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

[Guest]

Re: OFT v Foxtons - Landmark Judgment 10 July 2009

Hate that analogy with reference to this:

"However I am not so sure that the House of Lords (or the Supreme Court as we will shortly have to call it) will feel very happy about coming to a similar sort of decision in the banks case, if this will require banks to pay back millions of pounds in charges to customers, at a time when most of the banks are still a bit fragile after the crash. It is not unknown for HL decisions to be influenced by politics (for example Lord Hoffmans judgement in Birmingham City Council v. Oakley [2001]). "

This is lazy and ignorant reporting. The above case was not, as has been presented here, an example of the courts ruling based on political influence. In summary, the case concerned the Environmental Protection Act 1990 and whether or not the lack of a wash hand basin in a particular location comprised a statutory nuisance and could be considered "to be prejudicial to health."

Should Parliament not like a particular outcome, it is open to them to enact suitable legislation, such as they did when the House of Lords ruled in Burmah Oil Co Ltd v Lord Advocate [1965] after which they hurriedly drafted and passed the War Damage Act 1965.

[natweststaffmember]

Re: OFT v Foxtons - Landmark Judgment 10 July 2009

An unintended consequence of the Supreme Court ruling is this:

Banks’ victory in Supreme Court spurs Foxtons to fight fees ruling

Rebecca O’Connor, Property Correspondent

• 3 Comments

Recommend?



Foxtons? fees were deemed unfair because the terms were not written in plain and intelligible language








div#related-article-links p a, div#related-article-links p a:visited { color:#06c; } Foxtons is to appeal against a High Court ruling that millions of pounds of fees it has charged landlords are unfair, after the banks’ overdraft charges victory gave the estate agent hope that it could win a renewed legal battle against the Office of Fair Trading.
The decision to appeal means that landlords who were stung by the fees — described as traps and time bombs by Mr Justice Mann in July — now face the possibility that they will not receive any money back. In some cases, landlords had been hoping for refunds of several thousand pounds.
Buy-to-let investors who had been charged similar commission fees by other estate agents could also have their hopes of a refund dashed if an appeal by Foxtons is successful. The ruling against the estate agent had raised the possibility that all landlords who had paid such fees, hidden in the small print of their contracts, would be entitled to a rebate.
Lawyers said that a win for Foxtons could save it millions of pounds in refunds. It charged clients 11 per cent of the rent they received in so-called “renewal” commission, an annual fee that applied if a tenant stayed in a property even after the original lease had ended.
Related Links

• No free lunch on bank charges, says RBS boss

• Comment: decision is bad for consumers and competition

• Buy-to-let landlords can claim millions as Foxtons loses commissions cas

Foxtons told The Times that the Supreme Court ruling in the bank case, in which millions of customers were told they could no longer expect a refund for overdraft charges because they could not be considered unfair, had set a precedent for contract terms and paved the way for its appeal.
A spokesman for Foxtons said: “The judge in the Foxtons test case followed the law as it then was. However, since then, the Supreme Court in the bank charges case has significantly altered the way in which the courts are to approach the unfair terms regulations.”
The agent’s decision to press ahead comes despite a note of caution by the Supreme Court that its bank charge ruling was based on a different point of law and could not necessarily be used as a precedent for a Foxtons appeal.
In the bank case, the Supreme Court ruled that the Office of Fair Trading had no right to look into bank charges, despite decisions in the High Court and the Court of Appeal for the regulator.
Foxtons’ fees were deemed unfair because the terms were not written in plain and intelligible language and were not open to negotiation.
Lawyers said that Foxtons could still win in the Court of Appeal. John Spence, of Thomson Snell & Passmore, a law firm that represents landlords and lettings agents, said: “Foxtons will be arguing that its renewal commission terms were [like bank charges] also part of the overall package they offered to landlords. However, Foxtons will still need to get over the hurdle that their renewal commission terms were also found not to be in ‘plain and intelligible language’, contrary to regulations.”
Lawyers said that landlords would now have to wait longer for a decision on the appeal before they could lodge claims against agents. Mr Spence said: “Any landlords who have issued claims against Foxtons or who are contemplating bringing a claim are likely to have it stayed by the court, at the request of Foxtons, pending the outcome of the Court of Appeal hearing.
“If Foxtons win their appeal, then the judgment of Mr Justice Mann in July will be overturned and this will give Foxtons a very strong defence to any future claims brought against it by landlords looking to recover past renewal commissions.”
Foxtons was last week granted leave to appeal against the High Court decision in July. It must lodge this appeal on fees by January 29.
Foxtons will not challenge rulings against terms requiring landlords to pay commission after the agent has sold a property and requiring commission for a property’s sale to a tenant.

Banks victory in Supreme Court spurs Foxtons to fight fees ruling - Times Online

[Amethyst]

Re: OFT v Foxtons - Landmark Judgment 10 July 2009

Fantastic. (from our point of view). Shows just how crappy the SC judgment was.

If any one has read the Foxtons Judgment the judge stated

The landlords in question are not sophisticated economists, or even sophisticated businessmen, and would be unlikely independently to think in those sort of terms. They are likely to see themselves as paying 11% for getting a tenant into the property for the agreed first term. I doubt if many of them will think beyond that on that occasion, and unless they do then they will not be thinking in terms of an income stream coming from that initial introduction. I think it more likely that they do not think into the renewal phase. Certainly Foxtons do not really do much to encourage them to do so. These factors are obviously closely related to those relevant to the "core bargain" point above.

Nor is it apparent how far Foxtons take that view. I would be prepared to accept that it is likely that Foxtons have business plans which show their hopes for renewal commission in terms of projection of future income, but there is no real evidence that they have costed their activities in such a way as to suggest that they have assessed the cost to them of providing the functions and then worked out an income which covered those costs and gave a reasonable profit or return, and then divided up that income between commission on projected first-term lettings and renewal commission. In the absence of some decent evidence along those lines, it is just as likely that Foxtons rely on renewal commissions as an adventitious benefit.

mmmm remind you of anything ?

The consumers in question are not sophisticated economists, or even sophisticated businessmen, and would be unlikely independently to think in those sort of terms. They are likely to see themselves as having free banking and paying interest on any overdraft. I doubt if many of them will think beyond that on that occasion, and unless they do then they will not be thinking in terms of an income stream coming from that initial account opening. I think it more likely that they do not think into the opening and setting up phase. Certainly the Banks do not really do much to encourage them to do so. These factors are obviously closely related to those relevant to the "core bargain" point above.

Nor is it apparent how far the Banks take that view. I would be prepared to accept that it is likely that Banks have business plans which show their hopes for relevant charges to be incurred in terms of projection of future income, but there is no real evidence that they have costed their activities in such a way as to suggest that they have assessed the cost to them of providing the functions and then worked out an income which covered those costs and gave a reasonable profit or return, and then divided up that income between accounts on projected incurances of relevant charges. In the absence of some decent evidence along those lines, it is just as likely that Banks rely on relevant charges as an adventitious benefit.

Ok there was a fair bit more about PIL and whatnot but that substance of the case, in my eyes, is pretty similar - and obviously in the eyes of Foxton lawyers. I dont think they have much hope of overturning the judgment personally, but might just bring into question some of the SC's decisions in the bank charges case.

http://www.oft.gov.uk/shared_oft/rep...s/oft1005c.pdf
Shows the 'business model' of the banks lol.

[Budgie]

Re: Foxtons case to be appealled on basis on Bank charges Judgment

Bloody excellent

[righty]

Re: Foxtons case to be appealled on basis on Bank charges Judgment

I'm sorry but anyone who doesn't think the courts are influenced by the politics of the day are being naive. In legal circles it's referred to euphemistically as a 'policy change' In fact a couple of weeks ago I attended a seminar where this very subject was discussed in relation to consumers & how the courts were now not protecting the rights of consumers but rather the rights of business on the grounds that to protect the ordinary LiP in such quantities would lead to break down of the system. The consensus was that like the police & people taking the law into their own hands the courts didn't like the idea of LiP's exercising their rights. One only needs to look at some of the most convoluted judgments arrived at by judges in order to defeat LiP's who's cases would have at any other time won hands down

Far to many judges are utterly hostile to LiP's & are quite prepared to show it in their court room

[charitynjw]

Re: Foxtons case to be appealled on basis on Bank charges Judgment

I'm sorry but anyone who doesn't think the courts are influenced by the politics of the day are being naive. In legal circles it's referred to euphemistically as a 'policy change' In fact a couple of weeks ago I attended a seminar where this very subject was discussed in relation to consumers & how the courts were now not protecting the rights of consumers but rather the rights of business on the grounds that to protect the ordinary LiP in such quantities would lead to break down of the system. The consensus was that like the police & people taking the law into their own hands the courts didn't like the idea of LiP's exercising their rights. One only needs to look at some of the most convoluted judgments arrived at by judges in order to defeat LiP's who's cases would have at any other time won hands down

Far to many judges are utterly hostile to LiP's & are quite prepared to show it in their court room

Hi righty,

Do you think the same applies in ETs, where a significant proportion of claimants are LiPs?

Merry Xmas to you & yours :fireside:

[Amethyst]

Re: Foxtons case to be appealled on basis of Bank charges Judgment

Foxtons taken over by banks - Telegraph

[Amethyst]

Re: Foxtons case to be appealled on basis of Bank charges Judgment

Foxtons changed mind on appeal Foxtons decides not to appeal renewal fee ruling - Times Online


Foxtons will no longer appeal a High Court decision that the renewal fees it charged landlords were unfair.



In an unexpected u-turn, the London estate agent said that it has decided not to pursue the legal action. As recently as December it had said it would appeal the decision, following the high street banks’ defeat of the Office of Fair Trading in the high-profile court case on unfair bank charges.



Foxtons felt that the banks’ victory had given it cause for hope that it too could have the ruling over unfair fees over-turned.



The estate agent lost the court case in July last year, after Mr Justice Mann ruled that a number of terms and conditions used by Foxtons in its letting agreements with landlords, described by the Judge as “traps and timebombs”, were unfair and were not flagged up prominently enough.
Related Links

• Banks’ court win spurs Foxtons to fight

• Buy-to-let landlords can claim millions as Foxtons loses commissions cas

The terms included requiring landlords to pay commission of 11 per cent of the annual rent if a tenant remained in a property beyond the initial term, even if Foxtons played no part in persuading them to stay, or was no longer collecting rent or managing the property.



The decision not to appeal will restore hope to thousands of landlords, customers of Foxtons as well as other letting agents, who had hoped to claim refunds for the fees. Foxtons had been using the planned appeal to delay the handling of claims, according to solicitors acting on behalf of landlords.


John Spence, associate at Thomson Snell & Passmore, said: “We are quite surprised by this decision. Foxtons was probably advised that it would not win an appeal despite the bank charges ruling.


“Actually the move is quite clever. If they’d lost the appeal, the case for landlords to get refunds might have been clearer. As it is, landlords are in limbo, not knowing whether they will be reimbursed the thousands of pounds they were charged unfairly if they claim. We are advising landlords to take a chance and issue proceedings.”


A spokesman for Foxtons said: “During the final stages of the renewals legal case last year, Foxtons amended its renewal terms and conditions so that they were acceptable to the OFT and the High Court Judge. These new terms have now been formalised in a High Court order and we therefore no longer feel it necessary to appeal the High Court decision. The new terms are more user friendly and provide for renewal commission to be charged at a reduced level and for a maximum of two years, making them very attractive to Landlords”.


The court case cost Foxtons £3.5 million in the year to the end of 2008.

[righty]

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

Also an unsuccessful appeal may have opened an unexpected way for consumers to revist The Supreme Court Judgment

[Amethyst]

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

OFT secures final high court order against Foxtons - Legal Beagles