Bank charges - The banks must prove they're fair

itscheapandiwantit

I know that Martin's guide says that Ray Cox QC believes that


The banks must prove they're fair

The best of all this is the burden of proof is on the banks to prove that the relationship is fair and not the consumers to prove the charges were unfair.

Can anybody point me towards the actual legislation that this argument comes from?

I can't seem to find any detailed argument that puts the onus on the bank or supplier to prove the fairness of the charges.

Anybody help and point me in the right direction please?

Many thanks.

natweststaffmember

CCA 2006 s.140
http://www.opsi.gov.uk/acts/acts2006/ukpga_20060014_en_2#pb4

itscheapandiwantit

140B
(3) An order under this section may be made notwithstanding that its effect is to place on the creditor, or any associate or former associate of his, a burden in respect of an advantage enjoyed by another person.


Is this the part I need? I'm looking for where the act places the burden of proof firmly with the bank.

many thanks Nattie;)

natweststaffmember

Don't forget part 9 of the same bit:

"(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.”"

Burden of proof on the bank not you

EDIT: and I just worked out who you are on another forum .

Simpsons fan by any chance?

esmerellda

Ahh good - if u are the simpsons fan, as I cant post where you were asking have a read of this for UTCCR burden of proof - Nats has covered CCA bit,.

http://www.legalbeagles.info/forums/showthread.php?t=19062

itscheapandiwantit

Thanks Nattie and Esmerellda, that's exactly what I was after;)

Not just a fan, but could act as a stunt double for one of the simpsons characters.:D

Many thanks.:T

esmerellda

Thought it might help you out Feel free to mention where u got it from lol.

natweststaffmember

itscheapandiwantit wrote: »

Thanks Nattie and Esmerellda, that's exactly what I was after;)

Not just a fan, but could act as a stunt double for one of the simpsons characters.:D

Many thanks.:T

Doh!!! What else could I say?

ThunderBird_3

Is it the relationship thats unfair or the charges?

esmerellda

Thats quite a hard question....

Under CCA the charges are excessive creating an unfair relationship (only really post April 2007)

Under UTCCR the contract is imbalanced to the consumers detriment in allowing the imposition of charges to excess.

hicskis

Why do the banks have to prove that charges are fair?

140A Unfair relationships between creditors and debtors (Consumer Credit Act 2006)

(1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—
(a) any of the terms of the agreement or of any related agreement;
(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;
(c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).

a) a term is unfair (not a charge) - i.e you would have to prove that the term that permitted the charge was unfair - the OFT has already been here - and lost;
b) probably doesn't appply to most people unless you had a gun pointed at your head when you signed the agreement;
c) This is where any new argument must come - an omission for example such as not reporting true borrowings to the CRAs (see my threads "Hey Martin" & "Taking the Fight Back")

Just hiding the true cost of charges wouldn't wash as the banks have said it is a subsidy cost (and quite cleverly done) - therefore the question must be is - what are the true costs of running an account - i think this will be a very long - drawn out argument - that the banks will always win because it is only they who know the costs and can prove it....When pushed they will defend this with utmost vigour...and win.

The case in harrogate - esmerellda - can be appealed. It means that the bank was unwilling or unable to justify the costs at the time - so they lost - i will guarantee you on appeal having spent a ton of money and the plaintiffs - they will provide satisfactory evidence.

It's like you saying to me prove that the apple you bought from me cost one pound when you know it must have cost alot less. I could prove quite easily that it had cost me 0.99 pence - the apple may have cost 0.10 pence but it cost me 0.89 pence transporting it to you....xx