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Earlier this week various Consumer website groups were invited to attend a meeting with the OFT.
Legal Beagles attended today, with Exc, Budgie and Tom representing our members. MSE will attend tomorrow and Penalty charges on Friday, CAG, we believe, are in the process of organising a telephone conference for either Thursday or Friday. It was originally intended that all groups would attend at the same time however this was not possible owing to prior commitments.
The OFT opened the meeting by stating that they are required to make a decision regarding continuance of their UTCCR1999 investigation following the recent Supreme Court judgment. They are expecting to make this decision during December. They are currently analysing the judgment and considering the remaining legal avenues open to them. They have not yet reached a decision and are awaiting the opinion of their legal counsel. They quite clearly pointed out that they were not at liberty to go into any details regarding their decision making process for obvious reasons. Readers should therefore be aware that the OFT were not able to express any views on any matters that we raised with them today.
They did however wish to make it know to Consumers that they were aware of the public interest surrounding this matter and that they would endeavour to make their decision known as soon as possible, together with detailed explanations regarding their reasons for making that decision.
Whatever decision they eventually make will be market sensitive so it is unlikely that they will be able to give us anything more than a few hours notice ( after the financial markets close on the particular day ) of their actual announcement.
The OFT’s decision will be based upon the likely chances of success of any future litigation following on from the Supreme Court decision plus the likely impact that their decision, either way, will have upon the Consumer.
The OFT also wished to make it clear that whatever decision they make they still wish to pursue change in the market place.
The purpose of our meeting today was to allow us, as a stakeholder, the opportunity to put our views across to the OFT regarding the following key issues.
1) Do we consider that the OFT should continue with their UTCCR1999 investigations or not and for what reasons?
2) What arguments do we consider could or should be utilised in respect of Regulation 5 (1) of the UTCCR1999?
3) What other legal arguments ( non UTCCR1999 ) do we consider could or should be utilised to achieve Consumer satisfaction?
4) What do we consider the possible effects might be should the OFT decide to Continue or not continue with the UTCCR’s investigation?
Do we consider that the OFT should continue with their UTCCR1999 investigations or not and for what reasons?
We presented the OFT with our mission statement.
Absolutely yes.
The test case was only ever a part of it. Clearly the Supreme Court judgment only ruled on one single aspect of the regulations (the ‘price’) without exploring the rest. The fact that the Supreme Court offered the OFT another route under regulation 5 is significant. After all, how many last instance judgments offer the losing party an alternative? If the OFT don’t take it up, consumers will feel terribly let down by the OFT, the Consumer regulations that were designed to protect them and the process itself.
In the meantime we need the PCA Market Study findings on charging levels and structures announced and implemented. But we cannot go through another 3 years of a one sided waiver with which the banks are irrevocably protected by when it suits them but continue to ignore the OFT’s guidance on disputed accounts and pile on charges to those in genuine hardship.
The test case was initiated to provide ‘legal clarity and certainty‘. In short, it hasn’t. And as such provides the very reason why the investigation should continue.
The end result of the meeting today was that we agreed to provide a detailed written report of our response to the OFT before lunchtime on Friday of this week. We will of course post that written response on the Legal Beagles website for all users to see.
We had actually prepared quite detailed notes in advance of today’s meeting and wish to thank everyone who has contributed to the various discussions over the last few weeks and in doing so effectively contributed to the points we raised today. Those notes will be tidied and a detailed written report prepared over the next 1 ½ days.
Meanwhile, below is a short summary of the points discussed today.
What arguments do we consider could or should be utilised in respect of Regulation 5 (1) of the UTCCR1999?
Tom Brennan, Budgie and Exc, listed the various arguments that have been discussed on the various threads on Legal Beagles from before and since the Supreme Court judgment in relation to Reg 5.
Twelve (12) separate but inter-connected arguments were listed including a new key argument regarding paragraph (e) of schedule 2 to the 1999 regulations, indicative list of terms that may be regarded as unfair, “Requiring any Consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” The reasoning behind this key argument as well as the other eleven arguments will be explained in more detail in our full written report.
What other legal arguments ( non UTCCR1999 ) do we consider could or should be utilised to achieve Consumer satisfaction?
The other legal arguments we raised were under the following five headings
i) Misrepresentation
ii) Competition
iii) Undue Influence
iv) CCA 1974 ( as amended)
v) The penal argument revisited
Additionally, our views regarding the possibility and the mechanism of a referral to the ECJ regarding certain of the regulations under the European directive / UTCCR1999 regulations and schedules as well as issues related to the “Burden of Proof” were aired to the OFT.
Again, the reasoning behind all of the above will be explained in more detail in our full written report.
What do we consider the possible effects might be should the OFT decide to Continue or NOT continue with the UTCCR’s investigation?
We actually found this quite a complicated question to cover particularly because of the historic / present / future / contract / charges / fairness / scenarios.
Some of the key points we raised were as follows.
More detailed responses will be included in the full written report.
If OFT do not continue :
We suggested that the majority of Consumers who had incurred historic charges were primarily concerned about recovering their own historic charges but that those particular Consumers, in fact ALL Consumers, would or should also be concerned about the future situation, should the OFT decide not to continue with their investigation, as the Banks would basically be provided with virtually limitless power and negligible regulation possibilities over PCA contracts.
Additionally, there would be a huge risk of similar “clever” contract drafting in other Supplier / Consumer contracts to bypass the possibility of OFT intervention.
We suggested that should the OFT decide not to continue then the majority of those Consumers with stayed County Court claims would most likely wish to continue their claims on an individual basis. Whether they actually did so would depend upon their confidence in their own ability to litigate in person. This would of course disadvantage less able or less confident Consumers and would cause renewed chaos in the County Court system. Most Consumers pursuing their own claims in this manner would expect or hope that the Banks would settle in advance of a formal Court hearing. However, because of the complexities of the legal arguments involved these matters would quite quickly have to be taken to the High Court rather than the County Court and no individual Consumer is likely to be able to pursue this course of action owing to both cost and complexity. Such an action would have to be pursued via some form of Representative action and it is unlikely that such a Representative action could or would be entertained if there was no participation in the form of an ongoing investigation by the OFT.
Consumer Groups and individual Consumers would be forced to seek or pursue solutions to the Bank charges scenario via political and or parliamentary routes.
If the OFT continue :
Consumer Groups are mainly concerned with the issues of power and control afforded to the Banks by these contracts and would continue to have confidence and are relying upon the OFT to fulfil it’s obligations.
Consumer Groups have no confidence that the Banks would treat Consumers fairly despite their written commitment to do so.
The majority of Consumers are already disappointed by the OFT and the UK legal system and the apparent failure to provide legal clarity for these issues. The possibility exists for the OFT to repair this disappointment and stamp it’s authority as the UK’s official Regulator.
Many Consumers are frustrated at the amount of time taken to date wrt the original test case and would of course be disappointed if a further lengthy court battle were to be embarked upon. However, most Consumers would rather have an eventual solution overall rather than no clear legal solution at all.
The OFT are unlikely to ever have a more important case to administer. Virtually every UK Consumer is affected, the value, not just in monetary terms, is enormous and the potential benefits for Consumer contract regulation are extremely tangible.
The OFT would be continuing it’s investigation under the UTCCR’s, plus pursuing change in the market via it’s PCA report and or via the competition route. Plus, if it were to also consider the possibility of being joining or be joined in litigation by a Consumer Representative Action aimed at resolving historic plus non UTCCR issues together with legal redress, limitation and compensation then the OFT would not have wasted two years of cost, experience and acquired knowledge of the intimate workings of the Banks charging systems.
Most Consumers would be 100% behind the OFT continuing it’s investigation, even if the Banks continued on their so called charges reduction program and charges were reduced to say only 2p. The present status of the contract and the lack of Consumer control in the contract is unacceptable and disproportionately in favour of the Banks. Every Consumer is at risk from the future excesses of effectively unregulated PCA contracts.
Sorry, for lack of detail, at this stage, regarding the actual arguments presented. Rest assured that these will be fully detailed in the full written report which HAS to be with the OFT by Friday lunchtime.
Legal Beagles attended today, with Exc, Budgie and Tom representing our members. MSE will attend tomorrow and Penalty charges on Friday, CAG, we believe, are in the process of organising a telephone conference for either Thursday or Friday. It was originally intended that all groups would attend at the same time however this was not possible owing to prior commitments.
The OFT opened the meeting by stating that they are required to make a decision regarding continuance of their UTCCR1999 investigation following the recent Supreme Court judgment. They are expecting to make this decision during December. They are currently analysing the judgment and considering the remaining legal avenues open to them. They have not yet reached a decision and are awaiting the opinion of their legal counsel. They quite clearly pointed out that they were not at liberty to go into any details regarding their decision making process for obvious reasons. Readers should therefore be aware that the OFT were not able to express any views on any matters that we raised with them today.
They did however wish to make it know to Consumers that they were aware of the public interest surrounding this matter and that they would endeavour to make their decision known as soon as possible, together with detailed explanations regarding their reasons for making that decision.
Whatever decision they eventually make will be market sensitive so it is unlikely that they will be able to give us anything more than a few hours notice ( after the financial markets close on the particular day ) of their actual announcement.
The OFT’s decision will be based upon the likely chances of success of any future litigation following on from the Supreme Court decision plus the likely impact that their decision, either way, will have upon the Consumer.
The OFT also wished to make it clear that whatever decision they make they still wish to pursue change in the market place.
The purpose of our meeting today was to allow us, as a stakeholder, the opportunity to put our views across to the OFT regarding the following key issues.
1) Do we consider that the OFT should continue with their UTCCR1999 investigations or not and for what reasons?
2) What arguments do we consider could or should be utilised in respect of Regulation 5 (1) of the UTCCR1999?
3) What other legal arguments ( non UTCCR1999 ) do we consider could or should be utilised to achieve Consumer satisfaction?
4) What do we consider the possible effects might be should the OFT decide to Continue or not continue with the UTCCR’s investigation?
Do we consider that the OFT should continue with their UTCCR1999 investigations or not and for what reasons?
We presented the OFT with our mission statement.
Absolutely yes.
The test case was only ever a part of it. Clearly the Supreme Court judgment only ruled on one single aspect of the regulations (the ‘price’) without exploring the rest. The fact that the Supreme Court offered the OFT another route under regulation 5 is significant. After all, how many last instance judgments offer the losing party an alternative? If the OFT don’t take it up, consumers will feel terribly let down by the OFT, the Consumer regulations that were designed to protect them and the process itself.
In the meantime we need the PCA Market Study findings on charging levels and structures announced and implemented. But we cannot go through another 3 years of a one sided waiver with which the banks are irrevocably protected by when it suits them but continue to ignore the OFT’s guidance on disputed accounts and pile on charges to those in genuine hardship.
The test case was initiated to provide ‘legal clarity and certainty‘. In short, it hasn’t. And as such provides the very reason why the investigation should continue.
The end result of the meeting today was that we agreed to provide a detailed written report of our response to the OFT before lunchtime on Friday of this week. We will of course post that written response on the Legal Beagles website for all users to see.
We had actually prepared quite detailed notes in advance of today’s meeting and wish to thank everyone who has contributed to the various discussions over the last few weeks and in doing so effectively contributed to the points we raised today. Those notes will be tidied and a detailed written report prepared over the next 1 ½ days.
Meanwhile, below is a short summary of the points discussed today.
What arguments do we consider could or should be utilised in respect of Regulation 5 (1) of the UTCCR1999?
Tom Brennan, Budgie and Exc, listed the various arguments that have been discussed on the various threads on Legal Beagles from before and since the Supreme Court judgment in relation to Reg 5.
Twelve (12) separate but inter-connected arguments were listed including a new key argument regarding paragraph (e) of schedule 2 to the 1999 regulations, indicative list of terms that may be regarded as unfair, “Requiring any Consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” The reasoning behind this key argument as well as the other eleven arguments will be explained in more detail in our full written report.
What other legal arguments ( non UTCCR1999 ) do we consider could or should be utilised to achieve Consumer satisfaction?
The other legal arguments we raised were under the following five headings
i) Misrepresentation
ii) Competition
iii) Undue Influence
iv) CCA 1974 ( as amended)
v) The penal argument revisited
Additionally, our views regarding the possibility and the mechanism of a referral to the ECJ regarding certain of the regulations under the European directive / UTCCR1999 regulations and schedules as well as issues related to the “Burden of Proof” were aired to the OFT.
Again, the reasoning behind all of the above will be explained in more detail in our full written report.
What do we consider the possible effects might be should the OFT decide to Continue or NOT continue with the UTCCR’s investigation?
We actually found this quite a complicated question to cover particularly because of the historic / present / future / contract / charges / fairness / scenarios.
Some of the key points we raised were as follows.
More detailed responses will be included in the full written report.
If OFT do not continue :
We suggested that the majority of Consumers who had incurred historic charges were primarily concerned about recovering their own historic charges but that those particular Consumers, in fact ALL Consumers, would or should also be concerned about the future situation, should the OFT decide not to continue with their investigation, as the Banks would basically be provided with virtually limitless power and negligible regulation possibilities over PCA contracts.
Additionally, there would be a huge risk of similar “clever” contract drafting in other Supplier / Consumer contracts to bypass the possibility of OFT intervention.
We suggested that should the OFT decide not to continue then the majority of those Consumers with stayed County Court claims would most likely wish to continue their claims on an individual basis. Whether they actually did so would depend upon their confidence in their own ability to litigate in person. This would of course disadvantage less able or less confident Consumers and would cause renewed chaos in the County Court system. Most Consumers pursuing their own claims in this manner would expect or hope that the Banks would settle in advance of a formal Court hearing. However, because of the complexities of the legal arguments involved these matters would quite quickly have to be taken to the High Court rather than the County Court and no individual Consumer is likely to be able to pursue this course of action owing to both cost and complexity. Such an action would have to be pursued via some form of Representative action and it is unlikely that such a Representative action could or would be entertained if there was no participation in the form of an ongoing investigation by the OFT.
Consumer Groups and individual Consumers would be forced to seek or pursue solutions to the Bank charges scenario via political and or parliamentary routes.
If the OFT continue :
Consumer Groups are mainly concerned with the issues of power and control afforded to the Banks by these contracts and would continue to have confidence and are relying upon the OFT to fulfil it’s obligations.
Consumer Groups have no confidence that the Banks would treat Consumers fairly despite their written commitment to do so.
The majority of Consumers are already disappointed by the OFT and the UK legal system and the apparent failure to provide legal clarity for these issues. The possibility exists for the OFT to repair this disappointment and stamp it’s authority as the UK’s official Regulator.
Many Consumers are frustrated at the amount of time taken to date wrt the original test case and would of course be disappointed if a further lengthy court battle were to be embarked upon. However, most Consumers would rather have an eventual solution overall rather than no clear legal solution at all.
The OFT are unlikely to ever have a more important case to administer. Virtually every UK Consumer is affected, the value, not just in monetary terms, is enormous and the potential benefits for Consumer contract regulation are extremely tangible.
The OFT would be continuing it’s investigation under the UTCCR’s, plus pursuing change in the market via it’s PCA report and or via the competition route. Plus, if it were to also consider the possibility of being joining or be joined in litigation by a Consumer Representative Action aimed at resolving historic plus non UTCCR issues together with legal redress, limitation and compensation then the OFT would not have wasted two years of cost, experience and acquired knowledge of the intimate workings of the Banks charging systems.
Most Consumers would be 100% behind the OFT continuing it’s investigation, even if the Banks continued on their so called charges reduction program and charges were reduced to say only 2p. The present status of the contract and the lack of Consumer control in the contract is unacceptable and disproportionately in favour of the Banks. Every Consumer is at risk from the future excesses of effectively unregulated PCA contracts.
Sorry, for lack of detail, at this stage, regarding the actual arguments presented. Rest assured that these will be fully detailed in the full written report which HAS to be with the OFT by Friday lunchtime.
