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

[natweststaffmember]

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

I want to throw something into the mix which is OFT related but we are currently losing the media battle. The only quotes given by anyone about the possibility of success state a figure or only 10% or 20% success rate. The media battle is being won by the banks on the fact that they WON the test case in its entirety. The press view needs to be changed and challenged.

[Amethyst]

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

I think 20% is about right, as things stand. I don't think the banks are winning press battle. It seems 50/50 on 'fight goes on' to 'rich people happy' angles.

[Amethyst]

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

CCA affects overdrafts in a very restricted way.
Overdrafts CCA - Legal Beagles

also consumer credit directive is restricted
Legal Beagles

3. In the case of credit agreements in the form of an overdraft
facility and where the credit has to be repaid on demand or
within three months, only Articles 1 to 3, Article 4(1), Article
4(2)(a) to (c), Article 4(4), Articles 6 to 9, Article
10(1), Article 10(4), Article 10(5), Articles 12, 15, 17 and
Articles 19 to 32 shall apply.

But worth looking into further - I believe tomterm has made a number of posts on the subject.

[Amethyst]

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

Ame, in relation to my last correspondance from the court they stated the 28 days following the decision...first instance...Blah blah blah. Is it incumbent on me to respond within the said 28 days? As I mentioned earlier, I am in the US and I will need to factor in delivery time.

Sorry to take up you rcollective research on an individual issue, i just don't want to lose what little hope there is left on a technicality.

Thanks.

Hi Knight

Completely understand that.

Could you begin a new thread with your claim information - a copy of your POC & Stay notification will be needed.

At present I think the best action to take would be to apply to continue the stay pending further action by the OFT on 5(1). Of course, the OFT could decide not to continue and to bump off everyone with historical claims in favour of a competition enquiry but we just don't know until they make an announcement which may not be for a week or so.

As far as we know no banks have applied to the courts for stay lifts/strike outs following the judgment as yet. If neither party contact the court with in the 28 days then the claim risks being struck of the courts on motion - but then we are also waiting on Justice Moore Bicks view on the general imposition of stays.

A lot of unknowns at this point, however I don't believe you can do any harm in requesting an extension to the stay. and possibly a request to amend your particulars of claim if need be.

Ame
xx

[EXC]

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

I think 20% is about right, as things stand. I don't think the banks are winning press battle. It seems 50/50 on 'fight goes on' to 'rich people happy' angles.

There was an interesting analysis of the media coverage of the judgment on the Supreme Court blog site - scroll down to 'The Supreme Court, the OFT and the Press' UKSCblog | The Supreme Court of the United Kingdom

It basically says that the media almost universally ignored the Supreme Court press release that accompanied the judgment which was designed to avoid the very misrepresentation that subsequently occurred.

If anyone hasn't read the official SC press release -
http://www.supremecourt.gov.uk/docs/...09_0070_ps.pdf

[PocketTheDifference]

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

I can't read this any chance of a post?

[Amethyst]

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

UKSCblog | The Supreme Court of the United Kingdom maybe an easier link.

Excellent Article. Not sure I''d have described the SC's press summary as 'pithy' though.

The overall impression given by most of the media is of a “moral” or “political” decision made on the basis of the Court’s views about bankers and consumers. The Court’s helpful, pithy and accurate “Press Summary” seems to have passed most of the media by. It would be useful media organisations were to provide links to the Press Summary on their websites - so interested readers could see the actual basis for the decisions of the Supreme Court. The media coverage contains very little mention of the reasons why the Court arrived at its decision or of the views expressed by any of the Justices. The preference was for soundbites from the opposing spokespersons for banks and consumers. No mainstream media outlet provided any analysis of the legal background. Overall - despite the efforts made in the judgments and the Press Summary - the mainstream media showed little interest in the legal background to the decision and the reasoning which led to it. The contrast to the way in which the US media deals with decisions of its Supreme Court is striking.

[Shazzaw]

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

This is encouraging:-

"It may well be that voluntary refunds and regulation are the ultimate outcome, something which The Independent reports that the Treasury has already indicated they are likely to pursue."

and in my opinion the best we can hope for. I don't think the banks would have to refund not nearly as much as they would have had to as they would only offer GOGW to the most hardened of reclaimers who pursue their claim to the end. In effect pay them off just to get them off their backs. Any thoughts??

[PocketTheDifference]

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

Hmm,
Im not sure, I am sure Id let them take the cost of paper and refund me the differance so about 25p out of every amount they have taken off me, I would be willing to hold them talks.... Or should we begrudge them that aswell

[Smasher]

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

There was an interesting analysis of the media coverage of the judgment on the Supreme Court blog site - scroll down to 'The Supreme Court, the OFT and the Press' UKSCblog | The Supreme Court of the United Kingdom

It basically says that the media almost universally ignored the Supreme Court press release that accompanied the judgment which was designed to avoid the very misrepresentation that subsequently occurred.

If anyone hasn't read the official SC press release -
http://www.supremecourt.gov.uk/docs/...09_0070_ps.pdf

There is also a lot of talk about 'using different arguments' which might seem to create the idea that we've all gone up this path and the OFT have presented that to the court and lost.
Ok, the penalty route is (maybe) out the window, but nobody every used reg 6 in their claims anyway did they? We're just adding more arguments to what we already had.

[EXC]

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

The OFT have advised us that they have re-issued their Q&A's to include a further question at Q3, because of ''some post judgment misunderstanding of our case''. Not on our part I might add.

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 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.

[natweststaffmember]

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

Now that makes the media coverage, EXTREMELY wrong.

[Amethyst]

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

Oh crap now I am really confused

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.

Right, the supreme court didnt judge on whether regulation 5 could be used at all, only that it couldnt be used under 6(2) because the terms were core terms, is that right? (please lol)

So, do the original judgments that terms can be assessed under 5 still stand regardless of whether 6(2) is out or not ? ie. can the oft just assess under 5 anyway.

(I think I have confused myself again)

[WendyB]

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

I'm glad it's not just me Ame, I thought exactly the same thing when I read it.

I think someone needs to ask for clarification on this (not me though cos I am confused lol)

[EXC]

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

Oh crap now I am really confused



[/color]Right, the supreme court didnt judge on whether regulation 5 could be used at all, only that it couldnt be used under 6(2) because the terms were core terms, is that right? (please lol)

So, do the original judgments that terms can be assessed under 5 still stand regardless of whether 6(2) is out or not ? ie. can the oft just assess under 5 anyway.

(I think I have confused myself again)

I'm also confused about that quote from OFT. In the first hearing the banks asked for a declaration on section 5 but J Smith didn't want to consider it in the end as this extract from the judgment that Budgie posted earlier makes clear:

442. The Banks’ argument that I should grant the third declaration faces a further difficulty. As I have mentioned, in the First National Bank case (cit sup at para 13, and see too para 20) Lord Bingham made it clear that “fairness must be judged as at the date the contract is made, although account may properly be taken of the likely effect of any term that is then agreed and said to be unfair”. The question therefore arises when in the circumstances of the present case and the current account contracts between a Bank and an individual customer the contract is to be taken as being made. One obvious answer might be that it is made when, possibly many years ago (maybe before 31 December 1994, the date referred to in article 10 of the Directive), the Bank agreed with the customer to operate a current account. But there is an equally obvious objection to this: the Relevant Terms that are the subject of the issues between the parties were in many cases not included in the contract when it was first made, but were introduced into it at some later date (whether by way of consensual variation or by way of what is called in Chitty on Contracts, 29th Ed (2004) at para 22-039 a “unilateral power of variation” exercised by the Bank). Assuming that the fairness of the Relevant Terms is not to be assessed as at a time before they were introduced into the contract between Bank and customer, it does not necessarily follow that the fairness is to be assessed when they were so introduced rather than at some later date, for example when the parties make what I have termed a specific contract, such as that explained in Paget’s Law of Banking 13th Ed (2007) at para 7.1 to which I referred at paragraph 417 above.

443. This question was not identified in advance as one that I was to consider at this hearing of preliminary issues, and not one with which the parties dealt in their written submissions. Indeed, I think that it is fair to say that its potential importance and the difficulties that it entails were not identified by the parties before I raised it during the hearing. Although some of the Banks made some oral submissions about it, in the end the Banks told me that its implications were of such potential importance that they did not wish me to answer it until they had had the opportunity to consider it further. The OFT, for its part, made no submissions as to the date as at which any assessment of fairness is to be made in the circumstances of this case, and did not dissent from the Banks’ request that I should not decide the question in this judgment, reserving its position as to whether it should be decided by me after further argument.

Will need to scour the judgments & transcripts again.