How will reclaiming bank charges impact banking discussion

Nathan_Spleen

We disagree then.

Smasher

alexjohnson wrote: »

Irrelevant. Whatever a court recorder may have found / judgments in default may have implied, that is not what the High Court has found. But never mind the language, look at the contract. To flip round the elephant business, if your contract specifically outlines what the "penalties" will be, I cannot see how when those "penalties" are triggered that there is a breach, never mind the words themselves. Obviously though things like UTCCA look through that, but that's a different issue, even if it gets you guys to the same conclusion.

I'm not here to defend banks and unfortunately they've got themselves into the idiotic position where the OFT will be deciding what is commercially reasonable. I dare say they deeply regret that.

Like I said, have a read around and you will learn what this is all about.
This is probably the oldest page that exists on this subject from the original site that started the whole thing.
http://www.bankchargeshell.co.uk/charges.html

Smasher

alexjohnson wrote: »

No, I'm afraid I'm not. I'm not going to say I might not be wrong but I know for a fact I know the law better than 99% of the people posting here. I am though not a lawyer, and for that matter a gallery of QC's would not have had to debate this and the judgemet would not run to 119 pages if it were an open and shut case. That applies both ways: I hardly think a few law students with access to the law reports can say any different. So of course you can find people who share your opinion - that doesn't make me wrong!

It is not a matter of opinion, it is a matter of fact, and the fact is you are wrong. The OFT test case, certainly this part of it, did not examine or rule the issues & principles upon which the vast majority of these claims were made.

We are talking about charges being unlawful contractual penalties.
When most of the claims to date were made, the bankers stated that the charges were to cover their administration costs in the event of the customers breach of terms by exceeding an agreed limit or going overdrawn where there was no overdraft in place(Unauthorised Overdraft). The charges did not constitute the breach, they were a result of the breach.
Until the T&Cs were fiddled with in late 2007, and this test case was announced, most claims, many of which are still tied up in the system were made on the principle that the banker argued that the charges were to cover their administration costs. The claimants argued that their costs could not possibly be this high, therefore, they were a penalty, which is unlawful.
THAT is why banks would always settle before a hearing and why they re-worded their T&Cs.
I have followed literally hundreds of people through their claims of around £1m so far, I'm not making it up.

borgbaiter

hi

the current verdict does not cover historic t&c's. so until the judge says what he thinks everyones opinion is just that.

however lets not forget that the bouncing of payments, as the verdict stands, is not a service, so no fee should have been charged which is probably about 75% of the charges people are trying to recover from banks anyway.

personaly i believe the judge is wrong in saying the new fee is not a penalty but thats my problem.



Borgbaiter

Smasher

alexjohnson wrote: »

Also agreed but no breach, no penalty. That's the point.

Precisely! As I said, the vast majority of claims did involve a breach of terms. The ruling on current terms doesn't even apply to most of the claims that were made, including mine because they were covered by the older T&Cs in which the charges were levied as a result of a breach of terms.

Nathan_Spleen

borgbaiter wrote: »

the current verdict does not cover historic t&c's. so until the judge says what he thinks everyones opinion is just that. Borgbaiter

Correct.

This is what the OFT said today:

Our Q&As and press release say that there may need to be further hearings to determine any outstanding preliminary issues arising from the judgment. Such issues include the read-across of the judgment to historical T&Cs and whether further court hearings may or may not be necessary on that aspect. This will be discussed at the forthcoming Case Management Conference on 22 May.

Knackered

alexjohnson wrote: »

No, I'm afraid I'm not. I'm not going to say I might not be wrong but I know for a fact I know the law better than 99% of the people posting here. I am though not a lawyer, and for that matter a gallery of QC's would not have had to debate this and the judgemet would not run to 119 pages if it were an open and shut case. That applies both ways: I hardly think a few law students with access to the law reports can say any different. So of course you can find people who share your opinion - that doesn't make me wrong!

You are quoting a law student (same knowledge as me, hands up etc.) who at the top of the page asserts,
"These charges are not charges for providing services under the contract; they are charges imposed because the customer has breached the terms of the contract."
That's circular. He is saying that there is a breach, and then going on to say why the charge rate is unenforceable. If there is no breach, then you can just ignore the rest. Where does he explain why this is a breach?

But it doesn't matter what his opinion is even if you dredge that up: you can look at the actual judgment. (And in fairness to me I have been saying the same thing for quite some time so I am not leaping on a bandwagon.) Decisions in lower courts are not binding. They can be used by courts as a guide, but they set no precedent: for that you need to look to the High Court. It's a long document, but go to section 323. The judge says,
"I therefore conclude that none of these provisions which the OFT has identified means that the customer is under a contractual commitment such that Relevant Charges could be a penalty for breach of the commitment, and so unenforceable at common law."
Again, just to be clear, we're talking about "penalties" arising from breach of contract. He then goes on to say,
"I have reached this conclusion without resort to Regulation 7(2) of the 1999 Regulations."
i.e., UTCCA applies, which opens the door to the OFT.

You know nothing. It has been to court hundreds of times and on every occasion (with one exception) the judge - the bloke with the gavel who probably knows a lot more about the law than you claim to - has ruled in favour of the claimant. If you are so good at this then go and tell the judges that they were wrong. I'm sure they'll take your word for it.

nickmack

Knackered wrote: »

You know nothing. It has been to court hundreds of times and on every occasion (with one exception) the judge - the bloke with the gavel who probably knows a lot more about the law than you claim to - has ruled in favour of the claimant.

Remember, the vast majority of cases did not actually get to the hearing stage as the bank settled out of court.

However, many banks, even after instructing their in house solicitors to write to claimants to put them off and also prepare some kind of defence, they still refused to appear in court and defend themselves.

nickmack

leebates78 wrote: »

They didn't want to push their luck for as long as possible - had it been to progressed to a hearing and the banks lost that would have set a precedence for all other cases.

No it wouldn't. A precedent would not be set at the county court.

Nathan_Spleen

alexjohnson wrote: »

and frankly yes, I am much better qualified to have that opinion than you are.

On a subject of penalties, an issue that is yet to be decided in a precedent setting court of law, I would say that everyone's opinion is equally as valid.