Office Of Fair Trading Test Case

[zootscoot]

2. There is no published agenda that is consistent among the three groups.

 

 

 

That is what the charter is. Is it not?

 

4. The reason I say that it is misguided is that, in its proposal of a £5 max on charges it goes against all of the advice on challenging charges in court always given on the CAG, all of the thousands of court challenges that have already been successful (albeit untested in court), and the basis of the first legal point to be argued in the test case.

 

 

I have been on here since March 06 and it has never been about the commercial level (price) of charges, always the unlawful issue. Even with the £12 OFT guide price for Credit Card transactions, that was never accepted as being the issue and the OFT do not make the laws of the land. The £12 is still unlawful if it exceeds the liquidated loss (cost) so people shouldn't pay it until this cost has been verified if applied as a penalty which it is.

 

The law on penalties is quite clear. A pre -determined charge levied for breach of contract will be held to be a penalty only if it is extravagant or acts in terrrorem ie as a deterrent for a breach (Dunlop v New Garage. There is nothing to say that a charge must exactly match the cost. Indeed where it is difficult to assess the actual cost the non breaching person can calim a reasonable charge ( Jobson v Jonson). The courts in McAlpine v Tilehurst, Phillips v AG forHong Kong and Murray v Leisure play have consistently stated the courts will not interfere with a charge which was agreed between two parties unless it is clearly excessive.

 

The most reliable figures we have for the costs to banks palce the costs between £2 -4.50. £5 is therefore likely to be held to be lawful as indeed is a sum over this figure. We have to be realistic if we are to be taken seriously.

 

I would like to see a stand by CAG away from Martin Lewis's Charter ... CAG has a magnificent following and needs to capitalise on that with a loud voice.

 

All groups had a say in the making of the charter. Whilst martin drafted the charter, it was based on ideas from other groups. The charter was posted on all three forums and the feedback comments were passed on to the authors leading to the redraft. CAG does indeed have an avid following but the three groups standing together have a much louder voice and are much stronger.

 

6. Most comments here and on many other threads are negative about the charter and current behaiour of many campaign leaders. Most are also, rightly, full of praise for their past leadership and success to date.

 

 

On the contrary the overwhelming comments have been very supportive, except perhaps those who have misunderstood the law on penalties.

[kog]

I also know a misguided campaign when I see one.

 

Not at all, there are a number of big issues here. One in particular is the the banks power over peoples accounts. Think about this one, it is us the consumer that are breaching our contracts with the banks, by going overdrawn, and yet it is us the consumer that are taking court action, against the bank, to reclaim.

 

There is clearly something very wrong here, and it is a fact, banks have too much power over our money. The FSA are obviously not concerned about this or they would have spotted the problem many years ago, if they had spotted it years ago then they are negligent in that they did not act. Now, because of the FSA's failure to act, the banks and courts are filling to the rafters with claims and an ever increasing number of people right across the country feel they have been taken for a ride.

 

There is only one authority high enough to deal with this, if all those below it do not take action, and thats Government. To get the governments ear we need to pressure the MPs.

 

Then enter the waiver, again a very biased ruling, in favour of banks, which is clear for all to see. A patern is emerging, banks and the FSA are acting together against the consumer. Again an higher authority is needed to sort this mess out.

 

If the bank did not have so much power over customers accounts this problem would never have occured.

[Destinyofsouls]

There is only one authority high enough to deal with this, if all those below it do not take action, and thats Government. To get the governments ear we need to pressure the MPs.

 

 

The central banks run this country, the Govt does not.

[gca]

Somebody has just told me, and this could be nonsense, that claims in progress could be suspended until the outcome of this is known.

This looks to be true. I have just received a letter from my bank stating that they will apply to the court asking for a stay until this issue has been resolved. They also say they will be sending letters asking customers to accept (or not) any exisiting offers made by them as full and final settlement. I guess I have to wait a few more months:( to get these charges back.

[kog]

gca read this

 

(14) if the firm attempts to resolve a relevant charges complaint after the date of this direction (other than those described in condition 12(4)):

 

(a) the firm must not seek agreement from the complainant that the resolution is in full and final settlement of the matter;

 

(b) in relation to such complaints, if the outcome of the test case produces a result that is more favourable to the complainant, the firm must take all reasonable steps to pay any difference in the amount of compensation actually received by the complainant and that that the complainant would have been entitled if his claim has not been settled by the firm then; and

 

© the firm must explain the implications of its approach and commitment;

 

www.twoyou.co.uk/upload/direction_disp.pdf

 

[nevos]

I'm with Kog on this it is a blatant act of screw the consumer by the establishment.

 

I also know a misguided campaign when I see one.

 

Not at all, there are a number of big issues here. One in particular is the the banks power over peoples accounts. Think about this one, it is us the consumer that are breaching our contracts with the banks, by going overdrawn, and yet it is us the consumer that are taking court action, against the bank, to reclaim.

 

There is clearly something very wrong here, and it is a fact, banks have too much power over our money. The FSA are obviously not concerned about this or they would have spotted the problem many years ago, if they had spotted it years ago then they are negligent in that they did not act. Now, because of the FSA's failure to act, the banks and courts are filling to the rafters with claims and an ever increasing number of people right across the country feel they have been taken for a ride.

 

There is only one authority high enough to deal with this, if all those below it do not take action, and thats Government. To get the governments ear we need to pressure the MPs.

 

Then enter the waiver, again a very biased ruling, in favour of banks, which is clear for all to see. A patern is emerging, banks and the FSA are acting together against the consumer. Again an higher authority is needed to sort this mess out.

 

If the bank did not have so much power over customers accounts this problem would never have occured.

[MacBoy]

Zootscoot

 

Why a charter? Nobody has answered this question to my satisfaction yet. Going by their utterly disgraceful track record of the way they treat customers, what do you think are the chances going forward of the banks honouring a voluntary agreement?

 

I still await to be convinced about what benefit is likely to accrue from any kind of quasi-legal (and probably unenforceable) agreement made between the consumer groups and the banks.

 

Also, what is the planned scope of the agreement? Who would it cover? Where is the authority going to lie? Surely CAG & Mr Lewis can't make me be bound by it?

 

Mac

[nevos]

crfx250:

 

This is painfully simple. You simply cannot take the FSA to court on the basis that you don't like the waiver. They have a statutory right to introduce it. You'd be wasting money and losing gobs of credibility in the process.

 

The fighting fund was set up to finance test cases.

court action or not, If we all vote with our feet something needs doing and quickly..they ignored the consumer groups when they hatched the master plan, so why do you feel a charter will have any effect???

 

Well Mac beat me to it! well said.

[nevos]

Zootscoot:

 

I noticed way back that one claimant had stated to the court something like this:

 

I never refused to pay the actual cost incurred by the bank for my breaches however, these have never been communicated to me and I am surprised the bank has not claimed for these by way of counter claim.

[zootscoot]

I still await to be convinced about what benefit is likely to accrue from any kind of quasi-legal (and probably unenforceable) agreement made between the consumer groups and the banks.

 

 

 

I'm not quite sure where you get the idea that we are trying to enter an agreement with the banks from?

 

The purpose of the Charter and what we intend to do with it are stated in the very first post of this thread.

 

Zootscoot:

 

I noticed way back that one claimant had stated to the court something like this:

 

Quote:

I never refused to pay the actual cost incurred by the bank for my breaches however, these have never been communicated to me and I am surprised the bank has not claimed for these by way of counter claim.

 

 

Thats right if and when a charge is found to be a penalty the defendant can counterclaim for their actual cost. But the charge itself can be above the actual cost without being held to be a penalty.

[noomill060]

To cap it all, the largest credit card company, Baclaycard now appear to be applying for stays as a matter of course and to confirm the anti-consumer nature of the FSA's "current account waiver", Courts are applying stays of their own volition, even if the company itself isnt asking!

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/108321-any-stays-applied-against-4.html#post1071841

[noomill060]

Someone tell me that the FSA waiver and the OFT test case isnt, in reality, a conspiracy.

 

The fact that courts are staying non-current account claims, speaks volumes for the REAL reason behind it.

[noomill060]

At every stage of this campagn, every organisation allegedly set up to protect the interests of the individual consumer has obfuscated and sought to frustrate legitimate claims of unlawful profiteering.

 

Now we have the judiciary deciding by itself, on the pretext of a private agreement between the FSA/ FOS and its paymasters, providing another hurdle to overcome to get justice. Yes of course we can apply for a stay to be lifted, but only a small percantage of claimants will do so.

 

These claimants will have already overcome delays in compliance with their S.A.R - (Subject Access Request), derisory offers, delays in Banks replying to letters and all the other delaying tactics.

 

Then Judges off their own bats, say that credit card claims are so similar to current account claims that they will apply stays in the same manner.

 

Yet another unjustified delaying tactic, by the judicial wing of the Estabishment this time.

[shane5408]

Someone tell me that the FSA waiver and the OFT test case isnt, in reality, a conspiracy.

 

The fact that courts are staying non-current account claims, speaks volumes for the REAL reason behind it.

 

 

it is rather worrying the pattern that seems to be forming here,

[noomill060]

Someone call me a nutty conspiracy theorist and show me that this is simply a lucky break for the Banks.

[MacBoy]

I'm not quite sure where you get the idea that we are trying to enter an agreement with the banks from?

 

The purpose of the Charter and what we intend to do with it are stated in the very first post of this thread.

 

There's a post linking to an explanation of the OFT test case, but nothing about the charter..

[zootscoot]

There's a post linking to an explanation of the OFT test case, but nothing about the charter..

 

Sorry I meant the first post of the thread on the Bank Charter thread here:

http://www.consumeractiongroup.co.uk/forum/general/108233-bank-charges-consumer-charter.html#post1044800

[The Phantom]

At every stage of this campagn, every organisation allegedly set up to protect the interests of the individual consumer has obfuscated and sought to frustrate legitimate claims of unlawful profiteering.

 

Now we have the judiciary deciding by itself, on the pretext of a private agreement between the FSA/ FOS and its paymasters, providing another hurdle to overcome to get justice. Yes of course we can apply for a stay to be lifted, but only a small percantage of claimants will do so.

 

These claimants will have already overcome delays in compliance with their S.A.R - (Subject Access Request), derisory offers, delays in Banks replying to letters and all the other delaying tactics.

 

Then Judges off their own bats, say that credit card claims are so similar to current account claims that they will apply stays in the same manner.

 

Yet another unjustified delaying tactic, by the judicial wing of the Estabishment this time.

Unfortunately the less fortunate amongst the population are the ones who will again be suffering the most. We just got out a lot of financial mess involving bankruptcy, court cases, reclaiming charges and two most welcome refunds from HSBC and NatWest a while ago and started to cope with our very limited monthly budget, when we had an accident with our car which meant we had to find almost £300.- to pay the excess on our insurance, two shortfalls on wages paid into the account and which are still being chased with employer (value just over £200.-), waiting for ages for a refund from a gas/electricity supplier who still owes us approx £200.- (and of course increasing mortgage repayments thanks to BoE increasing rates on nearly a monthly basis) which left us seriously short. We can't get an overdraft facility so HSBC started to merrily bounce DDs and charged for the 'informal overdraft requests' we made, racking up almost £200.- in charges in a very brief period of time which have also just been taken out meaning HSBC now just bounced our mortgage payment (sorry, but we refused your informal request for an o/d and will charge you for this), which means we now have mortgage arrears and the charges are stacking up again. They kindly sent us an informative leaflet with ideas on how to sort out our finances (apparently we could go to our local library which holds a lot of good books on this subject ! We could reduce our spendings and try to increase our income for example) What of course we can't do is reclaim the £200.- charges now for ages which will now start our next downwards spin and subsequent financial freefall which could end up in loosing the home we so hard fought for throughout the bankruptcy. Ha ha...why did we bother.

Thanks FSA ! We all know what side you are on. By the time we could expect all these charges to be refunded I will be in a council B&B and won't need it anymore.

I can see the need for the test case to establish the facts once and for all, and I can understand that the banks can continue to charge until they get stopped legally, as they perceive them to be legal until proven otherwise, but I can't understand the waiver that stops or seriously delays any action by consumers in the meantime:evil:

[MacBoy]

I'm not quite sure where you get the idea that we are trying to enter an agreement with the banks from?

 

The aim is to create a petition (probably via the Govt website) to ask for the following key points to be incorporated in any settlement with the banks.

 

There, perhaps?

 

I stand willing to be corrected zootscoot, but that looks pretty much like preparation for a compromise agreement to me. People keep telling me that I'm being wrong-headed about this (sometimes quite insultingly) - but no-one is answering any of my questions - and that disturbs me.

[crfx250]

I think you're getting confused with us (CAG) entering into an agreement

with the banks and us influencing any agreement between the OFT/FSA

and the banks.

[MacBoy]

No I'm not. I have taken issue with what I see as the inequities of the OFT/FSA agreement and that's what I'm encouraging people to write to their MPs about. We are seeing some encouraging early responses from this.

 

I have questions and some concerns about the 'charter' that haven't been answered to my satisfaction yet (maybe they will). That's all I'm asking for - some answers and guidance. Nothing has been forthcoming.

[crfx250]

Is this what you're looking for?

 

 

This is just one part of a cohesive strategy. Penaltycharges.co.uk is joining the CAG and MSE in working together on this. Collectively we aim

 

i. To officially request to be a party in the OFT case

ii. To lobby using the above charter to ensure a decent outcome

iii. To test whether the stay will actually hold in the courts. It is very doubtful it will

iv. Anything else that comes up - there is a meeting to discuss action very soon.

[nevos]

Going off track here a bit: The bank to bank lending rate is rising, this causes a bit of panic in the money system. It reflects what exactly is happening in our green and pleasant land.

 

The consumer revolution on bank charges, result, a big hit on the banks profits, is not helping the situation. Couple this to the amount of people fighting back over bad debts, monthly bankruptcies, you can see the whole deal is sliding into a mess. The country is running on plastic spiraling out of control. You can attribute a lot of this to the ruling party, the country is a total mess.

 

I used to feel proud to be British but, not any longer, I too want out. The OFT and FSA deal with the banks closely followed by the FOS and now the Courts was, the last straw for me.If it kills me I am going to do my best to kick up a stink about this, one way or another. I'm personally sick of all the chit chat and feel it is time to take some kind of positive action by way of protest. I hope we can block the streets of London with our cars and CAG banners until they the establishment listen to consumers and do something.

[zootscoot]

Quote:

I'm not quite sure where you get the idea that we are trying to enter an agreement with the banks from?

Quote:

The aim is to create a petition (probably via the Govt website) to ask for the following key points to be incorporated in any settlement with the banks.

There, perhaps?

 

 

I think you confuse the terms 'settlement' and 'agreement'. Putting pressure on the OFT/Govt to incoporporate something into a settlement ie a pay out of a claim is something quite different from CAG/MSE/PC entering any agreement with the banks.

 

I have taken issue with what I see as the inequities of the OFT/FSA agreement and that's what I'm encouraging people to write to their MPs about. We are seeing some encouraging early responses from this.

 

 

Thats good.

[kog]

Funny how the banks complain today that if charges are not forthcoming they will have to find the cash elsewhere to make up the big loses.

 

But cast your mind back to 2005 when banks such as HSBC reported record profits, they where trumpeting most of their profit does not come from the UK, it comes from overseas.

 

BBC NEWS | Business | Bank profits - where does all the money go?

 

A pitty we couldn't organise a nationwide withdrawal, you remember the fuel blockades and go slows, well on a particular week in the year people across the country withdraw their cash for one week - see how clever they are then - a run on the banks would hurt them bad. If only:shock: