Foxtons cancel appeal of UTCCR ruling off back of Bank Charges Judgment

[ROBSTER]

Re: OFT v Foxtons

Could (& should) the OFT now seek a similar injunction in the banks test case to prevent application of the disputed charges until the case has been completed?

[Amethyst]

Re: OFT v Foxtons

Appeal judgment - http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2009/288.html

Para 97 on

Think OFT have put rather a over positive slant on their report.

[Amethyst]

Re: OFT v Foxtons

1. B e f o r e :
   LORD JUSTICE WALLER
   Vice-President of the Court of Appeal, Civil Division
   LADY JUSTICE ARDEN
   and
   LORD JUSTICE MOORE-BICK
   ____________________
   Between:
   
   The Office of Fair Trading
   Appellant
   
   - and -
   
   Foxtons Limited
   Respondent
   ____________________
   Nicholas Green QC and Helen Davies QC (instructed by The Office of Fair Trading) for the Appellant
   Michael Kent QC and Andrew Davis (instructed by Mishcon de Reya) for the Respondents
   Hearing dates : 9th, 10th February 2009
   ____________________
2. (ignore stupid numbers sorry paras 97-100)
3. 97. Although he accepts in paragraph 46 of his judgment that a finding of unfairness made on a collective challenge does not determine the issue once and for all as between the supplier and any individual consumer, Waller L.J. nonetheless concludes in paragraph 48 that it is a proper use of the court's power to grant an injunction (presumably in unqualified terms) prohibiting the supplier or service provider from seeking to rely on the term in question in any existing contracts. I am unable to agree with that conclusion because the effect of such an injunction would be to shut out any argument as to the meaning and effect of that term and any reliance on it. If the issue is not finally determined by the principles of estoppel by record, I am unable to accept that it is proper to achieve the same result by the exercise of the court's discretionary powers. Nor do I think that it is appropriate in such cases to grant an injunction in unqualified terms on the grounds that the supplier can apply at a later date to have it varied. People need to know where they stand.
4. 98. In the present case the judge struck out those parts of the OFT's claim by which it sought relief in unqualified terms capable of extending to existing contracts. For reasons given earlier, I do not think he should have taken that course, both because he should have left it to the trial judge to decide what relief was appropriate in the light of his findings, and because, insofar as the terms are found to be unfair, it would not in any event be appropriate to allow Foxtons a completely free hand to enforce them. However, the judge was right in my view to recognise that it might not be appropriate to grant relief in unqualified terms and would not be right to do so if there were any possibility that the terms in question could be regarded as fair in the light of all the circumstances surrounding an individual contract.

1. 99. However, I think the court should exercise a considerable degree of caution before granting relief in that form. The real difficulty lies in framing a declaration in terms which reflect the court's decision and are of some practical utility without extending too far. If the court is satisfied that a term is unfair whatever the circumstances in which it may be used (see paragraph 23 of the European Court's judgment in Freiburger Kommunalbauten GmbH Baugesellschaft & Co. KG v Ludger Hofstetter [2004] ECR I-3403), it can no doubt grant relief simply declaring it to be unfair and unenforceable, although whether that will add anything to the force of its decision may be doubted. If, however, the court considers that there may be some cases in which, having regard to the circumstances in which the contracts were made, the term may be enforceable, a declaration, if granted at all, would have to be framed in qualified terms. In my view that is likely to prove difficult and, although it would be a matter for the trial judge, I think that in those circumstances the court should generally refrain from granting declaratory relief of any kind.
2. 100. For these reasons I would allow the appeal, dismiss the cross-appeal, set aside the judge's order and leave it to the trial judge to decide what relief, if any, is appropriate in the light of his findings.

[ROBSTER]

Re: OFT v Foxtons

Appeal judgment - http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2009/288.html

Para 97 on

Think OFT have put rather a over positive slant on their report.

Although he accepts in paragraph 46 of his judgment that a finding of unfairness made on a collective challenge does not determine the issue once and for all as between the supplier and any individual consumer, Waller L.J. nonetheless concludes in paragraph 48 that it is a proper use of the court's power to grant an injunction (presumably in unqualified terms) prohibiting the supplier or service provider from seeking to rely on the term in question in any existing contracts. I am unable to agree with that conclusion because the effect of such an injunction would be to shut out any argument as to the meaning and effect of that term and any reliance on it. If the issue is not finally determined by the principles of estoppel by record, I am unable to accept that it is proper to achieve the same result by the exercise of the court's discretionary powers. Nor do I think that it is appropriate in such cases to grant an injunction in unqualified terms on the grounds that the supplier can apply at a later date to have it varied. People need to know where they stand.

Yeh podgered by bank charges!

[Amethyst]

Re: OFT v Foxtons

Yeh podgered by bank charges!

. podgered 3 up, 1 down
To have sexual conquess with a lady. Scottish vernacular
I've just podgered a wee burd

[ROBSTER]

Re: OFT v Foxtons

:beagle:

. podgered 3 up, 1 down
To have sexual conquess with a lady. Scottish vernacular
I've just podgered a wee burd

For my sins I spent 10 of the best years of my life in Glasgow (before the wife caught me!) must still have some of the venacular in my ROM.

What I meant of course was (edit)ed

[Amethyst]

Re: OFT v Foxtons

lovemoney.com - Have a better relationship with your money


Consumer (and landlord) rights are improving

Neil Faulkner
Published in Manage your finances on 9 April 2009
0 recommendations
0 comments



A new court ruling is good news for consumers, landlords and potentially bank charges claimants too.
That's a curious headline. We don't think of consumers and landlords in one big group, so how did we get there? Well, I'll tell you.
Estate agents manage landlords' properties, and find tenants for them. In my experience, neither the landlord nor the tenant is happy with the service the agents provide.
Tenants and landlords often don't like each other much either, but tenants should spare a moment to consider why their landlords are always mistrustful and in a foul mood. Foxtons, like many other agents, charges landlords a renewal fee in every year that a tenant it placed remains in the property. What's more, the fee is still payable if the landlord terminates his/her agreement with Foxtons, i.e. the landlord stops using Foxtons to manage his/her properties.
Unsurprisingly, landlords think that's unfair, and so does the Office of Fair Trading. The OFT has been taking Foxtons to court over this. It's using them in a test case against all agents that impose the same terms.
This applies to new and existing contracts

The High Court ruled last year that, if the charges are unfair, it's just new contracts that could be affected. In other words, existing contracts could continue to use the unfair terms. This ruling was overturned last week by the Court of Appeal, which said that existing customers can't be punished with unfair terms either. Foxtons could appeal on this point to the House of Lords, but I don't consider that likely.
Notice the word 'if' at the start of my last paragraph. The courts have so far ruled on whether existing contracts can be considered. They haven't yet decided whether the charges actually are unfair. That action is to begin in the High Court in the week beginning 27 April.
Still, it's good initial news for landlords. If it becomes a complete victory, the OFT will have the confidence to put a stop to Foxtons' terms, and other agents will either follow voluntarily or be stopped by the OFT. This will save many landlords hundreds or thousands of pounds per year.
In addition, if the OFT is successful, landlords will be able to take their agents to court with confidence. The unfair term will be stripped from the contract as if it never existed, and the agents will have to pay the landlords back. If they can afford to!
And this affects the consumer...how?

The OFT is basing its arguments on the Unfair Terms in Consumer Contracts Regulations (UTCCRs). You may, like me, wonder whether landlords actually are consumers, and that'll no doubt be one of the points that'll be argued in court in a few weeks.
You'll probably recognise the name of the regulations I just mentioned, too. They're the same ones being used in the OFT's fight against unfair bank charges. That's why the Court of Appeal's ruling has much wider implications. It'll affect all consumers with unfair terms in their contracts, such as the penalties for exceeding overdrafts. It will make it harder for the banks to argue that existing contracts shouldn't be considered in the ongoing bank charges case.
Looking at this even more widely, any existing terms can be challenged under the UTCCRs by individuals or the OFT. We're not just talking about bank contracts here, but energy, pension, broadband and insurance contracts, for example.
It's also likely that other consumer laws would receive the same treatment. In particular, there was new legislation that came into effect last May, the Consumer Protection from Unfair Trading Regulations, which could receive the same treatment. I believe that thousands of businesses are using trading practices that are explicitly forbidden by these new regulations, and that they will be another major headache for businesses once they become better understood.

[EXC]

Re: OFT v Foxtons

Nice find and well written piece. Gives some weight to our theory about the implications for bank charges and beyond.

Any sign of the CoA judgment yet?

[Amethyst]

Re: OFT v Foxtons

http://www.bailii.org/cgi-bin/markup.../2009/288.html

that one?

[EXC]

Re: OFT v Foxtons

Didn't realise you'd posted it. I've been on the elephant tranquiliser.

[EXC]

Re: OFT v Foxtons

pmsl sounds like a plan....I'll stick to me FROA oi less of the mammal (well okay I am a mammal but not a particularly large one)

I've been wondering where I got the large mammal traquiliser idea from.


From: Nathan Spleen
Director of Marketing
GlaxoSmithKline

To: Angela Knight CBE
Chief Executive
BBA
Pinners Hall
105-108 Old Broad Street
London EC2N 1EX
United Kingdom

25/2/07

Dear Ms Knight

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Please take time to read the following endorsements:

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So, Ms Knight, if you are still unconvinced, please try the sample pack enclosed. This medicine is available in three formats: powder form, soluble tablet and coated caplet - the latter of which I have chosen for your freebie, as unlike your members penalty charges, people find them easier to swallow.

WARNING
Please read the instructions first.

Take Guilt’o’Gon I hour before making any misleading statements.

Side effects may include mass personal bankruptcies, misery to millions and huge profits for the banking industry.

Not suitable for those suffering from any form morality or those of a reasonable disposition


Yours

Nathan Spleen

[Amethyst]

Re: OFT v Foxtons

pmsl no wonder you ended up with special branch !

Have you got that letter in the EXC Files?

[EXC]

Re: OFT v Foxtons

The Times law report on the appeal. The similarities to the test case are spooky.

http://business.timesonline.co.uk/to...cle6069573.ece

''LORD JUSTICE WALLER said that the appeal raised an important point relating to the scope of the relief a court could grant in proceedings brought by the OFT under the Unfair Terms in Consumer Contracts Regulations (SI 1999 No2083) which implemented Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts (OJ April 21, 1993, L95/29).
Article 7 of the Directive was intended to cover existing as well as future contracts, and thus an issue on a general challenge could be the fairness of a term in a current contract.''

''It would be quite inadequate protection to consumers if a court on a general challenge, having found a term as used in current contracts to be unfair, had no power to prevent the supplier or seller from continuing to enforce that term in current contracts: see Director of Fair Trading v First National Bank plc (The Times November 1, 2001; [2002] 1 AC 481, paragraph 33): “The system of preemptive challenges is a more effective way of preventing the continuing use of unfair terms ... than ex casu actions..."

[Amethyst]

Re: OFT v Foxtons

Shall I send the large mammal tranquillisers your way now EXC?

[EXC]

Re: OFT v Foxtons

I think I can manage to get by without any medication thanks. I'm surprised you've got any left.