Credit Card charges vs Bank Charges

[car2403]

Hi Aquitas

Thanks for the info, I am trying to get my head around the technicalities of this as you may have seen.

I apologise to those who are not interested ( well no I don’t actually, its my thread)

One of my problems is differentiating between a contractual breach and a penalty for triggering a contractual term.

For instance if the agreement says “ you pay so much a month”, and you don’t then that is a breach of the agreement, and as you say the penalty must put both parties in the same position post breach.

But what happens if the failure to pay mearly triggers a clause in the agreement, which says “ if the debtor fails to meet a payment then he must pay a fee”.

This is not really a breach is it? It is just an option offered by the agreement which incurs a particular cost. Does the cost have to be proportionate under common law?

Peter

 

I would say that in plain and intelligible English, even such a clause could still amount to a breach and therefore a penalty - the Court would have to decide the facts, then apply the Law.

 

Saying that, though, I'm talking common sense, so...

[Guest]

I would say that in plain and intelligible English, even such a clause could still amount to a breach and therefore a penalty - the Court would have to decide the facts, then apply the Law.

 

Saying that, though, I'm talking common sense, so...

 

HI

Yes I think it is about the language.

Isn’t that what the SC court decision showed, if you call it a breach then it has to be a penalty and be proportionate if you call it a fee for a service it doesn’t, wasn’t that why a the feverish re writing of agreements took place.

I think the Utcc argument was pretty much dead in the water once they defined the charge as a fee, if the fee is displayed on the agreement it is hard to show that it isn’t an agreed price.

In the case of credit cards I think we are pretty safe in the defintition there is no getting around the fact that it is a charge for default, it says so in the t and cs.

The argument is going to be , is it a representative charge.

So as said earlier the argument must lie in the consent to the amount of the charge, and if this sum can be construed as a penalty.

The Dunlop case mentioned earlier contains this

“There may be a greater risk of infringing the principle against extortion, or against the substitution of a larger for a smaller payment, in applying the same figure to a number of different breaches of varying importance, more especially if some occasion serious and others but trifling damage, than when it is applied to one breach; but if these tests are complied with the parties may reasonably be allowed to make their own agreement. No doubt if the agreed sum is not applied distributively, but equally to stipulations of varying importance, and in reference to any of the stipulations it is a penalty, it is a penalty for the purpose of the whole contract, since it could not in the same contract be construed both as a penalty and as liquidated damages.”

This has relevance I think in that a set charge is made for default on cards independent of scale of the breach that they may reflect

Peter

[car2403]

Perhaps referring to a publicly available judgment, rather than references to other forums, (where members can neither prove nor deny what happened either way) would be in order.

 

There's a question here of precedent - does the 'case' referred to act as a precedent to others in the same situation. I can't say either way, as there's no caselaw being bandied around about it, only opinions based on evidence which some seem reluctant to post. Makes me wonder why, but it's certainly not in the spirit of CAG, hence it was removed accordingly.

 

My point is, what is a genuine pre-estimate of charges in one case may not be in another, as it would turn on the case presented, the facts of that case, and the Courts interpretation of all of that. If there's a case out there that can be referred to which puts my mind at rest on that issue, please post it.

[Bigdebtor]

Car

 

I totally agree. My own experience is that when I asked a credit card company asked to justify the "fairness" of the £12 charge or the "ongoing accuracy" of its "pre-estimate" it just folded and repaid the full amount of all unfair charges (plus contractual interest).

 

It seems that after a half hearted initial attempt to "justify" the fairness of the £12 which they initially attempt to retain, just offering a refund of the excess charges above £12, they soon cave in when challenged to put up or pay up - as they do NOT want it to come out that their "genuine pre-estimate" was far from "genuine" with the true cost of an automated transaction to charge a default fee probably being only a few pence.

 

My reading of the OFT report is that they will deem any default charges above £12 to be "unfair" (apart from Egg who seem to get away with £15) - but that does NOT mean the converse - i.e. any charge of £12 or less is definitely "fair".

 

BD

[Bigdebtor]

Peter

 

The difference is my "real life experience" of success in reclaiming default charges is backed up by "evidence" - in my signature in the same post. Other similar threads show equal successes by other CAGGERs.

 

I really do not understand why you wish to discourage CAGGERs from reclaiming the FULL amounts charged as default fees by having any posts providing evidence of real successes removed.

 

BD

[Guest]

Brandon is publically available isnt it. Judge Denyer was quite unequivical in affirming that the charges where genuine pre estimates.

 

You cannot just say that something should not hsappen when it plainly does.

What is needed is a thorough understanding of the issues and the law involved, so that when these cases do start to get regularily challenged in there own right we are prepared with convincing logical counter arguments.

We tried shutting our eyes and shouting rhetoric about how unfair the system is on the bank charge issue, are we going to make the same mistake here.

Refusing to show evidence of actual cases that people have reported whatever their outcome, or source does no one any good, i would have thought that was obvious.

Peter

[Guest]

Peter

 

The difference is my "real life experience" of success in reclaiming default charges is backed up by "evidence" - in my signature in the same post. Other similar threads show equal successes by other CAGGERs.

 

I really do not understand why you wish to discourage CAGGERs from reclaiming the FULL amounts charged as default fees by having any posts providing evidence of real successes removed.

 

BD

 

Hi

As i have said before i do not want to disscourage anyone from claiming. But irrespective of whether you like it or not ,sooner or later the banks are going to start contesting these, now when that happens, you can try blaming the government or the judge or whatever takes your fancy but it will make avbsolutely zero difference to the outcome.

 

As for your reports i think we require proof apparently

 

Peter

[Bigdebtor]

Is Brandon not being appealed?

 

I really don't understand why there is any need now to rely on any "pre-estimate" - genuine or otherwise - when there is ample data available (going back many years) to to the card companies to establish actual historical data to justify the level of default charges. However they do seem most reluctant to publish such data and the experience of many CAGGERs (myself included) is that they fold when challenged to justify the £12 (or any amount charged) in such circumstances.

 

I also do not understand why you feel the need to devalue most of your posts with snide comments.

 

BD

[Bigdebtor]

Hi

As i have said before i do not want to disscourage anyone from claiming. But irrespective of whether you like it or not ,sooner or later the banks are going to start contesting these, now when that happens, you can try blaming the government or the judge or whatever takes your fancy but it will make avbsolutely zero difference to the outcome.

 

As for your reports i think we require proof apparently

 

Peter

 

My (and many other CAGGERs') experience is these are not contested in any great numbers currently. I am glad you do not wish to encourage any claims. I personally think it's better to have a position where "sooner or later" Banks MIGHT start to contest these (a matter of personal speculation) - than the position "NOW Banks WILL contest them" - which would be a matter of fact!

 

I do not think anyone (other than you) is asking for proof of what I have put in my signature. In any case testing out the practical effectiveness of my tactics will be a no risk task for any CAGGER wanting to get back EVERY PENNY of unfair (unlawful?) default charges.

 

BD

 

BTW - Have I missed something? Has it been actually been established that Bank overdraft charges are actually FAIR?

 

I thought the SC clearly left the door open on that issue and merely ruled the OFT did not have the right to investigate the "fairness" of such charges? This is certainly the view Lord Phillips attempted to convey on a recent TV programme on the SC's ruling.

[Guest]

Is Brandon not being appealed?

 

I really don't understand why there is any need now to rely on any "pre-estimate" - genuine or otherwise - when there is ample data available (going back many years) to to the card companies to establish actual historical data to justify the level of default charges. However they do seem most reluctant to publish such data and the experience of many CAGGERs (myself included) is that they fold when challenged to justify the £12 (or any amount charged) in such circumstances.

 

I also do not understand why you feel the need to devalue most of your posts with snide comments.

 

BD

 

Wthout wishing to make a snide comment.

We have to lookat this because it is the reason that the courts are winning the cases they have won. Simple as that.

Yes Brandon is being appealed in July and when we find out what happens that to will be analysed and used to form a strategy. If we are wise.

Or we could just blame the judge or the system etc.

Sorry if this appears snide to you but i am trying very hard to make a point.

We all know that these charges are unfair and worse but that is not enough patently.

[Bigdebtor]

Wthout wishing to make a snide comment.

We have to lookat this because it is the reason that the courts are winning the cases they have won. Simple as that.

 

Peter - Sorry - you've lost me. WHAT is the reason?

 

Yes Brandon is being appealed in July and when we find out what happens that to will be analysed and used to form a strategy. If we are wise.

 

Wouldn't it be wiser to not rely on Brandon until we actually do find out? In the meantime wouldn't it be equally wise for CAGGERs to get their claims in NOW - just in case Brandon does not go our way?

 

Or we could just blame the judge or the system etc.

Sorry if this appears snide to you but i am trying very hard to make a point.

 

Yes - it is a bit snide. Who else can/should we blame when these are the people still accepting "pre-estimates" when a wealth of historical verifiable data could be made available to prove how unfair such charges actually are and how far out these "pre-estimates" actually were?

 

We all know that these charges are unfair and worse but that is not enough patently.

 

I'm glad we agree on something. Hopefully GLC's efforts in Glasgow Sheriff Court will give us a way forward?

 

BD

[Guest]

My (and many other CAGGERs') experience is these are not contested in any great numbers currently. I am glad you do not wish to encourage any claims. I personally think it's better to have a position where "sooner or later" Banks MIGHT start to contest these (a matter of personal speculation) - than the position "NOW Banks WILL contest them" - which would be a matter of fact!

 

I do not think anyone (other than you) is asking for proof of what I have put in my signature. In any case testing out the practical effectiveness of my tactics will be a no risk task for any CAGGER wanting to get back EVERY PENNY of unfair (unlawful?) default charges.

 

BD

 

BTW - Have I missed something? Has it been actually been established that Bank overdraft charges are actually FAIR?

 

I thought the SC clearly left the door open on that issue and merely ruled the OFT did not have the right to investigate the "fairness" of such charges? This is certainly the view Lord Phillips attempted to convey on a recent TV programme on the SC's ruling.

 

Me and many other caggers claimed bank charges we did so for some time, we belived we had the legal right to do so.

It was shown that we didn't.

Now this is an unpeaasant fact get over it.

If we dont want the same thing to happen this time we had better get our argument right this time.

Or we could just bury our heads in the sand and hope it wont happen.

Never been one for doing that always thought it is bad idea.

No you miss the point i do not question your claims but they hardley" set precedent" or can be conirmed can they, it seems that this is the criterea now

[Guest]

I'm glad we agree on something. Hopefully GLC's efforts in Glasgow Sheriff Court will give us a way forward?

 

BD

 

the reasn that these caseswhere lost was because the charges were held to be a reflection of liquidated costs.

 

If you have arguments to counter this then lets hear them.

But arguments that would stand up in a court not rhetoric

 

I belive the Dunlop case holds the key but i could be wrong

Peter

[Bigdebtor]

Me and many other caggers claimed bank charges we did so for some time, we belived we had the legal right to do so.

It was shown that we didn't.

 

Where exactly was this shown? Have you told GLC they are wasting their time and SLAB's money in still pursuing this matter?

 

Now this is an unpeaasant fact get over it.

 

I don't accept this is a FACT - no matter what adjective precedes it- and it is unhelpful to claim it to be so whilst cases are still in progress.

 

 

If we dont want the same thing to happen this time we had better get our argument right this time.

 

My perception is we do have the argument right - and the backing of OFT - which in THIS occasion DOES carry some weight.

Or we could just bury our heads in the sand and hope it wont happen.

Never been one for doing that always thought it is bad idea.

No you miss the point i do not question your claims but they hardley" set precedent" or can be conirmed can they, it seems that this is the criterea now

 

My claims can certainly be confirmed - but I do not see any need to do so as it is a no-risk tactic for others to follow.

[Guest]

I'm glad we agree on something. Hopefully GLC's efforts in Glasgow Sheriff Court will give us a way forward?

 

BD

 

 

Sorry BD

 

"Who else should we blame"

That is just the point, it is totally irrelevant who you or i "blame". There is far to much time used in blaming or name calling, it serves no purpose and is self defeating because it stops peope trying to find out why we actually lost.

 

Peter

[Bigdebtor]

the reasn that these caseswhere lost was because the charges were held to be a reflection of liquidated costs.

 

Lord Phillips was at pains to point out he WAS NOT saying unauthorised overdraft charges were FAIR - and pointed at other ways forward. It looks like most English lawyers seem to have given up for the moment - which is a great pity!

If you have arguments to counter this then lets hear them.

But arguments that would stand up in a court not rhetoric

 

I'm going to leave that to Mike Dailly of GLC and his team - real lawyers fighting real cases in real life.

I belive the Dunlop case holds the key but i could be wrong

Peter

 

See comments in bold above.

 

BD

[Guest]

My claims can certainly be confirmed - but I do not see any need to do so as it is a no-risk tactic for others to follow.

 

My authority for this belief is the Supreme court the highest court in the land

 

Peter

[car2403]

Last warning - stop the personal attacks, or this thread will be locked (like all the rest) and offenders will be placed on moderation.

 

This forum is more about issues people are facing, then big egos and the site team won't allow this to continue.

 

Any quoting of this post with further comment will be removed - if you have complaints, direct them to site admin.

[Bigdebtor]

My authority for this belief is the Supreme court the highest court in the land

 

Peter

 

Peter

 

I'm getting very confused as to which SC ruling you refer.

 

Are you saying you believe the SC has:

 

a) supported credit card default (i.e.penalty) charges of up to £12 are FAIR? If so, when was this case?

b) ruled that unauthorised overdraft charges (of any amount) are FAIR? If so, did Lord Phillips get confused both in his summary judgement (shown on TV) and in his recent TV interview?

 

BD

[Guest]

Hi

The Supreme court ruled that Bank charges where legitimate charges.

The legitimacy of Credit card default charges have still to be decided.

Hence this thread

 

Peter

[Bigdebtor]

I do not wish to be accused of personal attacks and so shall not respond any further after clearing up one point by a statement of indisputable fact.

 

The SC ruling DID NOT prohibit further legal challenges on unauthorised overdraft charges and at least two such challenges are active in Glasgow Sheriff Court.

 

BD

[car2403]

I do not wish to be accused of personal attacks and so shall not respond any further after clearing up one point by a statement of indisputable fact.

 

The SC ruling DID NOT prohibit further legal challenges on unauthorised overdraft charges and at least two such challenges are active in Glasgow Sheriff Court.

 

BD

 

The SC stated that the OFT didn't have the powers under the UTCCRs that they brought the case on to assess the fairness of the charges - it's a common misconception that the SC declared the charges as fair. In fact, they said that they should be challenged under reg 5, but that isn't easily done 'en masse' as it requires individual unfairness in the case. (and almost requires individual unfairness per charge applied)

[Guest]

Hi

 

Dont think i ever said that bank charges were not challengable. with the appropriate legal argument and circumstances i am sure an individual may be able to do so.

But it is a major hll to cimb.

On credit cards i believe we have the oppertunity to develop an effective defence before we are put into the same position, that is the only point i am trying to make.

 

Peter

[car2403]

Hi

 

Dont think i ever said that bank charges were not challengable. with the appropriate legal argument and circumstances i am sure an individual may be able to do so.

But it is a major hll to cimb.

On credit cards i believe we have the oppertunity to develop an effective defence before we are put into the same position, that is the only point i am trying to make.

 

Peter

 

Quite right, Peter. What you actually said was:

 

Hi

The Supreme court ruled that Bank charges where legitimate charges.

The legitimacy of Credit card default charges have still to be decided.

Hence this thread

 

Peter

 

Are you saying that's now not right?

 

I can see how you'd be confused, if you're thinking about Dunlop, as Dunlop was about penalty charges, whereas bank charges aren't penalty charges, because the agreement includes provision for them.

 

Further confusion is that credit card charges have similar terms in agreements, but we haven't seen proof in caselaw that the same applies.

[Bigdebtor]

The SC stated that the OFT didn't have the powers under the UTCCRs that they brought the case on to assess the fairness of the charges - it's a common misconception that the SC declared the charges as fair. In fact, they said that they should be challenged under reg 5, but that isn't easily done 'en masse' as it requires individual unfairness in the case. (and almost requires individual unfairness per charge applied)

 

Car

 

Yes - that is what I recollect Lord Phillips saying on the day the judgement was announced and interpreted this as the SC pointing very clearly to another way to skin this particular cat. However on a recent TV programme he stressed the SC had NOT rules these unauthorised overdraft charges to be fair and went on to say he regretted the OFT were not legally allowed to challenge the "fairness" of these charges - but the SC were asked to rule on a very narrow point of law regarding what the OFT could do - and it was clear they could not legally challenge these unfair charges.

 

I fully accept the difficulty of using reg 5 - but believe if GLC win the two cases in Glasgow Sheriff Court we'll get back to the Banks shelling out - as they did before the OFT stuck its oar in - and as they currently do in the case of Credit Card default charges - paying out IN FULL (even the last £12) in order to avoid court action.

I guess it's similar to using CPUTR 2008 at present - if it works for you - then use it - and the sooner the better - just in case some smart Bank lawyer yet again manages to argue black is white!

 

BD