Bank Charges OFT Test Case Discussion

EileenWonder

Hi Everyone Need Help if any legal brains out there.
Just received my statements from the RBS.
The have included a letter with the statements and I quote
Manual Intervention:
With reference to your request concerning any "manual intervention" to the administration charges debited, these charges have been processed in accordance with the terms and conditions of our current agreement with you as a result of the activity on your account. In the event that you breach the terms and conditions, we will take the appropriate action, contacting customers when appropriate, or handling customer enquiries regarding their account status. When a customer has raised a concern in relation to this process, the decision will be communicated to the customer and where appropriate noted on the account.

What does this all mean

Smasher

It means.. "We can't produce any evidence of manual intervention so here's a paragraph of crap that will hopefully confuse the heck out of you".

freetail

I am completely behind the campaign to claim back unfair bank charges and am in the process of doing so with two of my banks - one closed, one current. However, I'm concerned about the tone and approach of some of Martin's letter templates in the first instance.

I have had to negotiate compensation claims with international blue-chip companies at the most senior level on contracts worth hundreds of thousands of pounds in my work. The key word here is 'negotiate' and the best negotiations work when both parties aim to find common ground (save face and legal costs). Surely by appealing to the better judgment of banks in the first instance, especially when the charge is the result of a one-off oversight on our part rather than a regular misdemeanor, we're more likely to get the result we're looking for early on, rather than sour the relationship and get entangled in a long legal wrangling.

In law (and Martin, if you read this, I'm sure you can correct me), the onus is on what's 'fair' and 'just' rather than the strict letter of the law itself (hence the ongoing test case). By the same token, any claimant must show that they have been reasonable in their claim and provided the defendant ample opportunity to reach an amicable settlement before the case is escalated through the legal system. Failure to do so, often results in a negative outcome for the claimant and this is exactly the reason why Ombudsmen require customers to seek a resolution with the organisation in question and follow the full complaints procedure before they will hear the case. This ensures due diligence and means that if a case were to go to court, it was because a settlement out of court could not be reached and therefore must be decided by the courts as a last resort rather than a first port of call.

Many of the templates written by Martin, that I have read, use inflammatory legal language that I would strongly caution against in the first instance and would only recommend falling back on if and when communications break-down and you need to 'get heavy'.

In my experience, as soon as you start using any kind of legal language or make demands in this way, the receiver will simply refer the case to their legal department and it becomes much harder to drive a strong negotiation that is likely to lead to a positive and timely outcome. The only winners are the lawyers.

Sincerely,
JP

freetail

TO EILEENWONDER:

Actually, it simply means that they have levied a charge in accordance with the terms & conditions you signed when you opened your account (or accepted when they were updated) and that they have received your request to have the charged reversed via manual intervention (crediting the charges back to you manually - the charges would have been levied automatically to begin with). Once they have reviewed your case, they will let you know whether they are inclined to refund the charges at their sole discretion.

If they do decide to refund the charges now, rather than defer your case for the results of the ongoing test case, then this will more than likely be because they accept your argument and are keen to keep you as a customer but they may add a clause to say that this doesn't necessarily mean they think the charges are unfair. It's like offering a customer a loyalty discount, rather than any kind of compensation.

Stick with it, keep your communications polite and try to appeal to their better judgement. If you're being charged a lot of charges because you continually breach your terms & conditions, I wouldn't expect the bank to look on your case so favourably and you might like to then escalate your case and join everyone else in the campaign to stop unfair bank charges and take a stronger line with them (use Martin's template letters, etc), but I would caution against this approach until you've exhausted all other appeals to their better judgment first as they may mark you down as a difficult customer and look to close your account once any monies have been paid.

In this case, take Martin's advice and set-up another bank account first that you can fall back on just in case.

Good luck!
JP

freetail

TO EDGARJAY:

In short, I would say YES. You can appeal against any charges made in the last 6 years, including recent charges levied after a court case, but this would more than likely have to be heard as a separate case rather than an extension of your existing case.

Hope this helps?
JP

Smasher

freetail wrote: »

I am completely behind the campaign to claim back unfair bank charges and am in the process of doing so with two of my banks - one closed, one current. However, I'm concerned about the tone and approach of some of Martin's letter templates in the first instance.

I have had to negotiate compensation claims with international blue-chip companies at the most senior level on contracts worth hundreds of thousands of pounds in my work. The key word here is 'negotiate' and the best negotiations work when both parties aim to find common ground (save face and legal costs). Surely by appealing to the better judgment of banks in the first instance, especially when the charge is the result of a one-off oversight on our part rather than a regular misdemeanor, we're more likely to get the result we're looking for early on, rather than sour the relationship and get entangled in a long legal wrangling.

It really doesn't matter what you put in the letter template as long as the facts are correct. You are only going to get the same template reply letter from the bank that everyone else got telling you to get lost.

freetail wrote: »

In law (and Martin, if you read this, I'm sure you can correct me), the onus is on what's 'fair' and 'just' rather than the strict letter of the law itself (hence the ongoing test case). By the same token, any claimant must show that they have been reasonable in their claim and provided the defendant ample opportunity to reach an amicable settlement before the case is escalated through the legal system. Failure to do so, often results in a negative outcome for the claimant and this is exactly the reason why Ombudsmen require customers to seek a resolution with the organisation in question and follow the full complaints procedure before they will hear the case. This ensures due diligence and means that if a case were to go to court, it was because a settlement out of court could not be reached and therefore must be decided by the courts as a last resort rather than a first port of call.

The onlus is on the law, that it why people have to start litigation (and why it always succeeds). A penalty is against the law, period. There is no such thing as a "fair" penalty. If it is a penalty then it is against the law.

freetail wrote: »

Many of the templates written by Martin, that I have read, use inflammatory legal language that I would strongly caution against in the first instance and would only recommend falling back on if and when communications break-down and you need to 'get heavy'.

In my experience, as soon as you start using any kind of legal language or make demands in this way, the receiver will simply refer the case to their legal department and it becomes much harder to drive a strong negotiation that is likely to lead to a positive and timely outcome. The only winners are the lawyers.

Sincerely,
JP

Firstly you don't need a lawyer, you can do it yourself as have hundreds of thousands of others. By sending 2 letters, each giving 14 days to pay, you are giving more than ample time considering that you are dealing with a multinational corporation with vast resources at their disposal. A court has not once struck out a claim because ample time was not given by people who sent 2 letters each giving 14 days.
I can tell you that I have lost count of the amount of posts I have read on various sites that say they waited the 8 weeks whilst the bank "carried out their investigation", only to be told that the bank concluded that the charges are fair and in line with their T&Cs (the usual crap).

By all means try the softly softly approach, but expect a lot of waiting, expect to be fobbed off and expect a derisory offer at best, especially if the claim goes into hundreds or thousands.

freetail

Hi Smasher,

Thanks for your reply and I hear what you're saying. I too would always recommend putting a time-frame on when you expect to receive a response but one can choose one of two routes when claiming a refund on bank charges.

1) Appeal to the bank's better judgment. If they do not side with you, then you can cite your efforts in your case, showing 'willingness' and 'resolve' on your part to find an amicable solution. This DOES carry significant weight, especially in arbitration cases and presents your case in a more favourable light leading to a better outcome. This of course doesn't mean you have to accept an offer that is not acceptable to you and you're well within your rights to pursue this further.

2) Skip step 1 and immediately jump to demanding a full refund and citing your customer rights, etc. This could be escalated to a small claims court (you're right about it not having to cost you as an individual, but lawyers and magistrates don't work for free to they still win) or further to still. In this instance, you may get the financial outcome you're looking for, but with the pending test case, may actually have to wait longer, despite receiving your standard letters within your requested 14 day time limits. Also, from a customer relations perspective, you're unlikely to be their favourite customer and as in any business, you're much less likely to receive the same level of service as favoured customers will.

At the end of the day, it's all about getting what's best for you as a customer and providing the best to you as a bank and as in any other business, this comes about by having a strong client / service provider relationship. It's not always about asserting your rights pure and simple, but about nurturing the best out of a relationship to bring about a win-win situation.

Of course, if the relationship breaks down, then there's no incentive to take this approach as the win-win benefit is lost. In this case, there's only one course of action and that, I suspect, is where you're at now.


I did want to reply to your other post as well:
Really good letter to the debt collectors and I suspect your approach is absolutely spot on. My only question is whether they are seeking to collect the original charges or additional charges that may have accrued on top since your case was put on hold (have you actually made a case against your bank or are you relying on the test case itself?).

If they're chasing you for accrued charges then (a) I very much doubt these additional charges are legal and (b) I would take action to ensure that further charges are not levied on top of the outstanding so-called 'debt'.

I'm pursuing a similar case myself where charges were accrued on other charges, but this is for a closed account so slightly different circumstance. Still, I'll post any replies and updates here.

Good luck with your case, and again, GREAT letter - not threatening, just stating the facts very matter of fact.

JP

freetail

TOO KERRYHITCHEN:

In short, yes!
They're hiding behind a waiver that they have not signed up to and are therefore not protected by. Good luck,
JP

Smasher

freetail wrote: »

Hi Smasher,

Thanks for your reply and I hear what you're saying. I too would always recommend putting a time-frame on when you expect to receive a response but one can choose one of two routes when claiming a refund on bank charges.

1) Appeal to the bank's better judgment. If they do not side with you, then you can cite your efforts in your case, showing 'willingness' and 'resolve' on your part to find an amicable solution. This DOES carry significant weight, especially in arbitration cases and presents your case in a more favourable light leading to a better outcome. This of course doesn't mean you have to accept an offer that is not acceptable to you and you're well within your rights to pursue this further.

In my experience (which is vast in bank charges claims) this is a pointless excercise. It is very well intended and the logic is good, but in reality it gets you nowhere 9/10.

freetail wrote: »

2) Skip step 1 and immediately jump to demanding a full refund and citing your customer rights, etc. This could be escalated to a small claims court (you're right about it not having to cost you as an individual, but lawyers and magistrates don't work for free to they still win) or further to still. In this instance, you may get the financial outcome you're looking for, but with the pending test case, may actually have to wait longer, despite receiving your standard letters within your requested 14 day time limits. Also, from a customer relations perspective, you're unlikely to be their favourite customer and as in any business, you're much less likely to receive the same level of service as favoured customers will.

Again, the only side using a lawyer is the bank and even a giant like a bank with all their top lawyers have still failed to beat one single layman litigant in person, in court. I am treated no differently by my bank despite 2 claims against them. Its not like there is any personal relationship there, they only know me as an 8 digit number.
I know that some banks close down accounts in retalliation, but the FOS will take action against them for this & you will be awarded compensation.

freetail wrote: »

At the end of the day, it's all about getting what's best for you as a customer and providing the best to you as a bank and as in any other business, this comes about by having a strong client / service provider relationship. It's not always about asserting your rights pure and simple, but about nurturing the best out of a relationship to bring about a win-win situation.

Of course, if the relationship breaks down, then there's no incentive to take this approach as the win-win benefit is lost. In this case, there's only one course of action and that, I suspect, is where you're at now.

A bank looks upon customers who pay charges as "cash cows". I have seen countless cases where the banks have bullied, lied, intimidated and treated with utter contempt those who stood up & complained.

I have completed my claims. With a couple of them, I first tried calling them and was told "nothing we can do". Then I went into the bank and was told the same thing again and then they tried to sell me a loan. I even asked if they could increase my overdraft so that I could stay within the limit whilst I tried repaying all the previous charges that had mounted up, but was told no (presumably because if they agreed, they would not be able to continue to pile on the charges).
Eventually, a friend lent me the money & I settled & closed the account. Now I have it all back + interest and I applied interest at their own rate!

freetail wrote: »

I did want to reply to your other post as well:
Really good letter to the debt collectors and I suspect your approach is absolutely spot on. My only question is whether they are seeking to collect the original charges or additional charges that may have accrued on top since your case was put on hold (have you actually made a case against your bank or are you relying on the test case itself?).

If they're chasing you for accrued charges then (a) I very much doubt these additional charges are legal and (b) I would take action to ensure that further charges are not levied on top of the outstanding so-called 'debt'.

I'm pursuing a similar case myself where charges were accrued on other charges, but this is for a closed account so slightly different circumstance. Still, I'll post any replies and updates here.

Good luck with your case, and again, GREAT letter - not threatening, just stating the facts very matter of fact.

JP

Usually once all the charges have mounted up, the bank sells the "debt" as a whole to a DCA. Given that the debt accrued from charges that were unlawful in the first place, this debt and any further charges on top of it are also unenforceable. The DCA would have no chance of succeeding if they took you to court to try to get it..

Good luck with your claim

ChantelleCAO

Hello, I've been told by Abbey that I can't even get my last 6 years of bank statements because my account with them is closed. It closed because I refused to pay their bank charges which made me go overdrawn by £195 and the cheeky so and sos passed it on to a debt collection agency!!! Is there anything I can do? I was also on benefits at the time if this helps at all? Thanks