OFT Test claim: What this means for you/timescales

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Whilst the news of a test case by the OFT is very much welcomed and has been a long time coming, I'm sure many of you are wondering where this leaves your claim.

The agreement between OFT & 7 banks makes reference to the fact that it will be up to individual courts to decide whether cases be stayed or whether they should be allowed to continue. FOS is to suspend all investigations relating to bank charges unless the customer is suffering hardship and banks are freed from having to investigate complaints also subject to cases involving hardship.

If you have already issued a court claim then continue as normal until you hear otherwise from your court. Make sure you continue to comply with any orders and attend any hearings. Do be prepared for the fact that the court may issue a stay pending the outcome of the test case and this could take some time.

If you have not yet issued a court claim do stick with your time table as before and issue a claim. If you do not issue a claim until after the test case, you may lose the right to claim some of the older charges under the Limitation Act. Your claim may well be stayed but at least you have your foot in the door and will therefore be at the front of the queue when it comes to payouts after a successful test case.

The OFT is relying on both unlawful penalties and UTCCRs in its submissions and therefore will affect all claims. The banks involved represent 90% of all UK banks and those who are not involved in the action have agreed to be bound by the decision. The test case if successful on the substantive issue of whether the Unfair Terms in Consumer Contracts Regulations 1999 apply or whether the charges are capable of amounting to penalties will go on to consider issues fairness and whether in fact the charges are penalties.

The OFT test case only relates to personal accounts as oppose to business accounts and also has no bearing on credit card claims.

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Likely Time Scales

 

The test case is essntially divided into two rounds. The first looks at the legal question of whether the UTCCRs apply or whether the charges are capable in law of amounting to a penalty. The second is a question of fact whether the charges are actually unfair or penalties by looking at the costs of the banks in dealing with a customers breach.

 

The test case starting on 16th is only looking at the first issue. The trial is expected to last three weeks with judgment expected to be handed down in May.

 

Once judgment has been handed down there will be an inevitable appeal by the losing party(ies). Leave may be granted by the High court. If leave is denied by the High Court then an application to appeal can be made to either the Court of Appeal or House of Lords if they use the leapfrog procedure. There will be a further few weeks to see if leave has been granted by the appeal court. If leave is refused that is it for the first round.

 

If leave is granted then it will be a further wait for the appeal court. The OFT has said any appeal will be fast tracked (not in the sense of fast track in the county court) but even then you're looking at a minimum of 6 mths being optimistic 12 months more likely. If it goes to Court of Appeal there is then a further appeal to the House of Lords possible. If a preliminary ruling from Europe is required this will delay things also.

 

If the banks win on this first stage then end of story.

 

If the OFT is successful, then on to round two to decide whether charges are actually unfair or amount to a penalty. This is the stage where there may be a compromise agreement. If the legal issues are resolved in our favour then its almost certain that the charges are disproportionate or penalties. Its also a question of fact rather than a question of law so is not likely to be subject to an appeal. So the second stage should be shorter than the first.