Bank Charges Reclaiming. Payouts may be cut. Act now! - IMPORTANT CLARIFICATION

ukmonkey

Martin_Weekly_Money_Tips_28_Feb_2007 wrote:

In April, the Office of Fair Trading will give its opinion on the appropriate amount for bank charges. My guess is it'll be £12, though the banks predict higher and I think it should be lower. The banks will be under huge pressure to drop charges across the board, and will probably fall into line. This won't stop people reclaiming past charges, however banks may only offer the difference between £12 and the amount you were originally charged (e.g. £35 - £12 = £23). If you don't accept it, the risk they may defend in court for the first time, citing the OFT ruling, is a tiny bit higher. To avoid all this, reclaim now!

What Martin has wrote here is a tad incorrect, sorry Martin, but I feel this is VERY important to correct you on.

If the OFT state, as they did with credit cards, that the charges are too high, and tell the banks to lower them to £12.00, this will not affect your payouts.

£12.00 is only the amount at which the OFT will consider interveneing. The banks will still have a case to answer, they can't just say "our charges are fine because the OFT said so".

The whole basis of this whole arguement is that under the Unfair Terms In Consumer Contracts Regulations, the penalties for breaching a consumer contract MUST only reflect the costs that the "victim" (i.e the banks) have incurred.

By nature of the fact that you should all be asking for details of any manual intervention that has taken place on your acocunt (there almost certainly won't be an manual intervention on there) we know that the cost to the banks in negligable. I'd be happy if the OFT said £1.00, but even then that could be challenged as it almost certainly costs less than that, we're taking pennies here ladies and gents.

IF your case went as far as a court hearing, you have to argue why the charges are unlawful. The onus is on YOU, as the claimant, to prove the charges are unlawful and WHY. However, if the banks cannot produce evidence to the contrary, the judge will almost certainly find in your favour.

So, Martin, keep up the good work, but please please please, do not put unnecesary doubt into people's minds.

I'd like you to link to this post in next week's weekly tips email to clarify what you actually meant.

You are right in what you were trying to get accross, the quicker people claim, the better, the OFT decision can only go in our favour and give even more weight to people's claims.

Sorry for the long post, and I sincerely hope that this post isn't deleted or censored.

Hope this helps you all, keep the faith!

MSE_Martin

UK Monkey - what you say is correct 'de juro' but not in my view 'de facto'.

While the law is about unfair contract terms - the process isn't - the process is one who blinks/negotiates first e.g. "PERSON A ASKS BANK B FOR MONEY THEY SAY IS UNFAIR. WILL BANK B PAY UP OR SAY GO TO COURT. IF IT GOES TO COURT WILL BANK B FIGHT OR NOT FIGHT".

Now let's examine this in context of what I wrote (which had to be condensed for the email).

A. In April, the Office of Fair Trading will give its opinion on the appropriate amount for bank charges.
As I've stated elsewhere this is an opinion on the intervention level, but in laymans terms this is an indication of appropriateness.

B. My guess is it'll be £12, though the banks predict higher and I think it should be lower.
Nuff said, this is speculation

C. The banks will be under huge pressure to drop charges across the board, and will probably fall into line.
Again no discussion needed here

D. This won't stop people reclaiming past charges, however banks may only offer the difference between £12 and the amount you were originally charged (e.g. £35 - £12 = £23).

I am not arguing here that the OFT ruling will mean the situation is legally different for reclaiming. I am saying it MAY mean banks offer less after their first letters. This is a tactic that can be legitimately predicted. They already commonly offer less - but now they will be able to try and argue a reason for doing less.

It doesn't mean I agree this is either correct or legal, it does mean that its a potentially likely prospect and people should be aware.

If this is possible, then reclaiming now before that argument can be brought, increases the likliehood of a full payout without needing to go to court.

E. If you don't accept it, the risk they may defend in court for the first time, citing the OFT ruling, is a tiny bit higher.

The risk of a Court defence is increased by this. While you are correct in arguing unfair terms in court over the amount of the fee, and you must prove the fees are unlawful. I believe this will be more difficult to do - and my very senior legal informants tell me judges will take the OFT ruling as strongly indicative.

F. To avoid all this, reclaim now!

Here we're both in agreement. The key for me was to urge people to go quick. By waiting you gain nothing, by going quick you diminish the risk of changing the scenario.

I think your post while interesting would confuse people rather than clarify. I've spend a long time building a career of communicating complex finance in as easy to understand a way as possible and I think my paragraph managed that.

Overall we're both coming from the same side here - and while I appreciate your post. Mine was calculated to be written in a way people could understand simply; and I believe it works

All the best

Martin

ukmonkey

MSE_Martin wrote:

UK Monkey - what you say is correct 'de juro' but not in my view 'de facto'.

While the law is about unfair contract terms - the process isn't - the process is one who blinks/negotiates first e.g. "PERSON A ASKS BANK B FOR MONEY THEY SAY IS UNFAIR. WILL BANK B PAY UP OR SAY GO TO COURT. IF IT GOES TO COURT WILL BANK B FIGHT OR NOT FIGHT".

Now let's examine this in context of what I wrote (which had to be condensed for the email).

A. In April, the Office of Fair Trading will give its opinion on the appropriate amount for bank charges.
As I've stated elsewhere this is an opinion on the intervention level, but in laymans terms this is an indication of appropriateness.

Fair point, perhaps I misunderstood your understanding of the impact this would have.

MSE_Martin wrote:

B. My guess is it'll be £12, though the banks predict higher and I think it should be lower.
Nuff said, this is speculation

I agree, I also think it will be £12 simply because that is what the decision was WRT credit card "default charges".

MSE_Martin wrote:

D. This won't stop people reclaiming past charges, however banks may only offer the difference between £12 and the amount you were originally charged (e.g. £35 - £12 = £23).

I am not arguing here that the OFT ruling will mean the situation is legally different for reclaiming. I am saying it MAY mean banks offer less after their first letters. This is a tactic that can be legitimately predicted. They already commonly offer less - but now they will be able to try and argue a reason for doing less.
It doesn't mean I agree this is either correct or legal, it does mean that its a potentially likely prospect and people should be aware.

If this is possible, then reclaiming now before that argument can be brought, increases the likliehood of a full payout without needing to go to court.

You are correct here. They will almost certainly offer just the difference (loss prevention etc). If it went to court, it is my opinion that the judge would STILL award in the claimant's favour. For those keen to avoid a court hearing (although I can see no reason why anyone wouldn't want to go to court to get their money back, each to their own I guess) then yes, this is pertinent to those people.

MSE_Martin wrote:

E. If you don't accept it, the risk they may defend in court for the first time, citing the OFT ruling, is a tiny bit higher.

The risk of a Court defence is increased by this. While you are correct in arguing unfair terms in court over the amount of the fee, and you must prove the fees are unlawful. I believe this will be more difficult to do - and my very senior legal informants tell me judges will take the OFT ruling as strongly indicative.

Whilst I don't disagree, people will possibly have more of a fight on their hands, I disagree with the opinions of your informants. Cases like this are based on the balance of probabilities, and yes, the burden of proof is on the claimant, but I believe the evidence against the charges is very overwhelming and would lead a judge into awarding in the claimant's favour.

MSE_Martin wrote:

F. To avoid all this, reclaim now!

Here we're both in agreement. The key for me was to urge people to go quick. By waiting you gain nothing, by going quick you diminish the risk of changing the scenario.

:-)

MSE_Martin wrote:

I think your post while interesting would confuse people rather than clarify. I've spend a long time building a career of communicating complex finance in as easy to understand a way as possible and I think my paragraph managed that.

On the contrary Martin, I watched both of the "Tonight with Trev McD" programmes that you were involved in that were about bank charges, and a couple of things alarmed me about what you were saying.

The main one being when you talked about claims being over £5k that were not worth persuing if it got to the court stage.

Yes, costs being awarded are something that claimants need to be aware of, if a claim was pushed into the Multi Track or Fast Track, and judgement was awarded in the claimants favour (as it almost certainly would), then this really would open up the floodgates.

You are hopefully aware that the small claims track does not set legal precedents, however, the fast track and multi track does (to the best of my knowledge, I'm not a lawyer!). So, in my opinion, whilst being mindful of the [remote in my opinion] possibility of costs being awarded, the impact that a succesful case on the fast/multi track would have would be phenomenal.

MSE_Martin wrote:

Overall we're both coming from the same side here - and while I appreciate your post. Mine was calculated to be written in a way people could understand simply; and I believe it works

All the best

Martin

Likewise Martin, this is something I feel VERY passionate about (bet you can't tell?! lol) and I feel that in the position that you're in, you do have a responsibility to convey information as accurately as possible.

I appreciate that you try to keep things simple, and I admire that. You have brought this issue to the masses by doing just that.

I firmly believe however that you do need to perhaps do a little more research.

I have just kicked off my 2nd battle (just today sent my SAR), this time with Halifax (I got around £2.5k out of First Direct thanks to CAG's help last spring/summer) and I'd be more than happy if we could come to some arrangement to use my case as some sort of "bank charge claiming blog"? What do you say? You can find my email address from my profile, so if you think it's a go-er, drop me a mail and we'll take it from there.

I really hope that you don't take anything I've said the wrong way. We're both adults, and I'm not slating you whatsoever. I really admire your work, but I do hope you will take my criticisms on board and work from them.

Thank you for responding to my post personally, I never expected THAT to happen with this being such a vast site!

Keep up the good work! :money:

All the best,
ukmonkey
:beer:

The_Scarlet_Pimpernel

MSE_Martin wrote:

UK Monkey - what you say is correct 'de juro' but not in my view 'de facto'.


Martin

:huh: Don't you mean "de jurE"?

I'm not sure what is meant by the above sentence, as per definitions of the terms:

de jure adj. Latin for lawful, as distinguished from de facto (actual).

de facto adj. Latin for "in fact." Often used in place of "actual" to show that the court will treat as a fact authority being exercised or an entity acting as if it had authority, even though the legal requirements have not been met.

krisskross

The_Scarlet_Pimpernel wrote:

:huh: Don't you mean "de jurE"?

.

I think this is really picky, anyone can do a typo, especially Martin if he is trying to type as fast as he speaks.

I am sure lots of people reading these forums have experience and knowledge about this bank charges reclaim lark, but Martin has the name, and the high visibility to get the message to millions in terms they understand. Not only on a website but all types of media. Think we must remember that some of the people striving hardto claim money are not only some of our society's poorer members but also some of the less well educated. Martin is keeping it as uncomplicated as possible.

The_Scarlet_Pimpernel

So surely a clarification of what he means when using Latin legal terms (which can't be Googled if misspelt, sorry) would help keeping it uncomplicated?

I'm pretty sure most of the poorer/less well uneducated people (as well as quite a few of those better off for that matter) are not totally versed in Latin legalese, thereby putting in doubt your assertion of an aim of simplicity. :-)

ukmonkey

I think Martin's reply was aimed at me, as I am the person he was answering, and he therefore tailored the vocabulary to his audience.

Steve_01903

I agree with ukmonkey. The OFT have already stated £12 for credit cards, but none of them have provented us reclaiming all of our charges back. Why would it be different for the banks

MSE_Martin

My apologies for the latin typo - my spelling is awful - its why I became a broadcaster first!

All I meant by that was "legaly you're correct, but in practice it's different".

UK Monkey I dont actually think we're disagreeing.

As for the "saying don't persue over £5k".

Actually that's not what I said. First of all the chap I was talking to had three claims with one bank (producer edited that down for time) and I was saying how to go for them seperately so they were all small claims.

Next what I was saying (as I say in my article) is if you're a hundred or two hundred higher than £5,000 I would stick with the small claims and forgo £100 or so - for practical reasons. Yet I wasn't saying don't claim more - just tweak at the edges if you're near the border.

Again this is a deliberate "mass market" stance - most people have the pants scared off them by doing this - and any potential risk means they avoid it. My aim is to ensure they're minimising their risk (as long as it doesn't defeat the claim substantively) so they'll still go for it.

Martin

Martin

jennimcr

MSE_Martin wrote:

My apologies for the latin typo - my spelling is awful - its why I became a broadcaster first!

All I meant by that was "legaly you're correct, but in practice it's different".

UK Monkey I dont actually think we're disagreeing.

As for the "saying don't persue over £5k".

Actually that's not what I said. First of all the chap I was talking to had three claims with one bank (producer edited that down for time) and I was saying how to go for them seperately so they were all small claims.

Next what I was saying (as I say in my article) is if you're a hundred or two hundred higher than £5,000 I would stick with the small claims and forgo £100 or so - for practical reasons. Yet I wasn't saying don't claim more - just tweak at the edges if you're near the border.

Again this is a deliberate "mass market" stance - most people have the pants scared off them by doing this - and any potential risk means they avoid it. My aim is to ensure they're minimising their risk (as long as it doesn't defeat the claim substantively) so they'll still go for it.

Martin

Martin

Hi MARTIN

Can i just ask you something? I am currently claiming back my partners credit card payments through Halifax. Credit Limit was £600. We have now paid off £1100. They still want £2300, for all the fees how do i go about claiming these back. They are charges will are still in dispute and therefor have been applioed to the account but have not been paid. Do i claim them back and then pay the account off, but then i am still paying the charges am i not! This is what Halifax have said i will have to do anyway!!!HELP, im just getting v confused!!

Thanks Jenni MCR:mad:

krisskross

I am not Martin :rotfl: . However if you claim all the charges and are refunded then the credit card company are effectively putting you back in exactly the position you were before the charges were applied. Interest is also allowed to be claimed.However I wouldn't have thought you can claim back the normal interest payments that accumulate on a credit card that is not paid off in full each month.