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

[fuzzybrain]

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

Yep!!!

As in, i'd like to know the answer too!!!

[Ladidi]

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

Yep we are onto a winner or Yep we are onto a Loser or Yep you wanna know in plain english like the rest of us..Lol

[EXC]

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

I think it would be irresponsible for anyone to make a judgment on how it's going. I doubt if even the parties really know that. I'd hate to get anyones hopes up and then for them to be dashed.

Let's hope the Banks get stuffed 3-0 and decide to not risk a repeat defeat by appealing the same decision for the historic termsBudgie

I'm not sure they can appeal the judgment on historicals. Surely the purpose of Justice Smith's declaration on historicals was that their is a read-over from the judgment on current terms and that the outcome of the appeal automatically applies to historicals.

[fuzzybrain]

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

Fair enough, i think that's a very good point - I guess i'll go back to picking the petals off daisies...

The banks have lost, the banks have won, the judges are wonderful, the judges are horrible!!!

[Smasher]

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

The judgement on historical T&Cs doesn't really change much anyway IMO. It only means we can't use the word penalty. There are plenty of other words and legislation to use.
The terms presented charges to be something that they were clearly not. Its convenient for the bankers that the focus is on such technicalities at the moment, but the actual issue itself remains unchanged. I just hope that at some point, someone will somehow force them to prove that their charges were equal to their costs as stated in the vast majority of T&Cs in effect for claims currently held up in the system. The very claims & issues that supposedly 'prompted' this test case..

[natweststaffmember]

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

Legal cases do tend to focus on the minutiae of the matter, smasher. It isn't convenient to focus on them, it is essential to focus on them to make sure that when a decision is made as to the interpretation of the UTCCR 1999 that there is clear precedent in UK law so that we will know once and for all whether bank charges in their present form are fair or not. At this stage there is no requirement to prove the cost, but merely whether the terms are assessable. At that point, the cost would be the issue and not before.

[Smasher]

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

Yes, I do understand that from a legal point of view nwsm. I was simply putting my case in PIL

[TANZARELLI]

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

Thanks for the updates folks especially EXC for doing what he does best.

Excellent reporting as ever, thanks Exc.

I too am pretty fed up with these stupid analogies.

There are over 50 million active personal current accounts in the UK.
Analogies are surely not needed when debating the merits or detrimental aspects of the various terms in question.

The whole point of this appeal was to either confirm or amend Justice Smith's original judgment that the relevant terms of the Banks are subject to an assessment of fairness. I honestly cannot see the appeal court overturning that decison based on the apparantly ill thought out arguments that the Banks have brought to the table.

Let's hope the Banks get stuffed 3-0 and decide to not risk a repeat defeat by appealing the same decision for the historic terms, then we can get down to the juicy issue of whether and how the terms are actually unfair. Something that the OFT, the Banks and all of us have know the answer to throughout the duration of this farcical test case.

Budgie

My thoughts exactly Bud,

Even if the banks lost again though they would prob take it to the next level after that and continue to use their attrition tactics to try and grind us down even further.

It will be interesting to see what the FSA say about the waiver next also if we win again as it would have to be removed in my opinion then.

Still more interesting times ahead.

[jules2008]

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

i want to thank the absolutely brilliant write up of the appeal case so far. Well done!!!! for keeping us all informed when most cant take the time off work and family commitments to do so.

I really want to pick holes in the latest analogy it is the most pathetic yet the BOGOF example are they seriously trying to say because someone has bought one eg a bank charge that enables others to get one free. Isnt it usual the person who has purchase one that gets the other one free cannot see anyone buying a product so allowing the other person in the queue to then get it free.
Absolutely bonkers and good to see the judges do seem to have a good sense of humour in a very serious situation.
I think they have defo come unstuck with that one and shows how pathetic it all is expecting other people to purchase one so someone else to get it free. So So SAD.umpkin:

[righty]

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

I think it's becoming obvious to everyone, including some of the politicians, that the banks don't give a toss about consumers.

The banks have long been held to be part of the social structure that holds society together resulting in much of the relevant law being skewed in their favour.

[Celestine]

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

WEDNESDAY 5th November: Legal Beagles Appeals Update

Just had todays telephone report from EXC:



It was a confusing morning in court. Rabinowitz commenced this morning in high spirits as he clearly believed he had 'struck legal gold' by pointing out what he saw as a serious misinterpretation of the directives by the regulations in regard of 'Is it an excluded assessment or a term'?
Rabinowitz spent over an hour ripping into this supposed misinterpretation.
Waller eventually pointed out : "You do realise you are completely changing your tack here?"
Clearly referring to the fact that previously the banks have stated that they agree with this 'interpretation'.

To help clarify, the Judges then started examining drafts of the directives. Upon realising that they only had two or three available in court, the OFT have promised to supply all their drafts for the directives. These won't be looked at during the appeal hearing but will be looked at in consideration of the Judgment.

It was very highly charged atmosphere in court. There was considerable disagreement from Rabinowitz about the OFT's view that Current Account contracts should be comprehensible to the 'average consumer' and that the Court should interpret these contracts as they would be by that 'average consumer' Evidently Rabinowitz disagreed with the OFTs definition of the 'average consumer' (Anyone who can gain a First at Oxford perhaps?!?)

Rabinowitz also attacked the logic of the OFT's assertion that 'as an unauthorised overdraft is not a deemed core term of the contract by the OFT, meaning it will fall into part 62b exemption; how can an authorised overdraft be agreed by the OFT to be a core term? He tried to question the logic of such a distinction.


Quote of the morning:

Rabinowitz: "If it looks like a duck, swims like a duck and quacks like a duck, then it's probably a duck"

Clarke: " Ahhh but is it a relevant duck?!"

Rabinowitz is due to carry on this afternoon. At some point tomorrow the four banks affected will seek leave to appeal on PIL.
Thanks to EXC for this Legal Beagles report x

[EXC]

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

I don't pretend to fully understand the 'misintrepretation' of the EU directive in the UTCCR regulations that Rabinowitz had, apparently, discovered overnight, as it involved a very technical analysis of how the 1999 regulations compared to the directive. There were aspects of Rabs argument that the judges seemed to understand but appeared to me to be less convinced as to their significance. Rabinowitz discribed it as a ''gaping hole'' in the regulations and while the judges appeared to accept there might be some kind of hole, they wouldn't agree it was ''gaping''. Rab said the significance was not so much the size of the hole but ''the shape of it''.

He disputed the OFT's view that the typical consumer wouldn't realise that relevant charges were the price for the package services supplied. Justice Clarke said that a typical consumer would certainly realise that Net Interest Income was part of the price. Rabinowitz disagreed and Justice Smith resonded ''Almost everyone would understand that that the bank would invest their money. They wouldn't think the bank would just put it under the bed.''

One of the arguments the OFT used earlier in the appeal was that the relevant charges were not the price paid for the package of banking services (and therefore could be assessed for fairness) because the payment obligation was triggered by a contingency. Rabinowitz countered it by using yet another analogy, this time an estate agent who would provide the service of marketing a property but the payment obligation would only come into effect if someone bought the house and that the entire price was contingent.

He said that Justice Smith and the OFT were entirely wrong to define declined payment fees as not a fee for a service because there was no benefit to the customer and he again used the silk application example.

All in all it was a robust performance by Rab. He was very animated throughout and I got the impression he was throwing everything he possibly could at it as the appeal draws to a close.

[righty]

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

Reading this informative thread, particularly the latter post from Exe I think (I hope) that Rab has shot himself in the foot using his dubious illogical arguments.

To disagree with Justice Smith that a charge for declining payment amounts to a penalty & not a service seems perverse

[EXC]

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

It's incredible to think that most of the debate in both the original hearing and the appeal has been about the interpretation of a single sentance in the Unfair Terms in Consumer Contracts Regulations 62b and in essence the entire case hangs on that alone.

These must be, or at least close to, the most hotly debated 17 words in British legal histiory.

(In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange

[Budgie]

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

Thursday 6th November 2008

It is emphasised that the following list is provisional and subject to change until 4.30pm. Any alterations after this time will be telephoned or emailed direct to the parties or their legal representatives.

COURT OF APPEAL
CIVIL DIVISION


COURT 73
Before THE MASTER OF THE ROLLS
LORD JUSTICE WALLER Vice President of the Court of Appeal, Civil Division and
LORD JUSTICE LLOYD
Thursday, 6th November, 2008
At half-past 10
APPLICATIONS
A3/2008/1396 Office of Fair Trading -v- Abbey National Bank Plc. Application of Claimant for permission to appeal and expedition with appeal to follow if granted. Part Heard.
A3/2008/1406(Y) Office of Fair Trading -v- Abbey National Plc & ors. Application of 4th Defendant for renewal of lower court part refusal of permission to appeal. Part Heard.
A3/2008/1406 Office of Fair Trading -v- Abbey National Plc & ors. Application of 4th Defendant for permission to appeal and expedition with appeal to follow if granted. Part Heard.
APPEALS
A3/2008/1400 The Office of Fair Trading -v- Abbey National Plc & Otrs. Appeal of 8th Defendant from the order of Mr Justice Andrew Smith, dated 23rd May 2008, filed 13th June 2008. Part Heard.
A3/2008/1401 Office of Fair Trading -v- Abbey National Plc & Otrs. Appeal of 6th Defendant from the order of Mr Justice Andrew Smith, dated 23rd May 2008, filed 13th June 2008. Part Heard.
A3/2008/1402 Office of Fair Trading -v- Abbey National Plc & ors. Appeal of 3rd Defendant from the order of Mr Justice Andrew Smith, dated 23rd May 2008, filed 13th June 2008. Part Heard.
A3/2008/1403 Office of Fair Trading -v- Abbey National Plc & Otrs. Appeal of 2nd Defendant from the order of Mr Justice Andrew Smith, dated 23rd May 2008, filed 13th June 2008. Part Heard.
A3/2008/1407 Office of Fair Trading -v- Abbey National Plc & Otrs. Appeal of 7th Defendant from the order of Mr.Justice Andrew Smith, dated 23rd May 2008, filed 13th June 2008. Part Heard.
A3/2008/1404 Office of Fair Trading -v- Abbey National Plc & ors. Appeal of Defendant from the order of Mr Justice Andrew Smith, dated 23rd May 2008, filed 13th June 2008. Part Heard.
A3/2008/1405 Office of Fair Trading -v- Abbey National Plc & Otrs. Appeal of 5th Defendant from the order of Mr. Justice Andrew Smith, dated 23rd May 2008, filed 13th June 2008. Part Heard.