Important - full Legal Opinion and update on LB's position on bank charge reclaims

[whizzkid001]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Can anyone confirm who the author was of the ‘Note on Good Faith and Themes of Unfairness’ and when roughly it was drafted? Cheers.

[leclerc]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Anthony Scrivener QC, wrote that note as well after the OFT test case judgement so we are looking at late 2009/early 2010.

EDIT: I think Hausfelds LLP also helped on that issue as well.

[whizzkid001]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Do you know if the 'Good Faith' bit is complete? Only a barrister I have recently spoken to seems to think it may be incomplete. Cheers

[EXC]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Do you know if the 'Good Faith' bit is complete? Only a barrister I have recently spoken to seems to think it may be incomplete. Cheers

The note on good faith & themes of unfairness were actually written by Tom Brennan on behalf of Hausfelds LLP to accompany Anthony Scrivener's Opinion.

I'm not quite sure why it may be 'incomplete'.

A good example of the requirement of good faith argument being successfully applied is OFT v Ashbourne Management Services - read from paragraph 121 http://www.bailii.org/cgi-bin/markup...method=boolean

[EXC]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

The essence of the requirement of good faith (s5.1 of UTCCR) was neatly summed up by Lord Bingham in the House of Lords judgment in the First National Bank case and it's easy to see it's potential application to a modern day bank charges challenge:

“A term falling within the scope of the Regulations is unfair if it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith.

The requirement of significant imbalance is met if a term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in his favour. This may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty.

The illustrative terms set out in Schedule 3 to the Regulations provide very good examples of terms which may be regarded as unfair; whether a given term is or is not to be so regarded depends on whether it causes a significant imbalance in the parties’ rights and obligations under the contract.

This involves looking at the contract as a whole. But the imbalance must be to the detriment of the consumer; a significant imbalance to the detriment of the supplier, assumed to be the stronger party, is not a mischief which the Regulations seek to address.

The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.

Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulation. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice. Regulation 4(1) lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the Regulations are designed to promote”

[distressedcarer]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Thank you for trying, dear L. Beagles. Over the last couple of years I have learned that the bedrock of capitalism is debt, not only our own personal debt, but the debt of nations. At least I now know a the score. What to do to change it is another matter. I wish Legal Beagles member could form a political party. Why not? Who else can we vote for once we become aware of the economic scam?