Sheriff puts Bank of Scotland to proof on bank charges

[rdm2006]

I am stating that the contract is unfair under section 5.1 as there is a significant imbalance in the rights and obligations to the detriment of the consumer in that

 

1. they can just help themselves to my money regardless - I cant just help myself to their money when I find it is their mistake nor can I dictate how much extra (in the form of a fee for considering if i will lend them that money or not) I can take.

 

2. The clause allowing them to raise such charges is one sided as there is no provision for the consumer to charge the bank when it has caused an event resulting in the charging of a fee

 

(Edit) which has the effect of Item d in schedule 2

 

d.) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;

Edited March 27, 2011 by rdm2006

[Peterbard]

I am stating that the contract is unfair under section 5.1 as their is a significant imbalance in the rights and obligations to the detriment of the consumer in that

 

1. they can just help themselves to my money regardless - I cant just help myself to their money when I find it is their mistake nor can I dictate how much extra (in the form of a fee for considering if i will lend them that money or not) I can take.

 

2. The clause allowing them to raise such charges is one sided as there is no provision for the consumer to charge the bank when it has caused an event resulting in the charging of a fee

 

Hi

 

Which term in the contract will you be claiming violtates the utccs in your case?

 

Peter

[rdm2006]

The one which allows them to raise charges.

 

Hopefully it wont be me raising it as it is the courts duty to raise its own motion, as per directive 93/13 which applies even if it has not been incorporated into the UTCCR's as it is settled law

 

29 It follows from the above that the protection provided for consumers by the Directive entails the national court being able to determine of its own motion whether a term of a contract before it is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts.

30 As regards the position where a directive has not been transposed, it must be noted that it is settled case-law (Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8, Case C-334/92 Wagner Miret v Fondo de Garantía Salarial [1993] ECR I-6911, paragraph 20, and Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 26) that, when applying national law, whether adopted before or after the directive, the national court called upon to interpret that law must do so, as far as possible, in the light of the wording and purpose of the directive so as to achieve the result pursued by the directive and thereby comply with the third paragraph of Article 189 of the EC Treaty (now the third paragraph of Article 249 EC).

 

Interesting to know that if it is not done, it is a possible breach of the treaty between the member states...

Edited March 27, 2011 by rdm2006

[Peterbard]

The one which allows them to raise charges.

 

Hopefully it wont be me raising it as it is the courts duty to raise its own motion, as per directive 93/13 which applies even if it has not been incorporated into the UTCCR's as it is settled law

 

 

 

Interesting to know that if it is not done, it is a possible breach of the treaty between the member states...

 

Hi

 

Contador illustrated the reason for my question regarding which term were you saying was unfair. Putting this to one side, i am interested in the case law you quoted, is there anything in there that confers the right on either party on a contractural breach to recover anything other than actual losses?

 

Peter

Edited March 27, 2011 by Dodgeball

[rdm2006]

It sounds to me that is was a breach of contract as presumably the policy required you to be paid, you weren’t and the bank subsequently rectified it by paying the sum plus compensation.

 

Schedule 2 of UTCCR doesn’t apply in your case as the terms in the contract did not permit the bank to either help themselves to your money or to retain sums paid on non-conclusion of the contract. That the bank actually did doesn’t mean the contract itself was imbalanced. And that is what Schedule 2 to is concerned with - the contractual terms - and not the with the bank’s adherence or otherwise to the terms.

 

After all, that's why they're called Unfair Terms in Consumer Contract Regulations

 

That breach had a knock on effect as they then failed to credit my current account with those funds which in turn caused charges to be raised which would not have otherwise been raised and no compensation was accepted.

[Peterbard]

That breach had a knock on effect as they then failed to credit my current account with those funds which in turn caused charges to be raised which would not have otherwise been raised and no compensation was accepted.

 

Hi

 

I am of the understanding that compensation cannot be claimed on a contrctural breach, is this incorrect.

 

Peter

[rdm2006]

Hi

 

Contador illustrated the reason for my question regarding which term were you saying was unfair. Putting this to one side, i am interested in the case law you quoted, is there anything in there that confers the right on either party on a contractural breach to recover anything other than actual losses?

 

Peter

 

The case I have referred to above is

 

Océano Grupo Editorial SA

and

Rocío Murciano Quintero (C-240/98 )

and between

Salvat Editores SA

and

José M. Sánchez Alcón Prades (C-241/98 ),

 

and the extract is concerning the implementation of directive 93/13 which is the basis of the UTCCR

[rdm2006]

Hi

 

I am of the understanding that compensation cannot be claimed on a contrctural breach, is this incorrect.

 

Peter

 

Don't get hung up on what caused the funds not to be credited

 

They failed to pay me that is a breach of the policy

 

they then failed to credit the current account causing an o/d situation that is another matter (in the same way that if we fail to put enough money in to our accounts it causes an o/d situation)

 

Or if you would prefer to look at it another way - they then took my money to pay the contribution/payment which should have been covered by the policy

Edited March 27, 2011 by rdm2006

[Peterbard]

Don't get hung up on what caused the funds not to be credited

 

They failed to pay me that is a breach of the policy

 

they then failed to credit the current account causing an o/d situation that is another matter (in the same way that if we fail to put enough money in to our accounts it causes an o/d situation)

 

Well i certainly wish you the best of luck with this. I admit i do not understand the rationalle but thats probably my fault.

 

Peter

[rdm2006]

The burden of proof does indeed apply to a defendant and can be ordered by a court of it's own motion under UTCCR - see below - but it is irrelevant to your case as your complaint does not lay with the terms of the contract but to the out-of-contract performance.

 

Why is it irrelevant?

[Aequitas]

To rdm2006

 

I think, with respect, you are failing to recognise the fundamental distinction the UTCCR make between the price paid for services and payments required to be made in respect of "side matters".

 

If you have a contract with a hotel to provide a room you agree a price for the room. The hotel is entitled to be paid the price agreed if you take the room. There is no question of reciprocity here and so the contract does not set out what your terms are for providing accommodation. The price you agree, however extortionate you consider it, cannot be challenged under the UTCCR. Quite different is if the booking conditions say that you must pay compensation if you cancel the booking, but do not provide for the hotel to pay compensation if they cancel the booking - that would fall foul of the UTCCR.

 

On reflection, I do not think that the bank are in fact in breach of contract here at all. Taking money when they ought not to have done was no more than an administrative error. They have corrected the error and if you have been fully restored to the position you were in before the error occurred then you are all square. If the bank have offered compensation, snatch their hand off.

[rdm2006]

The bank failed to pay out on a policy.

It then failed to credit that amount into my account.

A d/d then went out invoking the term which allows the bank to raise charges for unauthorised overdraft.

 

This unauthorised overdraft was due to the banks failure to credit the account and not mine

[rdm2006]

Because the court will only look at the terms of the contract in order to determine unfairness based on an imbalance. What actually happened to you and the consequences of it are irrelevant to that determination.

 

In short you are applying entirely the wrong law to your issue.

 

I cause an event which results in an overdraft --------- I have to repay the amount and their charges for that overdraft

They cause an event which results in an overdraft ---- they merely repay the amount

 

Is that not an imbalance?

 

Is it not retaining monies where there is no provision for the consumer to do the same?

[car2403]

I cause an event which results in an overdraft --------- I have to repay the amount and their charges

They cause an event which results in an overdraft ---- they merely repay the amount

 

Is that not an imbalance?

 

Is it not retaining monies where there is no provision for the consumer to do the same?

 

I think you're talking about unfairness, rather than contract breaches - they charge you for a service, but you can't charge them when they get it wrong. In your case, (going overdrawn) is a breach, you have to remedy that and meet their costs. It's the fairness of the cost that is the issue. If they make you overdrawn, there is a breach, which they remedy, but you have met with no costs, so what are you suggesting they pay you for, exactly?

[rdm2006]

I think you're talking about unfairness, rather than contract breaches - they charge you for a service, but you can't charge them when they get it wrong. In your case, (going overdrawn) is a breach, you have to remedy that and meet their costs. It's the fairness of the cost that is the issue. If they make you overdrawn, there is a breach, which they remedy, but you have met with no costs, so what are you suggesting they pay you for, exactly?

 

 

I have raised nothing about a breach that was contador, peterbad and aequitas, I am stating that it is unfair.

 

The court ruled that going overdrawn is not a breach for allowance is made for that event within the contract

Edited March 27, 2011 by rdm2006

[rdm2006]

You might be able to describe it as an imbalance but for the purposes of UTCCR the imbalance has to be solely in the contract terms and the contract terms only.

 

 

 

 

Is there not a term in the contact which (put simply) says if you fail to keep enough credit in your account we will charge for unauthorised overdrafts?

 

If there isn't then what gives them the right to do it?

Edited March 27, 2011 by rdm2006

[rdm2006]

I think you're talking about unfairness, rather than contract breaches - they charge you for a service, but you can't charge them when they get it wrong. In your case, (going overdrawn) is a breach, you have to remedy that and meet their costs. It's the fairness of the cost that is the issue. If they make you overdrawn, there is a breach, which they remedy, but you have met with no costs, so what are you suggesting they pay you for, exactly?

 

They can pay me for the service of finding their mistakes

 

or for lending them money for 12 months without prior authority for the charges they took for the pleasure of their error.

[car2403]

I have raised nothing about a breach that was contador, peterbad and aequitas, I am stating that it is unfair.

 

The court ruled that going overdrawn is not a breach for allowance is made for that event within the contract

 

They can pay me for the service of finding their mistakes

 

or for lending them money for 12 months without prior authority for the charges they took for the pleasure of their error.

 

Clause 5 UTCCR:

 

'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.'

 

I can see your point, but I think showing it's a significant imbalance is going to be the stumbling block

[rdm2006]

If you go overdrawn the bank have written into their terms and conditions the right to consider this as an application for an overdraft for which they make a charge.

 

The bank made an error which they corrected eventually in not paying a policy benefit. well good for them.

 

They then went on to charge me for considering overdrafts which should never have been there (I.E. they borrowed from me without prior authorisation)

 

Should I not have the right to consider this an application for credit?

should I not have the right to charge for that consideration.

 

what they actually did is irrelevant it is only an example which displays the unfairness of the contracts terms

[rdm2006]

Clause 5 UTCCR:

 

'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.'

 

I can see your point, but I think showing it's a significant imbalance is going to be the stumbling block

 

more to the point car is that Schedule 2 of the UTCCR is an indicative but non-exhaustive list of terms that may be regarded as unfair.

 

Part 1 Things that have the effect of: -

 

Item D “permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;”.

 

With regard to the imbalance.

 

They have the right to charge you and I whatever they like for a service which they impose upon us without any obligations if that goes wrong.

 

You and I, however, have all the obligations of paying those sums whether rightly or wrongly charged but no rights.

 

That sounds pretty significant to me

Edited March 27, 2011 by rdm2006

[car2403]

that sounds pretty significant to me

 

I was quoting Clause 5, as the Supreme Court pointed to that in their Judgment in the OFT charges case - they seem to be pointing us in the right direction, but the OFT have said they can't take up the cause as it's clear to me that the unfairness needs to be shown in each individual case, whereas the OFT have only the capacity to show that against the terms in general, not in your or my agreements with them. In other words, the charges can be unfair, but you have to show that unfairness in your claim and can't use general POC, etc, to do it.

[Guest]

I was quoting Clause 5, as the Supreme Court pointed to that in their Judgment in the OFT charges case - they seem to be pointing us in the right direction, but the OFT have said they can't take up the cause as it's clear to me that the unfairness needs to be shown in each individual case, whereas the OFT have only the capacity to show that against the terms in general, not in your or my agreements with them. In other words, the charges can be unfair, but you have to show that unfairness in your claim and can't use general POC, etc, to do it.

 

yes, they were 'pointing us' in a particular direction. and, as previously posted, the oft can't 'look into' the q of whether charges are unfair or not as it is 'beyond their terms of reference'.

imo

[Peterbard]

HI

Yes as Car says, the OFT cannot look into individual cases of unfairness and by definition the unfairness of something done or not done within the life of a contract would only be relevant to that individual case.

When the issue was to decide if terms in a contract(re charges) were unfair, the results of the investigations would have had implications for all agreements.

Peter

[onestressedwoman]

Question

 

I was thinking of requesting a a charging order be set aside due to unlawful banks charges ?? But sure that wording is wrong having read the notes at beginning of this thread is it now only future charges that can be questioned

 

OSW

[Peterbard]

Question

 

I was thinking of requesting a a charging order be set aside due to unlawful banks charges ?? But sure that wording is wrong having read the notes at beginning of this thread is it now only future charges that can be questioned

 

OSW

 

Hi

I am affraid bank charges on a curent account are not unlawful. I would check out "Sequencies" posts and bloggs for advice on dealing with your charging order.

Peter