarations that claims at common law (ie: Business claims) have no basis or chance of success.

[photoman]

VERY interesting stuff !!

 

Particularly like:

 

....we have concluded that the four largest clearing groups-Barclays, HSBC, Lloyds TSB and RBSG-are together charging excessive prices (including interest forgone on non-interest-bearing current accounts) and therefore making excessive profits, in England and Wales, of about £725 million a year over the last three years with adverse effects on SMEs or their customers.

[photoman]

I too think you've stumbled across something very significant, but think musings about this particular matter could be a bit sensitive (lots of guests), so at present maybe best dealt with by PM?

 

Elsinore, Andrew1, Martin, and BRW lets converse over next couple of days by PM, get a gameplan for Martin set up, and then when sure post our findings up here for all ?

 

PM