Transcripts from Appeals Hearing

[Amethyst]

available Legal Beagles


Opens with

3 THE MASTER OF THE ROLLS: Yes. Well, a bewildering array of
4 people. I wonder how long their interest will be
5 maintained.

until its resolved me thinks

[Budgie]

Re: Transcripts from Appeals Hearing

I am working my way through and will post up bits and pieces to refer to at later date.

Am currently reading Crow's response and find this bit fascinating.

THE MASTER OF THE ROLLS: Which regulation is it that says
you have regard to the price or whatever it is?

LORD JUSTICE LLOYD: I think it's more a question of which
doesn't, or which says you mustn't, isn't it?

MR CROW: I'm sorry, it's the nineteenth recital,
I apologise, it's not in Regulation 6. The nineteenth
recital in the directive:
"Whereas for the purposes of this directive,
assessment of unfair character shall not be made of
terms which describe the main subject matter of the
contract, nor the quality/price ratio of goods or
services supplied, whereas the main subject matter of
the contract and the price/quality ratio may
nevertheless be taken into account in assessing the
fairness of other terms."

LORD JUSTICE WALLER: Other terms?

MR CROW: Yes. We entirely accept, my Lord, that if the
banks win, then the assessment of adequacy of the
relevant charges is not something that we can conduct,
but we will say that the level of charges is something
that can be taken into account.

THE MASTER OF THE ROLLS: Is that recital reflected either
in the substance of the directive or indeed of the --

MR CROW: I don't think it's in Article 4(2) at all. My
Lord, no, we've got effectively a copy-out. So
Article 4(2) is now very much what we find in
Regulation 6(2), and it isn't reflected in the
legislation in the regulations. But the regulations, as
you know, have to be interpreted in the light of the
directive which they implement.

I think this is basically saying that irrespective of the result of the appeal the OFT would still have the authority to assess the "level" of the charges anyway with regards to their fairness or unfairness.

If this is the case the why the f*ck are we all sitting here waiting at the whim of the Banks to play out this theatre in the High Court. I suppose the OFT feel that protocol must be observed. But if the OFT feel that they have a qulaified right to assess the actual "level" of charges then in my view, one way or another we are definitely going to achieve a victory.

Budgie

[EXC]

Re: Transcripts from Appeals Hearing

This is the section where Rabinowitz stated that the OFT have told the banks that the charges are actually unfair (page 30 - day 1)

MR RABINOWITZ: You do. One of the reasons why the OFT in this -- your Lordships will appreciate the OFT has already produced a market study survey, and it has written to the banks to explain why, on a preliminary basis, it considers these terms to be unfair, and one of the bases upon which it says these terms are unfair is because the relevant charges in a sense they say are set too high.

[ROBSTER]

Re: Transcripts from Appeals Hearing

And the oscar for best bit of understatement in a uk court room goes to Laury Rabinowitz

"in a sense they say are set too high."

Hey maybe thats why all the clients are up in arms Rab !

[EXC]

Re: Transcripts from Appeals Hearing

And the oscar for best bit of understatement in a uk court room goes to Laury Rabinowitz

"in a sense they say are set too high."

Hey maybe thats why all the clients are up in arms Rab !

The OFT have had to be very careful not to go anywhere near saying that the charges are set too high as the regulations are only relevant to contractual terms as opposed to the level of charges. This is why one of the bank's QCs repeatedly asked the OFT's Brian Doctor that if the charges were only 1p, would the OFT still be disputing them? The banks were keen to try and paint a picture of the OFT really imposing a kind of price control.

So I think this is why Rab said it.

[ROBSTER]

Re: Transcripts from Appeals Hearing

quite so when you look at it in the context of the whole case, but it tickled me when quoted in isolation.

I was actually thinking to myself ..no sh** sherlock

glad I wasnt there at the time a giggle or two might have escaped

[Budgie]

Re: Transcripts from Appeals Hearing

Another Excellent bit.

LORD JUSTICE LLOYD: If you are right, if you come to the
conclusion following an investigation that the term is
unfair, if that's upheld, then the situation goes back
as well as forwards.

MR CROW: Yes, it does, absolutely. The legal consequences
would flow back. Exactly what they are is not a matter
that anyone would wish to prejudge.

LORD JUSTICE LLOYD: No.

MR CROW: Could I mention in relation to that, my learned
friends ( The Banks QC's ) have not sought, quite properly, to hold any
in terrorem argument over your heads, although my
learned friend, Mr Rabinowitz, did mention twice the
back book consequences. Those consequences, potential
consequentials, whatever they may be in law, flow from
Regulation 8, if it applies. The potential commercial
impact of this decision cannot affect the legal issue
with which you're grappling, which is whether or not
these terms are defining a price or remuneration in
exchange for goods or services supplied.
So my learned friends quite properly didn't try to,
as I say, raise any sort of in terrorem arguments, but
there was just a whisper of it, and I would ask your
Lordships not to listen even to that whisper.

[EXC]

Re: Transcripts from Appeals Hearing

Well spotted. That sounds very promising!

[Budgie]

Re: Transcripts from Appeals Hearing

I like this little summary from Crow as well

"standard terms and conditions are useful in that they reduce
transaction costs, but they do give rise to problems.
The four problems we identify are that consumers tend
not to read them. If they do read them they tend not to
understand them. If they read and understand they are
unlikely to be able to change them. And in any event,
the worst thing they can do is to try to go to another
supplier who may well have his own standard terms and
conditions which have the same or very similar effect."

[Budgie]

Re: Transcripts from Appeals Hearing

The low cost harsh term contract quote from Crow

"because the free-if-in-credit product looks jolly attractive:
ooh, I get free banking.
But that is a low cost, harsh term contract. It's low cost to the
generality of customers, because they are getting free
banking if they remain in credit. But the downside to
that is the harsh term which impacts on the minority who
issue relevant instructions and, therefore, incur the
relevant charges that we're concerned about."

[Budgie]

Re: Transcripts from Appeals Hearing

For future reference

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

EUR-Lex - 31993L0013 - EN

[Budgie]

Re: Transcripts from Appeals Hearing

Another great quote from Crow and some funny banter !!!

"The most general rule, so to speak, is you use
your current account because it's a current account, not
a loan account. You use your current account, in
credit, to make payments out, because it's not a loan
account.
So an exception to that is, yes, you can have
arranged borrowing. An exception to the exception is
that you can have unarranged borrowing, but it is an
exception to an exception to the norm, and that is why
we say that the correct analysis -- or at least an
entirely defensible analysis -- was the judge's one,
that the essential bargain is running the account while
in credit."

THE MASTER OF THE ROLLS: But the notion of the essential
bargain may be something different to what the typical
customer does.

MR CROW: Yes.

THE MASTER OF THE ROLLS: Also, is it "the" typical customer
or "a" typical customer? If you take Mr Vos's example,
it may be there are several different types of typical
customer; there are those who operate partly in credit
and partly in debit. They open their account for
a pound, they put a pound in and then they operate it as
time goes on partly in credit and partly in debit.

MR CROW: With respect, I can't see how there can be room
for more than one typical consumer in this context. The
typical consumer is defined by typicality.

THE MASTER OF THE ROLLS: You cannot have two typical consumers who are different?

MR CROW: No, and indeed one of the flaws --

THE MASTER OF THE ROLLS: It's a pretty narrow concept, really, isn't it?

MR CROW: It's a self-defeating argument, because you are suggesting that one of them can't be the typical one.

THE MASTER OF THE ROLLS: There's only one man on the top of the Clapham omnibus.

MR CROW: There is indeed, he has been there for a long time.

THE MASTER OF THE ROLLS: The man on the Clapham omnibus is an entirely different person.

MR CROW: He's probably not on the top, he's probably in the middle of a bendy bus now.

[EXC]

Re: Transcripts from Appeals Hearing

Yep that was a goodun.

[ed.]

Re: Transcripts from Appeals Hearing

Interesting comments about the Consumer Credit Act aswell pertaining to extortionate credit bargain.

[Amethyst]

Re: Transcripts from Appeals Hearing

The man on the Clapham omnibus - Wikipedia, the free encyclopedia

for uneducated peeps like me who did't get it