Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

[EXC]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

Indeed it was nice to meet you Jax.

Yes Ame the BBA said the banks will appeal to HoLs.
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If this is the case, which I know it is, can someone explain why this argument was part of the test case when a precedent had already been set in the HoL?

Or have I missed the point, so to speak?

jax

Good question and one I don't know the answer to. I can only assume that the current case has such massive financial implications that it warranted the scrutiny it has got.

Of course the original litigation agreement included more issues than just that but in the end it really just boiled down to one.

It is interesting though that the banks relied heavily on elements of the FNB case in support of their defence.

[Amethyst]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

BBA statement

The banks will apply to the House of Lords for permission to appeal the Court of Appeal’s decision because:

• There is limited guidance from case law on whether and how the UTCCRs apply in these circumstances.
• The Banks continue to believe that the UTCCRs do not apply to these types of charges, where the customer is using and paying for a service that is being offered.
• The test case is of considerable public importance, as acknowledged by the Court of Appeal, so it is important for the issues to be fully tested.

Thanks EXC

[Budgie]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

Just a few notes........

S32 Limitations Act is a definite goer irrespective of whether the cause of action for a claim had been under the penalty charge aspect ( now failed as a potential cause of action ) or under the UTCCR1999 cause of action.

When you send off a SAR to your Bank you should insist on them sending all data and not just accept the last six years worth ( if that is what they send you ) and you should claim back all the charges, not just the last six years.

Another important aspect which will no doubt receive much attention is the compensatory interest aspect.
It is highly likely that the Banks will now start to damage limit their potential future payouts.
Claimant's should not just settle for the return of their charges.
The Banks have had the use of Claimant's monies, in some cases for a very long period of time. Claimants are entitled to claim compensatory interest for the "time value" loss of the use of their money.

Just adding another note :-

UTCCR1999, Regulation 8 provides that if a term is unfair, it is not binding on the consumer.
As far as I am concerned, in relation to historic charges ( ie those that have already been applied to accounts) then that is the end of the matter.

For historic charges there is NO WAY that any form of deal can be agreed between the Banks and the OFT. To my point of view once the terms prescribing the historic charges have been declared unfair then those historic charges would not be binding on Consumers and would therefore have to be repaid in their entirety. Also, once the terms prescribing the historic charges have been declared unfair then there can be NO possible reason for keeping stays in place on county court claims.

The Banks and OFT can really only discuss remedial action with respect to agreeing and setting a "fair" level of charges for the future.

[Curlyben]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

If this is the case, which I know it is, can someone explain why this argument was part of the test case when a precedent had already been set in the HoL?

Or have I missed the point, so to speak?

jax

First National was based on the 1994 regs and not the updated 1999 ones that are now in operation.

Slight, but important, difference

[tomterm8]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

It wasn't at all clear that the precident was applicable, either, because the banks argued that the facts (i.e. terms of the contract) were different and were at the core of the bargain.

[jax007]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

Then why are they using that argument in relation to the appeal (or not to appeal) in the HoL??

jax

[Curlyben]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

'Cos they are picky feckers that don't realise that they are on to a looser here

[StoneLaughter]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

You'd think that, because they're now going to be drawing on MY BAILOUT MONEY to pay me MY CHARGES MONEY BACK that they would realise they have no moral grounds for appeal. However then you have to remember that you're using the words "Bank" and "Moral" in the same sentence...

[Budgie]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

IMO, there is absolutely no way that the HoL is going to overturn a decision that has been made by 4 High Court Judges, including the Master of the Rolls.

One thing I picked up on today is in relation to costs. Sir Anthony seemed to stress the point that up to the present time the parties have born their own costs.

Need to check, but now that the Appeal Court has refused permission for the Banks to appeal their decision I wonder if the costs situation will change if the Banks do actually decided to appeal directly?

Maybe that is why Sir Anthony was stressing the costs aspect !

[Curlyben]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

An interesting though there Bud.
I bet an appeal to HoL is serious money !!

[StoneLaughter]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

They can't "Decide to appeal directly". They are going to apply direct to the House of Lords for the RIGHT to appeal directly. In my opinion the House of Lords will support the collective opinion of four very senior Appellate Bench members and deny that application - otherwise what message is being sent about the authority of the Appeals Court??!?

[Amethyst]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

To think about time scales now we know the Banks WILL be petitioning the HoL to be allowed to appeal - the Banks have 28 days to ask for permission - then the HoL have 8 weeks to decide whether to allow the Banks to appeal or not. So there is the possibility we won't know for 3 months whether the banks will be appealing or not.

During this time the OFT should still be continuing their fairness assessments, so if the HoL turn the appeal requests down, then they could get their findings out quite quickly after.

Its what happens then thats going to be interesting.

The OFT can only deal with the future and present. Will the FSA ask the banks to 'proactively refund' I doubt it, and i doubt if the banks could be trusted to do so correctly.

We need to keep an eye on what happens with DPA requests in charges related claims.

Issues such as limitations, interest, damages, CRAs etc won't be dealt with through the OFT or FSA, nor banks, to anyones satisfaction anyhow,and I doubt the courts could cope if individual litigation was back on the menu.

Hence the GLO Tom has been looking at.

The no order as to costs was agreed at the very beginning of the case, it will probably be some stipulation regarding appeals in that document (am sure you can find it)

[EXC]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

One thing I picked up on today is in relation to costs. Sir Anthony seemed to stress the point that up to the present time the parties have born their own costs.

Need to check, but now that the Appeal Court has refused permission for the Banks to appeal their decision I wonder if the costs situation will change if the Banks do actually decided to appeal directly?

Maybe that is why Sir Anthony was stressing the costs aspect !

Well remembered I'd forgotten about that.

The subject of costs was addressed in the original litigation agreement which from memory said each party would bear their own costs but there may be a proviso for this situation.

Would be great for the OFT to recover their costs. It must have chewed up their litigation budget for years to come.

[Budgie]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

Thanks Stoney, yes I got my permissions and appeals mixed up LOL.

I know the BBA has stated that the Banks will be seeking permission to appeal directly. But surely the possible threat of costs, the liklihood of such a request to the HoL being rejected, the weight of public opinion etc etc should really be sufficient to dissuade the Banks from actually doing so.

May also be worth considering a petition on the Downing street website to try and bring Govt pressure to bear on the Banks to drop the idea.

Bear in mind that there is no way the OFT are going to publish their findings regarding the fairness question until the possibility of an HoL appeal regarding the application of UTCCR1999 is finally put to bed and until they do that there is no way that the High Court can rule that the charges are unfair or not.

[jax007]

Re: Appeal Judgment - 26th February 2009 - OFT v Abbey National Plc & Otrs

Will it cost them anything just to seek permission to appeal?? If not, maybe it's just a delay tactic???