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

[EXC]

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

And also, by inference, the FSA waiver should be removed as there is a clear legal case.

Exactly. The whole purpose of the waiver is to suspend claims until legal certainty on the charges has been established. This will be achieved at the point that the court ultimately rule the assessability of the charge terms by UTCCR and the OFT deem the charges unfair.

[Tools]

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

I wonder if we could get confirmation of this from the OFT? Nick? Gwaaaann, another excuse for you to talk to the lovely KF

[EXC]

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

I wonder if we could get confirmation of this from the OFT? Nick? Gwaaaann, another excuse for you to talk to the lovely KF

I'm one step ahead of you mate. Q4 covers it - waiting for an answer.


----- Original Message -----
From: Kate Farrow
To: EXC
Sent: Friday, April 03, 2009 11:43 AM
Subject: Updated personal current account information


Dear Nick,

If you have any questions with regards to the media statement and Q&A we published this morning, please feel free to get in touch.

Kind regards,
Kate
Kate Farrow | Project Team - PCA UTCCRs| Services Group| 1E/01| T: 020 7211 8816



From: EXC
Sent: 07 April 2009 12:24
To: Kate Farrow
Subject: Re: Updated personal current account information



Hi Kate

Many thanks for giving us this opportunity. I'll try and keep the questions to a bare minimum and give you some initial context to them for assistance.

Firstly we welcome the press release and updated Q&As. Any action that would speed up the conclusion of the test case and investigation, particularly in relation to those waiting to have their claims progressed, is helpful. However I am a little concerned that by narrowing the focus of your investigation to 3 banks in order to base your conclusions on fairness for the remaining 5 may lead to these banks disputing the validity of your findings on them. We would appreciate some reassurance that the OFT can apply the results of the sample 3 banks to the industry as a whole without it being subsequently contested.

Your current Q&As state that ''Our timeline is largely dictated by the practical constraints of obtaining and analysing the required information from the banks''. Clearly the test case and UTCCR investigation is taking far longer than the OFT hoped and the delays are unquestionably to the advantage of the banks and to the detriment of consumers. As the OFT's statement above suggests this would appear to be largely due to the unwillingness of the banks to comply with the litigation agreement which clearly states that ''The banks undertake to co-operate with the OFT in it's conduct of the investigation and in particular expeditiously to provide documents and information sought by the OFT in so far as practicable...''.

In addition the litigation agreement also states that ''....the bank/s in question will seek to have any such appeal, whether to the Court of Appeal or beyond (including a reference to the European Court of Justice, if any), heard on an expedited basis, and to undertake to take all reasonable steps to ensure that the said appeal is conducted and determined on an expedited basis as soon as is reasonably practicable''. Therefore in leaving it until the 29th of 30 days in which to apply to the House of Lords for leave to appeal the judgment of the Court of Appeal, the banks have, in my view, failed to comply with at least the spirit if not the conditions of the litigation agreement.

On the issue of when you expect the matter of fairness to be finally decided the current Q&As state that ''If this decision is disputed, subsequent litigation may ensue''. Naturally this is a major concern for the campaign - the fear being that this would involve several more years of hearings, appeals and further appeals. Nearly 2 years on from the test case announcement consumers still have no idea as to the nature of the litigation on the substantive issues, how long it might take to conclude and if the litigation will be required to determine the status of current claims and/or future charges.


Questions:

1) Is the OFT confident that by narrowing it's investigation to 3 banks it can apply it's findings to the other 5 banks without complication?

2) Are the banks are complying with the litigation agreement with regards to their obligations to act in an expeditious manner during both the investigation and litigation process?

3) What does the OFT envisage the nature of any litigation on the substantive issues to be? ie would this be in the form of a Judicial Review?

4) If the OFT investigation concludes that the relevant charges are unfair, would historical terms be subject to any further litigation or would any finding that the terms are unfair provide sufficient legal clarity to progress claims to the banks and/or cases stayed in the County Courts?


Kind regards

Nick


----- Original Message ----- From: Kate Farrow
To: EXC
Sent: Tuesday, April 07, 2009 12:36 PM
Subject: RE: Updated personal current account information

Hi Nick

You're very welcome. I'll come back to you as soon as possible with the answers to these.

Kind regards,
Kate

[Amethyst]

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

ok. The OFT can get undertakings from the banks to change their terms because the OFT assess them to be unfair under UTCCR. Thats all. the test case currently gets us into the position that they can do that.

For the waiver to be lifted without it being completely ridiculous then the OFT need to say yep they are unfair, then go to court for a declaration on historical terms being unfair and thus unenforceable. Only a court can do that, and only a court saying that can order the banks to repay everyone.

Lifting the waiver before that point I think would be a bit daft because it would mean everyone would have to go through court to get their historical individual terms assessed under fairness principles by the court.

So yes, the answer to Nicks question

4) If the OFT investigation concludes that the relevant charges are unfair, would historical terms be subject to any further litigation or would any finding that the terms are unfair provide sufficient legal clarity to progress claims to the banks and/or cases stayed in the County Courts?

is going to be pretty telling where this is going to go.

[Tools]

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

I hate it when you prove me wrong.

[EXC]

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

There are 2 additional reasons I think the waiver and stays will be lifted at the point the OFT deem the charges unfair.

Firstly on the first waiver renewal in July last year the FSA press release stated ''The waiver will be for six months, when we expect to have a decision from the Court of Appeal." Although there is subsequently of course a further appeal to the House of Lords, the limited duration of the waiver renewal (6 months) and the later extension (another 6 months) clearly does not account for litigation on the substantive issues.

Secondly the Master of the Rolls' note which accompanied the Court of Appeal judgment published a letter from the Deputy Head of Civil Justice to County Court judges which concluded:

Permission to appeal to the House of Lords has been refused, but the matter does not end there, both because the Banks may petition their Lordships for permission to appeal and because unless the decision of the Court of Appeal is overturned, the OFT will now have to complete its investigation in order to determine whether the charges are unfair or not.

As you will appreciate, apart from knocking out the penalty argument, the proceedings have not yet produced a final answer one way or the other to the claims pending in your courts. You may be faced with applications to lift the stays which are currently in place. Circumstances may differ, but you may think that, insofar as claims turn on whether the terms in question are unfair under the Regulations and therefore unenforceable, there is much to be said for continuing the existing stays pending a decision by the House of Lords and/or the outcome of the investigation by the OFT.”

Again not accounting for any litigation on the substantive issues.

[Tools]

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

Currently debating this with Amethyst at the moment, and I tend to agree with both of you now.

My original thoughts and also your additional points EXC still stand, however, as Amethyst quite rightly points out, the OFT will still have to go back to the Courts with their findings that the charges are unfair following their investigations with the banks. The Courts themselves will have to make a legal declaration based on the OFT's findings to rule that the terms are unfair/unenforceable.

With all of the groundwork already completed it should not be a lengthy process as the OFT will only be seeking a declaration and the Courts would accept the OFT`s findings. The banks will have already argued the toss with the OFT behind closed doors so should not dispute their findings.

Once that declaration has been made by the Courts, I would assume measures would already be in place to refund existing complainants with cases in County Courts, direct complaints to the banks, then any additional complaints that may be made following the declaration. I cannot see the banks voluntarily identifying customers they have charged historically it would be up to the individual to make their own complaint.

Hopefully this will be announced publicly by the OFT and also on the banks websites etc.

Thank god I wasn't proven wrong entirely

[Amethyst]

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

Just to add, I don't think that it will necessarily happen that way, just I think it should. I don't want to be back in the same position we were in three years back with hundreds of claims going into the court and the banks refusing to disclose their true costs and the daft chess game which we all know we will win and just wastes peoples time and money and is simply being used as a barrier to justice.

[Budgie]

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

Exc and Ame, I think your reading on matters is pretty precise.

HOL to uphold original judgment and Court of Appeal appeal decision.
followed by
OFT issues findings and officially seeks High Court declaration regarding unfairness of terms.

Surely this is the time that the Group Litigation order NEEDS to be enacted wrt the Historic charges aspects.
As far as the test case is concerned the Consumers only ongoing interest is wrt the setting of a fair level of future charges.

The matter wrt historic charges will have been decided and their unfairness and unenforcability will be set in stone.
All that will remain is for Consumers to claim these back.
With, of course suitable attention being paid to the Limitation Act aspect and super dooper compound interest and other minor details !!!

As the HOL hearing is being held in June ( with possible handing down of judgment in October ) and the OFT will likely produce its findings shortly afterwards surely we should now be concentrating our efforts with TB on the GLO.

[jax007]

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

we should now be concentrating our efforts with TB on the GLO

Que??

[Budgie]

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

Que??

Tome Brennan and Group Litigation Order

[Amethyst]

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

The litigation agreement does include more on the substantive issues such as limitations and restitution....don't know how far it will go though and anything formal from OFT etc since hasn't mentioned anything further. Again, there are consequential losses to be looked at. Think GLO is on hold for the moment will have to ask Tom.

[EXC]

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

Think GLO is on hold for the moment will have to ask Tom.

He's still stuggling to find a law firm to take a gamble on it though I know he was due to meet a firm to discuss it on friday.

[Tools]

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

Exc and Ame, I think your reading on matters is pretty precise.

:israel:

[Amethyst]

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

Surrendering so soon dearest ?