Office Of Fair Trading Test Case

[Guest Wild Billy]

Thanks for this WB. This is really interesting stuff and I do hope the conspiracy theories die. Whilst there may be rules on disclosure, disclosure is something different from consultation. Consultation is inviting views on issues and listening to responses, although I admit some disclosure may take place within consultation.

 

So in principle would you say that there is anything to stop OFT from consulting with organisations like CAG and MSE? I would be really interested to hear your views.

 

It's a fair point. Government can consult with anyone but as you say cdiscussion and consultation is different from keeping CAG informed about what is going on before it happens, which is what has been implied in a lot of the posts. I imagine it would have been very difficult to invite a hypothetical discussion before Thursday about a possible test case without letting the cat out of the bag.

 

You've also got to see Government's point of view. If you read threads like this, would you be more or less likely to want to meet representatives from CAG? If I read all the conspiracy theories and comments about a "done deal" then I'd probably question whether I was going to get much out of this meeting other than a lot of hassle. And protesting outside an organisation is not likely to promote a good relationship either. That said I don't know what the relationship between CAG and the OFT is? What do we do to get engagement?

 

If it was me I would now put together a letter to the OFT and the FSA setting out the CAG's views on the test case. Make it calm. Show how much we know about the subject. Don't do the charter because it is too "angry" (use of the word revolution is ill advised by the way and the whole thing needs to be phrased differently). Say we'd welcome a meeting to discuss the issues. Look at something like this to see how it might be done.

 

http://www.cbi.org.uk/ndbs/press.nsf/0363c1f07c6ca12a8025671c00381cc7/8d05ddf1699699d380257292004cff3b/$FILE/Budget%20recommendations%20Spring%202007.pdf

 

Make the point that the website has millions of consumers who log on and we'd like to express some of their concerns so that we can go back and reassure them about the action being taken by the OFT and FSA. Don't go into it set for a row or argument. Approach it in a way that we want to help Government.

 

But most of all be very realistic about what can be expected. The Government will not be able to give CAG all the details about the test case, private discussions with business or other stuff. If that is understood, and Government understands that is understood, then I'm sure there could be a productive discussion/consultation. Even if Government doesn't take up the invite to meet then wait and write another letter when there are new developments. And suggest a meeting again. All very calm.

 

I've suggested this approach before but it fell on deaf ears unfortunately. Shame.

[zootscoot]

Thanks very much WB. That makes alot of sense.

[tomterm8]

 

I've suggested this approach before but it fell on deaf ears unfortunately. Shame.

 

I think we all need to take a deep breath, and see exactly what happens... this thread, at the start, contained a lot of needless but understandable panic. I'm still fielding PM's from people who think all cases have been cancelled, etc, etc.

 

The media seems to have done a great job of misinforming everyone about both what the terms of the F.O.S. waiver actually are (the banks will have to resolve all consumer credit complaints on these issue once the test case is over, without regard to the statute of limitations.) and whether you can still claim / take legal action, and what the result of the stay actually is (nothing other than a delay...)

 

With all the talk of deals, and agreements... the agreements behind the scene were required by the law, in order for both parties to be seen to be behaving reasonably. Pre-Action principals. The banks had no choice in whether the OFT took them to court... despite the media spin. And the OFT had no choice but to keep it secret, because such news would have improperly affected the banks share price, and if the OFT released it without permission the OFT would have been guilty of several significant public torts.

 

We should be applauding the OFT, not condemning it... they are going to finally take the uncertainty out of bank charges. All we need to do is submit our claims and complaints, as normal.

[zootscoot]

I absolutely agree that OFT test case is a good thing clarification is what is needed and that is what we are going to get.

 

Talks of agreement in this sense are in themselves misleading. The banks had no choice in allowing the litigation ( have you ever asked the bank if its ok to sue them?) the agreement relates to the conduct of the litigation and surrounding issues.

 

Incidentally people might be interested to know that I went up to Birmingham yesterday to assist in the cases where the court had previously decided in favour of the banks.

 

The judge in fact offered people the choice of having their case stayed or continuing.

[adamc6671]

Hi WB, tomterm, & Zoot

 

Many thanks for the above few posts - very informative, and leading to much greater understanding of the issues involved in OFT's bringing of the test case, and the limits on prior consultation.

 

However, IMO, this test case seeks, as i have said earlier on this thread and on my own thread in Lloyds forum, to resolve one issue only with these claims - the validity of the UTCCR 1999 to claims of this nature. There are many other issues also that will have to be resolved before the whole matter of bank charge reclaiming is resolved - Law of Penalties, Common Law, SOLA, fair level of charge, etc etc.. Each of these issues could well lead to a succession of test cases before final resolution is obtained - indeed OFT have already indicated this is the case.

 

Would it not have been better, and much more in the consumer's interest, for OFT to have bought an actual claim, containing all of the issues involved, to a test case? Whilst the case itself would take longer to resolve, the overall result would be much shorter.

 

Once again many thanks for your posts - Adam

[tomterm8]

Hi WB, tomterm, & Zoot

 

Adam, some very good points.

 

Many thanks for the above few posts - very informative, and leading to much greater understanding of the issues involved in OFT's bringing of the test case, and the limits on prior consultation.

 

However, IMO, this test case seeks, as i have said earlier on this thread and on my own thread in Lloyds forum, to resolve one issue only with these claims - the validity of the UTCCR 1999 to claims of this nature.

 

At this stage in the game, you are correct. However, it is clear that the agreement states that the banks will counter claim on the service charge issue (so expanding the case), and that the OFT retains the right to claim on the common law (penalty charging arguments). The OFT is already seperately investigating a fair level of charges...

 

zootscoot last post is most interesting, as it indicates that as current scope of the test case becomes clear, many judges are not willing to stay the entirity of cases that are only in part about unfair terms (not just UTCCR & UTCA ). I must admit, I was starting to feel over the last 24 hours as more details of the test case leak out, that this might indeed be the case.

 

 

 

There are many other issues also that will have to be resolved before the whole matter of bank charge reclaiming is resolved - Law of Penalties, Common Law, SOLA, fair level of charge, etc etc.. Each of these issues could well lead to a succession of test cases before final resolution is obtained - indeed OFT have already indicated this is the case.

 

i agree... and every one of these issues is likely to see the house of lords.

 

Would it not have been better, and much more in the consumer's interest, for OFT to have bought an actual claim, containing all of the issues involved, to a test case? Whilst the case itself would take longer to resolve, the overall result would be much shorter.

 

No. In my opinion, the case it has brought, in the way it has brough it, will settle one of the main issues (whether these terms as written are unfair) in an irrevocable way. Bringing your test case would not have dones so; it would only deal with ONE possible term in breach of contract, not the generality of terms.

 

it is still not clear that the other issues will not be resolved through other test cases. If necessary, I'm sure the consumer action group and other consumer groups will stand fully behind such cases.

 

Once again many thanks for your posts - Adam

..

[adamc6671]

Many thanks tomterm - fully understood, especially last but one paragraph. Lets all hope that CAG etc are allowed to stand up and be counted, and indeed, actually do so!

 

All the best - Adam

[Destinyofsouls]

when telking about business accounts are Ok to claim still, would this mean only Ltd companies? I ask becasue although sole traders etc.. are classed as companies, they would reclaim using the UTCCA , so would this prevent them?

[photoman]

when telking about business accounts are Ok to claim still, would this mean only Ltd companies? I ask becasue although sole traders etc.. are classed as companies, they would reclaim using the UTCCA , so would this prevent them?

 

UTCCR (Unfair Terms in Consumer Contracts Regulations), ONLY applies to Consumers, so does NOT apply to ANY business whether it be limited or sole trader.

Anyone claiming on any business account should not use these regulations as they do not apply, and in fact those claiming for a business who have mistakenly included them in their POC's have often had this point brought to their attention in banks defences.

[Destinyofsouls]

I absolutely agree that OFT test case is a good thing clarification is what is needed and that is what we are going to get.

 

Talks of agreement in this sense are in themselves misleading. The banks had no choice in allowing the litigation ( have you ever asked the bank if its ok to sue them?) the agreement relates to the conduct of the litigation and surrounding issues.

 

Incidentally people might be interested to know that I went up to Birmingham yesterday to assist in the cases where the court had previously decided in favour of the banks.

 

The judge in fact offered people the choice of having their case stayed or continuing.

Zoot, how did you get beofre the judge? and was he/she OK with you ? I ask becasue I went to help a couple of people her. The judge wouldn't allow me in 1 and in the other he was fuming that I was talking instead of the claimant

[Destinyofsouls]

Maybe if we all ring the FSA investment team, they might get fed up of us and reverse the ruling. ( Fat what?)

 

0845 606 1234

They will give you advice about the waiver though, they have been briefed up on it.

 

The FOS has told me the case will likely last for at least a couple of years (in their opinion)

Hardship cases can only be approved by ....... wait for it!..................

THE BANKS!!

[Josie8]

Zoot, how did you get beofre the judge? and was he/she OK with you ? I ask becasue I went to help a couple of people her. The judge wouldn't allow me in 1 and in the other he was fuming that I was talking instead of the claimant

 

The claimant has a right to have what is known as a "McKenzie Friend" with them in the court room. A "McKenzie friend can assist and sum up at the end of the claimants presentation of case. Any judge who refuses to allow this will have that decsion overturned on appeal.

[tomterm8]

It is very important to write a letter to the court, asking permission, at least 7 days in advance.

 

You also shouldn't directly "talk" to the court, just offer quiet advice to your friend.

 

See FNF - McKenzie Friends

[Destinyofsouls]

but a Mckenzie freind cannot speak on behalf of the claimant though

[tomterm8]

but a Mckenzie freind cannot speak on behalf of the claimant though

 

Actually, A statutory power exists under s.27 of the Courts and Legal Services Act 1990 for the Court to grant a right of audience in relation to particular proceedings.

 

If the court grants permission, a Mckenzie CAN speak on behalf of the claimant e.g. in In Re H (McKenzie friend: pre-trial determination) [2002] 1 FLR 39. Also in Asmat Mushtaq v Secretary of State for the Home Department, in which it was held that a Mr McDonald had no right of audience in Court on behalf of the petitioner, the Court permitted the petitioner's brother-in-law to speak on her behalf. That was because of her incomplete command of English.

 

there are other situations, e.g. (same section, point e) where right of audience is granted:

 

"

where—

 

(i) he is employed (whether wholly or in part), or is otherwise engaged, to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and

 

(ii) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings. "

 

This might also be of interst: http://www.jsboard.co.uk/downloads/ettb_1_equality.pdf

[jules1973]

subscribe

[elsinore]

but a Mckenzie freind cannot speak on behalf of the claimant though

 

My own experience is that the practise in court is much more relaxed than the rules would suggest. Many judges (not all, I’m sure) are sympathetic to a litigant in person, to a degree where they will allow another to speak for them.

 

I think that court etiquette is important. One should always ask the judge before the hearing starts if he/she has any objection and, if the defendants send a lawyer to represent them, that person should also be asked. On the number of occasions when I have made this request I have never been refused.

 

In the end, it probably depends on the judge, on the day.

 

Els

[ohare7707]

Just been browsing through the forums and just found a post of which I find very interesting, a way around the current oft ruling there is very little feedback to the posting so far.

 

http://www.consumeractiongroup.co.uk/forum/general/108366-way-round-fsa-decision.html#post1046822

[dolly]

Just called my local court (hearing on 22nd August with Lloyds) where they said that the judge has been in discussion with judges from many other courts and will not be staying the case before hearings simply because of the Test Case. If the bank wants a stay they will have to put up a legal argument for it and should not automatically assume they will get it.

 

Hopeful

[jules1973]

The following petition has been put on the government website

 

We the undersigned petition the Prime Minister to Ensure UK citizens have the right to recapture illegal bank charges up until the day a UK court find them legal. More details

 

Petition to: Ensure UK citizens have the right to recapture illegal bank charges up until the day a UK court find them legal.

[Destinyofsouls]

The following petition has been put on the government website

 

We the undersigned petition the Prime Minister to Ensure UK citizens have the right to recapture illegal bank charges up until the day a UK court find them legal. More details

 

Petition to: Ensure UK citizens have the right to recapture illegal bank charges up until the day a UK court find them legal.

 

 

Have they escaped ??

[maxine989]

I have a hearing date on the 16th August 2007.

 

I called my local court toay (Walsall, west Midlands) who told me that the Judges there were not in favour of granting the banks a stay regarding all scheduled hearings.

 

I called my banks litigation department and after a few mins discussion, got a full refund, plus the 8%, plus costs...

[Fat.Controller]

SOME GENERAL ADVICE PLEASE

 

I was granted a 'Judgement by Default' because the bank didn't acknowledge my claim (N1). The default amount is half CCI. The bank have today offered me charges + S.69 interest and the usual threat to have the judgement 'set asisde' if I don't play ball.

 

CPR part 13 is quite ambiguous about the Courts powers to 'set aside' judgements but seems to include a 'catch all' clause where " the defendant has a reasonable chance of defending the claim".

 

In light of the current climate I am minded to think that the Court might just give the defendant the 'benefit of the doubt'.

 

Opinions please!

 

FC

[Hettimayzi]

Advice please, this may be in wrong section but cant find the right section!

My claim for bank charges via MCOL was acknowledged yesterday by Nationwide ( or Eversheds their solicitors ?!).

They now have the 28 days , where do I stand, what should I do in this current situation? Help , am new to this!

[adamc6671]

Hi Maxine

 

I have a hearing date on the 16th August 2007.

 

I called my local court toay (Walsall, west Midlands) who told me that the Judges there were not in favour of granting the banks a stay regarding all scheduled hearings.

 

I called my banks litigation department and after a few mins discussion, got a full refund, plus the 8%, plus costs...

 

What bank is it, please?

 

All the best - Adam