Is this a loophole?

Dan_Bailey

The ins and outs of the OFT case, the alternative arguments and the general common sense consensus that the the whole bank charges system is nothing but a big con to line the industry's pockets has been discussed to no end on these forums, however the supreme courts final decision has done nothing but confirm that the banking industry sits above trade, common and criminal law due to its size, economic importance and ties to those in power. I would love to see a victory in the consumers favour, however have the feeling that NO argument, no matter how legally correct, will ever pass the judicial system.

natweststaffmember

I have read this thread, I hate the thread title, I hate the paranoia within posts which I find hard to believe from reading all the available information from OFT test case 1.

I'll shut up now and carry on with other threads

davidgmmafan

"What is more worrying is that with this ruling, any company who has potentially unlawful or fraudulent terms in their T&Cs from which they make vast profits, can simply re-draw the contracts, dress up the dodgy bits as services and the OFT is powerless to them."

This is what I still can't quite believe, they bought the current T & C's which means at best that the banks mis-represented the nature of the charges for years. In the old T & C's they sound very much like punishments and penalties, in the new one's not so.

But the old T & C's were in place for decades. Why can't a challenge be brought on those grounds alone?

At worst they have deliberatly mis-led thier customers (oh no not again!)

Alpine_Star

davidgmmafan wrote: »

This is what I still can't quite believe, they bought the current T & C's which means at best that the banks mis-represented the nature of the charges for years. In the old T & C's they sound very much like punishments and penalties, in the new one's not so.

But the old T & C's were in place for decades. Why can't a challenge be brought on those grounds alone?

Misrepresentation will feature in at least some challenges:

MISREPRESENTATION
It may be possible to bring arguments under the Misrepresentation Act 1967 or, at common law, as a unilateral mistake from which the banks knowingly benefited. Historically either;

 The banks misrepresented that their relevant terms were penal as opposed to contracting to provide services, or

 The banks were aware of their Customer‘s 'mistaken belief' that their relevant terms were penal but failed to correct this, to the detriment of the Consumer but to the benefit of the Banks, or

 The banks were aware that the relevant terms were penal in nature but realised they could argue they were in exchange for a package of services and misrepresented to the court accordingly.

In any case, Consumers would aver that they had been acting on a misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and would contend that the charges should not have been part of the consideration in exchange for any so called contracted 'package' of services.

Should it matter if the relevant charges are for a service disguised as a penalty or for a cross subsidy disguised as a service? At the end of the day it is £2 disguised as £38 and simply a deceitful description.