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

[TANZARELLI]

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

Thats the point though its not a service being offered it is a service being imposed. If it was offered I could say no I don't want that service but I will take the rest and dont mind paying interest at a reasonable rate.

They will argue you can go and find another account.

Our reply to this is no we can't as they are all the same.

[righty]

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.

Budgie it would be nice to think so but as we have seen............ again the banks & those who run them have no shame...... so I think it's inevitable they will appeal right to the bitter end

[TANZARELLI]

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

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.

With you 100% on this score Bud.

Set level for future charges but all historicals need to be refunded with interest, pre 6 years without quibbles.

[kev2b3]

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

What a day. Great reporting by the Legal Beagle team who attended the courts today. I may be crazy but maybe the banks will now sit down with the barrister and decide to end all of this and forget any appeals with the HOL. Its very unlikely that the bank will get the HOL to overturn todays decision.

[Mochamoo]

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

Thank you everyone who went today. It is, as always, an absolute pleasure to read the reports here before you see them on the telly:tinysmile_twink_t2:

Thank you x

[borgbaiter]

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

hi

not sure ive seen it mentioned on the tele at all.

so is it agreed historically if its unfair then the regulations say its unenforcable and must be refunded in full?

as to beyond 6 years is this also a given or needs further court cases?

im still not sure about acceptable interest rates?


Borgbaiter

[kev2b3]

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

I haven't seen anything to do with the appeal on tv at all. I think all eyes are on the RBOS and Lloyds TSB.

[EXC]

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

I haven't seen anything to do with the appeal on tv at all. I think all eyes are on the RBOS and Lloyds TSB.

BBC news covered it yesterday and Tom Brennan will be on GMTV this morning.

[natweststaffmember]

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

Budgie it would be nice to think so but as we have seen............ again the banks & those who run them have no shame...... so I think it's inevitable they will appeal right to the bitter end

But I would expect the banks' to appeal. Put yourselves in the position of the CEO of the Banks'. For example, the credit card issue of whether they had to refund consumers ripped off abroad went all the way to the HoL. You appeal until there is no area to appeal. There is no shame in appealing and having that view that the banks have no shame in appealing is, for me, misguided.

[Guest]

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

But I would expect the banks' to appeal. Put yourselves in the position of the CEO of the Banks'. For example, the credit card issue of whether they had to refund consumers ripped off abroad went all the way to the HoL. You appeal until there is no area to appeal. There is no shame in appealing and having that view that the banks have no shame in appealing is, for me, misguided.

I think this is a valid point in particular if you consider that those who run the banks genuinely believe that they are entitled to levy these charges. How else can you explain their conduct since the campaign began?

If we could examine their motives I think it would reveal that although they have never consciously considered charges in the legal terms that we have all seen expressed, they believe them to be a revenue stream they are entitled to receive because they always have. Call it custom and usage. Once pressed to explain themselves, they hired very expensive legal advisers to tell them what they wanted to hear and consequently, their opinion of charges has not changed. It is for this reason that I believe they will appeal.

[Amethyst]

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

Thats the point though its not a service being offered it is a service being imposed. If it was offered I could say no I don't want that service but I will take the rest and dont mind paying interest at a reasonable rate.

They will argue you can go and find another account.

Our reply to this is no we can't as they are all the same.

36.
In our judgment, the judge correctly identified the purposes of the Directive. He did so by reference to this statement of Lord Steyn in the First National Bank case at [31]:
“The purpose of the Directive is twofold, viz the promotion of fair standard contract forms to improve the functioning of the European market place and protection of consumers throughout the European Community. The Directive is aimed at contracts of adhesion, viz “take it or leave it” contracts. It treats consumers as presumptively weaker parties and therefore fit for protection from abuses by the stronger contracting parties. This is an objective which must guide the interpretation of the Directive as well as the implementing Regulations.”

and......

61.
There was some debate in the course of the argument as to when and how the nineteenth recital and article 4(2) found their way into the Directive. The reference to main subject matter (“specification”) and “price” of the contract first appeared in the initial Commission Proposal of July 1990 which stated that:
“The use of standard term contracts effectively excludes the possibility of real negotiation between the parties on the terms governing the subject-matter of the contract (although there may be negotiation on such matters as the price and the specifications of the goods). These are, in reality ‘take it or leave it’ contracts …” (our emphasis)

[EXC]

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

From: EXC
Sent: 27 February 2009 11:00
To: Kate Farrow
Subject: Congratulations



Hi Kate

Just wanted to say congratulations on the judgment and thanks for all your hard work so far. It was a very exciting 8 minutes in court!

Nick & all at Legal Beagles


----- Original Message ----- From: Kate Farrow OFT
To: EXC
Sent: Friday, February 27, 2009 11:01 AM
Subject: RE: Congratulations

Many thanks Nick. I'll pass your comments to the team.

Kate

[Bankstormer]

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

We had a major victory yesterday and for some reason i'm more depressed than ever !!!

Seems that no matter what goes in our favour, the end of all this is never in sight. The goalposts are always being moved and thousands of us are expected to just sit back and take it! What the hell is going on.

It's taken us 19 months to have the point cleared up that bank account charges can be assesed for fairness. Even this point looks like it is going to be appealed, but as the BBA statement suggests - we have yet to establish wether they are fair or not. Are we back at square one or am i missing something.

I am soooo angry i think my head is going to explode.

How long is it going to be before we see any money!

[StoneLaughter]

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

You're clearly missing something.

Yes, all that was achieved yesterday is that the OFT was clearly marked out as the authority and CAN assess the charges for fairness.

However your assertion that the banks will now appeal this is flawed; the banks plan to APPLY FOR THE RIGHT to appeal to the House of Lords; in my view it is very likely that to preserve the Authority of the Appeals Court, that application will be denied. The banks have one month to make that application; so for one month we wait... and then the House have 8 weeks in which to reply. I doubt very much whether The House will make us wait that long - I believe the application if it ever goes in will be denied fairly quickly.

The OFT's assessment of whether the charges are fair should I believe be complete by now; but they are not likely to release their findings until the issue of whether they are the authority is finally decided. I believe their conclusions will be released as soon as the appeal questions are resolved - and the Courts will then be free to decide on the "Fairness" issue having examined the OFT's and the Banks' arguments.

[Amethyst]

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

If the house of lords refuse refuse permission for the banks to appeal, can the banks then go and petition the european court to allow an appeal in the european courts missing out the HoL ?