Bbc-bank Charges Could They Go Back To The 90's

From the BBC

Could this be true that the charges could be deemed unenforceable and could go back to the 90's............

http://news.bbc.co.uk/1/hi/business/8364935.stm


Date set for bank fees decision

The latest stage of the battle over overdraft charges will take place later this month, with a date now set for a judgement by the Supreme Court.
The judgement on Wednesday 25 November will give a final ruling on whether the Office of Fair Trading has the power to decide if the charges are fair or not.
Banks involved in the legal battle appealed against earlier decisions by the High Court and the Appeal Court.
However, it could be some time until people know if they are to be refunded.
Litigation fear
The Supreme Court judges, in one of the first judgements made since the creation of the new court, will announce whether to uphold the right of the OFT to regulate bank charges.

THE STORY SO FAR...
<LI class=bull>Nearly a million people have claimed for the return of their unauthorised overdraft charges but their cases are on hold <LI class=bull>If the banks win their latest appeal, these people are unlikely to get any money back <LI class=bull>If the banks lose, then the legal arguments should move on to a key stage - a case to determine whether these charges were fair or not <LI class=bull>Only then will people have a clearer picture as to whether billions of pounds will be handed back to customers

Seven banks and one building society want to overturn two previous rulings that would let the OFT investigate their overdraft fees.
In a three-day appeal in the House of Lords in June, the banks argued they would receive a "deluge of litigation" if the decision was made against them.
If the courts upheld the right of the OFT to scrutinise bank charges, then the charges might be deemed unenforceable for a time period dating all the way back to the 1990s, their legal team argued.
The OFT said it was concerned about the high cost of bank charges and the way in which they operated. All new claims against banks were effectively suspended in July 2007 when the OFT and the banks agreed to stage the test case to see if the overdraft charges were legal or not.

Story from BBC NEWS:
BBC NEWS | Business | Date set for bank fees decision

Published: 2009/11/17 16:10:52 GMT

[Tools]

Re: BBC-bank Charges Could They Go Back To The 90's

Yes, 1995 in theory.

[TUTTSI]

Re: BBC-bank Charges Could They Go Back To The 90's

Roll on a result then - My Halifax claim then I feel could go compounded interest and that will be a nice fat sum of money.

Yes, 1995 in theory.

[Tools]

Re: Bbc-bank Charges Could They Go Back To The 90's

How would you apply compounded interest? On what basis?

[EXC]

Re: Bbc-bank Charges Could They Go Back To The 90's

Tuttsi

This is Tom's legal argument for the theory that charges can be claimed back to 1995:

There is indeed a very strong argument that the charges can be claimed back to 1 Jan 1995. Although the UTCCR 1994 (the original regulations) came into effect on 1 July 1995, the Directive applied to all contracts that were concluded after 31 December 1994. There is a gray area over contracts that were concluded before 31 December 1994 and the coming into force of the Regulations in 1 July 1995, but the point remains the same that claims can be back-dated to 1995.

There is an additional argument over the Limitations Act 1980:

Section 32(1)(b) of the Limitation Act 1980 postpones the commencement of the limitation period where

“any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.”

This particular provision was considered by the House of Lords in Cave v Robinson Jarvis & Rolf [2002] UKHL 18. As was pointed out by Lord Millet at paragraph 8:

"In such a case the period for limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The reason for the rationale is plain: if the defendant is not sued earlier, he has only himself to blame."

Section 32(2) of the 1980 Act provides that

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.


The banks have always known that the charges imposed for breaches of the overdraft facility have been disproportionate to the true cost to the bank of such breaches. The banks have consistently maintained that such charges are fair and reasonable and reflect the true cost to the banks. If those charges are found to be disproportionate, then it follows that the banks have deliberately concealed that fact from the public and from any potential claimant. It follows from this that the 6 year period of limitations does not begin to run until those facts have been, or could have been discovered by any claimant, i.e. the investigation or conclusions of the OFT in respect of bank charges.

There is also support for this position from the European Court of Justice (ECJ). InCofidis SA v Jean-Louis Fredoutthe ECJ was considering the issue of time limits in respect of Unfair Terms. Under the French national law, the first paragraph of Article L. 311-37 of the Code de la consommation provides:

`The Tribunal d'instance shall have jurisdiction to hear disputes arising from the application of this chapter. Actions brought before it must be raised within two years of the event which gave rise to them and are otherwise time-barred ...'.

The question put to the ECJ was

''Does that requirement of an interpretation in conformity with the system of consumer protection under the directive require a national court, when hearing an action for payment brought by a seller or supplier against a consumer with whom he has contracted, to set aside a procedural rule on pleas in defence, such as that in Article L. 311-37 of the Code de la consommation, in so far as it prohibits the national court, either on the application of the consumer or of its own motion, from annulling any unfair term which vitiates the contract where the latter was made more than two years before the commencement of proceedings, and in so far as it thereby permits the seller or supplier to rely on those terms before a court and base its action on them?''

Essentially, the question was whether or not the court must apply a limitation period laid down by national legislature.

The court concluded:

“It is therefore apparent that, in proceedings aimed at the enforcement of unfair terms brought by sellers or suppliers against consumers, the fixing of a time-limit on the court's power to set aside such terms, of its own motion or following a plea raised by the consumer, is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of the Directive. To deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time-limit fixed by the national legislature before seeking enforcement of the unfair terms they would continue to use in contracts''.

''A procedural rule which prohibits the national court, on expiry of a limitation period, from finding of its own motion or following a plea raised by a consumer that a term sought to be enforced by a seller or supplier is unfair is therefore liable, in proceedings in which consumers are defendants, to render application of the protection intended to be conferred on them by the Directive excessively difficult.”

This indicates that national time limits on claims involving unfair terms should not, in principle, be used to prevent consumers from having effective protection. The problem is that this was a case of a seller or supplier seeking to enforce the unfair contract term against the consumer, rather than a consumer seeking redress for the past use of an unfair term. The policy considerations remain the same, however, that national limitation periods in respect of unfair terms should not be applied to consumer cases.

After all, a right without a remedy is no right at all

[TUTTSI]

Re: Bbc-bank Charges Could They Go Back To The 90's

I think that if the charges are deemed unenforceable then I would have a brilliant case using Sempra in my argument plus the POC which is already in court mentions compounded interest. So this could be very significant for Mr T and I if the judgement goes our way and I would use TB's arguments as well.


quote=Tools;137530]How would you apply compounded interest? On what basis?[/quote]