Supreme court rules

[steven4064]

PLease read the announcement. The judgement has in fact opened the way for claims to continue. Make sure you use s5 UTCCR1999 and off you go. Apply to have stay lifted

[tosh1]

Look after the dissappointment of this morning. The banks may think they have won. they haven't. lets re-group and go at them again

[enoughisenough]

In fact this is a reverse propaganda job that Orwell would have (indeed did) use. They have done no such thing as pull off a stunning victory as the Telegraph had it online today.

 

Unfair Terms

 

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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

[Crapstone]

The only shadow lies across the failure of the OFT. A tidal wave is coming since the waiver was lifted. Will they cope with all those cases in the time frames. New complaints, stayed complaints in court and those sitting with the FOS. How quick do they think this backlog can be cleared without a fight?

 

Although initially shocked at the decision I now think this is far better for us as it opens up a wider arguement rather than the narrow channel that the OFT screwed up. More scope to question the whole of consumer law rather than relying on one set paragraph that took 18 months of time wasting.

 

I truly think that between us we could have presented a better arguement than what the OFT did, even though they had a legal team.

[SurlyBonds]

I truly think that between us we could have presented a better arguement than what the OFT did, even though they had a legal team.

 

Too damn right... the OFT's case was pathetic and was put together begrudgingly and only after extreme pressure from the various forum groups and Which.

 

It was the most pathetic attempt I've seen... I've done better on all the cases I've represented... in fact I've had two judges joke about whether I was going to be giving evidence to the higher court cases.

 

I would bet that they now give up claiming something ridiculous like "exhausted all avenues" trying to make out that they have gone through all the Courts available and can go no further... nothing about taking it on via a different tack though. Don't hold your breath.

[SurlyBonds]

In fact this is a reverse propaganda job that Orwell would have (indeed did) use. They have done no such thing as pull off a stunning victory as the Telegraph had it online today.

 

 

The biggest thing to remember in all this is did today's judgement over-rule, negate or void the Dunlop case?

 

No.

 

Did it decide on the OFT's ability to question charging structure?

 

Yes.

 

Does that apply to individual cases?

 

No.

 

They are still to be decided by the courts on a case by case basis. The banks will write to everyone claiming they've won and "give up the fight because you won't win" when the courts still have to listen to the other clauses of the legislation and for CC judges/recorders to decide if the Dunlop case applies, or the reciprocity terms are present, etc., etc., etc.

 

DON'T START LISTENING TO THE BULLY-BANKS... LOOK THEM IN THE EYE AND JUST TELL THEM "BRING IT ON". (I doubt most would even show up in court anyway)

[dazzaboy2]

Quick question guys,

 

I am one of the lucky ones and claimed back my charges a few years ago. I did not get them back as a goodwill gesture however, I won, by default in court.

 

Everywhere I've read says that the banks cannot ask you for the money back due to this ruling, as charges were returned as good will gestures. Mines however were not. I sent the bailiffs in (twice to HBOS and once to Lloyds) in order to get my cash back.

 

They won't come asking for the money back now will they?

 

Dazzaboy2

[Crapstone]

No they can't. This ruling had nothing to do with any cases won or lost, in court or out if it. They'd be foolish to appeal an individual court case that they had lost, after it has been enforced.

Edited November 26, 2009 by Crapstone
Needed to rephrase it.

[Crapstone]

This ruling simply means that the OFT have been denied the grounds to act for us and determine the charges as being unfair. It does not mean that a judge would follow the same path on individual or class action based on other merits that the OFT failed so spectacularly upon.

 

It's merely a glitch and puts you back in the same place as you were pre waiver and pre OFT failure. 2 options ..wait and see if the OFT pulls something out of the hat or continue as we intended before with the court cases and complaints.

[SurlyBonds]

They won't come asking for the money back now will they?

Dazzaboy2

 

Precedents can't be retrospective, especially when today's judgement has nothing to do with what your bank agreed before. Today's judgement was simply about whether the OFT was allowed to determine if the 'price/cost/amount' of charges was fair and reasonable... a totally different matter to "ARE they legal in the first place".

 

Can people PLEASE understand this...

 

The banks have won squat! Repeat... The Banks have won nothing like the victory they are crowing about... they are now simply going to try and convince people by letter to give up the fight.

 

What they did win = a single thread of test case as to whether the OFT (note: the OFT) can examine or decide if the charges applied are fair for the overdraft (or provision) supplied. End of.

 

They have won nothing against the rank and file public, other than IF the OFT had won, then people would probably have got their money back automatically... only IF the OFT had ordered them to. And that's only an IF... they probably would have cut a liability-limitation deal.

 

So, you won't get anything back automatically now, you will still have to persue it yourself... just like before.

 

The Judgement clearly states that the OFT was barking up the wrong legal tree (because the Regs are poorly worded in clause 6... not like other European countries) and hints (quite clearly) that the test should have been as to whether the charges are lawful in the first place... C5.

 

So, don't rely on Clause 6... revert to Clause 5... it is that simple.

 

And, the Dunlop precedent has NOT, repeat NOT, been deleted as a result of this judgement.

 

Get with it people and stop weeping into screwed up statements... just tell your bank to bring it on. They will bully, they will spin their "Victory" letters to try and make you give up, but let's face it, what have we had to put up with for the last several years, but spin, bull$hit and bully-boy who-blinks-first tactics?

 

Ask the bank for:

1. Proof that each term of the contract was individually negotiated

 

2. Proof that it provides an equitable balance of rights to both parties - (yeah, right) Where's your table of fees if they breach the contract? oh, you mean you don't have one... the banks didn't sign your tariff of fees table... then that clause is void. And if that term is void, then whatever is in it (i.e. £35s for each 'offence') is also void. End of.

 

3. Proof that you, as the customer, has been able to influence the substance of the terms or variations over the years as they've put charges up... i.e. did they ask you if you thought the table of fees was reasonable? Like hell. Then it's void. End of.

 

These are all clause 5 bits... so go people... use them! Enjoy!

Edited November 26, 2009 by SurlyBonds
typo

[Crapstone]

The banks have won squat!

 

They have resisted and been aided. Billions of squids out of them when they are shored up is a no no and on the cards that it wouldn't happen as an automatic refund. It's not in the economies interest just as not knowing about secret lending.

 

And why settle for just a straight refund when they have caused much more harm than that? If that charge caused further financial hardship then go get em. We aren't just talking about the odd fee here or there..people have lost their homes and lives because their salary doesn't cover the charges, never mind their debts and expenses.

[kog]

Lets get something straight here. The OFT have done the Banks a very good service, because back in 2007 the consumer was doing just fine fighting the banks on an individual basis and winning. If it had carried on as it was the banks would have backed down on this issue long ago.

 

As it stands the OFT stuck their hooter in, the power the consumer had back in 2007 was instantly removed by putting a Stay on all outstanding court cases, and the master stroke for the banks, that they be allowed to carry on making charges against customers as usual.

 

The OFT then put forward a narrow argument about unfairness, and I'm not entirely sure what was supposed to be unfair.

[enoughisenough]

I'm beginning to think that many people myself included were being royally conned even when we won with interest. I agree think of how those charges ruined you, forcing you into ever more expensive credit.

[onestressedwoman]

Peterlucas !!!!!!!!!!!!!!!!!!!

 

Quote:

Originally Posted by onestressedwoman

What I really want to know is : if a bank has agreed a refund then can they renege on there assurance

 

No, that's a compromise agreement and is regarded as a form of contract.

 

I Had such a hard day yesterday your comments relieved me !!!!!!!!!

 

Money paid in this morning !!!!!!!!!!!! Thank You !!!!!!!

[enoughisenough]

excellent News Osw. Well Done!

[boppers]

Ok so I live in New Zealand and crapwest have my claim stayed. Should I ring them now to ask for it to be lifted or do I wait for more information on the best way to go around it. Also if I was to come to England to fight my case and won could I charge them for my travelling and court costs? Just thinking if I could that might want them to settle out of court.

[TickledPink]

Can someone please direct me to an online copy of the full judgement? I'd like to read it for myself. One of the things I learned from studying law was always ignore what's being said in other publications (I've come across errors in major legal publications) and especially what people, including lawyers (who tend to base their 'advice' on these errors), tell you.

 

There's been so much misinformation and confused/confusing information given out about this case that it might be worth me reading it myself before deciding what to do next.

[onestressedwoman]

excellent News Osw. Well Done!

 

Enough is Enough !!! :) :)

 

This site kept me sane yesterday - Thank to one and all

[kog]

Full judgement

http://www.oft.gov.uk/shared_oft/personal-current-accounts/Supreme_Court_judgment.pdf

[kog]

83. Andrew Smith J considered at paragraphs 295 to 324 whether the Relevant

Charges were penalties at common law so as to be unenforceable for that reason. He held

that they were not because a penalty at common law is a payment that becomes payable

upon a breach of contract. Liability to pay Relevant Charges is not contingent upon

breaches by the customers of their contracts. It is not a breach of any of the standard form

contracts under consideration to overdraw, or attempt to overdraw, on a current account.

Mr Sumption rightly conceded, however, that the Banks could not convert what were in

effect penalties into “price” simply by wording their contracts so as to ensure that the

contingencies that triggered liability to pay the charges did not constitute breaches of

contract.

[sequenci]

This is the last time I'll ask, please keep this thread on topic. If I see any more trolling I'll be placing people on moderation.

 

Thanks

[onestressedwoman]

Quick question guys,

 

I am one of the lucky ones and claimed back my charges a few years ago. I did not get them back as a goodwill gesture however, I won, by default in court.

 

Everywhere I've read says that the banks cannot ask you for the money back due to this ruling, as charges were returned as good will gestures. Mines however were not. I sent the bailiffs in (twice to HBOS and once to Lloyds) in order to get my cash back.

 

They won't come asking for the money back now will they?

 

Dazzaboy2

 

What a gezzer like your methods ! - OSW would love to have been there !

 

reminds me of when my husband cut off a wheel clamp and the clamper was arrested :):):)

 

Sometimes the tables do turn and this site is turning tables for the people !!!!!!!!!!!!!

[steven4064]

dazzaboy

 

They could ask for the court judgement to be set aside but they would be foolish to do so because you still have a case and you could go after them again (with more interest)

[themadcap]

Ive gone and sent the template letter yesterday and seem to have jumped the gun a bit can anyone help

Do we really need the OFT ruling to carry on our cases

[mark1arby]

Supreme Court Judgment and what is means,

Thu, 26 November, 2009 2:53:26

From:

 

Add to Contacts

To:

Dear

 

Supreme Court Judgment and what is means,

 

 

Well I have just got back from London where I spent a lot of time trying to put right the media stories that the Bank’s had won and this was the end for consumers, gladly I note that most of the Media have now reported that this case was not as important as many people thought is was:

 

I am going to set out parts of the Judgment and explain what they mean if needed. After which I will outline what I think should happen next.

 

 

The Judgment

 

Firstly the Lord Walker highlighted the fact that many members of the public were not aware of the limited nature of the issue, which the court had to decide in the appeal.

 

At Para 45 Lord Walker Said “…The Directive and the 1999 Regulations apply only to terms which have not been individually negotiated“. Clearly the contract we all entered into with the banks has not been individually negotiated so the regulations do apply.

 

Lord Philips Para 57. Stated the issue is whether the relevant charges constitute “the price or Remuneration, as against the services supplied in exchange” within the meaning of the Regulation. If they do not, the attack on the fairness of the term that is open to the OFT will not be circumscribed (restricted) by Regulation 6(2)b. If they do, then they will still be open to attack by the OFT on the ground that they are “Unfair” as defined by regulation 5(1) but that attack cannot be founded on an allegation that the Relevant Charges are excessive by comparison with the services which they Purchase, for that is forbidden by regulation 6(2)b

 

So what does this mean, well it means that the Court has ruled that the charges for bounced direct debits and unauthorised overdrafts etc are part of the price for the services, therefore they cannot be tested for fairness under Regulation 6(2)b of The Unfair Terms in Consumer Contract Regulations 1999, However the Court has said that the OFT can assess the Fairness of the price under Regulation 5.1. According to other criteria. (See Para 59)

 

This point is further explained in Para 80. Lord Philips states ‘it seems to me that this reasoning is relevant not to the question of whether the Relevant Charges form Part of the price or remuneration for the package of the services provided but to whether the method of pricing is fair. (My emphasis added) It may be open to question whether it is fair to subsidise some customers by levies on others who experience contingencies that they did not for see when entering into their contracts. If not it may then be open to question whether the Relevant Terms fall within Regulation 5(1)….” Clearly his lordship highlighted that the court may be persuaded that it is unfair for some consumer to pay for services that other consumers benefit from for free.

What’s more it is mostly the consumers who are on low incomes and struggling financially that are paying for everyone else. This is in my opinion not fair, and shows the banks have not acted in “Good faith”. Or as Lord Mance’s suggested in the trial, that ‘the banks were engaged in a sort of Robin Hood in reverse’ (see Para 2) I would suggest he means the banks were taking from the poor to subsidise the rich.

 

All the Lords appear to have agreed with Lord Walkers final Paragraph that being 52, in which he said ‘…This decision is not the end of the matter’, as Lord Philips explains in his judgment. Moreover Ministers and Parliament may wish to consider this matter further. They decided in an era of so-called “light-touch” regulation, to transpose the directive as it stood rather that to confer the higher degree of consumer protection afforded by the national laws of some other member states. Parliament may wish to consider whether to revisit that decision.’

 

So what does all this mean, well it means the following

 

1. The OFT can still look at the charges under UTCCR 1999, and always has been able to. They could now launch a new test case. (However, what must be asked is why was there a two year test case on a very narrow point of law? when the OFT already had the ability to assess the fairness of theses charges under Regulation 5.1 and others )

 

2. All consumers who have submitted a claim using the Old Particulars of Claim, arguing that the price was unfair and or that these are a penalty charges. Needs to amend their claim to include an argument under regulation 5.1. (a new Particulars of claim will be live on the site tomorrow with full instructions on what you need to do)

 

3. We also need to put pressure on the Government to amend the Regulation so we all have the same consumer protection rights that other member states have. (So get writing to your MP’s a template letter for this will be on the site within 48 hours)

 

4. I am sorry to say but I would like to see the stay remain in place, for a least a month. This will give consumers time to amend their claims and other consumer groups and I will be discussing the possibility of joining forces to bring a joint Class action. I feel this would insure that we could make sure that all the legal arguments are covered in full. I will update you all on this when I have spoken to the other consumer forums.

 

 

Finally, I will explain Regulation 5(1) in more detail on the site for those that are interested. However, what was important in this news letter is to confirm that this was basically a set back to the OFT and not to consumers. Claims can still be filed.

The FSA has also lifted the Wavier.

 

I hope that the OFT if they do decided to bring a new action, that they will now invite the consumer groups to the table. Something we asked them to do before this test case, sadly that request was refused.

 

To conclude, the test case has only resulted in us having to amend the Particulars Of Claim and resulted in a two year delay, other than that we are back to the position we were in two years ago.

 

So was this test case a victory for the Banks, yes they beat the OFT on a small point of law, they did not beat the consumer forums and or the consumers.

 

Stephen Hone.

 

Warm regards and Full Respect to Stephen Hone.

 

This may already have been posted. Explains a lot though.

 

Cheers, MARK;)

Edited November 27, 2009 by mark1arby
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