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

Just a quick question for someone in the know this has just been playing on my mind the banks seem to be very reluctent to tell everone the actuall cost to them of there charges why. Lets just use a bounced d'd for example if it actually cost them nothing (what with the example of a d'd bouncing i belive is right) can they actually charge you for somthing that costs them nothing.

I don't think that the cost is actually relevant anymore to be honest apart from where it causes a further charge, ie that their consideration causes a further decision making mechanism.

[PocketTheDifference]

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

As a former RBS worker do you not even have a clue what it actualyl costs? or where you left in the dark as much as a customer?

[natweststaffmember]

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

As a former RBS worker do you not even have a clue what it actualyl costs? or where you left in the dark as much as a customer?

I knew costs of getting balances from ATM machines, I knew when the manual for automated charges was written by RBS Group. I knew nothing about why the cost was as it was though.

[PocketTheDifference]

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

theres a charge for getting balances?

[natweststaffmember]

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

theres a charge for getting balances?

Absolutely.....

Need to make this post here. Abbey customers have had payments delayed by a fault which includes salary payments....

[WendyB]

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

Nope, there isn't a charge to the customer, but there will be some cost to the bank involved for the processing etc. But it's probably very very minimal I would think. And is taken into account no doubt when they are setting charges. Basically they add up everything it costs the bank to process everything (i.e overheads, wages etc)) then decide what to charge the customer to cover the costs. One would think that in a fair society, and banks being businesses, that the charge to the customer would outweigh the overheads at least slightly, so that the banks would make a small profit. After all that's how business works isn't it, nothing is for nothing and every business should be profitable (unless its a non-profit making organisation such as a charity, which clearly banks are not). But in the real world, as we all know, the actual charges far outweight the actual costs and so can therefore be construed as a tool to a) subsidise free banking for others b) make tons of profit by causing untold misery for countless customers and c) making lots of profit in order to give vastly inflated bonuses for vastly inadequate staff and reward for failed business models.

Just my opinion

[Yoda]

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

Any mileage in misrepresentation?

Where a person has entered into a contract after a misrepresentation has been made to him, and the misrepresentation has become a term of the contract; or the contract has been performed; or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Act, notwithstanding the matters mentioned (above).

"Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.

"Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or has been rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.

[EXC]

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

Just a quick question for someone in the know this has just been playing on my mind the banks seem to be very reluctent to tell everone the actuall cost to them of there charges why. Lets just use a bounced d'd for example if it actually cost them nothing (what with the example of a d'd bouncing i belive is right) can they actually charge you for somthing that costs them nothing.

There will always be a cost to the bank - however small - for the non-payment of a payment instruction. As pleaded by the banks and accepted by all 3 courts, the charges all relate to the service of the 'consideration' of whether to honour a payment instruction or not. The Supreme Court ruled that in essence banks can charge what they like for this service - in the same way a shop can charge what it likes for a tin of beans. And therefore the banks' costs of providing that service are irrelevant.

[davidl]

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

Exc the problem is there is no service provided in the first place is there ,if there is enougth funds they pay it if there isnt they dont ,i have never had a d'd go through when there wasnt enought money in my account it just seems the bank are charging for nothing and claiming they provide a service when in essance there is no service at all,
and all the banks have done is put some decorations on it for the courts. (basically lied).

[Yoda]

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

Any mileage in presumed undue influence?

"Presumed undue influence: in these cases the complainant only has to show, in the first instance, that there was a relationship of trust and confidence between the complainant and the wrongdoer of such a nature that it is fair to presume that the wrongdoer abused that relationship in procuring the complainant to enter into the impugned transaction. In presumed undue influence cases therefore there is no need to produce evidence that actual undue influence was exerted in relation to the particular transaction impugned: once a confidential relationship has been proved, the burden then shifts to the wrongdoer to prove that the complainant entered into the impugned transaction freely, for example by showing that the complainant had independent advice. Such a confidential relationship can be established in two ways:

a: certain relationships (for example solicitor and client, medical advisor and patient) as a matter of law raise the presumption that undue influence has been exercised.
b: even if there is no relationship falling within (a), if the complainant proves the de facto existence of a relationship under which the complainant generally reposed trust and confidence in the wrongdoer, the existence of such relationship raises the presumption of undue influence. In a (b) case therefore, in the absence of evidence disproving undue influence, the complainant will succeed in setting aside the impugned transaction merely by proof that the complainant reposed trust and confidence in the wrongdoer without having to prove that the wrongdoer exerted actual undue influence or otherwise abused such trust and confidence in relation to the particular transaction impugned."

REFERENCES:

• Barclays Bank v O'Brien 1 AC 180 (1994) and 4 All ER 417; also published at bailii.org/uk/cases/UKHL/1993/6.html
• Duhaime, Lloyd, Contract Law
• Duhaime, Lloyd, Legal Definition of Unconscionable
• Royal Trust v Ritchie 2005 SKQB 420, published at canlii.org/en/sk/skqb/doc/2005/2005skqb420/2005skqb420.html
• Waddams, S., The Law of Contracts (Toronto: Canada Law Book, 2005), p. 369-371.

[PocketTheDifference]

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

Exc the problem is there is no service provided in the first place is there ,if there is enougth funds they pay it if there isnt they dont ,i have never had a d'd go through when there wasnt enought money in my account it just seems the bank are charging for nothing and claiming they provide a service when in essance there is no service at all,
and all the banks have done is put some decorations on it for the courts. (basically lied).

I second this Ive had loads of DD's Bounce, but never any through so no service provided just a sorry its bounced and since you havnt got the funds we will take money of you that you obviously dont have ....

[Centium5000]

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

Any mileage in misrepresentation?

Any mileage in presumed undue influence?

You'll find both in the LB report to the OFT mate:

LB's initial views on the Legal Issues submitted to OFT - Legal Beagles

Keep going though, it's always good to explore new options

[Yoda]

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

??????

Unconscionable

A bargain or contract which is clearly unfair, exhorbitant, harsh, contrary to common sense or good conscience.

Unconscionability is used to defeat or challenge contracts. For some reasons, it has become hard and fast associated with the vague term bargain. Many contract law books refer to the doctrine of unconscionability by using the phrase unconscionable bargain, as if a bargain was an alternate legal creature from a contract. It is not. But lawyers, and especially law professors don't like change so if it was good enough for British judges in the 1800s, it's good enough, period.
Even the revered Chitty on Contracts refers to the doctrine of unconscionable contracts under the heading unconscionable bargains.
Legal historians expend reams of paper trying to justify a history of the doctrine of unconscionability when in fact, it crystalized from an 1888 decision of Justice Kay in Fry v Lane.
At this time, in the history of the common law, the traditional rigidity of the common law often rubbed horns with its alter ego, the touch-feely character of equity. Where there had been no fraud or clear undue influence, the common law saw no reason to extract a sinking man from his improvident bargain. A contract is a contract; freedom of contract and all. But the courts of equity saw a need for those exceptional cases where a contract was obviously excessively harsh and especially where one of the parties was poor, or relatively ignorant, or elderly, or all three.
William Fry was described as just such a poor and ignorant man; still, a helluva legacy to have in perpetual law reports. In any event, Justice Kay uttered those magic words:

[davidl]

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

centium 5000 you said it is always good to explore new option well

I put this forward before but had no reply

when i first opened my account with abbey i was 16 and never recived any charges till i was 18 (during that 2 year period i regually went overdrawn as i new i woulnt get charged)

and that has made me think as i still have the same account i opened with them now why did they not charge me? I will guess at they are not allowed to apply charges to somone below the age of eighteen,

then that made me think further if that is the case they would of sold me a account(possibly a youth account) where in the terms and conditons there would be no mention of overdraft charges and as i still have the same "youth" account now would they be eligable to charge me?

[Tools]

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

A legitimate question david.

Although, at some point they will have updated their T&C's (probably included with one of your monthly statements and binned as we all did). By continuing to operate your account you are deemed to have accepted these changes.

That is the general gist of what the banks defence would be, however, this may still be an argument in your favour, albeit a tenuous one.

Nattie may be able to explain more in detail about student accounts better than I can.