What's unfair about charges?

[PhantomReclaimer]

The loopholes I am referring to should be obvious to all, they are the ones that the people claiming their charges back are currently driving a big bus through. There are similar ones for people who are caught speeding (genuinely) and they get away with that too.

 

I have to pull you up on this one. There are no such things as "loopholes" in the law. Something is either lawful or it isn't. There is no middle ground here.

 

P.

[PhantomReclaimer]

1) Okay. Were the charges you paid not explained in the banks' Ts and Cs (despite being against a law). Did you accept these Ts and Cs as reasonable at a certain time in the past (present).

 

You accept the T&C's and accept the charges therein on the belief that they are lawful and that they accurately reflect the banks costs. This is how the banks present them to you and is how you are entitled to take them.

 

They are not lawful though and do not accurately reflect their costs. If someone came into your house and told you he was taking your telly and that he had some lawful authority to do so, and you let him do it on that basis, would you say that you had forgone your right to claim it back from him?

 

Like I said above. No one has any choice in the matter. A bank account is a neccessity these days and if you want one you have to accpept whatever is offered to you. Lots of contracts are like that. Take an employement contract which contains a restraint of trade clause (a clause which prevents you workign for a competitor for a certain period after your employement ends). They are Prima Facie illegal but many firms still use them.

 

If the contract said that the bank manager could punch you in the mouth everytime you bounced a DD it would not mean he had not comitted a violent offence, regardless of what you had signed.

 

I'm not a troll,....

 

I don't think you are and I think some people have gone a bit OTT on you.

 

P.

[Mindzai]

I am not acting superior - where did you pick that up? You're acting inferior is not the same thing you know. I didn't say I was here to be constructive, I am just asking some questions trying to get some answers from those willing to explain to me. Some have done this and it's been useful, so far.

 

In order to answer your question of how people can get into the situation of incurring huge charges, please consider this scenario.

 

You are a student, or somone on a low income, or someone who has suddenly had a large, unexpected bill to pay, or who has recently lost their job and is waiting for benifits to come through, or any one of a million other situations in which your average person might find themselves a bit short one month.

 

Despite your best efforts you only have £29 in your bank to cover a £30 direct debit. The bank don’t pay the DD, but do take a £30 charge (they decide you do actually have the money to pay a charge as long as it’s to them). This leaves you £1 over your overdraft limit. The bank charge you £30 for this which they take out immediately. You are now £31 overdrawn, £60 down and you still haven’t paid your £30 direct debit. You are managing your money on a tight budget, and you now have to absorb £90 of charges for being £1 out in your calculations. Being on such a tight budget, you can’t just come up with £90 so the next month you can’t cover all your payments. You get charged another £30 for each one returned, plus if this pushes you further overdrawn you will get another £30 charge on top of that.

 

The loopholes I am referring to should be obvious to all, they are the ones that the people claiming their charges back are currently driving a big bus through. There are similar ones for people who are caught speeding (genuinely) and they get away with that too.

 

Now bear in mind that each of these times you are paying £30, it is costing the bank in the region of £1. This is against the law. It is not a loophole that will be closed, it is the law. Not only can a company not profit from penalty charges, any charge or service must be fair and reasonable in the eyes of the law. The banks are high street businesses, and high street markup tends to be 100%. By your logic Dixons should start charging a 3000% markup on all their washing machines, and anyone complaining is exploiting a loophole. Nobody is claiming that the bank’s can’t charge, they are merely suggesting that their charges need to be legal, the same as any other business in the UK.

 

Not only are these charges not legal, they specifically affect those members of society that cannot afford to pay them. You seem to be under the impression that people are quite happy to incur any charges as they can just claim them back. This is ludicrous. Nobody wants to get charged – claiming them back is a big effort and doesn’t do you any good when you have no money to buy food as it takes months. The reaon people run up such huge charges is that many people are not fortunate enough of being in a position where they can shuffle money between accounts to sort these proplems. Many people’s finances simply cannot withstand these charges, and for these people once they start they are very difficult to stop and they soon get to the stage where they are at hundreds of pounds a month.

 

To give you an example, when I was at university I got charged due to my student load not coming through when I expected it leaving direct debits returned. I then got charged every month because despite working when I could I could never meet the cost of living and pay a hundred or more pounds per month in charges.

 

I switched banks when I began the claim to get my money back and have not been charged since. The month before I switched I was charged £180. Had I left my finances with that bank, I would not have been able to pay the £180 and have money left for bills and food. This would have continued indefinitely.

 

incidentally in relation to your point about T&Cs, I opned my account when I was about 8 years old - no I didn't read through them

[PhantomReclaimer]

A duty of care for safety reasons is different to what the banks have done though isn't it.

 

Different but no less serious. This is not just a straightforward customer/business relationship whereby one party buys from another on a one off or occasional basis. Banks look after, and have a virtually unfettered access to, your money. They operate your mortgage, take your savings, etc. There is a much greater level of trust implicit in this relationship and, in the vast majority of cases, the customer is in a much inferior position as he has basically no barganing power. He, effectely gives up control of all his money to the bank.

 

You cannot shop around effectively as all the banks are basically the same and have the same charges, interest, etc, etc. Like supermarket baked beans, the only real difference is the name on the tin. Unfortunately, unlike supermarket baked beans, you can't choose the equivilent of an "own brand" label when it comes to banking products.

 

P.

[dizzy.tracy]

you clearly dont live in the real world .

 

My ex husband left me and kids mionths after running up my credit cards and taking out a huge loan on the house without my knowledge. That is the real world matey, where honest people are left in a financial mess by the dishonest people of this world.

Before that i never put a foot wrong financially and thats where the bank let you down. Instead of being helpful they become blood sucking vampires draining more money from you.

I claimed, got mine back and then joined consumer credit counselling service who treat you with respect and make your creditors listen.

If anyone wants phone number for CCCS let us know, they're great, Im paying £50 a month on £15k worth of debit and all charges and intrest have ceased

[natwesttookmymoney]

Good luck to you, Tracey

[kateandpete]

The reaon people run up such huge charges is that many people are not fortunate enough of being in a position where they can shuffle money between accounts to sort these proplems. Many people’s finances simply cannot withstand these charges, and for these people once they start they are very difficult to stop and they soon get to the stage where they are at hundreds of pounds a month.

Exactly, and this is precisely why people may find your attitude patronising GHM. If you are living close within your means there may be months where an unexpected expense means the pot is empty and there is no money to "shuffle". The application of charges then snowballs as others have so clearly pointed out.

[itsamomentintime]

GHM, Phantom, JonChris et all

 

i am sure that you will join me in wishing the Newcastle United the very best of luck tonight

 

down with unlawful charges

[GHM]

Some more great responses today. Haven't got time to reply yet as I'm on a lunch. Phantom seems to make sense, I like the fiduciary thing and want to follow that up and the explanation as to the mechanics of the spiral of debt was interesting but I could only skim read it.

 

Ta,

GHM

[natwesttookmymoney]

I'm glad we're getting through, at last. The spiral of debt story is the same for many and has been mentioned before - on this thread. So has the fiduciary principle and uberrima fides.

We're only on page 3, it's not so overloaded yet that you can't go back and read all the posts you've received. Feel free to skim over the abusive ones!

But do try and read the rest. You will find it enlightening.

Westy

[elsinore]

1) I'm interested in motivation

 

Well, there you are GHM. Enough source material there for you? These posts are genuine and heartfelt. There are plenty more stories to be read. Sad, even tragic, tales of deprivation, caused by financial institutions who should know better.

 

Together, we are redressing the balance, that's all.

 

Elsinore

[GHM]

JonCris - I note the "trust in banks" point, which clearly also relates to the fiduciary principle. Banks are clearly no longer establishments to trust in like they used to be and I wonder if this principle is still relevant or has any legal standing. I know my father is interested in it if anyone has any references to it (Westy?) - it certainly is not mentioned in my law books.

 

Westy - I don't recall extolling the virtues of capitalism and if i did then you couldn't have seen the tongue planted in cheek (my fault for underuse of smilies maybe). I don't love capitalism at all, but it's here to stay isn't it.

 

Paddysreturn - My airline analogy was skewed and I take your points but do you think it's any fairer for those in the fat seats to be subsiding those in the pounds at the back? Taking a capitalist look at it rather than any socialistic one, what's good for the goose must be good for the gander? What is "fair".

 

I know poor people who work hard and I know rich people who work hard. I am neither but work harder than most. Is it fair for me to subsidise others when I already pay a larger tax bill proportionately? My boss' boss works hard too but does he work seven times harder than me as his salary would indicate? Is that fair? We seem to be applying fairness inequitably and inconsistently and it seems to be making a mockery of things if you ask me. We don't live in a fair world, it's a bit of a sh*t and I think a lot of these regulations are just tokenism to keep people hanging on. But I suppose if it makes a difference to a minority then it's a start.

 

Janquinny - I don't think it is irrelevant why charges are imposed for the first reason you state. I think most people are aware of the devastation that can be caused by outside influences but a) is this typical of those claiming charges and b) does the bank have a social responsibility to help out in those circumstances.

 

I guess the answer I'll get to that is - they don't have to help but they certainly don't have to run the sword through at the same time.

 

Fact is that banks are fairly cretinous organisations that masquerade as complex systems but as we all know they mess stuff up. They can't afford to have a policy where they treat all cases on their merits so they must have a standard set of rules. They will not be able to dedicate time to investigate whether someone went over their limit because they are a cretin or because their wife went postal with the credit cards. In the black and white days I guess they would have had the resources available, now they don't and because of that, they don't care either.

 

Having said that, with HSBC and the big three or four making super profits they probably could afford to have more of a personal touch but the shareholders would soon close the business down wouldn't they.

 

Abagnale - I don't dispute that the charges are unfair but what mechanism does a bank now have to try and impose its rules on its customers, to ensure they run their accounts within the agreed limits?

 

If I get fined a pound for going over my £xk overdraft limit (something I never get close to as there is interest to pay if I go over a few hundred) do you think I'm going to be bothered. I guess without the £30 they'll just withdraw the service - which is significantly worse. Perhaps the banks will merely foreclose on people if they can't make money on them. Otherwise banks may as well sell sandwiches to make a quid instead.

 

Phantom - I should say that "contempt" is the correct feeling you are harbouring. I should do likewise.

 

My point which was explained on page 2 (perhaps) and maybe you missed was:

 

If HxBx bank refunds your charges at a total of £4k is there anything stopping them from coming after you in 2012 (say) after a fair charge has been decreed for (say) £1400. After all, they are, I presume, giving without prejudice style rebates and not admitting any guilt - is that the case? Especially as you guys with the spreadsheets have already laid about all the maths for them. It's probably not the case but does anyone know this to be fact.

 

BTW You know what I mean by loopholes, remember OJ Simpson. Loopholes are a part of the law that until someone exposes it lays dormantly unharmful. This "unfair charges" thing has clearly laid dormant for years until someone exposed the fact it is not lawful.

 

Mindzai - Ta for the reply. I must say, I went with TSB as a student as they seemed to be a good bank (does the T still stand for trustee though?) but as soon as I found a job I had to dicth them. I wanted a temporary o/d extension to buy some clothes for the job. They ummed and aghed and eventually came back saying that it would all have to be converted to a loan... Sigh. I hadn't waited for that decision and walked across the street after that humiliating meeting into HSBC and came out with a £2k free o/d for a year, a decent credit card and a good loan option.

 

TSB were so lame it was not true.

 

What I think HSBC to a good degree gets criticized for is also what makes them quite a good bank (to me). They're not so Social any more but if you present them with a viable option that is good for you and still makes them a few quid, they seem to go for it (presumably on condition that you've shown them you can manage your affairs and you have some integrity (and a quid in your pocket)). This again, is obviously not the case all round. That's how things have changed and it's very clear. You could probably point to a date on the calendar when everything started going in the wrong direction as far as personal banking goes and it was almost definitely between 1979 and 1990!!!

 

I can't believe you didn't read the Ts and Cs though, what WERE your parents thinking...

 

Dizzy.Tracy - I can guarantee that unfortunately I do live in the real world (apart from on here obviously). Your situation is obviously a nightmare I wouldn't wish on anyone and it's the sort I've heard a few times before. It's because of stories like yours that I am on internet banking every day and nothing happens financially in my household without me knowing about it within a day. A paranoid attitude borne out of hardships of others.

Just because I have a little security now doesn't hide the fact that I had absolutely nothing (less than actually) less than ten years ago.

 

KateandPete - I shuffle money and live very close to my means. I occasionally travel beyond my means and I have to reassess spending all the time. I am also very good at cutting back on everything when I have to - clearly the money I shuffle is not mine either but as an ealier poster put, the banks will always lend you an umbrella (or a £xK free balance transfer) when you don't need one.

 

The banks have begun to cut that "loophole" by charging a fairly massive fee when transferring so the free lunch is disappearing there.

 

Westy - The patronizing score is now at least 2:1 in your favour so go steady!!

 

I still can't conclude anything unfortunately. Of course it's nice to stick it to the banks but I'm still wary of the backlash.

 

Paddysreturn asked what the consequences were that he should be concerned about. It's a good point, after all, if you're getting shafted, how can it get worse.

 

I just have a feeling it will. I think that the banks COULD apply charges fairly across all customers but then the wealthier ones will choose other accounts with less mainstream providers and this won't be sustainable for the high street banks. I wonder that the banks will merely close their doors to those they can't make enough on or are too high maintenance. These big organizations are more influential than Governments and I can't see them losing. What options are available then. Poorly run, inefficient small independent operators with a high moral stance but lacking the nouse to give you a decent service? I'll wait on the research on the credit unions. Have you done that yet Westy..? ;-)

 

That's more than enough for a troll. Evening.

[kippy2]

why are you here??????????????? if you dont beleive in this site then go why bother posting when you are clearly in the minority here

[GHM]

This site is the Consumer Action Group and focuses on other things, not just about reclaiming charges in this way. I have been using it recently to gather some info to assist a relative in getting an apology from their bank for the bank's mismanagement of their account for a period of months.

 

It's similar to many stories on here but not the same.

 

I'm sorry if you don't like it. I'm having a bit of a debate with some people about something I do not fully understand. I suggest if you don't like it you find another thread that won't irritate you. That's what I'd do. Have you really read all four pages, if so, you should know why I'm "here".

 

Oh, and btw, people reclaiming their charges are currently the minority but I presume that makes them no less valid.

 

GHM

[natwesttookmymoney]

GHM

If you felt patronised - that was just the slightest lifting of the veil.I do not feel moved nor any need to apologise. I was warning, not patronising.

I'm not going to answer all your points: others are more than capable of holding their own corner. I'll just pick on a few that I cannot leave unremarked.

 

For a quick lookover the fiduciary principle, check this article in Wikipedia

(en.wikipedia.org/wiki/Fiduciary).

This one, from Newcastle University School of Law, debates the fiduciary principle particularly in the context of public authorities but also makes reference to a number of decisions and precedents, including AG-v-Blake, in which Lord Woolf said that that a fiduciary duty arises "where one party undertakes to act in the interests of another or places himself in a position where he is obliged to act in the interests of another." Sounds like banks' positions to me. (Incommensurable Values- Local Government and Judicial Review.

In Bhullar v Bhullar[2003] 2 BCLC 241, CA, it was held that the directors were in breach of the no conflict rule: 4.1. where a fiduciary has exploited a commercial opportunity for his own benefit, the relevant question is not whether the party to whom the duty is owed had some kind of beneficial interest in the opportunity but simply where the fiduciary’s exploitation of the opportunity is such as to attract the application of the rule;

 

 

 

It could be argued, under that judgement and Item Software v Fassihi that directors (which could, arguably, include directors of a bank) may be required to disclose his own wrongdoing not by virtue of an independent duty to disclose his own misconduct to his principal or more generally information of relevance and concern to it but as a result of the general duty on a director to act in what he in good faith considers to be the best interests of his company.

 

An interesting idea, that one. If a bank is conducting its business in an unlawful manner, as a result of policy laid down from the boardroom, is s/he acting in the best interests of the company?

the dictionary definition of fiduciary relationship is "from the Latin fiducia, meaning "trust," a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. The most common is a trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stock brokers, title companies, or anyone who undertakes to assist someone who places complete confidence and trust in that person or company. Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid "self-dealing" or "conflicts of interests" in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it. For example, a stockbroker must consider the best investment for the client, and not buy or sell on the basis of what brings him/her the highest commission. While a fiduciary and the beneficiary may join together in a business venture or a purchase of property, the best interest of the beneficiary must be primary, and absolute candor is required of the fiduciary. 2) adj. defining a situation or relationship in which a person is acting as a fiduciary for another. (See: trust, fiduciary relationship)."

So yes, I think the fiduciary principle is alive and well. Changes in banks' behaviour or in the capitalist system don't affect it unless the lawmaker (parliament) so decides. Or the courts, in the process of the interpretation of the law.

I only spent five minutes looking this up and the only law book that I found in that time was 'Australian Principles of Equity and Trusts: Third Edition Author(s) - Samantha Hepburn'

As Australian Law is based on English Law, and English precedent can be quote in Ozzie courts, it's not unreasonable to include it. But I'm sure Routledge has others, if you can't find it in your own lawbooks.

 

The capitalist system, left to its own devices, destroys itself. There are reasons and arguments far to many to go into here, but I'll just mention Winston Churchill on wages councils, when he set them up in 1911, or thereabouts, and was accused of stifling the free market. "[wages councils] will protect good employers from being undercut by bad, and bad employers being undercut by worse." Civil service advisers to the government during the Falklands conflict, when the govt wanted to take up the offer they had received of some cross-channel ferries for the task force. "But they are built to the highest possible standards." Reply: "No, Minister, they are built to the lowest possible standards." Government, whether national, local or super-national, routinely legislates to impose standards on business so that the operations of the free market don't end up destroying that market. Clean Air Act; Factories Acts (largely abolished now but the principles are embodied in other acts); EU NCAAP rules on car safety; standards for electrical goods, toys, and other items; the Sale of Goods Act, which requires (among other things) that goods sold must be suitable for the purpose; etc; etc.

There is no such thing as absolute freedom in an ordered society. My right to swing my fist ends where your nose begins. The banks rights to make money ends where it interferes with common law, case law and statute.

 

You said "Is it fair for me to subsidise others when I already pay a larger tax bill proportionately?" Well, lad (I assume you're male - please excuse me if I'm wrong) was it fair for me to subsidise your education through my taxes when you were at school and I was out working, with a young family of my own to support? Or to pay, through my taxes, for your healthcare when you got ill and I was fit and well, as were my family? How about the roads you drive down - is it fair that my taxes should go to provide an infrastructure benefit that I make no use of but you do? That I should pay for your rubbish collection? For your streetlights, when my road has none - and, what's more, I don't want them? For your sewers and water supply? For your street cleaning, which I get no benefit from? Etc, etc.

There is such a thing as society. Without Law, without society, life would be solitary, nasty, brutish and short. We are interdependent creatures. You have benefited from your education and made the most of it. Well done. That means you're in a better position to pay for the next generation than a lot of others. That next generation will pay the taxes and generate the wealth that will provide your pension - not just the State pension, but the dividends from the investments either you personally, or your agents and fund managers (who will be bound by the fiduciary principle), will make. Without the rest of society, you have nothing. Not a thing. As John Donne said, 'No man is an Island' and 'Do not ask for whom the bell tolls; it tolls for thee'.

 

Best wishes

Westy

[GHM]

Keep the red flag flying brother.

 

This thread seems to have morphed into a debate on socialism vs capitalism. I didn't intend it to but ne'er mind. I can't work out which I'd prefer in a non ideal world.

 

Interestingly, my personal take from central and local gov't taxation is woefully low as I don't drive for environmental reasons, haven't needed NHS care since I was 11, live in a private street and pay a massive maintenance charge for the luxury (ha).

 

I had student loans and have enjoyed paying them off at a generous interest rate.

 

I do, for my sins, have a refuse bin but do recycle as much as I can. As soon as we start paying for the volume/mass of our rubbish and force retailers into marketing product without extraneous packaging I will shout from the rooftops.

 

My electricity is bought from hydro electric plants but the missus (yes I am male) does like the heating set to tropical - something outside of my control!

 

I take your points about all the standards and legislation that are there to protect the vulnerable but what do you think the banks will do in retaliation?

 

I was reading the thread about the prog at 10pm the other night (but didn't want a riot to break out by posting on it). It comments on the true cost that banks incur.

 

My workplace is currently establishing a simplified way of charging for services and to do this has to establish what things cost. A very complex process. I can see why the banks are hedging because it is not merely the cost of paper and a stamp for the letters etc but the thousands of people who work for the bank whose time must at least partially have to be attributed to these charges. Not that I sympathize with banks much but knowing how badly organized they are this calculation must be intolerably difficult for the poor darlings.

 

I read the quote from the Ombudsman: it just does not stand up to close scrutiny and I have no faith in him. He's bound to be replaced if he shows any real teeth.

 

As for society, we all know who helped destroy that and we can thank her for that obviously. Morals and ethics don't even appear on the agenda although I did receive an interesting presentation from an organisation where they're alive and well.

 

You say capitalism destroys itself but the same is probably true for a socialist or communist society as has been proved by history. It's all cyclical so I guess we can look forward to another October 25th sometime in the future and I'll expect to see you there.

 

Good to speak with you (as it were).

GHM

 

BTW Thanks for the info on the f-principal, I only have Keenan and something naff and old and patently both are lacking.

[natwesttookmymoney]

I'm bloody busy, and it's late but I will spare you a few moments more.

"Keep the red flag flying brother."

Do not patronise: read the piece. I quote Winston Churchill, whose understanding of the way society works was, at that time, pretty good.

 

I don't drive for environmental reasons, haven't needed NHS care since I was 11, live in a private street and pay a massive maintenance charge for the luxury (ha).

So, someone else drives you around, either in bus, or train or taxi. Their education was paid for, at least for some time, by the state.

Whether you use private or state medical care, you need doctors, nurses, paramedics, porters, cleaners, kitchen staff and the rest of the health infrastructure. Their education was provided by society.

Your private street was built by...and is maintained by...(I hope you've grasped the picture by now).

"My electricity is bought from hydro electric plants..." ditto.

The banks will pursue profit and, so long as they do so within the law and at a price the customer is prepared to pay, they are quite free to do so.

 

If you really, really think that the banks invested £millions in computer systems to automate processes - including refusing transactions and making and/or if/then decisions - and did so without knowing how much costs they were going to take out of the system, then you have not studied business as well as you may think you have. You will learn more if you have a look at howbankswork.com. It will give you a basic idea. the banks are hedging not because they don't know - rather because they know pretty much to the penny how much each transaction costs. they don't want the customer, the public or the courts to know.

 

I said (and I quote) 'there is no such thing as absolute freedom in an ordered society'. Also I said ' The capitalist system, left to its own devices, destroys itself.' That was in answer to your point about capitalism being here to stay. I made no observation whatsoever about any other organisation. But, FWIW, here are a couple: the Soviet system was not, as many are still brought up to believe, a communist system. The state and

the productive sector were united but were not one. The state directed labour where the 'productive sector' required it. The 'productive sector' was, in effect a monopoly, which is one of the highest desires of capital - control of the market, the resources, labour and, de facto, the state. it wasn't a state capitalist system, either. It was a capitalist system that had become totally corrupted.

Communism's biggest problem is that it doesn't allow for human ambition - both positive and negative.

Primitive Christian societies, where property is held in common, are vulnerable to the negative side of human ambition, which exploits people's good nature and generosity. That's why St Paul said, in effect - 'if you don't work, you don't eat'.

As I said, there's no such thing as absolute freedom in an ordered society. Of whatever type.

Laws and structures enable societies to survive and flourish.

 

That's all I have time for. I have more important things to do than sociology 101.

W

[bobtheb]

GHM,'the people reclaiming their charges are in the minority'!!certainly not on this site.As for advising people not to read this thread,You are on the wrong site for somebody with your views,use CAG by all means,but leave people alone who are trying to sort their lives out with the help of BAG:mad:

[GHM]

I have more important things to do than sociology 101.W

 

You've patently just proved that that's just not the case!

 

Can't go to bed now anyway, the test's about to start but good night.

 

GHM

[GHM]

GHM,'the people reclaiming their charges are in the minority'!!certainly not on this site.As for advising people not to read this thread,You are on the wrong site for somebody with your views,use CAG by all means,but leave people alone who are trying to sort their lives out with the help of BAG:mad:

 

Huh? Read that back - it's tripe. Have you not read any of this? No-one HAS to read my posts and it fits fully within the description of this particular forum.

[bobtheb]

actually its called /bank-action-group-against unlawful bank charges,doesnt sound like its anything to do with you and yes i have read all four pages of your tripe

[elsinore]

After a shaky start this thread has really got going. I like a good polemic.

 

I must confess, GHM, that I was, at first, puzzled by your original post. I could not figure out why you had posted at all, let alone understand any points that you might have been trying to make. I even suggested that you might be a troll. Shame on me.

 

However, several pages later and after some more long and revealing posts from yourself, I think I have figured you out. I prefer to be succinct, so I will just say that you are conceited.

 

Elsinore

[bobtheb]

:Dlol elsi:D

[podgydad]

Its a shame that those with a differing opinion are squarely rounded on. For any community to be balanced it needs an opposing view. If you don't want an opposing view, why have a forum called 'A word from the banks"?

 

Some people on here are becoming activists, see themselves as crusaders against the banks and woe betide anyone who gets in their way. I noted that MatC was given a good kicking early in the week too. Its a shame because if people like that don't feel they can contribute then you run the risk of becoming very insular, where nobody feels they can disagree.

 

Take a deep breath, get some perspective and calm down a bit. I'm waiting for the first banner to be unfurled on Buckingham Palace

[PhantomReclaimer]

My point which was explained on page 2 (perhaps) and maybe you missed was:

 

If HxBx bank refunds your charges at a total of £4k is there anything stopping them from coming after you in 2012 (say) after a fair charge has been decreed for (say) £1400. After all, they are, I presume, giving without prejudice style rebates and not admitting any guilt - is that the case? Especially as you guys with the spreadsheets have already laid about all the maths for them. It's probably not the case but does anyone know this to be fact.

 

Lots to stop them. Firstly, the 6 year bar in the Limitation Act would be running and they wouldn't be able to avail themselves of the Sec.32 defence and claim that the 6 years didn't apply due to fraud or mistake. I know your date of 2012 was just an example but charges would be becoming statute barred straight away.

 

Once a charge has been ruled to be a penalty by a Court you don't get a second go at making it. The charge is either a lawful charge that accurately represents costs, or it isn't. It would be totally inequitable to allow that situation because business would use it as an excuse to get the Courts to write their contracts for them and the Courts don't like doing that. The example is with restraint of trade clauses. There are very limited circumstances in which they can be enforced but the Courts will not seek to substantively rewrite the clause. If it can't be made to work with only very minor adjustments then they will simply kick out the whole clause.

 

There will never be a Court case that sets a blanket charge for the banking industry as different banks will have differeing charges to one another and, although you could determine what, say, a bounced DD costs a bank today, you could not sensibly apply that back over several years because costs would inevitably vary from time to time.

 

The issue put before a Court when you bring a claim such as this is not for them to decide what level of charge is an accurate representation of costs, but to rule on whether the actual charge that has been applied is a penalty, rather than being a sum to compensate for liquidated loss. It's largely irrelevant what the actual loss to the bank is, although, obviously, it may have a bearing on the case if one party can prove what it actually is.

 

The broad rules for deciding whether a charge is a penalty are;

 

(a) is the charge extravagant and unconscionable - which means, does it exceed the greatest loss which could possibly be sustained due to the breach?

 

(b) Does the contract provide for a single lump sum to be payable upon one or more breaches of contract, some of which may cause serious loss, others may cause trivial loss?

 

© Does the charge unduly enrich the party seeking to rely on it? - You are unduly enriched if you are getting something for doing nothing.

 

(d) Is the charge intended to be used "in terorem" against the other party? - Basically means, is it meant to threaten or bully the other party into not comitting the particular breach?

 

 

The reason why banks are paying out, and why they will loose in Court, is that they refuse to produce their costs. It clearly costs them pennies (if that) to refuse a DD so it's certainly extravagant and unconscionable, by definition then it must cause undue enrichment and I think you can make a good case for it being intended to terrorise you into not being in breach of contract.

 

That being the case it will never happen that they could come back to you for money because a Court will simply say that they had every opportunity to produce the evidence originally but didn't.

 

BTW You know what I mean by loopholes, remember OJ Simpson. Loopholes are a part of the law that until someone exposes it lays dormantly unharmful. This "unfair charges" thing has clearly laid dormant for years until someone exposed the fact it is not lawful.

 

That wasn't a loophole, it was the effect of the rules of what can be introduced into evidence. No one is saying that the legal system is perfect - guilty people often get off - but just because they do dosen't mean there is some sort of loophole.

 

People refer to Nick Freeman (famous for getting celebs of driving convictions) as "Mr Loophole". In reality all he does is to do his job better than the prosecution does theirs. The fact that, say, a speed camera hasn't been operated within the rules approved by Parliament isn't a loophole, it's a failiure to operate the camera lawfully.

 

P.