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

[rhysjames250]

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

yes down to the cost, but what im saying is the OFT liked what he said, so how bout using these arguments when drafting up the counter letters.

[Amethyst]

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

Legal Beagles

Here

unless you are talking about some other arguments ?

[Amethyst]

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

Can I just say something about the penalty argument.

I don't agree that it can be bought back in because the charges have been deemed by the supreme court to be part of the charge for a package of services and not directly related to any specific transaction and therefore no breach can exist.

If the charges were found to be outside of the main price of having an account then yes it could have come back in. But they werent, so it isn't.

To me it doesnt matter that its within the package of services under UTCCR - the penalty argument is common law - which is superseded and refined by statute and regulation isn't it, so if its not seen as a breach under UTCCR it can't be under common law.

[Amethyst]

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

hmmmm thoughts on this CCA argument pls.


4: As such the pursuer contends the contract creates an unfair relationship and by reference to section 140b of the ''Act'' asks the court make an order to ''(a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person); ''; ''(b) require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement; '' and ''(c) reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;

[Smasher]

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

Can I just say something about the penalty argument.

I don't agree that it can be bought back in because the charges have been deemed by the supreme court to be part of the charge for a package of services and not directly related to any specific transaction and therefore no breach can exist.

They were not in posession of the same evidence that we have and with claims being tried on an individual basis, we have the opportunity to present everything.

Just take a claim against Abbey for instance, their defence states:

"8. The claimant's contention that the fees are unenforeceable and/or are "penalty charges" is denied. The fees reflect and are proportionate to the Defendant's administrative expenses incurred due to the Claimant's breach of contract and are a genuine pre-estimate of the damage suffered by the Defendant"

Make your claim armed with the charge notification letters and whatever other supporting docs and it is hard to imagine a judge throwing that argument out. It is a penalty, or it is misrep, it has to be one or the other, their own defence leaves them with that choice.

BTW has anyone had a rejection letter from Abbey yet?

[Amethyst]

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

Just pasted one on the Abbey LLP thread actually. (PCA working forum sticky)

[Amethyst]

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

I understand what u are saying. Bunch of skanking liars arent they and I just dont know how to put penalties back in. It has to be misrep of historicals I think because anything else would have to overturn the supreme court utccr judgment and the high court penal judgment.

[Amethyst]

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

I am having a MASSIVE problem with this, basically as it is simply lies lol

although I do not share all the conclusions that he reached. He examined
each of the Relevant Charges and the circumstances in which they fell to be paid. He
concluded that it was impossible to say that each charge was given in exchange for the
event that triggered it. I agree with that conclusion. It accords, of course, with the primary
way in which the Banks put their case. The same conclusion would, I think, have been
reached by a reasonably informed customer who applied his mind to the question. In
each instance the Judge identified aspects of the provisions for payment of the Relevant
Charges that would be anomalous if they were intended to be paid in exchange for the
service to which they related. I will take one of the charges made by Barclays to illustrate
such anomalies. A ‘Paid Referral Fee’ is charged when the Bank honours a cheque,
standing order or direct debit in circumstances where the account is overdrawn without
prior arrangement. The fee is not charged per transaction but at £30 per day. But the fee
is only charged on a maximum of three days per month. A customer would not conclude
that the fee was charged in exchange for the transaction or transactions concluded on the
days when the charges were made but that any other similar transactions in the course of
the month were provided free.

That says barclays would only charge a maximum of £90 a month.

So any barclays customers who have incurred more than £90 a month step up.

Need some pre 07 barclays terms and conditions if anyone has any ?

For Clarity, a Paid Referral fee is charged when we pay an item which results in your account going overdrawn more than £5 above your agreed limit. The fee will also be charged if we pay any further items which increase your unauthorised borrowing by £1 or more however, you will only pay one of these fees per account per day and you will not be charged more than 3 fees per account within any monthly charging period

[EXC]

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

They were not in posession of the same evidence that we have and with claims being tried on an individual basis, we have the opportunity to present everything.

Just take a claim against Abbey for instance, their defence states:


Make your claim armed with the charge notification letters and whatever other supporting docs and it is hard to imagine a judge throwing that argument out. It is a penalty, or it is misrep, it has to be one or the other, their own defence leaves them with that choice.

BTW has anyone had a rejection letter from Abbey yet?

In my view even with the defence stating breach of contract, it does nothing to alter the terms & conditions on which any consideration of a breach of contract would be judged.

[Smasher]

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

If the evidence is absolutely compelling, why not?

In my view even with the defence stating breach of contract, it does nothing to alter the terms & conditions on which any consideration of a breach of contract would be judged.

Ok, I think I get you. So you mean Abbey could say unauth OD fees are not the ones that caused breach of contract?

[EXC]

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

I mean in the context of penalties, not misrep as that's pretty clear the bank is guilty.

But as with J Smith's penalty declaration, the question of a 'penalty' turns on whether breach of contract has occurred according to the terms of the contract. A County Court defence stating that they are penalties is not contractual.

[Smasher]

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

Ah yes ok, I hadn't considered that. There are some T&Cs that do state it is a breach of contract. I can't remember which ones, but they are here.

[Amethyst]

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

innocent misrepresentation under common law occurs when the representor has reason to believe that the facts are true. Besides rescission, the only remedy for innocent misrepresentation is the discretionary remedy of lieu of rescission. The measure of damages under innocent misrepresentation is substantially lower than under s.2(1) to be defined by Evans L.J in William Sindall plc v Cambridge County Council [1994] 1 WLR 1016 as: 'the difference in value between what the plaintiff was misled into believing that he was acquiring, and the value of what in fact he received.'

[EXC]

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

I wonder if we could use this sentence from the transcripts by one of the Supreme Court judges - Lady Hale - in support of UTCCR sec 5 and CCA 140, for POCs, responses to bank complaints and FOS?

BARONESS HALE: ''There are several terms that say you pay this for this, and this for this, and this for this, and put together that tots up to something that produces a significant imbalance.''

[Amethyst]

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

That was just in the hearings wasn't it, rather than the judgment ?