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

[Amethyst]

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

Can we get a copy of the appeal application docs that way too ? specifically the OFT one 1396

[EXC]

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

Can we get a copy of the appeal application docs that way too ? specifically the OFT one 1396

Yes I thought of that. I'm going to get FSI to get it for us as they know the ropes.

[StoneLaughter]

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

If "we" obtain the documents in this way, will we be permitted to publish their content? Or will only the person successfully applying be allowed to see them? We really don't want to get into trouble...

[EXC]

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

Any document obtained from the court is in the public domain.

[Tools]

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

Although the specific document we are interested in is the A3/2008/1396 , is it possible they could be asked for the other appeal documents too? They may throw up some interesting points of reference.

[righty]

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

Any document obtained from the court is in the public domain.

That's true EX but the producer may still own the copyright for the purposes of publication outside the court

[TANZARELLI]

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

I just jot home from Spain today. A bit late but I just wanted to pop in & say WooHoooo!!!!!

Smasher, I have to say I still lol every time I look at your avatar, quality!!

[EXC]

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

Aye, I have asked him where he got the £1bn from, as the Guardian today said £10bn which is rather extreme lol - and as it doesnt scan with the PCA report figures.....hasnt got back to me yet.

We need to ask MOJ for updated figures, have also asked FSA Press Office to confirm the 971k figure and for a breakdown of it ref hardship cases etc. Very much doubt I will get a proper reply but we can but hope.

he;s also interested in the MOJ 65k figure - we don't have an email on that do we was just telephone with Tom I think.

Tom's confirmed he does have the figures from the MoJ in writing - I should have them tomorrow.

Also I should have the Order that arose from the OFT's appeal application from the court later today, so we can see what the appeal was for.

[Amethyst]

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

nice one on both counts :kiss:

[EXC]

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

Not wanting to go too far off topic here but this is FOS's figures on current account complaints which shows a massive increase in 2008 that must be down to hardship claims.

Also note the comment that banks were ''slow to take the initiative'' when dealing with hardship cases.

http://www.financial-ombudsman.org.u...about.html#a06 - about a third of the way down the page.

[Amethyst]

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

Stop reading my mind lol.

Bet you FOI;d them for the current figures too, I did yesterday, and the FSA again was bored....

In July 2007 they placed 14,000 cases on hold.

April to March 2008 over 49000 new cases regarding charges were received.

There were 31618 cases on bank charges and over 14,000 complaints on default charges on Credit cards received. The others are on loans and other financial products charges.

Of those resolved - 84% were resolved in favour of the consumer.

ooo ta for the MOJ bits :kiss:

[Amethyst]

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

Times online article - 3rd March (yes tomorrow lol)
OFT is entitled to assess fairness of bank charges on overdrawn customers - Times Online

OFT is entitled to assess fairness of bank charges on overdrawn customers



div#related-article-links p a, div#related-article-links p a:visited { color:#06c; } Court of Appeal
Published March 3, 2009
Office of Fair Trading v Abbey National plc and Others
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Waller and Lord Justice Lloyd
Judgment February 26, 2009
The Office of Fair Trading was entitled to assess the fairness of charges levied on customers by banks because the terms in standard form contracts between banks and their customers concerning specific charges when customers were overdrawn were not part of the core bargain between the customer and the bank.
The Court of Appeal so held, dismissing an appeal by the defendants: Abbey National plc, Barclays Bank plc; Clydesdale Bank plc; HBOS plc; HSBC Bank plc; Lloyds TSB Bank plc; Nationwide Building Society and Royal Bank of Scotland Group plc against the declaration made by Mr Justice Andrew Smith on May 23, 2008, after judgment (The Times April 29, 2008; [2008] 2 All ER Comm 625) in favour of the claimant, the Office of Fair Trading, inter alia, that an assessment of the fairness of specific terms in their standard form contracts with customers would not relate to the adequacy of the price or remuneration, as against the goods or services supplied in exchange, within regulation 6(2) of the Unfair Terms in Consumer Contracts Regulations (SI 1999 No 2083).
Regulation 6 of the 1999 Regulations provides: “(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate - (a) to the definition of the main subject matter of the contract, or (b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange."
Mr Ali Malek, QC and Mr Richard Brent for Abbey; Mr Iain Milligan, QC, Mr Andrew Mitchell and Mr Simon Atrill for Barclays; Mr Richard Salter, QC and Mr John Odgers for Clydesdale; Mr Robin Dicker, QC, Mr Timothy Howe, QC and Mr Jeremy Goldring for HBOS; Mr Richard Snowden, QC, Mr Daniel Toledano and Mr Patrick Goodall for HSBC; Mr Bankim Thanki, QC, Mr Richard Handyside and Mr James Duffy for Lloyds; Mr Geoffrey Vos, QC and Ms Sonia Tolaney for Nationwide; Mr Laurence Rabinowitz, QC and Mr David Blayney for Royal Bank of Scotland. Mr Jonathan Crow QC, Mr Richard Coleman, Miss Jemima Stratford and Miss Sarah Love for the Office of Fair Trading.
THE MASTER OF THE ROLLS, giving the judgment of the court, said that the principal question was whether or not the Office of Fair Trading was entitled to assess the fairness of certain charges made by the banks under the 1999 Regulations. The OFT was entitled to assess them as to fairness unless such an assessment was prohibited by regulation 6(2)(b) of the 1999 Regulations.
The purpose of the 1999 Regulations was to give effect in the United Kingdom to Council Directive 93/13/EEC (OJ 1993 L95/29) on unfair terms in consumer contracts.
The OFT identified four basic categories of relevant charges about which it was concerned: unpaid item charges, paid item charges, overdraft excess charges and guaranteed paid item charges. The charges were levied by the bank when the customer had insufficient funds in his account to make a payment.
The question, whether an assessment was in principle exempt under regulation 6(2) if the relevant terms were incidental or subsidiary and not part of the core or essential bargain, was critical in deciding how the regulation and the Directive should be construed; that question should be addressed at the outset.
The Directive was to be given an autonomous meaning so that there would be, so far as possible, uniform application of the Directive throughout the European Union.
The purpose of article 4(2) of the Directive, which was the origin of regulation 6(2) of the 1999 Regulations, was different from that of most of the provisions of the Directive. The latter purpose was essentially one of consumer protection, albeit in the context of the internal market, whereas the purpose of article 4(2) was to limit the protection given to consumers in some respects.
In Director-General of Fair Trading v First National Bank plc (The Times November 1, 2001; [2002] 1 AC 481) the House of Lords regarded the purpose of the exception in article 4(2) of the Directive and in regulation 3(2) of the Unfair Terms in Consumer Contracts Regulations 1994, the predecessor to regulation 6(2) in the 1999 Regulations, as being to exclude from assessment the essential features or the substance or core of the bargain and not incidental or auxiliary terms.
Regulation 6(2) of the 1999 Regulations ought to be construed with that underlying purpose in mind. The purpose of regulations 6(2)(b) was to limit the exclusion to the essence of the price. The exemption was to be construed narrowly or restrictively because it was an exception to what would otherwise be the position.
Whether a particular term formed part of the essential bargain was a broad question which depended upon the circumstances of the particular case. The critical question was whether assessment of the fairness of the relevant charges related to the adequacy of the price or remuneration as against the services supplied in exchange.
The evidence showed that most high street banks offered similar current accounts, that the express terms of the banking contracts were contained in several leaflets available from the bank and that the express terms and conditions were lengthy. It seemed unlikely in the extreme that the typical customer read them.
In such circumstances, where the majority of the terms were not bargained directly between the parties and where it was not straightforward to identify the price or remuneration for the package of banking services, in order to preserve the purpose of the Directive, it was necessary to require a narrow definition of “price or remuneration”.
Where a bank provided a current account, which included various banking services pursuant to one set of terms and conditions, opened by a customer on one occasion and which was sold as a package, the substance of the contract had to be analysed as a package.
Their Lordships concluded that the relevant charges were not part of the core or essential bargain between the bank and the customer.
When the contract was concluded, the relevant terms were not the subject of bargaining between the customer and the bank. Customers did not choose one bank in preference to another on the basis of the difference between relevant terms or relevant charges.
Those were critical considerations because the underlying purpose of the Directive was the protection of consumers in circumstances where the particular terms of the contract were not freely negotiated between the parties.
Where a customer entered into a contract and his account was in credit at the outset, the terms referable to the account when in credit were clearly part of the core or essential bargain.
The relevant terms operated so as to impose relevant charges in contingent circumstances. They were therefore akin to default charges although they were not triggered by a breach of contract because of the manner in which the contractual relationship had been expressly framed.
The contingent nature of the charges and the fact that the relevant terms were not specifically negotiated were strong pointers to the conclusion that they were not core terms, and the relevant charges were not the price or remuneration within the meaning of regulation 6(2)(b) of the 1999 Regulations.
In those circumstances an assessment as to their fairness would not relate to the “adequacy of the price or remuneration, as against the goods or services supplied in exchange”.
Solicitors: Ashurst LLP; Simmons & Simmons; Addleshaw Goddard LLP; Allen & Overy LLP; Freshfields Bruckhaus Deringer LLP; Lovells LLP; Slaughter & May; Linklaters LLP; Ms Winnie Ching.

nice explanation

[EXC]

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

Bet you FOI;d them for the current figures too,

The chance would be a fine thing. They're not subject to the FOI Act as they are not a public body even though they are entirely funded by one - the FSA.

Well done for FOIing the FSA though. They didn't even acknowledge mine, not that you can blame them really.

[Amethyst]

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

Are the FOS not ? technical point lol.

Doesnt hurt to ask lol. Their new annual report should be published mid april/early may...so that WILL be interesting.

[Amethyst]

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

Also just need to say Hardship claimants should still contact their bank with details of their hardship. go to the Bank, then FOS if you disagree with their verdict. Don;t bother with the courts on hardship grounds.

Hardship means mortgage arrears/rent arrears/council tax/utility arrears - threat of losing your home/litigation etc. It doesn't mean fancying a bit of cash and trying it on. People who are not in hardship applying just make things harder for those genuinely in hardship.

It is okay for the bank to offer to pay your arrears off directly - as the point is they are helping your with hardship but make sure you get confirmation the arrears have been paid.

It is likely any offer will be about the same as the amount you need to get out of poop.

Hardship claims should be a personal letter outlining your circumstances and asking to be considered for an interim refund under the exemption terms of the waiver. Send an Income/Expenditure sheet with your letter. They will probably send you another, their own version to complete, but in serious cases it can help speed things up. Send copies of arrears letters with the claim.

You can do this even if your claim is in court.

They may offer to move you to a basic account - this will help get things back under control.

They must reply to your original letter within 5 days.

They must give a final response within 8 weeks.

An iterim payment is just that, INTERIM, it helps for now - when the test case IS concluded and it is in our favour - you will get the rest.

If your hardship worsens or continues after one interim payment, you can ask for a further one. You will need to prove you have tried to get out the situation and used the first payment to pay off arrears etc.


The Banks ARE helping people and considering claims in hardship. The headline figures look bad due to all those who arent actually in hardship trying to bypass the waiver.


thats my opinion anyway.