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

Just to say its hard for us too to wait, it would be so easy to rush in with something and send everyone off willy nilly to whack new claims in, but we've decided that a combined effort on the long game, and collaboration between the sites will be more constructive to everyone, in short and long term.

Every claim for the next week or so will be advised individually if urgency arises - such as strike out applications / defences etc and we have a good basis for this. However we would be very foolish not to take stock and get this right first time for people who are simply stuck in the system waiting.

Mike Daillys overview is excellent and we know Ray Cox has a good history. We are waiting on the OFTs decision, and there are things in progress for action on behalf of all consumers, but for most it is simply a waiting game for the time being.

But while we are waiting ALL ideas and input are very gratefully received and I am quite overwhelmed by the support we have had and the trust placed in us all, now, and throughout the test case.

Tom if you want to have ideas considered off forum by the 'big guns' then pm me and I can pass them on.

[strangewayofsavin]

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

personally this is a good result, no more namby pamby unlawful crap, Putting a £12 limit on what costs £2, don't forget as of Tuesday the unelected decision to be a European takes hold. This means the highest court in the land is worth nowt.
Now we can expose the criminal in the banks, make them prove £38 is just, or reap the EU laws of Cartels and abuse of market power, this is a good day, gone are the feeble desicions of U.k law, and (although unelected) comes the really stupid EU laws, lets use them to our advantage. Article 85[81]EC & Article 86 [82] and put this issue to bed.
Then bring on the mortgage companies.

[Budgie]

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

Back to the wording of stays on County Court bank charges claim.

My own Halifax claim is stayed as follows

IT IS ORDERED THAT

The allocation hearing be adjourned to the first open date after the delivery of judgment in the test case.

This was ordered by Judge Gold at Kingston County Court

It's possible I could be back in Court before Xmas LOL !!!!!!!

A cunning plan is developing.

More details to follow on this thread Budgie Vs Halifax ( Post Test Case ) - Legal Beagles

[Knight_Templar]

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

So, I filed with court online and can't find the application however the PoC I used were these: -
I believe that these are contrary to the Unfair Terms in Consumer Contracts Regulations 1999. Schedule 2 (e) of the said regulations gives a non-complete list of terms, which may be regarded as unfair, such as a term that requires me as a consumer who fails in his obligation, to pay a disproportionately high sum in compensation.

I believe that your charges are disproportionately high and therefore they are contrary to the Unfair Terms in Consumer Regulations 1999. In addition I believe that your charges are a Penalty. Penalty charges are irrecoverable at common law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd [1915] AC 79 along with Murray v. Leisure play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that your charges do not reflect any actual and or real loss.

I did get a judgement in my favour but the bank (HSBC) and I went to court following an appeal and the outcone is worded thus: -

It is ordered that
1. Judgement set aside
2. Matter stayed until 28 days after judgement is given at the first instance in the OFT v Various Banks claim.

I am following advise and waiting but are my PoC still valid and does the matter being stayed adversely affect me and my claim?

Need more info?

Oh, and if that is not complicated enough, I am hoping the court just make them pay without a re visit as I am living in the US at present! (Still a UK citizen).

[natweststaffmember]

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

POC is still valid. Penalty aspect has gone but UTCCR 1999 has not.

[Amethyst]

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

So, I filed with court online and can't find the application however the PoC I used were these: -
I believe that these are contrary to the Unfair Terms in Consumer Contracts Regulations 1999. Schedule 2 (e) of the said regulations gives a non-complete list of terms, which may be regarded as unfair, such as a term that requires me as a consumer who fails in his obligation, to pay a disproportionately high sum in compensation.

I believe that your charges are disproportionately high and therefore they are contrary to the Unfair Terms in Consumer Regulations 1999. In addition I believe that your charges are a Penalty. Penalty charges are irrecoverable at common law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd [1915] AC 79 along with Murray v. Leisure play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that your charges do not reflect any actual and or real loss.

I did get a judgement in my favour but the bank (HSBC) and I went to court following an appeal and the outcone is worded thus: -

It is ordered that
1. Judgement set aside
2. Matter stayed until 28 days after judgement is given at the first instance in the OFT v Various Banks claim.

I am following advise and waiting but are my PoC still valid and does the matter being stayed adversely affect me and my claim?

Need more info?

Oh, and if that is not complicated enough, I am hoping the court just make them pay without a re visit as I am living in the US at present! (Still a UK citizen).

You need do nothing yet, when/if the bank ask to strike you out you will need to enter an amended particulars of claim. I very very much doubt if they will hold hearings to consider all strike out applications and can you always put submissions in writing or have someone act on your behalf if necessary.

[natweststaffmember]

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

Quick question re subsidising current account. Would the interest foregone on credit balances to cross subsidise the current account have any weighting at all?

[Amethyst]

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

As the banks argument ?

[natweststaffmember]

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

yes am working on arguments yet to be submitted for OFT test case II the sequeal(just to say that I expect it to happen and it has not been announced--needed to disclaimer on that).

[Amethyst]

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

not really as they made a big palava about how the charges cross subsidised other accounts, didnt they. Foregone interest was brushed over rather rapidly- extract the bits from the transcripts is the best bet.

[Amethyst]

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

Well Cartel seem to think they are still paying out lol.

BANK CHARGES: CARTEL BANK CHARGES CLAIMS UNAFFECTED BY SUPREME COURT JUDGMENT



Published Friday, November 27, 2009, 16:40

PRESS STATEMENT BY CARL WRIGHT – CHIEF EXECUTIVE OF CARTEL CLIENT REVIEW
“Following the shocking and universally unpopular decision by The Supreme Court regarding their ruling that bank charges do not have to be assessed for fairness, it is our belief that the Judgment will cause lasting damage in the eyes of the public to the Judicial System for decades to come.
During the period the ‘stay’ was in force, Cartel had continued to ensure clients received refunds on unfair bank charges. This continued success was highlighted during November, when one of our clients received in excess of £10,000 in refunded bank charges from Halifax and NatWest(please see Press Release attached).
Consumers need to be made aware that the Financial Services Authority (FSA) have now lifted their ‘waiver’ which had previously blocked the vast majority of claims from proceeding. Cartel will continue to accept client claims for the refund of bank charges in exactly the same way we have been doing successfully during the period of the ‘stay.’
We are led to believe that the OFT will continue to fight for justice and fairness on behalf of consumers under Regulation 5 possibly with guidance from the Supreme Court. However, whilst the public wait to hear the exact intentions of the OFT, we at Cartel strongly believe our clients will continue to be repaid during the months ahead, as they have been to date.”

[EXC]

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

Returning to the postmortem on why the Supreme Court ruled against the OFT, it's interesting to draw a comparison to the very similar case that the OFT won in July, partly because, unlike the Supreme Court judgment, the terms & charges in question did not form part of the 'core bargain' and were therefore subject to the test of fairness.

This was OFT v Foxtons Letting Agents where landlords were obliged to continue paying Foxtons various fees after the business relationship had ended:

''Justice Mann held in proceedings brought by the Office of Fair Trading that certain standard-form terms in contracts between Foxtons and consumers who engage Foxtons as a letting agent are unfair under the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCRs"). The terms in question concern Foxtons' commission when there is a renewal or extension of a tenancy agreement; its commission when a landlord sells his property with the benefit of a tenancy agreement; and its sales commission when a landlord sells his property to his tenant.
The Judge found that the terms concerning renewal commission were not in "plain intelligible language" and were not part of the "core bargain" between Foxtons and the typical consumer. For both of these reasons, the renewal commission terms were not within the exemption in Regulation 6(2) of the UTCCRs, and fell to be assessed for fairness.''

In short the specific charges were ruled as 'ancillary'.

In the Supreme Court bank charges judgment the court ruled that the terms & charges did form part of the core bargain because they were in exchange for the general 'package' of services provided and therefore not able to be assessed for fairness.

So it just goes to show how fickle the UTCCR regulations are and that they can work for consumers if applied correctly and gives us some real hope for future litigation.

It's definitely worth reading the Foxtons judgment - particularly the sections under 'Fairness' and Fairness Conclusions'. It makes quite a few references to the bank charges case too. http://www.bailii.org/ew/cases/EWHC/Ch/2009/1681.html

[natweststaffmember]

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

SHOW ME THE MONEY!!!!!!=----to translate the above

[Amethyst]

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

Foxtons discussion for reference - OFT v Foxtons - Landmark Judgment 10 July 2009 - Legal Beagles

[LuggerBugs]

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

What's all this then? LB gets a mention...

NEWS RELEASE
Friday 27 November 2009

News Update: Ray Cox QC to fight bank charges

MoneySavingExpert.com has today arranged for top banking barrister Ray CoxQC to redraft its bank charges template letters, in light of the Supreme Court judgem ent.

The site is doing this by engaging Govan Law centre, run by campaigning solicitor Mike Dailly, and it will instruct Mr. Ray Cox QC and Mr Giles Wheeler, both barristers at Fountain Courts Chamber, Temple.

Martin Lewis, creator of MoneySavingExpert.com says:

"There are millions of people with cases on hold, and the OFT won’t be giving its view until December – meanwhile the banks are already starting to apply to have cases kicked out of court. We hope to put the brakes on this by drafting amended documents which people reclaiming can submit to the court based on the latest ruling.

"The Supreme Court itself noted that the question of fairness could still be looked at under the now infamous ‘regulation 5’ of the UTCCR regulations and that's exactly where we will be attacking. It will be interesting to see how the banks react to what we hope will be the Rolls-Royce of template letters – drafted by a QC who has many times lead cases for the banks themselves.

"We may even return to a situation of goodwill payments in the interim as they wait to expand their arguments, so as not to risk a precedent setting decision against them.

"While we’re under no illusions of the difficulty of the task, and don’t want any reclaimers to bank on getting their money back, this does mean the campaign's back on and the banks need to watch in their rear view mirrors."

Solicitor Mike Dailly of Govan law centre comments:

“We're delighted to be working with MoneySavingExpert.com on what is perhaps one of the biggest rescue operations in recent UK consumer history.

"Rumours of the demise of the unfair bank charges campaign have been greatly exaggerated by the banks. The Supreme Court gave a very clear message that bank charges could still be unfair under regulation 5, and so a brand new right to reclaim will shortly be available to consumers on the authority of no less than the Supreme Court itself".

The template letters and legal advice should be available within the next two weeks via www.MoneySavingExpert.com alongside the other free campaigning sites including the Consumer Action Group, Penalty Charges and Legal B eagles - who will be feeding into this process too.