Nell v RBS - deal or no deal?

[Nell2609]

Can somebody advise what action I need to take iro latest letter received from courts?

2. Permission be given to apply to lift the stay or set aside or vary this order within 7 days of service of this order. Any application shall be on notice to all parties and shall be supported by a statement setting out why this claim should be proceed before all final determination of the O.F.T. test case.

Can I appeal against the extension, if so what form do I use and is there a generic template I can refer to?

 

Thank you.

[Nell2609]

OK, I may still be awiaitng the result of my current claim against RBS but, between submitting my claim and banking elsewhere, I have requested a further refund of charges subsequently applied to that account.

 

I sent in the letter/schedule detailing charges/refund requested and received this back:

 

We acknowledge receipt of your complaint about bank charges. We believe your complaint concerns the level fairness or lawfulness of the charges. If it concerns something else, such as an administrative error, please let us know.

We believe the charges are fair, transparent and lawful.

However, the bank (along with a number of other banks) has now become involved in legal proceedings with the OFT in relation to bank charges which will resolve the legal issues regarding the fairness and legality of your bank charges. This has become known as "the test case".

It would be our normal approach to resolve your complaint through our internal complaints process as quickly as possible. However, until the determination of the legal issues in the test case, we have asked the FSA to suspend the normal timetable for dealing with bank charges complaints. The FSA has agreed to this request subject to conditions that protect your rights.

We can assure you we have registered and stored your complaint. Please retain your bank records, as this will make it easier for you to support your complaint on resolution of ths test case.

Once the case between the OFT and the banks finishes, we will deal with your complaint as quickly as possible.

We are sorry we have not been able to respond in full to your complaint now, but we (together with te FSA and the OFT) think it is necessary to resolve the key legal issues before we decide how to respond to your complaint.

The first phase of the test case was heard in January and February this year in the High Court in London. Judgment on this first phase was handed down on 24 April. On 22 and 23 May a procedural hearing took place. Various next steps in the test case process were decided at that hearing.

Firstly, the Court dealt with the issue of appeals. The Court gave permission to the Banks to appeal one aspect of the April Court judgment that unarranged overdraft fees are assessable for fairness under UK legislation. The Banks are appealing on this issue as they continue to believe the legislation in this area does not apply to these types of fees. There is limited guidance from case law on whether and how the legislation applies in these circumstances and as the test case process is of considerable public interest, it is important for the issues to be fully tested.

The OFT confirmed it is not seeking permission to appeal the April judgment.

Secondly, it was confirmed there will be another hearing where the Court will be asked to consider whether terms and conditions previously used by the Banks are capable of being penalties. A short hearing to decide this will take place on 7 to 9 July 2008.

While the Court concluded in April that unarranged overdraft fees are assessable for fairness, the Judge was explicit in stating this does not mean they are unfair. A further hearing is required for the Court to determine the issue of fairness. It is not yet possible to confirm when this hearing will be but the Banks are working closely with the OFT and the Court to bring a conclusion to the test case process as soon as possible. If at that stage you do not agree with our conclusions you will of course be able to refer your case to the Financial Ombudsman Service (or to the Courts).

Given the continuing court case we have asked both the FOS and the courts not to proceed with any other case they are hearing until the test case is resolved. FOS has indicated that as a general proposition it will not proceed with cases which rely on these legal issues being considered in the test case.

Similarly, you should be aware that if you choose to issue a claim in the County Courts, "the Master of the Rolls" (in England & Wales) has, at our request, issued a notification to the County Courts suggesting they stay proceedings about bank charges. This means that until resolution of the test case, claims in the County Court will not be heard. Alternatively the bank will immediately apply to the Court for an order to stay our action until resolution of the bank's proceedings with the OFT.

We will keep you appropriately updated about the test case. Tou can also check the latest position on our website at hhtp://www.rbs.co.uk/overdraftchargesupdate.

The FSA requires us to ensure your complaint will not be adversely affected by the delay in dealing with it.

 

The very next day, this letter arrived:

 

Your unarranged overdraft charges complaint

OFT v The Royal Bank of Scotland plc and Others High Court case

We previously wrote to you about your complaint regarding unarranged overdraft charges and advised that, we, along with a number of other banks, and the OFT were involved in legal proceedings in the High Court to decide the legality of charges in this type of circumstance.

We are now writing to update you following the judgment in the High Court case given on 24 April 2008. As explained below, this judgment deals with some preliminary issues relating to unauthorised overdraft charges and was given after the first trial in the test case process. That trial was not the final hearing in the test case process.

A Case Management Conference also took place on 22 and 23 May 2008. This was a procedural hearing to deicde the next steps in the test case process.

What as the first trial about?

At the hearing that ended in February this year, the Judge was asked to decide whether the Banks' terms and conditions relating to unarranged overdraft charges are capale of being assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999 and capable of amounting to penalties at common law.

What does the judgment say?

This judgment - which contains important points for both the Banks and the OFT to consider - marks the first stage in the test case process. The Banks remain committed to resolving, through the court, the legal issues concerning unarranged overdraft charges. The judgment illustrates how complex those issues are.

The court has decided (subject to appeals) that the Banks' current terms and conditions relating to unarranged overdraft charges:

- Are not unenforceable penalties; but

- Are assessable for fairness under the Unfair Terms in Consumer Contracts Regulations 1999

The banks are pleased that the court has agreed that their current charges are not unenforceable penalties.

What happens next?

At the CMC on 23 May 2008, the Judge made the following decisions in relation to the next steps:

- The Banks are allowed to appeal the Judge's decision in relation to the UTCCRs. It is expected that this appeal will be heard in the Autumn.

- In the meantime, the Court will be asked to consider whether terms and conditions previously used by the banks are capable of being penalties. A short hearing to decide this will take place on 7 to 9 July 2008.

The Banks and the OFT agreed that the case should move forward as quickly as possible. With assistance from the Court, this has now been achieved to date and the Banks are committed to ensuring that this remains the case going forward. At this stage it is not possible to predict when the case will be finally concluded.

What this means for your complaint?

As previously agreed with the FOS and FSA, customer complaints relating to unarranged overdraft charges will continue to remain on hold. The FSA agreed to this subject to conditions that protect your rights.

The Banks will also continue to ask County and Sheriff Courts to keep cases relating to unarranged overdraft charges on hold until the test case process is concluded.

Further Help

You have the right to refer your complaint the the FOS or the Courts. However, the FOS has agreed not to act on any complaints until the legal proceedings between the Banks and the OFT have been concluded. Should you issue a claim in the Courts we will apply for a Court order to pur your claim on hold pending the outcome of the proceedings in the High Court.

 

So....

 

Do I still need to issue the LBA, reiterating my request for a refund/threatening to take to Court, as my next step? Or is this stage bypassed, owing to the fact the Banks have stated everything is now on hold?

 

:-?

 

Please advise ASAP. Thank you.

[Enron]

Upto you, though obviously delaying a claim could mean that charges near to the 6 year statutory limit for claims will be harder to claim when the OFT case is decided.

 

I've gone ahead with a Lloyds claim for one charge which is stayed and at least in the system.