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

[EXC]

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

Sorry but I'm none the wiser really. The nature of any litigation stemming from a decision by the OFT that the charges are unfair is dependent on the findings and the banks' response. In other words it depends on what enforcement action the OFT takes. The OFT is reluctant to hypothesize.

Although it looks like a House of Lords appeal would be concluded before the OFT's final assessment on fairness It's worth remembering that the Litigation Agreement states:

''The OFT reserves the right to apply at any stage for the trial of the Substantive Issues to be held before any appeal (at any level) is heard, or for any appeal to be stayed pending the trial of the substantive issues''.

http://www.oft.gov.uk/shared_oft/per...-Banks-FSA.pdf

[Glenn UK]

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

This is just nonsense. There is no logic in the parties agreeing to settle their dispute in court, by way of a test case, spending 2 years in court and then deciding they could settle the matter out of court.

The county courts have issued stays on the basis of the test case providing legal clarity on the lawfulness of the charges under UTCCR and not on the basis of the OFT reaching some cosy settlement figure with the banks.

I'm sorry it's not nonsense at all.

There was a test case which the banks have effectively lost.

You seem to be under an illusion about is why this is all happening.

Legal clarity may have been the absolute purpose of the test case.

The purpose of the test case from the banks perspective was to try to avoid paying any money out or to reduce what they had to pay out.

Nothing else.

This is why its entirely feasible that if the banks think they can settle with the oft and get a better deal they will.

Unless there is some legal imperative forcing them to fight it out in court and i don't think there is.

[EXC]

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

I'm sorry it's not nonsense at all.

There was a test case which the banks have effectively lost.

You seem to be under an illusion about is why this is all happening.

Legal clarity may have been the absolute purpose of the test case.

The purpose of the test case from the banks perspective was to try to avoid paying any money out or to reduce what they had to pay out.

Nothing else.

This is why its entirely feasible that if the banks think they can settle with the oft and get a better deal they will.

Unless there is some legal imperative forcing them to fight it out in court and i don't think there is.

[Glenn UK]

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

Oh how witty, and it says it all about your 'argument'.

If the banks think they can settle cheaper than fighting through the courts they will try.

Incidentally if they thought they could of prior to the test case there wouldn't have been a test case, would there?

Glenn

[StoneLaughter]

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

They have entered into a binding Litigation agreement, with a view to the issue being settled by the highest authority that they can get it heard by. How do you propose they could exit from this binding agreement and "settle out of court"?

[EXC]

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

It's fine having an opinion but opinions are worthless unless they have at least some factual basis.

Unlike yourself I base my argument on evidence, facts and research.

So far you've offered absolutely nothing to back up yours other than a hunch and an obvious prejudice against the OFT.

At the end of the day I might wrong but I'm not under any illusion. I'll leave that to the conspiricy theorists.

[Glenn UK]

The agreement signed does not preclude settlement outside of the courts as far as i can tell. Have i missed the bit preventing settlement outside ofthe courts?

Whilst you say its a binding agreement its like any other agreement, if either party wishes to vary from the agreement with the other party/ies then they can if the other parties agree, or is there something in there which would negate this common approach to agreements?

For the binding agreement to have effect, both parties have to agree to the terms initially and then refuse to allow the other party/ies to vary from that agreement.

Are you saying that if the OFT chose to it could not accept an offer of settlement from the banks outside of the courts?

Is there is a legal imperative why the oft cannot settle out of court should the banks make an offer of settlement in respect of the charges, now that the matter of whether they are subject to the test of fairness?



Glenn

[Amethyst]

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

What kind of settlement are you envisaging Glenn ?

[EXC]

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

Are you saying that if the OFT chose to it could not accept an offer of settlement from the banks outside of the courts?

''Settlement''?

I've got my head in my hands now. This is a 'test case' to establish a principle of law:
''test case
Noun
a legal action that serves as a precedent in deciding similar succeeding cases''

What do you think it is? A claim for the refund of bank charges?

[Glenn UK]

''Settlement''?

I've got my head in my hands now. This is a 'test case' to establish a principle of law:
''test case
Noun
a legal action that serves as a precedent in deciding similar succeeding cases''

What do you think it is? A claim for the refund of bank charges?

Given that the terms have been deemed to be subject to the test of fairness, what else is there to decide upon other than the scale of those charges?

Ame, I suspect as i have all along that now that the bank have lost (assuming they don't win an appeal) that they will broker a deal with the OFT.

Having read through the document recently posted i don't think there is anything in there that would preclude the OFT striking such a deal.

It is of course only conjecture on my part, i have never made it out to be anything else.

It does fit with a realistic view of the banks and their motives and is far from anti-oft.

It is a realistic view of the fact that despite what many perceive the OFT is not some idealistic organisation out to champion the rights of the banks costumers. They are governed as much as any other public body by the need to balance the benefits with the costs.

They are seeking to get the banks to comply, no more, the test case was the mechanism they needed to employ because the banks disputed the validity of their position as it heir right to do.

If the banks rolled over and offered to set the charges at a level the OFT could live with then they would settle if they could I believe.

Glenn

[EXC]

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

Given that the terms have been deemed to be subject to the test of fairness, what else is there to decide upon other than the scale of those charges?

A court hearing. The OFT will pronounce the charges as unfair (they have yet to make that definitive) and the banks will challenge that view in court.

You are forgeting that the UTCCR investigation and test case is all about the legality of the terms that trigger the charges and not the level of the charges themselves. Therefore it can only be resolved legally. You simply cannot resolve a legal dispute by way of an out of court ''settlement''.

[Shazzaw]

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

Hi all,

I've been following this thread this afternoon with interest and often chuckling away to myself!!

I am somewhat reluctant to add to this post between two 'heavyweights' who I know much more about this than I and I think I can understand both sets of arguments to an extent.

EXC I'm hoping I'm not going to reduce you to further sighs and shaking of your head and hope you will understand than I have nowhere near the thorough understanding that you have of the Test case and the legalities surrounding it.

However, I've been sitting and thinking that OK the OFT are currently - in basic terms - now working out what they believe a fair charge to be. Lets forward to the end of the year and - whilst I appreciate that this is v.unlikely- they announce they believe a fair fee to be £2.50 AND - again unlikely - the Banks say 'Yes - we agree'. If this is the case that the Banks agree with the figure the OFT come up with what would the Courts be asking to decide? Whether the figure the OFT come up with is a correct assessment of the cost calculated by the OFT?

I can get my head around the fact that if the OFT come up with a figure of £2.50 but the Banks say no it costs £25 then a Court case would be needed to decide a correct level, but I can't work out why a Court case would be needed if the OFT come up with a level of what they believe a fee should be and the bank agrees with their assessment.

Apologies, apologies to all if I'm thinking utter garbage and am truly hoping I'm not adding fuel to the flames and causing further annoyance to anyone!!!

Hoping I've not offended anyone with a daft question.

shazza

[natweststaffmember]

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

The next stage is not about the price you pay but merely whether the term is assessable for fairness. If the term is unfair then the term does not exist. With that in mind it will be a tedious approach.

[Glenn UK]

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

LOL EXC

Funnily enough I'm not forgetting that the scale of the charges is not what the test case is about in law.

The scale of the charges and the banks right to charge them is absolutely what the test case is about in practical terms though.

If the banks did not make huge sums of money out of charges do you really think they or the OFT would give a toss about the need to test the T&C in court?

The banks fight against the claims and the OFTs assessment of their charges is ONLY about money. Remmber the banks had been applying T&C almost exaclty the same as these for how many years i do not know off the top of my head. It only became an issue because someone decided to sue a bank for thier chagres and won didnt they?

Regarding of whether the banks will dispute the OFTs assessment of their charges, i have wondered about this. The banks have done everything to keep their costs vs charges out of the public domain. I wonder if they would be able to do the same if they wished to challenge the OFTs assessment of fairness of their charges and so whilst it might seem the logical thing for them to do, if they had an alternative to this they might take it?


Rather than concentrating on the money side of the settlement, think of it like this. The Banks say to the OFT 'we accept that you can assess the charges and we will comply with your assessment'.

Would the case then proceed and if so what would it decide?

In effect this is what a settlement would achieve, it may not be put like that but it would in effect achieve the same objective.

If the banks say to the OFT we will set the charges like this ...... and the oft think its reasonable why would they proceed to court given that they now have case law saying the particular terms are subject to the test of fairness?

Glenn

[Shazzaw]

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

DOH - sorry all but whilst I was typing up my last post I think EXC has clarified things for me with his last post!!

I was thinking that it was all about the level of charges now but EXC has clarified that it's irrespective of the level of charge the OFT come up with even if it's £24.99 and the Banks say it's £25 this will be going to Court irrespective of the 'closeness' of the OFT's calculation fair charge and what the Banks have been charging - correct?

shazza