MSE News: Bank charges result next week

esmerellda

You can read the UTCCR here - http://www.opsi.gov.uk/si/si1999/19992083.htm

Justice Smith has ruled, and his judgment has not been appealed, that the terms were incapable of being penal - thus lawful under common law.

The Supreme Court are deciding on the assessability of the terms under the UTCCR - this part is the closest to the common law argument '' (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation; ''

If you read the POC's, transcripts and judgments you will have a much greater understanding of the case. You can find much of this on the OFT site - http://www.oft.gov.uk/advice_and_resources/resource_base/market-studies/completed/personal/personal-test-case/personal-documents#named2


Quote from Justice Smith ''I made a declaration in an order dated 12 June 2008 that certain Relevant Terms giving rise to Relevant Charges are not penalty clauses at common law.''

Then you can tell Natweststaffmember if he understands the legalitys of case.

Alpine_Star

teaboy2 wrote: »

I love this bit as it shows your lack of legal knowledge

A tad ironic coming from someone who was not aware of the massively publicised High Court declaration that bank charges were not penalties.

rosey68

IN THE SCHEDULE 2 PART OF ' CONSUMER PROTECTION ' IN SECTION 'q'
it states WHICH MAYBE UNFAIR

'EXCLUDING OR HINDERING THE CONSUMERS RIGHT TO TAKE LEGAL ACTION OR EXCERCISE ANY OTHER LEGAL REMEDY, UNDULY RESTRICTING THE EVIDENCE AVAILABLE TO HIM OR IMPOSING ON HIM A BURDEN OF PROOF, '

please correct me if i am thinking wrongly here as i am not at all educated in this area but isnt this exactly what the banks are doing to us.All of our claims are not being dealt with which is hindering our rights to take legal action and surely by the banks arguing their unsatisfactory case and not providing proof of how much it really costs them for dd being returned unpaid etc is an act of unfairness. i know the argument is already ongoing about whether the charges are fair or not but......

have i missed something along the way or should this be our argument as it stands at the moment. the banks are clearly not acting lawful by hindering all of our claims

teaboy2

Alpine_Star wrote: »

A tad ironic coming from someone who was not aware of the massively publicised High Court declaration that bank charges were not penalties.

just because i wasnt aware of that judgement doesnt mean i am lacking in legal knowledge. all it means is that i wasnt aware of the judges decision that they weren't penalty's. however the case was mainly and still is mainly about the fairness of the charges. and yes it is massively publicised if and when you see it or hear and actually choose to follow the case in detail which, i and no doubt many others have not. so massively publicised to you maybe, but not to me and many others that haven't follwed the case! Infact only reason i am here now after not following this for months, is because i saw a post on the consumer action group referring to the supreme court decision next week.

i will also point out that my comment was actually based on the comment regarding OFT needing to take out an injuction on the banks if the charges were deemed unfair. Which is in fact incorrect, as if and when the judgement is made in favour of the OFT then the OFT will have the authority to tell banks what charges they can charge and how much would be deemed as fair, without the need for an injunction against the banks. it would be the banks that would have to take the OFT to court to try and get the ruling overturned. and if you read the article then you will see it clearly states that aswell.

Alpine_Star

teaboy2 wrote: »

i will also point out that my comment was actually based on the comment regarding OFT needing to take out an injuction on the banks if the charges were deemed unfair. Which is in fact incorrect, as if and when the judgement is made in favour of the OFT then the OFT will have the authority to tell banks what charges they can charge and how much would be deemed as fair, without the need for an injunction against the banks. it would be the banks that would have to take the OFT to court to try and get the ruling overturned. and if you read the article then you will see it clearly states that aswell.

You couldn't be more wrong.

Although the OFT can take a view, only a court can decide whether the charges are unfair or otherwise and the OFT have repeatedly said this.

Once the OFT have given the banks their final view on unfairness they will seek - as they are obliged to do - compliance. If the banks don't comply the OFT will then apply to the courts for an injunction to prevent the continued use of the terms based on their view and it is at this point that the court is obliged to rule on the fairness of the terms & charges and it is these proceedings which form the substantive issues of the test case.

This is the standard procedure for enforcing the Unfair Terms in Consumer Contracts Regulations by a regulator. Google 'OFT v Foxtons injunction' sometime.

frencci

it is about time the banks realised they don't have everything their own way and tred on us little people. The people at the top of the banks should be brought back down to earth with a thud.... they don't deserve the bonus' they receive and we should get our money back.....

cali_

Good news even though it doesn't automatically mean refunds.

natweststaffmember

teaboy2 wrote: »

so politicians should keep their noises out of the legal process, should they? Kind of hard when it is infact the politicians that made the law and decide what should be law and what should and should not be legal. All courts and judges do is simiply uphold the law. As time changes the laws sometimes need to be changed. And by the way it was the banks irresponsible lending and use of money that got us in recession more so then that of loan companies which by the way happened to be financed by... Yep you guessed it, banks. So the new laws for banks will have an overall effect on all financial companies to prevent a repeat of the banking collapse.

Also your reference to catalogue firms in the same sentence is somewhat bemusing to me, as they do not infact lend money. they simply allow you to pay a certain amount over time, which may or may not include added interest. perhaps you may want to include all the shops and utility companies that let you pay over a set period or pay in advance for your bills. Your bringing into this thread an argument that companies that do not operate in the same sector as that of the financial institutes, should also be under the same rules. well if thats your case for argument then i suppose those rules would also have to apply to any buisness that was based around the processing of money based transactions, including mine, where i provide goods to customers on a 30 day credit invoice. If that was ever to happen then a lot of harm will be done to a lot of businesses as a result. and would be far worse then the few shops closing in the highstreet that we see in the current recession. So that is why there are different rules for different sectors.

I don't believe that separate rules should apply to different sectors with regards to the way that they charge for late payments or we could call them "unauthorised overdrafts", I don't believe that different sectors should charge for a returned unpaid item(credit card providers will add a charge for this as well). My view is that if UTCCR 1999 applies to bank charges then it should apply across the board so legislation discrimination(which is how I read the post) should not occur.

natweststaffmember

teaboy2 wrote: »

I love this bit as it shows your lack of legal knowledge

"Have you read this thread? The Supreme Court are deciding if the Unfair Terms in Consumer Contract Regulations 1999 applies to bank charges terms. That means that if it does apply the OFT can apply for an injunction against the banks making charges. There is stays and a waiver because it would ridiculous to hear a case when the law involved has no certainty in law."

My point being that, no, the oft would not have to apply for an injunction at all. the reason for that is clear. from what your saying, this is a test case to decide if the legality of the banks charges under the unfair terms in consumer contract regulations 1999. Which has an always will apply to any and all UK banks as it has to all businesses and general public. in fact, it states, in law, that a claiment can only reclaim the actual costs incurred as a result of a contractual breach i.e overdrawn.
With respect, I have stated that the Supreme Court currently are deciding if Bank Contracts and the terms for charging are assessable for fairness under UTCCR 1999. Your argument re the actual costs incurred is the "penalties in law" argument which has gone out of the window. In fact, section 12 allows for injunctive measures in UTCCR 1999.
So once the supreme court has ruled that it does apply to the banks aswell, then the law will have been clarified and the banks will have to either take the next legal course of action to reverse the decision or simply accept they are not above the law.
There is no appeal if the OFT lose this case or the banks for that matter since a case can only be referred to the ECJ from the Supreme Court(please correct me on this point if I am wrong).
As a result of it being law then the oft will have no need to apply for an injunction to stop banks making such charges as for them to make such charges would in itself be an unlawful act being in breach of consumer contract regulation laws. Or are you forgetting the the contract between the bank is a contract between a consumer and a bank, and therefore consumer law does apply to all terms in such contracts.
The OFT can give their view and the banks can say we don't agree so that is the point where injunctive measures would be needed because you cannot litigate on current terms on fairness if they could be deemed later to be unfair. The reference for you might be OFT v. Foxtons 2009
but this test case isnt to decide if the charges are fair the case is to decide weather the terms can be assessed for fairness. And when the supreme court rules, and if they rule in favour of the previous courts then the oft will have the power to determine what charges will be fair not the banks. and the only option left to the banks would infact be to take the OFT to court for the court to decide weather the charges actually are fair or weather the court agrees with the OFT that they are not. So basically when the court rules that they can be assessed for fairness then what the OFT says will go, no injucntion required.
See above I have explained my view.
Infact the law has always been clear, it has just been the banks ignorance and believe that certain laws, that did not suit them, simply did not apply to them. And that is all the banks argument is about, they are arguing that the charges are fair because it suits there business model.

I would agree with your last point and I would say that they ignored the law in pursuit of it. Perhaps you could call it greed by them.

I do take your initial point on board and would clarify it with the fact that the OFT will ask for voluntary compliance which I am 99.9% certain they would say no which leads to the injunction issues. In fact the terms have been shortened down already to three banks; Clydesdale, HSBC and LloydsTSB. So the fairness issue should be sorted out again in a court of law.

marcharrison1979

The banks are just delaying the inevitable. Everyone know's they've not got a leg to stand on and ultimately they will lose. That's why the government should intervene and force them to stop being so pedantic and admit defeat. By arguing with the OFT and threatening court action again (which is well within their right to do) they are just causing more and more hatred towards them and people in the banking sector as a whole. I predict banker bashing to be very popular in 2010. You don't need to be mystic meg to see that.