OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

[Amethyst]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

You are bang on. (that was hard but I'm over it, life moves on and this issue is too important)..

Good to hear it.

[MrsSkint]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Hear Hear jibbsy1912!

Like you I'm in debt (slowly but surely making headway though). And like you, HSBC refuse to treat my case as a hardship case, even though we literally only have enough to feed us and the kids after paying bills every month.

However, the LB team have worked long and bloody hard on this case and they're the type of guys who WILL NOT give up. I, for one, have a lot to thank them for and will stand behind them whatever.

Already, HSBC are leaving messages on my VM to call them back! I'm overdrawn over £600 and as I'm not a hardship case I'm hoping they will enter into some sort of payment scheme as I do not have £600 (especially before Christmas!). Haven't got back to them yet - haven't really got the heart to TBH - will wait until next week to sort things out methinks.

Good luck with everything - keep posting here - they're great guys.

[Amethyst]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Updated OFT Q&A's - http://oft.gov.uk/shared_oft/persona...nts/QandAs.pdf
(just says they'll decide next week lol)


3. What sections of the UTCCR was the case about?
The OFT has always argued that it could assess in full the fairness of
unarranged overdraft terms under the fairness test set out in
regulation 5 of the UTCCRs. The OFT’s current investigation on the
fairness of the unarranged overdraft terms is based on whether they
comply with regulation 5.
The banks argued in the test case that the terms were exempt from
Page 2 of 8
the fairness assessment under regulation 5 because of the exemption
found in regulation 6(2) of the UTCCRs.
Today the Supreme Court ruled that unarranged overdraft charging
terms were still assessable for fairness under regulation 5, but certain
types of assessment are not possible. It found that the terms are
exempt from certain types of assessment since they are part of the
price paid in exchange for the package of banking services supplied.
However the Supreme Court stated that the OFT may be able to
assess the terms for fairness under regulation 5 on a different basis.
Both the High Court and Court of Appeal had earlier ruled that
unarranged overdraft charging terms could be fully assessed for
fairness under regulation 5 of the UTCCR's and that the exemption in
regulation 6(2) did not apply to the terms.
4. What does this ruling mean for the OFT’s investigation of fairness?
The OFT will now consider the detail of this judgment before it makes
a decision on whether or not to continue its investigation into
unarranged overdraft charging terms. We expect to make a further
announcement in December.

[Luminol]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Can I just ask, with all the news reporting that 1.2 million of our hopes are dashed etc, would it not be better to tell them (the news) thats not the case and, and that the ruling has no bearing on some claims.

Might get some publicity, to stop the powers that be throwing out any complaint, case etc that mention OFT and the court case.

Just a thought

Lumi x

[EXC]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

FW: Bank charges line

Attached is our line on the bank charges case.

Regards

Helen Fernandes

Senior Public Information Officer

Judicial Communications Office

Directorate of Judicial Offices for England and Wales

Room 11:07, Thomas More Building

Royal Courts of Justice

Strand

London WC2A 2LL

tel: 020-7947- 7836

A spokesperson for the Judicial Communications Office said:


"The judgment is quite lengthy and the parties to proceedings currently pending before the courts will no doubt require time to consider its implications for their own cases. Where proceedings have been stayed it is for the parties in the first instance to consider what steps to take in the light of the judgment and, if they think it appropriate, to apply to have the stay lifted and for any further orders. Now that the legal position has been clarified it may be that the parties can reach agreement on what steps should be taken. If they cannot, applications will have to be made to the court. Judges will consider such applications individually and make whatever orders they consider are appropriate in the case before them."

[Budgie]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

The key paragraph from the updated Q&A's on the OFT website.


The OFT continues to have concerns about unarranged overdraft charges. The OFT will therefore be seeking discussions with banks, consumer organisations, the FSA and the Government in light of the Supreme Court judgment.

[jibbsy1912]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Cool that's very helpfull and i think im understanding it all a bit more clearly now! Lets hope that the goverment can now get involved and understand that they need to do more, its not as if we are a small group. I think i speak for thousands when i say that i have lost all trust in the goverment and alot of what has happend could be sorted out with help from them. Lets hope theres good news next week!

[Budgie]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

That's a pretty good statement.

We still recommend that individual Claimants with stayed County Court Claims take no action at the present time.

Budgie

FW: Bank charges line

Attached is our line on the bank charges case.

Regards

Helen Fernandes

Senior Public Information Officer

Judicial Communications Office

Directorate of Judicial Offices for England and Wales

Room 11:07, Thomas More Building

Royal Courts of Justice

Strand

London WC2A 2LL

tel: 020-7947- 7836

A spokesperson for the Judicial Communications Office said:


"The judgment is quite lengthy and the parties to proceedings currently pending before the courts will no doubt require time to consider its implications for their own cases. Where proceedings have been stayed it is for the parties in the first instance to consider what steps to take in the light of the judgment and, if they think it appropriate, to apply to have the stay lifted and for any further orders. Now that the legal position has been clarified it may be that the parties can reach agreement on what steps should be taken. If they cannot, applications will have to be made to the court. Judges will consider such applications individually and make whatever orders they consider are appropriate in the case before them."

[Amethyst]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Okay, the banks are free to ask for stays to be lifted and apply for strike outs - which is what lloyds have indicated they wish to do.

Once we have discussed this in depth we should have a decent counter argument.

[orc]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Some of you might have received the following email from Stephen Hone, some might not.

Posted for consideration only.



"Dear ................


Supreme Court Judgment and what is means,


Well I have just got back from London where I spent a lot of time trying to put right the media stories that the Bank's had won and this was the end for consumers, gladly I note that most of the Media have now reported that this case was not as important as many people thought is was:

I am going to set out parts of the Judgment and explain what they mean if needed. After which I will outline what I think should happen next.


The Judgment

Firstly the Lord Walker highlighted the fact that many members of the public were not aware of the limited nature of the issue, which the court had to decide in the appeal.

At Para 45 Lord Walker Said ".The Directive and the 1999 Regulations apply only to terms which have not been individually negotiated". Clearly the contract we all entered into with the banks has not been individually negotiated so the regulations do apply.

Lord Philips Para 57. Stated the issue is whether the relevant charges constitute "the price or Remuneration, as against the services supplied in exchange" within the meaning of the Regulation. If they do not, the attack on the fairness of the term that is open to the OFT will not be circumscribed (restricted) by Regulation 6(2)b. If they do, then they will still be open to attack by the OFT on the ground that they are "Unfair" as defined by regulation 5(1) but that attack cannot be founded on an allegation that the Relevant Charges are excessive by comparison with the services which they Purchase, for that is forbidden by regulation 6(2)b

So what does this mean, well it means that the Court has ruled that the charges for bounced direct debits and unauthorised overdrafts etc are part of the price for the services, therefore they cannot be tested for fairness under Regulation 6(2)b of The Unfair Terms in Consumer Contract Regulations 1999, However the Court has said that the OFT can assess the Fairness of the price under Regulation 5.1. According to other criteria. (See Para 59)

This point is further explained in Para 80. Lord Philips states 'it seems to me that this reasoning is relevant not to the question of whether the Relevant Charges form Part of the price or remuneration for the package of the services provided but to whether the method of pricing is fair. (My emphasis added) It may be open to question whether it is fair to subsidise some customers by levies on others who experience contingencies that they did not for see when entering into their contracts. If not it may then be open to question whether the Relevant Terms fall within Regulation 5(1).." Clearly his lordship highlighted that the court may be persuaded that it is unfair for some consumer to pay for services that other consumers benefit from for free.
What's more it is mostly the consumers who are on low incomes and struggling financially that are paying for everyone else. This is in my opinion not fair, and shows the banks have not acted in "Good faith". Or as Lord Mance's suggested in the trial, that 'the banks were engaged in a sort of Robin Hood in reverse' (see Para 2) I would suggest he means the banks were taking from the poor to subsidise the rich.

All the Lords appear to have agreed with Lord Walkers final Paragraph that being 52, in which he said '.This decision is not the end of the matter', as Lord Philips explains in his judgment. Moreover Ministers and Parliament may wish to consider this matter further. They decided in an era of so-called "light-touch" regulation, to transpose the directive as it stood rather that to confer the higher degree of consumer protection afforded by the national laws of some other member states. Parliament may wish to consider whether to revisit that decision.'

So what does all this mean, well it means the following

1. The OFT can still look at the charges under UTCCR 1999, and always has been able to. They could now launch a new test case. (However, what must be asked is why was there a two year test case on a very narrow point of law? when the OFT already had the ability to assess the fairness of theses charges under Regulation 5.1 and others )

2. All consumers who have submitted a claim using the Old Particulars of Claim, arguing that the price was unfair and or that these are a penalty charges. Needs to amend their claim to include an argument under regulation 5.1. (a new Particulars of claim will be live on the site tomorrow with full instructions on what you need to do)

3. We also need to put pressure on the Government to amend the Regulation so we all have the same consumer protection rights that other member states have. (So get writing to your MP's a template letter for this will be on the site within 48 hours)

4. I am sorry to say but I would like to see the stay remain in place, for a least a month. This will give consumers time to amend their claims and other consumer groups and I will be discussing the possibility of joining forces to bring a joint Class action. I feel this would insure that we could make sure that all the legal arguments are covered in full. I will update you all on this when I have spoken to the other consumer forums.


Finally, I will explain Regulation 5(1) in more detail on the site for those that are interested. However, what was important in this news letter is to confirm that this was basically a set back to the OFT and not to consumers. Claims can still be filed.
The FSA has also lifted the Wavier.

I hope that the OFT if they do decided to bring a new action, that they will now invite the consumer groups to the table. Something we asked them to do before this test case, sadly that request was refused.

To conclude, the test case has only resulted in us having to amend the Particulars Of Claim and resulted in a two year delay, other than that we are back to the position we were in two years ago.

So was this test case a victory for the Banks, yes they beat the OFT on a small point of law, they did not beat the consumer forums and or the consumers.


Warm regards

Stephen Hone"

[Amethyst]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

I hope that the OFT if they do decided to bring a new action, that they will now invite the consumer groups to the table. Something we asked them to do before this test case, sadly that request was refused.

There other areas the consumer groups can get involved in, such as the PCA report, which Beagles met with the OFT over and submitted a full response to their consultation, outlining a number of areas to do with the test case, many of our suggestions were taken on board.

More than one way to skin a cat.

[MrsSkint]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Amethyst

Can you advise me? Do you think I should contact HSBC and try to negotiate a monthly payment to pay off overdraft?

Many thanks

G x

[Amethyst]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Yes, as a goodwill gesture. Hang five will get letter.

[MrsSkint]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Thank you, will do x

[Amethyst]

Re: OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case

Is your bank chasing you for overdraft charges / disputed debt ? - Legal Beagles

That letter am just amending appropriately