Supreme court rules

[SurlyBonds]

Can we just calm down on this subject please... the banks have NOT 'won'... although, as usual, they will try the bullyboy tactic of dressing up the decision into a "The Courts have agreed with us and we will not be refunding your charges". which they have not... the ruling is that the OFT cannot investigate whether the charges are reasonable taking into account the 'whole package' argument.

 

I switched my cases last year to the UTCC Regs but under the 'reciprocal balance of rights in the contract' approach, and didn't have the cases stayed, and won them all... well, the banks didn't turn up and just paid up.

 

Yes, the judgement was clearly politically motivated... two higher courts are then trumped by a newly-founded (pouplated by Labour-luvvies) 'Supreme' Court, named to try and make Broon and The Straw Man sound all important by having something named after the USA system. Interesting how the Court has also said that no appeal can be made to Europe - the very source of the base legislation from which the UTCC Regs are derived?! (Work that one out when you have a spare decade!)

 

Just dust yourselves down, and then take on the banks with the simple attack of "any charges schedule is not fair - regardless - because there is no reciprocal clause that gives the consumer the equal right to charge the bank for any breach of terms, or failure in their side of the bargain."

 

You could also argue that bank is not acting reponsibly by contacting you first before putting you overdrawn, and they have a duty of care to ensure that you are not unnecessarily burdened with a breach of contract when you genuinely were not aware that such a breach may occur.

 

The banks have telephones... they should let you know that you are in possible danger of commiting a breach of contract.

 

Also, any change in terms and conditions that the banks try to impose are not applicable unless agreed to, in writing - the banks cannot apply a change solely on the basis that if "you didn't reply it is assumed you agree."

 

Let's face it, the OFT didn't really tackle this case on the right fronts, and just chose one slim thread on which to base it. Had they appproached on all clauses of the Regs, then the overwhelming balance would probably have dusted it on the initial case.

 

Stand by for the crowing letters from the banks, but don't be bullied by them... BTW, the Dunlop case is still case law... this ruling has not overturned that.

[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)

[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

[SurlyBonds]

Thanks for that excellent digest and contribution Mark.

 

I would add, though I am uncertain as yet, as to whether, as other posters have stated, Dunlop continues to apply.

 

Dunlop of course relates to 'penalties'. Insofar as I know this argument was dismissed early on in the High Court and this was affirmed in the CoA. Has the SC judgment done anything to insist that such charges are penalties and that Dunlop still applies. I'd hate to see anyone float this boat and get short shrift.

 

Anyone?

 

Penalties still applies to the older contracts where the banks did actually use the term 'penalty fee', or 'additional administration charges/fees'. Ruling yesterday included reference, as did Smith's Appeal ruling. Smith ruled out the later use of common law, except where the UTCCRs don't protect the consumer. It's all down to the wording of the contract... hence why most banks reissued their T&Cs when the balloon went up.

[SurlyBonds]

They have no legal ground for doing this.

 

 

They are legally allowed to "ask"... as is anybody. However, it is still up to the judge to determine any new evidence and the effect of the SC judgement as to how it affects the original stay, and whether the banks can use it to strike out the original claim.

 

It's just sabre-rattling bully-boy tactics from one of the most charlatan establishments in the World.

 

I just find it more than hypocritical for the banks' weasels like Angie 'Fish Lips' Knight to harp on about customers should "ask first before going overdrawn", when the taxpayer - read: you and I - have just bailed out their unauthorised overdrafts to the collective tune of:

£2,000 billion

Wonder what the charges on that should be? Will they be paying it back to the taxpayers?

 

Total and utter hypocrisy.