Dierective 93.13 (the basis of UTCCR) and the courts

[rdm2006]

I sent the following FOI request to the courts

 

Freedom Of Information Act

 

Dear sir/madam

Under the Freedom of Information act I would like to request the following information: -

• How many cases involving alleged unfair bank charges have been raised since January 2006?

• How many of those cases are in a status of “stayed” ?

 

Under directive 93/13 (UTTCR in the UK) and settled law (C-240/98 Océano Grupo Editorial, copy enclosed) the court has a duty to protect the consumer from unfair terms and conditions by raising its own motion (i.e. effectively, a case of its own) to test the fairness (for any reason) of such terms even if it is not raised by the consumer.

 

• Do the courts recognise that they have such a duty?

• In how many cases did the courts perform this duty?

• In how many currently stayed cases will the courts be performing this duty?

 

For example: -

 

Schedule 2 of the UTCCR has a non-exhaustive list of terms which may be considered unfair.

 

1. terms which have the OBJECT or EFFECT of –

 

(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.

 

Given that the banks have made no provision for the consumer to charge the bank when its own errors have caused an account to go overdrawn then this is likely to be unfair.

 

 

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Edited June 21, 2013 by rdm2006

[rdm2006]

and here is the reply................

 

Freedom of Information Request

 

Thank you for your email request to the Ministry of Justice of 22 May 2013 in which you asked for:-

 

How many cases involving alleged unfair bank charges have been raised since January 2006.

• How many of those cases are in a status of “stayed”.

Under directive 93/13 (UTTCR in the UK) and settled law (C-240/98 Océano Grupo Editorial, copy enclosed) the court has a duty to protect the consumer from unfair terms and conditions by raising its own motion (i.e. effectively, a case of its own) to test the fairness (for any reason) of such terms even if it is not raised by the consumer.

• Do the courts recognise that they have such a duty.

• In how many cases did the courts perform this duty.

• In how many currently stayed cases will the courts be performing this duty.

 

Your request has been handled under the Freedom of Information Act 2000 (FOIA).

 

Your request has been passed to me as I have responsibility for answering requests which relate to data in Her Majesty’s Courts and Tribunals Service (HMCTS). HMCTS is an executive agency of the MoJ and is responsible for the administration of the magistrates' courts, Crown Court centres, county courts, the High Court, Court of Appeal and Tribunals in England and Wales and non-devolved Tribunals in Scotland and Northern Ireland.

 

I can confirm that HMCTS does hold some of this information. However, because the cost of complying with your request would exceed the limit set by the Freedom of Information Act, on this occasion I'm afraid I will not be taking your request further. In this letter I explain why that is the case.

 

The law allows us to decline to answer FOI requests when we estimate it would cost us more than £600 (equivalent to 3½ working days’ worth of work, calculated at £25 per hour) to identify, locate, extract, and then provide the information that has been asked for.

 

Our central database has no category of unfair bank charges and so we have searched for all County Court cases where the defendant is one of a number of major banks. Also, I am not able to tell how many of those cases are currently in a status of “stayed”. In order to provide you with the information that you require would involve examining the contents of over 37000 case files, determining how many of those relate to unfair bank charges and then further identifying how many of those cases are currently in a status of “stayed”. The information would then have to be collated.

 

Based on 10 minutes per case to identify those files, retrieve them and collate the data we could compile approximately 156 cases in 3 ½ days.

 

However, outside of the Act and on a discretionary basis, I can tell you that :-

 

• A search of cases where the defendant is one of a number of major banks for the period 2006-2012 has shown over 105000, more than half of which were issued in 2007.

• Your final three questions do not fall under the Freedom of Information regime. It may be helpful if I explain that the Freedom of Information Act (2000) gives individuals and organisations the right of access to all types of recorded information held, at the time the request is received, by public authorities such as the Ministry of Justice (MoJ). Section 84 of the Act states that in order for a request for information to be handled as a Freedom of Information (FOI) request, it must be for recorded information. For example, a Freedom of Information request would be for a copy of a policy, rather than an explanation as to why we have that policy in place. On occasion, the Ministry of Justice receives requests that do not ask for recorded information, but ask more general questions about, for example, a policy, opinion or a decision. However, to offer advice and assistance, I can point you to the HMCTS Civil and Family Business Support Team who may be able to answer or address your query.

Their email address is Civil&Familyxxxxxxxxxxxxxxxxxxxxxxxxxx

 

If you refined your request by asking for a period of approximately three months it may come within the cost limit, but may be exempt under one of the qualified exemptions.

 

You can find out more about Section 12(1) by reading the extract from the Act and some guidance points we consider when applying this exemption, attached at the end of this letter.

 

You can also find more information by reading the full text of the Act, available at xxxxxxxxxxxxxxxxxxxxx

 

The full text of the FOIA is available at http://www.legislation.gov.uk/ukpga/2000/36/contents and further guidance can be found at http://www.justice.gov.uk/guidance/freedom-of-information.htm.

 

I am sorry that on this occasion I have not been able to answer you request. You have the right to appeal our decision if you think it is incorrect. Details can be found in the ‘How to Appeal’ section attached at the end of this letter.

 

Disclosure Log

 

You can also view information that the Ministry of Justice has disclosed in response to previous Freedom of Information requests. Responses are anonymised and published on our on-line disclosure log which can be found on the MoJ website:

http://www.justice.gov.uk/information-access-rights/foi-requests/latest-moj-disclosure-log

 

The published information is categorised by subject area and in alphabetical order.

 

Yours sincerely,

 

Make of that what you will ?????????????????????

[Consumer dude]

A law unto themselves ?

[postggj]

Ask for a re-determination on their response

 

My local authority are fond of handing out that sort of reply, ask for a second opinion