Sheriff puts Bank of Scotland to proof on bank charges

[fireprism]

I have been given permission by a midlands judge to amend my claim for bank charges. The judge found in my favour despite the (was abbey) trying to have my case thrown out of court. The date is not yet set, but santander have to answer to my amended UTCCR regulation 5 claim AND prove charges are fair under CCA140A. I have fought them at every turn on my own and fully expect to win in the small claims court despite the bank trying to have the case moved to the higher fast track court where i would have been liable to all their costs if i lost. They cannot prove in court it costs more that 50p to process a returned direct debit without committing an act of perjury, and i doubt they will turn up even now i have got this far.

[GuidoT]

Fireprism, although you have not won, I have not heard of this happending before.

 

You should start you own thread.

 

Have you drafted your amended pleadings?

[caro]

I have been given permission by a midlands judge to amend my claim for bank charges. The judge found in my favour despite the (was abbey) trying to have my case thrown out of court. The date is not yet set, but santander have to answer to my amended UTCCR regulation 5 claim AND prove charges are fair under CCA140A. I have fought them at every turn on my own and fully expect to win in the small claims court despite the bank trying to have the case moved to the higher fast track court where i would have been liable to all their costs if i lost. They cannot prove in court it costs more that 50p to process a returned direct debit without committing an act of perjury, and i doubt they will turn up even now i have got this far.

 

Has it actually been allocated to SCT? I think you can expect santander to fight this very vigourously because just one win will make a massive difference and get people claiming again.

 

I'm in the Midlands myself so depending where you are, if you want a court buddy and I can get the time off work I'd be happy to come with you for moral support.

[car2403]

They cannot prove in court it costs more that 50p to process a returned direct debit without committing an act of perjury, and i doubt they will turn up even now i have got this far.

 

Why 50p and why would it be perjury?

[ragger]

I have been given permission by a midlands judge to amend my claim for bank charges. The judge found in my favour despite the (was abbey) trying to have my case thrown out of court. The date is not yet set, but santander have to answer to my amended UTCCR regulation 5 claim AND prove charges are fair under CCA140A. I have fought them at every turn on my own and fully expect to win in the small claims court despite the bank trying to have the case moved to the higher fast track court where i would have been liable to all their costs if i lost. They cannot prove in court it costs more that 50p to process a returned direct debit without committing an act of perjury, and i doubt they will turn up even now i have got this far.

 

hi

not been on here for a long time like many others went through the whole court thing only to be stayed then waited for s.c. ruling then told that was the end so can someone please explain how cases are still going on and courts are allowing amendments in there p.o.c.s why wasnt everyone one given that chance? please forgive me if iam a little way behind others but i would like some information as to where things are at this time

many thanks

[car2403]

hi

not been on here for a long time like many others went through the whole court thing only to be stayed then waited for s.c. ruling then told that was the end so can someone please explain how cases are still going on and courts are allowing amendments in there p.o.c.s why wasnt everyone one given that chance? please forgive me if iam a little way behind others but i would like some information as to where things are at this time

many thanks

 

only cases based on penalty charge claims and the same regulations in UTCCR should have been stayed. From what this poster is saying, they have permission to amend to using clause 5 of the UTCCR rather then the clauses used by the OFT. From what is said... we really need to know more before jumping to conclusions, IMHO.

[Peterbard]

only cases based on penalty charge claims and the same regulations in UTCCR should have been stayed. From what this poster is saying, they have permission to amend to using clause 5 of the UTCCR rather then the clauses used by the OFT. From what is said... we really need to know more before jumping to conclusions, IMHO.

 

HI

Not trying to make a point just asking a question.

 

On a current account post the SC judgement how can any action involving any section of the UTCC's be made?

 

Surely the core term and price issue stops any action.

 

Peter

[car2403]

HI

Not trying to make a point just asking a question.

 

On a current account post the SC judgement how can any action involving any section of the UTCC's be made?

 

Surely the core term and price issue stops any action.

 

Peter

 

Well, depends...

 

I read it as saying that "the OFT can't question the fairness of the terms, but if they did, the regs they used wouldn't work. Go away and have a little looky at reg 5, then bring individual claims not through the OFT"

 

Is it a core term in all agreements, is the question, then, apparently?

[Peterbard]

Well, depends...

 

I read it as saying that "the OFT can't question the fairness of the terms, but if they did, the regs they used wouldn't work. Go away and have a little looky at reg 5, then bring individual claims not through the OFT"

 

Is it a core term in all agreements, is the question, then, apparently?

 

HI C

 

From what i read it seems to me that if the argument falls at the section 6 test then none of the other sections in the legislation apply, is this incorrect.

 

The only thing i can think of is perhaps that the charges whilst being a core term still fail to be a price of the bargain, this would then pass the section 6 equirements and enable 5 test on ability to negotiate to apply

 

Peter

Edited April 1, 2011 by Dodgeball

[car2403]

HI C

 

From what i read it seems to me that if the argument falls at the section 6 test then none of the other sections in the legislation apply, is this incorrect.

 

The only thing i can think of is perhaps that the charges whilst being a core term still fail to be a price of the bargain, this would then pass the section 6 equirements and enable 5 test on ability to negotiate to apply

 

Peter

 

Regulation 6 contains the test of assessment of the unfair terms, whereas reg 5 outlines the unfair terms and their impact.

[Peterbard]

Yes and regulation 6.2 (both a. and b.) which the banks won with, are not actually regulations but exemptions from the regulations.

 

The Supreme Court ruled that bank charges fell within the exemptions as they apply to the main subject matter (core) and as such cannot be subject to the test for fairness. This rules out any challenge to the cost/price ratio regardless of what section of UTCCR is being used.

 

Any challenge under 5.1 would have to be made not to the level of the charges but to their application ie the frequency of them and charges necessarily resulting in further charges.

 

In my opinion (and that of Santander’s), unpaid item fees are not subject to the CCA. And so I am at a loss as to how the case could turn on establishing the charge costs at 50p or any amount.

 

HI C

 

So any caim would have to fall into the exemption in section 6 in order to claim under any other section of the act wouldnt they.

Isnt frequency and added charges just another way of sayinig costs or price?

I think if the charges where made on an oveerdraft they may be covered under the CCA.

 

Peter

[Peterbard]

No, I think it's separate from challenging the actual cost of each charge. An extreme example might be a £39 charge which would be unchallengeable in itself but if that charge is applied a thousand times then it could call into question the balance of the rights and obligations of the contract.

 

I'm not quite sure what you men by 'if the charges were made on an overdraft'.

 

Hi

I think they could argue that if the price for the service was £x then to provide that service Y times the cost would be £XY

 

Wouldnt it be better to pursue the section that questions if the charge was individually negotiated.

Isnt that really the center of the argument. They are saying that the charge is a core charge and the negotiation of that charge is controled by market forces and competition , well charges arn't, they are not a key factor in the decision making process when the loan is taken out , there are countless servays that confirm this.

 

You mentioness something about bank accounts not being covered by the CCA of course overdrafts are, that was all i meant .

Of course if we are talking about section 140 it doesnt matter because it aplies to any agreement even a cca exempt one

.

Peter

[car2403]

I'm not quite sure what you men by 'if the charges were made on an overdraft'.

 

Overdraft debts being regulated by the CCA, it's arguable that s.140A applies

[Peterbard]

HI

 

As i see it charges have been established rightly or wrongly as part of the price of the bargain challenging that price on the grounds that it does not correspond to a fair mark up on its costs are now prohibited.

But is it prohibited to say tht the abiity to negotiate those costs never existed, and thus breached section 5.

 

A core term of a contract is seen to be accepted by the customer after they have weighed benifits in comparison with other products.

This is simply not the case with charges.

 

By not allowing the customer to consider the bargain the creditor is:

 

© making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

is also

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

and is not

m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract

 

Schedule 2

UTCCs

 

Peter

[Peterbard]

Hi

 

In other words i am not arguing that the charges are fair or unfair or disproporionate,but that the fact that we were not given sufficiant chance to determine their fairnes or proportionality and this in itself is unfair under the UTCCs. May be that it is to small a point but i think it is worht considering if it hasnt been already.

 

Peter

[Guest]

.... a term in an 'agreement' saying for eg 'if you exceed your o/d limit then a 'fee' will be payable', may not as a whole be unfair. whilst this term itself may not be unfair, the distinct question is whether the amount of that 'fee' charged is fair/proportionate? and, the law allows for this q to be considered?

as rdm says, the oft may have made a 'tactical error', as they say!?

imo

Edited April 2, 2011 by Ford
typ/edit

[car2403]

Hi

 

In other words i am not arguing that the charges are fair or unfair or disproporionate,but that the fact that we were not given sufficiant chance to determine their fairnes or proportionality and this in itself is unfair under the UTCCs. May be that it is to small a point but i think it is worht considering if it hasnt been already.

 

Peter

 

The CAG POC for charges included these arguments, but I think you're right, it's such a small consideration that one should err on the side of caution before relying on it solely - which is what we're doing here, of course, because the other arguments have been 'backed in to a corner' in such a way that they are best avoided.

 

One thing I was wondering, just to throw it out there, for discussion, is a new claim on this basis would have to be accepted by the Courts where a claim on the other basis had been discontinued - I know a claim cant be brought again on similar terms, but bringing a new claim, for the same value/charges, etc, with a new basis would be allowed. They'd kick back saying 2 claims can't be brought on the same charges, but as long as the POC are sufficiently different from the previous claim, it should be accepted. IMHO...

[Mr lex]

We had a bit of a result with my son 'Long Lex' and HSBC a few months ago.

This never got beyond sub-branch and branch level. Although it was obviously being discussed eles where.

 

We had a 2000 page plus SAR back from HSBC, Crusher and Bookworm will support this as they have both seen it, in fact Crush and I had it spread all over the pavement at one of our 'Pasty Meets' !!

 

We argued that they (HSBC) were in breach of UTCCs by :-

 

Not allowing him to pay his loan by standing order, insisting that the DD stayed in place. ( He is payed weekly)

 

Not allowing him to pay his loan back from another bank account (parachute) There by denying him the right to any competition as far as which bank he went with for the duration of the loan (3 years)

 

That the loan had been mis-sold as it was unreasonable to expect a 20 year old to turn down a loan offer of £3,500 when the request was for just £1,000, particularly as his salary was tight.

 

We supported this with a complaint to BACS and the OFT. HSBC were in receipt of both complaints before we had a meeting at main branch level.

 

Their first offer was to refund sufficient funds to place the OD back within it's limit. This was refused. They then offered to up the anti and repay some of the charges to repay the out standing arrears on the loan, the 3 months he was getting in trouble with, this was also refused. We left the office at this stage and said we would continue to court as we thought the case had merit.

 

48 hours later we had a letter from the local head office offering all the above, plus an addition £200 as a 'GWG'

 

I discussed this with my son at length and he decided to accept this, before we could put this in writing, the money was back in his account.

 

Therefore, I do not consider this a F and F, as nothing is in writing. So at some point we could go back for the rest. He had £700 back out of a £1,100 claim. I await the result of the GLC case and others before I'll pursue it further. I have gone along with my sons decision as it was not my motorbike that was in danger of being repossessed, in fact, if I had known what he was doing, I would have nailed his hide to the back door. !!

 

However, it is one of the best results I have seen since the OFT case.

 

Lex

Edited April 1, 2011 by Mr lex
Spilling !!

[Peterbard]

The CAG POC for charges included these arguments, but I think you're right, it's such a small consideration that one should err on the side of caution before relying on it solely - which is what we're doing here, of course, because the other arguments have been 'backed in to a corner' in such a way that they are best avoided.

 

One thing I was wondering, just to throw it out there, for discussion, is a new claim on this basis would have to be accepted by the Courts where a claim on the other basis had been discontinued - I know a claim cant be brought again on similar terms, but bringing a new claim, for the same value/charges, etc, with a new basis would be allowed. They'd kick back saying 2 claims can't be brought on the same charges, but as long as the POC are sufficiently different from the previous claim, it should be accepted. IMHO...

 

HI C

 

Yes although if you think about it , if this where a credit agrement the "core terms" would be the prescribed terms wouldnt they? and the default charges certainly arn't one of those.

 

The reason the CCA1974 recognises these terms as being prescribed is because they are the core terms of the contract, the terms that the customer must be aware of in order to make a well informed bargain. This is why the act makes the provisions for the placemant of the temrs and says that they must be the most prominent. I wonder if an argument could be made about the prominence of the default charges in relation to the other core terms in a CU account? ie Could a term at the back of the T and Cs be open to the same deliberation as with the ones in bold letters on the front ,would they be given an equal amount of deliberation, have the benifit of the same commertial pressure,competition.

 

I dont know about re presenting the case i would have thought that you are right if the pleadings are sufficiantly different i think it would be OK.

Peter

[rdm2006]

The courts did NOT find that the terms relating to charges were CORE, however they did find that they were part of the overall cost, this is why the judge stated that they could still be challenged under UTCCR 5.1 for reasons other than price.

 

I.E you can challenge the existence of the charge (assuming you find a good reason) but you can not challenge how much that charge should be

Edited April 1, 2011 by rdm2006

[car2403]

HI C

 

Yes although if you think about it , if this where a credit agrement the "core terms" would be the prescribed terms wouldnt they? and the default charges certainly arn't one of those.

 

The reason the CCA1974 recognises these terms as being prescribed is because they are the core terms of the contract, the terms that the customer must be aware of in order to make a well informed bargain. This is why the act makes the provisions for the placemant of the temrs and says that they must be the most prominent. I wonder if an argument could be made about the prominence of the default charges in relation to the other core terms in a CU account? ie Could a term at the back of the T and Cs be open to the same deliberation as with the ones in bold letters on the front ,would they be given an equal amount of deliberation, have the benifit of the same commertial pressure,competition.

 

I dont know about re presenting the case i would have thought that you are right if the pleadings are sufficiantly different i think it would be OK.

Peter

 

Well, the Judgment says they are a core term, but core terms are given precedence in agreements, so yes, I can see your point, there - but why did the OFT not argue this is beyond me.

 

Of course, the CCA bits about overdraft debts only apply to those overdrawn. I guess most people facing charges issues are in overdraft.

 

it's going to be interesting to see how these CCA arguments pan out in Court - what we need is someone to break ranks and push cases through for the first wins, then the floodgates will open. Again.

[Peterbard]

The courts did NOT find that the terms relating to charges were CORE, however they did find that they were part of the overall cost, this is why the judge stated that they could still be challenged under UTCCR 5.1 for reasons other than price.

 

I.E you can the existence of the charge (assuming you find a good reason) but you can not challenge how much that charge should be

 

Hi

Do you have the section of the judgment that says this, i hope so as it supports my argument.

Peter

[rdm2006]

oops duplicate

[rdm2006]

Sorry I dont but I do remember it was paragraph 80 of lord walkers summery (at least I think it was lord walkers)

 

It used to be on this site somewhere but disappeared some time ago

[car2403]

Hi

Do you have the section of the judgment that says this, i hope so as it supports my argument.

Peter

 

I can't find anything in the Judgment that supports that contention, in fact, there's lots that say they are Core, including the fact that the T&C's include details on what the charges are, how they are applied and how to avoid them in the first place.

 

From MSE on the new challenges recommended;

 

http://www.moneysavingexpert.com/reclaim/oft-bank-charges#legal