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

[PocketTheDifference]

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

Im not sure if im on the right track with you here but...wouldn't it depend on what they where actually fighting at supreame surely leagally, as long as supreame didn't say it cant't be used then its still an opening??
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okthanks EXC now im so confused my post doesn't even make sense if Ame is confused i have NO chance ....ill be happy to sit and wait for sombody else to figure before my head explodes who makes all this stuff up, can't they make it lame mans terms.

[Dexter]

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

Following on from previous posts re the OFT stating regulation 5 is agreed in there new update. The below was in the Appeal court ruling and refers to the High Court Ruling where the same was also written.


"By regulation 4(1), the 1999 Regulations apply "in relation to unfair terms in contracts concluded between a seller or a supplier and a consumer" and provide by regulation 5(1) that a
"contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer".
It is common ground that the Banks are sellers or suppliers within the 1999 Regulations. It is also common ground that many of the Banks’ customers are consumers because, by regulation 3(1), the expression "consumer" means "any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession". The judge noted at [11] that it was agreed that he was to proceed on the assumed basis that none of the terms with which he was concerned had been "individually negotiated". He added that that was no doubt generally the case, notwithstanding that customers sign individual mandates. Nobody suggested that we should not proceed on the same basis.

Are the OFT assuming that no bank contract is individually negotiated and therefore can be reviewed under regulation 5? or am I barking up the wrong tree, which happens a lot.

[Dougal16T]

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

Good evening all,

Join the club....

I shall wait until those who know tell us exactly what to do!!

Best wishes to all


Dougal

[Amethyst]

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

Who's that then ?

pmsl getting there !

[Knight_Templar]

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

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

OK, I'll show my ignorance! How do I start a new thread?

[EXC]

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

OK, I'll show my ignorance! How do I start a new thread?

Go to the Main Bank forum Main Banks Forums - Legal Beagles then the forum for your bank ie Lloyds and then press the 'New Topic' button in the bottom left hand corner. In the 'Title' box type in 'Knight_Templar v ...... and then it works just like making a 'reply to thread' post.

[enaid]

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)

And do you think this is not all intentional the confusion they are causing ? Because I for one think so, it's about time the laws were written in PIL never mind the banks T&C's, then them that's it's intended for can understand it instead of just a chosen few.

[catinahat]

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

Lol, for what its worth Ame, I understand what you're saying... and for this addled brain-cell to say that, you're making far more sense than you give yourself credit for... :tinysmile_grin_t:

PS if my understanding of and interpretation of these issues are correct, then I think the answer to your question would be yes... and perhaps not exclusively under clause 5 either (if other viable routes were available to challenge (which hadn't been utilised and judged upon - with the exception of, clause 6.2..{ since that has now had a conclusive ruling}.) I think? Oh boy, doesn't it all just make noodles of the ol' grey matter... catXXX

[EXC]

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

I think the confusion lays in the Supreme Courts view that - according to the press release that accompanied the judgment - ''...charges might still be open to assessment by the OFT on other grounds underRegulation 5.'' and the OFT's ''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''.

[catinahat]

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

I think the confusion lays in the Supreme Courts view that - according to the press release that accompanied the judgment - ''...charges might still be open to assessment by the OFT on other grounds underRegulation 5.'' and the OFT's ''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''.

So, in a nutshell and in plain language, we're back at the first dawn of enlightenment AFTER the supreme courts rule? I.E.

1) Clause 6 is out - don't even think of going (back) to that argument

2) Clause 5 could be a legitimate and valid option for fighting on where we left off

3) Clause 5 would not be AS limited in scope

4) Clause 5 might be a means forward either on its own, or with other clauses (that haven't been previously brought to court in respect of bank charges issues and ruled upon)

5) 5's alive but 6 can't stick and there are other clauses that could be used alongside of, 5 or 5 could be used on its own..

is this a fair synopsis of the situ folks or am more confused than all of us put together, whilst mistakenly believing I'm getting a 'handle' on all this high brow legal mumbo jumbo... lol

[EXC]

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

So, in a nutshell and in plain language, we're back at the first dawn of enlightenment AFTER the supreme courts rule? I.E.

1) Clause 6 is out - don't even think of going (back) to that argument

2) Clause 5 could be a legitimate and valid option for fighting on where we left off

3) Clause 5 would not be AS limited in scope

4) Clause 5 might be a means forward either on its own, or with other clauses (that haven't been previously brought to court in respect of bank charges issues and ruled upon)

5) 5's alive but 6 can't stick and there are other clauses that could be used alongside of, 5 or 5 could be used on its own..

is this a fair synopsis of the situ folks or am more confused than all of us put together, whilst mistakenly believing I'm getting a 'handle' on all this high brow legal mumbo jumbo... lol

I think that's a pretty fair summary (love the ''5's alive'') but it's important to draw the distinction between 5 (a regulation) and 6.2 (an exemption to the regulations)

[Yoda]

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

Ok, I am not the best person to be looking at legislation I'm afraid, so don't shoot me down ( just trying to help)

If the charges are for a 'service' that the bank are giving us, does this not now come under the supply of goods and services act?
In particular s 15.
15.
Implied term about consideration.
— (1) Where, under a contract for the supply of a service, the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge.

(2) What is a reasonable charge is a question of fact.

So for a court to determine whether it is reasonable, would the banks not have to disclose the actual cost to them?

[ROBSTER]

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

This in response to an article in WALES ON LINE
WalesOnline - Business - Personal Finance - Warning that bank charges fight may not be finished yet

Any one we know LOL

ROBSTER wrote:

Well-balanced articles considering the blatant miss reporting by the majority of the press.

Lord Phillips was emphatic that this appeal was solely concentrated on one "narrow" part of UTCCR 6(2) and had NOTHING TO DO WITH THE FAIRNESS OF BANK CHARGES. Rather the ability of the OFT to test the fairness of Bank charges under the specific clause mentioned.

Why did the OFT allow the Banks QCs to corner them on this issue is a matter I am sure they will regret.

However the campaign will continue to have the charges repaid. It is not rocket science e.g. HBOS (now Lloyds) will charge you a fiver for them not paying your Direct Debit today where as last month they required 700% times that amount for the same "service" (their words) of not paying a DD.

Section 5(5) of UTCCR specifically states that an unfair term arises when terms have the effect of requiring any customer who fails to fulfill his obligation (in this case to have enough in the account to cover the DD) to pay a disproportionately high sum in compensation.

If you do not consider a 700% mark up is not a disproportionately high sum consider how much it ACTUALLY costs you to check your balance on a computer or at a cash point if there is no money on the account you can not transfer or withdraw any, right?

How much does that cost you to administer? Almost nothing! So how can a bank justify charging a fiver and say they did you a "service" in not paying when "the computer said no" then generated a default letter to you (at a cost to the Bank of less than 45p including the cost of installing the technology to do so).

My concern is that if the OFT now go back into court with the FSA and Banks this case could be protracted over a similar period of 2-3 years as the last case.

IF SO:

Well done to the Banks, their legal advisors and spin doctors. You have almost completely defused the epidemic of claimants for bank charge refunds.

OFT and Government Ministers with responsibility to consumers:
SHAME ON YOU! It comes to something when a journalist, Martin Lewis is doing more for consumers from a self financing web site than your combined efforts at a cost of Billions to the UK tax payer.

[Budgie]

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

It has always been clear that regulation 5 is the "test of fairness" that the OFT or anyone else ( including us in our individual claims ) would use when deciding / or arguing whether bank contract terms are fair or unfair.

Nothing was decided in either the High Court or Appeal Court judgments regarding Regulation 5, other than the fact that Justice Smith ( in the original test Case hearings ) refused to give the banks the declaration they were seeking regarding "good faith".


In the original High Court hearing the banks cleverly steered matters onto the exemption afforded by regulation 6 (2) which covers the services / price in exchange argument.

The High Court and the Appeal Court decided that the OFT could, when investigating the overall fairness under Regulation 5, also review the price aspect.
However the Supreme Court have overturned both of those rulings and have fully explained why in their judgment.

The OFT has always been arguing under Regulation 5, for a period of time ( with the High Court and Appeal Court judgments in its favour ) it was free to assess the fairness of the pricing as part of it's overall investigation of fairness. ( IE It was able to carry out a FULL investigation ) Now after the Supreme Court judgment the OFT is able to only carry out ( if it chooses ) only a PART investigation.

We are waiting for the OFT to decide whether it will continue it's investigation of fairness under Regulation 5.

There is no reason, that we are aware of, that the OFT would not do so.

[Amethyst]

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

The banks defences and counterclaims on the 5(1) argument asked for a declaration that a prerequirement of assessment of terms under 5(1) and schedule 2 that they be predetermined to be contrary to the requirement of good faith. (ie were not fair and open)

So I think thats the angle they will take on a further challenge under 5(1)

So basically we and the OFT would have to show that a) it isnt a prerequirement of assessing terms under 5(1) to show the banks acted contrary to good faith and/or b) that the banks acted contrary to good faith (ie were not fair and open)

If the courts agree on it being a prerequirement of 5(1) and therefore schedule 2 - then we'd have to show that the banks acted against good faith, which will be difficult DESPITE the PCA report and evidences therin, as T&C's were available in branch and they could contend T&C's were in PIL and were given out at the time of making the contract.

Any thoughts on that angle ?



(Robster just read that over on MSE, nice comments )
(oops and crossed posts with Budgie sorryyyyyy as you basically answered my questions lol)