Appeals - Days 1, 2, 3 and 4... so far

[Amethyst]

(just quick notes for the moment - live from the courtroom)


The OFT v Banks Appeals hearing has begun at the High Court in London. Presiding over the hearing is Sir Anthony Clarke, Justice Waller and Justice Lloyd.

It is a very formal affair with everyone in silks and gowns. The Courtroom is packed to the rafters.

Rabinowitz started proceedings on behalf of the banks - he is expected to take a day and a half.

He will be followed by Vos, Milligan, Snowdon, Dicker, Thanki (for Lloyds), Salter and Mallick (for Abbey)

Presumably after that the Mr Crow for the OFT willl have his say.

The only issues at the moment are the appeal of the Judgement regarding current terms and conditions. In July Justice Smith deemed current terms and conditions were capable of being assessed under the Unfair Terms in Consumer Contract Regulations.

On the last day the banks will enter an application to appeal the judgement regarding Plain Intelligible Lanuage aspects of their current terms.

Justice smith has already given leave to appeal on historics but the banks havent actually applied so they wont be dealt with at this hearing.


Rabinowitz been dealing mainly with the interpretation of reg 6.2.a & b

He is arguing EU directive has two aims regarding UTCCR.

1st is the promotion of internal markets
2nd is Protection for Consumers
3rd is Legal Beagles


Rabinowitz is arguing the internal market bit is more important as it comes first in the directive, the judge has been putting more emphasis on consumer protection.


He has stated the Banks have two main sources income from Personal Current Accounts.

The first is from NII net interest income

The second is charges .

Interestng quote from one of the Judges "thats almost bound to be unfair isnt it, Peters paying Paul"

Most significant is Rabinowitz has said that the OFT have written to banks to say charges are unfair. We had previous inforation from RBS saying the OFT had ''raised serious concerns'' as to the fairness of the terms, but this is a definate the OFT definately deem many terms to be unfair.

[Budgie]

Re: APPEALS - Day One

Who's who in the Appeal Hearing

Whos Who in the Appeals - Legal Beagles

[kiwicat]

Re: APPEALS - Day One

Speedy work much appreciated

[Budgie]

Re: APPEALS - Day One

From the BBC article BBC NEWS | Business | Bank charges ruling 'was wrong'

"Laurence Rabinowitz QC, for RBS NatWest, said some of Mr Justice Smith's reasoning was "not justified" and "schizophrenic".

Oh well, that's the appeal well and truly cocked up from the Banks point of view then. Justice Smith is an extremely well liked and respected member of the Judiciary.

Rab won't have done himself any favours with that comment IMO.

Budgie

[Amethyst]

Re: APPEALS - Day One

Was he referring to the EU directives arguments ? He was saying this morning Justice Smith put consumer law over and above 'the promotion of internal markets' and that was wrong cause market stuff was earlier in the directive than consumer protection so that meant consumer protection was less important. grr.

[rosymaria]

Re: APPEALS - Day One

aurence Rabinowitz QC, for RBS NatWest, said some of Mr Justice Smith's reasoning was "not justified" and "schizophrenic".

Is he mad?? :tinysmile_aha_t:

[Amethyst]

Re: APPEALS - Day One

Interestng quote from one of the Judges "thats almost bound to be unfair isnt it, Peters paying Paul"

was from Justice Waller (confirmed by the BBC article BBC NEWS | Business | Bank charges ruling 'was wrong'

And as i said on another thread, Of course the banks are going to say the ruling was ' wrong ' - if they thought it was right, there wouldnt be a lot of point in the appeals would there....lol.

[Budgie]

Re: APPEALS - Day One

Is he mad?? :tinysmile_aha_t:

I most certainly am RosyMaria, but I believe Justice Smith is in possession of all his marbles.

Rabinowitz may have one or two missing come the end of the day though !!

[tomterm8]

Re: APPEALS - Day One

Rabinowitz been dealing mainly with the interpretation of reg 6.2.a & b

He is arguing EU directive has two aims regarding UTCCR.

1st is the promotion of internal markets
2nd is Protection for Consumers


Rabinowitz is arguing the internal market bit is more important as it comes first in the directive, the judge has been putting more emphasis on consumer protection.

Not honestly sure where he is trying to go with this, looking at the "whereas" portion of the directive, it's clear the directive was written to promote the internal market by harmonizing the law with regard to protection for consumers. One is not more important than the other, both are equally important.

[EXC]

Re: APPEALS - Day One

Not too much to add to Amethyst's post as I only attended until lunchtime.

For the rest of the morning Rabinowitz took the court through the banks' interpretation of UTCCR - particularly 62b - his interpretation of the EU directives on which UTCCR is based and his interpretation of the House of Lords interpretation of UTCCR in the First National Bank case (phew) Most of it was quite mundane and very technical, discussing with the 3 judges at great length the narrowness and broadness of almost every single word in the few sentences that make up the regulations in question, even down to the significance or otherwise of 'the'.

Assessment of unfair terms
6. - (1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate-

(a) to the definition of the main subject matter of the contract, or

(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

http://www.opsi.gov.uk/si/si1999/19992083.htm

Rabinowitz was the only party to speak during the entire morning and was speaking in his capacity of lead QC for all the banks. Therefore none of the banks' terms & conditions were looked at, just the regulations. He was extremely sharp and fluent, answering complex questions from the judges without any hesitation. The main area of dispute of Justice Smith's Judgment are paragraphs 332 to 431.

The quote from Lord Justice Waller that the charges are ''almost bound to be unfair, Peter is paying for Paul'' was in relation to Rabinowitz saying that the main 2 elements of current account revenue for banks were the interest difference between what they paid and made on balances and the relevant charges. I thought Waller's comment was very encouraging as it appeared to show the judges are looking at the bigger picture. Also quite interesting was that all 3 judges discussed that, in the event that the final ruling deemed the charges unfair, would it also apply to the interest?

[Budgie]

Re: APPEALS - Day One

Also quite interesting was that all 3 judges discussed that, in the event that the final ruling deemed the charges unfair, would it also apply to the interest?

Yes !!!!!!!!!!!!!!

Brilliant.

We really need to make sure we cover this point in our PCA response.

[Shazzaw]

Re: APPEALS - Day One

Just adding an updated snippet from the BBC


'Unsatisfactory'
Mr Rabinowitz went on to criticise some of Mr Justice Smith's original judgement. He said the judge had tried to view the banks' current account contracts through the eyes of the "typical consumer".
But the QC argued that this meant reading words and interpretations into the 1999 regulations that were not there.
"This is vague and unsatisfactory," he said.
"The issue does not depend on the perception of the typical customer about the core of the bargain. Regulations make no provision for this." The appeal is expected to last six days, spread over this week and next week.

From what I've read sounds an encouraging 'up' day today - no doubt there'll be some down days though over the coming week.

Praying the banks lose this appeal and finally start refunding again.

shazza

[righty]

Re: APPEALS - Day One

I think now is not a good time to be claiming the banks take precedent over the consumer............& insulting a judge into the bargain do you?

[tomterm8]

Re: APPEALS - Day One

Just adding an updated snippet from the BBC


'Unsatisfactory'
Mr Rabinowitz went on to criticise some of Mr Justice Smith's original judgement. He said the judge had tried to view the banks' current account contracts through the eyes of the "typical consumer".
But the QC argued that this meant reading words and interpretations into the 1999 regulations that were not there.
"This is vague and unsatisfactory," he said.
"The issue does not depend on the perception of the typical customer about the core of the bargain. Regulations make no provision for this." The appeal is expected to last six days, spread over this week and next week.

From what I've read sounds an encouraging 'up' day today - no doubt there'll be some down days though over the coming week.

Praying the banks lose this appeal and finally start refunding again.

shazza

Um, the UTCCR require that contracts be written in plain and intelligeable language. If he is saying that the typical consumer doesn't understand the core of the bargain, then IMHO, that is a breach of the PiL requirement.

[kev2b3]

Re: APPEALS - Day One

What happens after the appeal. Do the four judges need to agree with each other before they give their verdict.