Office Of Fair Trading Test Case

[un1boy]

ok, thanks

[tomterm8]

tomterm

 

Again, that's an urban myth advanced by people who haven't done as much reading as they might! ;-)

 

Contractual interest on the basis of mutuality and reciprocity has been dismissed at 'precedent setting levels' but that doesn't mean it's dead in the water.

 

Indeed, a recent ruling in the Sempra case means that, while far from straight-forward, there is now a clear case for arguing for CI on the basis of unjust enrichment.

 

Take a look at this thread and especially the last four or five pages...

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/97691-contractual-interest-precedent-lost-17.html

 

In anycase, this isn't the place to argue the merits of CI - let's save those discussions for the thread above - but is, IMHO, a legitimate place to ask how anyone intending to claim it might be affected by this latest development.

 

CI on my claim amounts to more than £10 a day. I can't believe that if this latest saga continues for a couple of years it will be as simple as adding 7k-plus to my claim but, on the other hand, I can't see how the banks could argue that the interest component of my claim is 'stayed', hence my question! ;-)

 

with respect, I have read the sempra case, and the thread you point to, and retain my judgement that the practical law involved is too difficult to prove in order to recieve the outcome you desire.

 

In any case, the Sempra case is not as effective in legal argument as the decision in Case T-171/99, Corus UK Ltd v Commission of the European Communities. (Action for damages) [2001] EUECJ T-171/99 (10 October 2001) would be, since this case establishes the concept of restitutionary damages of compound interest in european law, on the basis of unjust enrichment.

[un1boy]

I don't understand why the OFT don't just order standard disclosure themselves, surely it would save a lot of time and effort?

[Josie8]

I've been thinking about this whole thing over night and I am inclined to think it is a good move for the OFT to do this - now don't all shout troll at me will you - and put the lynching ropes away............

 

If the OFT hadn't taken this stance it would only have been a matter of time before the banks appealed a badly presented case and obtained a ruling at the high court which would have meant other litigants would have had to go to appeal court. Just look what happened in the Berwick case where the claimant asserted in evidence that he hadn't breached contract with LLoyds. The OFT case is to thrash out a legal principle only which should give clarification. There will be no 'distinguishing feature' and I anticipate they will have the involvement of Top QC's.

 

The banks have had no option but to try and put a spin on things by saying that they are cooperating and I'm sure will be trying to cut any deals they can.

 

The fact remains that they have all had the benefit of top legal advice for months, probably years, and have all shied away from taking it to the higher courts. I think that shows what their true views are on the likelihood of their success in the test case. Even Lloyds who won in Berwick carried on paying out claimants rather than go to High Court to stop paying.

 

What we now all need to do is try and devise a strategy to stop the banks benefiting from the stay and keeping on imposing penalty charges. I would think that if a debt is partially made up of disputed penalty charges of which there is a stay of that particular part being heard then it should mean that any action to recover that debt should also be stayed pending outcome.

[ICY]

I've been thinking about this whole thing over night and I am inclined to think it is a good move for the OFT to do this - now don't all shout troll at me will you - and put the lynching ropes away............

 

If the OFT hadn't taken this stance it would only have been a matter of time before the banks appealed a badly presented case and obtained a ruling at the high court which would have meant other litigants would have had to go to appeal court. Just look what happened in the Berwick case where the claimant asserted in evidence that he hadn't breached contract with LLoyds. The OFT case is to thrash out a legal principle only which should give clarification. There will be no 'distinguishing feature' and I anticipate they will have the involvement of Top QC's.

 

The banks have had no option but to try and put a spin on things by saying that they are cooperating and I'm sure will be trying to cut any deals they can.

 

The fact remains that they have all had the benefit of top legal advice for months, probably years, and have all shied away from taking it to the higher courts. I think that shows what their true views are on the likelihood of their success in the test case. Even Lloyds who won in Berwick carried on paying out claimants rather than go to High Court to stop paying.

 

What we now all need to do is try and devise a strategy to stop the banks benefiting from the stay and keeping on imposing penalty charges. I would think that if a debt is partially made up of disputed penalty charges of which there is a stay of that particular part being heard then it should mean that any action to recover that debt should also be stayed pending outcome.

Very well put post, scales clicked

[tomterm8]

Not neccesarily. Yet again another case of people scaremongering saying your claims will all be stayed, and to be honest it is starting to get tiresome, please check up on the facts before posting information like this, WE DO NOT KNOW IF THIS WILL HAPPEN, it doesnt at all help when people keep reading, oh well the claim is now going to be stayed automatically, can we all please stop speculating on what will happen as this does not benefit anyone we need hard facts and until a JUDGE says what will happen, then cases ARE NOT BEING STAYED.

 

I know you have said it is a judicial decision, but the sentance before this suggests that every claim will be stayed, lets wait and see eh, instead of second guessing what a judge will decide

 

Read what i posted. I posted, likely to be stayed, not will be stayed, and stated that this was down to judicial discretion in each case.

[Destinyofsouls]

If the court stop claims then I think we can sue them for the court costs and interest lost.

 

Also, they can't stop you claiming because you are entitled to take legal action under article 6 of the Human Rights Act.

 

Also, they can't suspend claims because you are also entitled to a fiar trial under article 6:

 

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so, how are they going to get around that one then?

 

Un1boy,

I suggested the Human Rights Act earlier and I agree with you ( although I'm no legal begal) that I thouhgt there is some mileage in what you say, and I'm surprised there has been no reaction to it.

[tomterm8]

Un1boy,

I suggested the Human Rights Act earlier and I agree with you ( although I'm no legal begal) that I thouhgt there is some mileage in what you say, and I'm surprised there has been no reaction to it.

 

The court can not, will not, and is not "stopping claims". All a stay means is that the decision of the court is waiting on some outside event (i.e. the decision of the OFT case).

 

the grounds to such an appeal would be the human rights act - the right to a speedy trial.

 

It would be perfectly within anyones right to object to any application for a stay, and/or to appeal any stay granted. In practice, my opinion personally, is that you would be ill advised to do so since - in my view - until the outcome of the test case the banks would turn up with most of the baristers of england to contest any trial. They'd have to build a bigger courtroom, for all the lawyers.

[un1boy]

The court can not, will not, and is not "stopping claims". All a stay means is that the decision of the court is waiting on some outside event (i.e. the decision of the OFT case).

 

the grounds to such an appeal would be the human rights act - the right to a speedy trial.

 

It would be perfectly within anyones right to object to any application for a stay, and/or to appeal any stay granted. In practice, my opinion personally, is that you would be ill advised to do so since - in my view - until the outcome of the test case the banks would turn up with most of the baristers of england to contest any trial. They'd have to build a bigger courtroom, for all the lawyers.

 

 

You're also afforded the right to a fair trial.

 

How is it fair when oyu have paid your court fees, then the test case rules in the bank's favour and we all lose the costs?

 

It's not the right to fair trial if they are stayed, surely?

[andrew1]

..and what is the reason that they will only use statute law when we have been arguing common law?

[TECHSPEC]

Someone said they didn't want the law clarified because "consumers are onto a good thing". Really? All consumers? Or just those who look at this website and have the money or inclination to take things further? Others have said it is costly, stressful and time consuming going to court , which it is is. Not exactly a "good thing" and this action could stop all that. .

 

Wow, here i am, minding my own, and you have a pop at me.

 

As someone who as made many claims, i can assure you it has not cost me a penny. The banks paid all the costs of going to court.

 

And for those who did not want the stress or the initial outlay, filling in a simple form from the FOS is all that it took. You did not even need to know the amount of your charges, to make a claim. No cost, no stress, just a big fat cheque at the end of it.

 

Compare that to today, when nobody can claim, and the banks can sit on their ill gotten gains for what could be over a year.

 

As it stands, some people have got a lot of money back, and some have got none. Hows that fair? If the OFT want their day in court, then fine, but whats that got to do with the rest of us? The law states that these penalties are unlawful. Until the banks can prove otherwise, it should be business as usual. Its the 'waiver' that most people object to, not the OFT case itself.

 

If all the refunds have to be suspended, then why not the charges themselves? Surely if this case is so important in determining the legality of charges, then the banks should have agreed to stop all further charges until the outcome.

 

In the long term, i think the OFT case may well be a good thing. I do think that some money will be due back to consumers. A fixed charge rate will be agreed on, as it was with credit cards.

 

But whatever the outcome, for now, the banks have got away with murder, and they know it. Hopefully, at the end of it all, their smug grins will be removed for good.

[tomterm8]

You're also afforded the right to a fair trial.

 

How is it fair when oyu have paid your court fees, then the test case rules in the bank's favour and we all lose the costs?

 

It's not the right to fair trial if they are stayed, surely?

 

Within the meaning of the law, you would still get a fair trial... that is, whatever the result of the test case, you would still be able to put your arguments.

 

Cases are decided on the basis of decisions of a superior court all the time... it's a basic foundation of our legal system. If you could find a material difference between the test case, and your case, then that decision would not be subject to the decisions of the superior court... if not, you would have no real chance of winning, anyway. But you could still appeal to the house of lords or the european courts, and they are not bound by their own precedent.

.

[tomterm8]

..and what is the reason that they will only use statute law when we have been arguing common law?

 

The OFT has a legal right to bring cases brought about unfair terms to judicial review. It has no duty to do so with common law, although (not being in receipt of the claim, but on the basis of general description), i understand from my reading that it also intends to bring a case that these charges are unlawful at common law if the preliminary judicial decision is that the charges are not unfair terms within the meaning of statute law.

[un1boy]

Within the meaning of the law, you would still get a fair trial... that is, whatever the result of the test case, you would still be able to put your arguments.

 

Cases are decided on the basis of decisions of a superior court all the time... it's a basic foundation of our legal system. If you could find a material difference between the test case, and your case, then that decision would not be subject to the decisions of the superior court... if not, you would have no real chance of winning, anyway. But you could still appeal to the house of lords or the european courts, and they are not bound by their own precedent.

.

 

That's interesting Tom, thanks.

[Destinyofsouls]

Within the meaning of the law, you would still get a fair trial... that is, whatever the result of the test case, you would still be able to put your arguments.

 

Cases are decided on the basis of decisions of a superior court all the time... it's a basic foundation of our legal system. If you could find a material difference between the test case, and your case, then that decision would not be subject to the decisions of the superior court... if not, you would have no real chance of winning, anyway. But you could still appeal to the house of lords or the european courts, and they are not bound by their own precedent.

.

Would the material difference not be that the test case involves parties unconnected with my claim?

[tomterm8]

Would the material difference not be that the test case involves parties unconnected with my claim?

 

the material differences would be difference of law, or difference of fact. Not difference of parties.

 

I.e, for a material difference of law, the case is a determination on the basis of the Unfair terms in consumer contracts regulations, but you bring the case upon the Unfair Relationship test in the consumer credit act 2006.

[tomterm8]

Another difference might be a difference in fact... for example, hypothetically the judicial determination might determine that, in principal, terms allowing a penalty charge for late payment are fair. However, if they were to charge £1,000 each late payment, this would be a substantially different problem in equity, and would itself be a triable issue.

[we'dlikethebanktosayyes]

Hi everyone, does the OFT test case apply to credit card complaints?

[noomill060]

Not as far as we know. I phone the FOS yesterdat and they said that as far as thye were concerned, the test case only applied to current accounts.

[noomill060]

Tomterm- how could the court go against centuries of established case law?

[tomterm8]

Tomterm- how could the court go against centuries of established case law?

 

The courts have that authority. For example, in Cogan and Leak [1976] QB 217, the Court of Appeal upheld the conviction of a man for raping his wife, despite the fact that around a hundred years before that common law had stated that a husband could not rape a wife with whom he was cohabiting and the lack of new law on the subject.

 

I'm not saying, however, that I believe the house of lords would overturn the common law against penalty charges, as this would seem to be against public policy, and could be said to change the entire fabric of civil law in the UK.

 

The house of lords only has a strong presumption that it will uphold previous decisions... it is, however, not absolutly bound by them.

[12thdomino]

I don't know if anyone else has thought of this but:

 

The way an idiot like me reads this is that the FOS has given the banks a right to waive dealing with complaints re charges ---- Well, I never made a complaint I asked for my money back, it wasn't a complaint it was a lawful request for monies unlawfully taken from me - is that not theft or fraud - but they can't waive it because it was'nt a complaint or am I so nieve

 

Is this not like breaking a leg in a road accident and the police saying don't fix the leg until the court case re the accident is over.

 

I may not have a degree in english but a complaint and a request are different

[information]

I'm at a second stage letter at the moment and awaiting for replies from HSBC and Lloyds, both have dragged there feet on the issue and I think tyhis is possibly something to do with the court case yesterday. They've both had around 20days to reply so far so I have a while to wait yet. Should I just sit it out then and wait for 40days?

[tomterm8]

I don't know if anyone else has thought of this but:

 

The way an idiot like me reads this is that the FOS has given the banks a right to waive dealing with complaints re charges ---- Well, I never made a complaint I asked for my money back, it wasn't a complaint it was a lawful request for monies unlawfully taken from me - is that not theft or fraud - but they can't waive it because it was'nt a complaint or am I so nieve

 

Is this not like breaking a leg in a road accident and the police saying don't fix the leg until the court case re the accident is over.

 

I may not have a degree in english but a complaint and a request are different

 

12thdomino, the effect of the F.O.S. announcment is to prevent the banks having to comply with the normal complaint handling requirements under the consumer credit act 2006; i.e. the F.O.S. won't investigate disputes on matters related to the test case until the waiver ends.

 

You are still entitled to start claims in the court as normal, and the standard advice of the forum is to do so.

[peter534]

Feel free to slate me, i have broad shoulders,

 

1. I still don't understand why we can carry on with cc claims, i thought that they included the UTCCR (1999).

 

2. If, as i understand, they are only clarifiying wether the UTCCR (1999) applies to our current account claims. Then why not scrap that argument and proceed with claims in the same way in which we process business account claims?

 

i.e. Paragraph 4 section (b) in the particulars of claim. This is not being contested at the high court and therefore any argument for a stay on proceedings would be thrown out!

 

Seems too easy and im sure someone will tell me why.

 

Just a thought..