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

[Glenn UK]

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.

I though that courts had (subject to appeal) found the charges subject to assessment under the UTCCR

The next stage is for the assessment to take place and as previously stated a 'pronouncement' made.

I think it would be logical for a simultaneous assessment of what would be fair which would involve setting the level of charges.

It may be that this detail of the assessment would be dealt with after any appeals over whether the terms were or were not fair.

Glenn

[natweststaffmember]

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

I though that courts had (subject to appeal) found the charges subject to assessment under the UTCCR

The next stage is for the assessment to take place and as previously stated a 'pronouncement' made.

I think it would be logical for a simultaneous assessment of what would be fair which would involve setting the level of charges.

It may be that this detail of the assessment would be dealt with after any appeals over whether the terms were or were not fair.

Glenn

Can you tell my usual brand of coffee is not working? :o

[righty]

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

The present case is about the power of the OFT in relation to the banks. Effectively the banks are claiming to be a special case & that the UTTCR is not designed nor should it be used to determine the level of charges. The UTTCR is designed to decide fairness in other words to decide whether it's fair or not in the way these charges are imposed on consumers & the OFT think not at there present level
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The 'compromise' if any, will come once the power of the OFT is decided & if it's in their favour the banks will horse trade to try & reach an agreed level of charge

[Glenn UK]

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

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 OFTs calculation fair charge and what the Banks have been charging - correct?

shazza

i think thats what EXC thinks IE that it doesn't matter what the banks or for that matter the OFT do, that the case must proceed to court for the next stage.

However, if would seem ridiculous if the banks agreed to refund all the money they took, plus interest, plus anything else they felt they owed, that the court case could not be stopped.

i don't think that the courts nor this case is like that.

I think that it is likely that if the banks agreed to reduce the charges to a level the oft found acceptable, the oft would deem they had complied with the UTCCR and there would be no need to proceed through the formal compliance route.

I don't think for one minute that the banks will offer a settlement this kind of level at all. However, i do think they will offer to settle the dispute before it gets to the final round.

As others have said this is conjecutre on my part, however it is not an unreasonable scenario given the banks previous performances, nor for that matter the situation the OFT finds itself in.

Its worth a note to say that if the banks made an offer of settlement in terms of compliance, what pressures do you thik the OFT would come under from the government to settle in the face of mounting costs, the problems the bansk are currently facing, etc?

[Amethyst]

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

However, if would seem ridiculous if the banks agreed to refund all the money they took, plus interest, plus anything else they felt they owed, that the court case could not be stopped.

and then go on to charge what they like and force the oft to go through court all over again to get a final definitive declaration ? the oft don't have any retrospective powers at all, they are working to get thefairness sorted for future charges, and if the terms are deemed assessable under the UTCCR then a declaration will have to be sought that the terms were unfair (after the OFT investigation) in court thus forcing the FSA etc to get something in place to refund everyone, rather than individual claimants clogging up the system asking each bank to prove individual costs (ie as it was before). I suppose the banks could make their own declaration that they were unfair and thus unenforceable and promise to repay everyone, but I dont think they will without court saying they must.

[Shazzaw]

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

The present case is about the power of the OFT in relation to the banks. Effectively the banks are claiming to be a special case & that the UTTCR is not designed nor should it be used to determine the level of charges. The UTTCR is designed to decide fairness in other words to decide whether it's fair or not in the way these charges are imposed on consumers & the OFT think not at there present level

I thought this was what the Court case thats been going on for two years had decided - that the OFT DO have the power to investigate the bank charges - no?? Or is it that the OFT can investigate charges HOWEVER whether or not the have the power it's irrelevant as charges cannot be investigated under UTTCR which again I thought had been decided in the Case the banks lost the Appeal on??

shazza (v.v.v.confused now!!)

[Amethyst]

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

lol now you confused me. The OFT can investigate, like they did the credit cards, and put forth their opinion regarding fair trading. But like with credit cards, the report saying £12 isnt a legal document, and it doesn't entitle everyone to claim back their charges. Its simply their view which they would enforce in their own way if its exceeded int he future. I'm stil hoping the OFT will go for a declaration on historical CCs charges being unfair penalties too after the banks are sorted out.

The Bank charges case is looking at the terms under the UTCCR, the banks dispute they can be assessed for fairness so the OFT have gone to court to say then can be. The OFT can't order the banks to repay everyone. They can assess for fairness and put a limit if they go that way on future charges etc, and then put that opinion into the court for a declaration that historical terms were unfair and then the banks/fsa etc will have to sort out some means to repay people cause the terms are declared unfair thus unenforceable else the courts will be besieged.

thats what I think anyway lol.

[righty]

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

No the case is not to decide the level of charges but if the OFT has the power to decide they are unfair in the way they are imposed on consumers AND most importantly whether they are a reasonable reflection of the costs
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I think we are all singing from the same song sheet just from different parts in that we all realize it's about the authority of the OFT & their power to decide if charges are reasonable.

I don't want to go on suffice to say that there are a number of important issues that will not be resolved by this case & as the group action implies will need to be resolved later once we know the outcome of the present case

[Shazzaw]

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

lol now you confused me. The OFT can investigate, like they did the credit cards, and put forth their opinion regarding fair trading. But like with credit cards, the report saying £12 isnt a legal document, and it doesn't entitle everyone to claim back their charges. Its simply their view which they would enforce in their own way if its exceeded int he future. I'm stil hoping the OFT will go for a declaration on historical CCs charges being unfair penalties too after the banks are sorted out.

The Bank charges case is looking at the terms under the UTCCR, the banks dispute they can be assessed for fairness so the OFT have gone to court to say then can be. The OFT can't order the banks to repay everyone. They can assess for fairness and put a limit if they go that way on future charges etc, and then put that opinion into the court for a declaration that historical terms were unfair and then the banks/fsa etc will have to sort out some means to repay people cause the terms are declared unfair thus unenforceable else the courts will be besieged

thats what I think anyway lol.

Thx Ame!!! So am I correct in thinking that this bit "the bank charges case is looking at terms under the UTTCR, the banks dispute they can be assessed for fairness....." hasn't even been discussed yet in the Case the Banks lost?? The last two years have just been about whether the OFT have the authority to conduct an investigation not whether they can be assessed for fairness?? Is this what the next case is going to be about (but I'm thinking why doesn't this start now then?- oh yeh the oft have to first state they believe the charges are unfair which they can only do when they've made an assesment of a true cost to the Banks).

Also Ame re this bit "the banks/fsa will have to sort out some means to repay people" surely it's never going to happen that the Banks have to repay everyone automatically any charges taken in the last 6 years even if people haven't put in a claim - is it?? This is what the banks would want to be the last thing to happen no?

[Amethyst]

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

No I doubt it I expect people will have to stake their claim themselves, although it could be a possibility - if the court orders them to - if you remember that RBS document which said about proactive refunds ? Will dig it out.

[Shazzaw]

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

Thx Ame - I do remember seeing the document you mentioned - would be absolutely fantastic if that was the case but I'd be v.surprised if it ever came to the stage of the Banks refunding everyone in the country who'd incurred a charge.

What a busy afternoon - need a lie down!! - but I'm still none the wiser as to what will be happening from now on. Do you think it would be worth putting together a thread from all the ones on the site that know whats going on just explaining what the last case decided, what the next case will decide, what will be going on from now, etc; on in simple layman terms so peeps like me can try to explain to my other half whats going on!!

Many thx for everything so far,

shazza

[Amethyst]

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

I dont think anyone really knows and its all conjecture so we will have to wait and see with the rest of the universe, but its still fun to think about it.


Heres that doc anyway.

[EXC]

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

The test case is too complicated to simply arrive at a 'settlement figure' that could be reached out of court. Justice Smith's judgment ruled that some charges are a fee for a service and some aren't.

As Ame pointed out the OFT (and the FSA for that matter) don't have retrospective investigatory powers which means that the outcome of current/future charges will be different to historicals. In other words the OFT cannot say to the banks that with historical charges ''you can only charge so much''. If a term in a contract is deemed unfair the entire term and resultant charge is struck down.

Another reason I believe a simple, non legally binding 'settlement figure' cannot be a realistic approach as what happens to that figure in 5 years time? 10 years time? 20 years time? 50 years time? It would be a recipe for a perpetual dispute and this is why there needs to be a clear legal framework that will settle the matter once and for all.

[EXC]

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

In light of the banks taking their full month to lodge their appeal application to HoLs - having already lodged the same appeal the CoA - I think we should whack a complaint in to the FSA as it seems to me the banks are not moving ''expeditiously'' as the waiver direction states they must.

[StoneLaughter]

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

ShazzaW

The test case HAS DECIDED that the OFT can rule on the Fairness of bank charges.
The test case HAS DECIDED that there is no right for the banks to Appeal to the House of Lords over that decision.
There is however ALWAYS a right for the bank to APPLY to the House of Lords to be granted leave to Appeal. That is what we're waiting for.

If the Banks apply to the House of Lords for the right to appeal there are a number of ways it can go.

1. The House denies the application; in this case, *the OFT now has an unassailable legal authority to decide on the fairness of bank charges and matters will proceed to them making a declaration that the charges are unfair. The Banks will likely appeal this declaration in the Courts. ++

2. The House of Lords allow the Banks leave to appeal to the House - hear the appeal, and uphold the original ruling. From this point on go to 1*

3. The House of Lords allow the Banks leave to appeal to the House - hear the appeal, and OVERTURN the original ruling. All bets are off at this point; I have no idea what would happen.

++ If 1 happens, and the Banks appeal the OFT's declaration, we're effectively back at Square One; the banks will effectively be challenging the OFT's right to make this ruling again.
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In light of the banks taking their full month to lodge their appeal application to HoLs - having already lodged the same appeal the CoA - I think we should whack a complaint in to the FSA as it seems to me the banks are not moving ''expeditiously'' as the waiver direction states they must.

SURELY if they make an application to the HoL for leave to appeal, they MUST have new arguments, if they are to have any hope whatever of having the application allowed???