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

[EXC]

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

Yes and that's what I'm asking really - if transcripts have enough authority to quote from. I'll ask Tom.

But either way what she said was unequivocal in that taken together the terms do produce significant imbalance, not that they may or might.

And although the context in which she said it (below) was in regards to an alternative OFT challenge, Crow's response does seem to confirm that imbalance could be suitable for a ''several challenge'' - 'several' being legally defined as 'of or relating separately to each individual involved'.

Also, where Crow refers to a ''stuctural' challenge he seems to qualify 'structural' as meaning the structure of the contract as a whole rather than the cross subsidy business model and I think this where some people have misinterpreted 'structural' in the judgment.




MR CROW: Thank you, my Lord. Could I pick up a couple of loose ends from this morning? First, my Lady Hale's question, if the OFT wanted to undertake, in a sense a structural challenge. Having taken instructions, we have nothing to add to the response I gave, which is that the remit which is given to the OFT under the directive is a term-by-term targeted challenge, not an opportunity for a structural challenge.

BARONESS HALE: You couldn't take a group of terms and say, "Taken together, do these pass the fairness test?"

MR CROW: One would have to consider each term in the context of the contract as a whole. I guess one could have a several challenge, but I think one wouldn't end up -- it is getting too abstract -- with a collective challenge to the contract as a whole. It would have to be a challenge to the terms severally.

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. That would seem to me to be an extremely sensible sort of enquiry to be made and one which would not lead to some of the deleterious results that others might.

MR CROW: We will certainly give some thought to that. I am grateful.

[Amethyst]

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

Thanks for prompt reply, short letter which just says
TAKE NOTICE that the GENERAL APPLICATION will take place on 23rd February 2010 at 11.40AM
at Shrewsbury county court (continues with address)
When you should attend
20 minutes has been allowed for the GENERAL APPLICATION
Please note this case may be released to another judge, possibly at a different court.

From MSE - anyone else heard anything from Shrewsbury?

[davidl]

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

I dont know if i am confused but if overdraft charges are charges for a service then how comes the banks can but a black mark by your name if you go overdrawn as if going overdrawn is a service provided by the bank you agreed to when opening the account then you are not defaulting of missing payments you are meerly using the service provided.

[Smasher]

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

Like any other service you use, if you don't pay on time, they can default you.

[davidl]

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

But smasher the overdraft is a service offered by the banks so if say for instance i wanted to use that service and pay for somthing by my card when no money was in my account then why should i get a black mark for being overdrawn.

[Smasher]

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

That would have happened under historic terms. You would get a black mark for effectively failing to pay the bill on time now. I might be wrong, but that's how I understand it.

[davidl]

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

That and the fact that when that happens it causes a significant imbalance in the contract like the section 5.1 that people are talking about

[davidl]

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

Just one quick question for anyone I was just reading through the unfair terms in customer contracts regulations 1999 and it struck me that why did the oft not apply for
An injunction before starting the test case, I see it was probably because they hadn’t made a decision into farness but if that was the case then the test case shouldn’t of started in the first place it should of been left till a decision was made.

[EXC]

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

Just one quick question for anyone I was just reading through the unfair terms in customer contracts regulations 1999 and it struck me that why did the oft not apply for
An injunction before starting the test case,

If the OFT had applied for an injunction the banks would have contested the injunction application on the same grounds they contested the test case and it would have been no different to the course that the test case took.

[borgbaiter]

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.'

the damages we would be claiming would be the charges? that being we were told they were default/breach/penalties therefore unenforcable. if rescission was the remedy then it would be for the banks to tell us what it actually cost them to run our accounts, which they never will.



Borgbaiter

[PocketTheDifference]

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

Stephen Hester faced several questions from the Treasury Committee on expected bonuses and on his own pay package, worth a potential £9.6m.

Mr Hester added that his own pay package was worth next to nothing as the share price of RBS was so low, currently 34.7 pence.
Shares in the bank have fallen for the past three years. They declined 41% last year and 87% in 2008.
He holds shares worth up to £3.4m but is only allowed to sell them in 2014, should the bank's share price rise above 70p.

On the government's asset protection scheme, which provides taxpayer guarantees against potential losses on bank assets

Dam Hester takes the pis*....

[Amethyst]

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

Which? have set up a campaign to write to Ian Pearson, HMT, to ''change the law''. Seems a little vague tbh and ''changing the law'' because a small percentage of bank customers want it AFTER the supreme court have made a decision against them seems a little naive to me, but any political pressure is welcome of course. I do still feel a referral to the ECJ is needed regarding the grey list implementation in the UK ? Which? seems to be talking about adding it to the Financial Services Bill similarly to unsolicited cheques etc.


Unfair bank charges - take action - Which? Campaigns

''We need your help to persuade the Treasury Minister, Ian Pearson MP, to change the law so that overdraft charges can be assessed. This will help ensure a future where charges are clear, transparent and proportionate.''

Dear Mr Pearson,

As one of the millions of people who have been hit by an unfair unauthorised overdraft charge by my bank, I was hugely disappointed by the Supreme Court’s judgement.


I believe unauthorised overdraft charges are completely disproportionate, and it seems outrageous that the Office of Fair Trading is unable to use the law to do anything about it.


I understand from Which? that it would be possible to change the law to ensure that this ridiculous situation does not carry on. I would urge you to amend the Financial Services Bill that you are taking through the House of Commons to ensure that the OFT is able to assess the level of unauthorised overdraft charges from now on. This will help ensure a future where charges are clear, transparent and proportionate.


The banks have enjoyed a huge amount of taxpayer support, and it is about time that they were made to charge consumers in a fair manner.


I look forward to hearing from you.

Yours sincerely,

[PocketTheDifference]

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

Are you wanting us to send a copy of this letteR?

[Amethyst]

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

If you'd like to, all helps I guess, I was really just letting people know of the campaigns going on, I have written to which to ask them what law they want changing so will let you know that part. Its all very well being in Plain English but at the moment it just sounds like a bit of a last ditch sulk ''we're not happy with the courts decision so we want the law changed''

[PocketTheDifference]

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

Thanks I would be more than happy to send a copy...or 2
Im suprised they havn't changed it off their own backs, nice to no we have...NO support from the government