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

[Amethyst]

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

Thing is, unless its agreed and passed in court, the same will happen as has with credit card charges claims. There will be no clarity and people will still legally be able to dispute the charges and will continue in the courts to obtain the proper legal redress - and I don't think the banks will want that to continue evermore either. That's why there is the test case.

[Jester]

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

Whilst that may be true, the whole reason they are arguing in the courts right now is because they don't want our legal system to rule on what they can and cannot do.

Why should that change with Wenesdays ruling ?

The OFT winning the case is merely a step-stone (as everyone agrees). The Banks STILL do not want a legal ruling on the level of their charges and will try everything to avoid that happening.

Thing is, unless its agreed and passed in court, much as with credit card charges claims will continue in the courts to obtain the proper legal redress - and I don't think the banks will want that to continue evermore either.

[EXC]

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

July 01 is a given, beyond that is an argument

Yep and this is the argument - that the 6 year limitation does not apply - as put forward by Tom Brennan:

There is indeed a very strong argument that the charges can be claimed back to 1 Jan 1995. Although the UTCCR 1994 (the original regulations) came into effect on 1 July 1995, the Directive applied to all contracts that were concluded after 31 December 1994. There is a gray area over contracts that were concluded before 31 December 1994 and the coming into force of the Regulations in 1 July 1995, but the point remains the same that claims can be back-dated to 1995.

There is an additional argument over the Limitations Act 1980:

Section 32(1)(b) of the Limitation Act 1980 postpones the commencement of the limitation period where

“any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.”

This particular provision was considered by the House of Lords in Cave v Robinson Jarvis & Rolf [2002] UKHL 18. As was pointed out by Lord Millet at paragraph 8:

"In such a case the period for limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The reason for the rationale is plain: if the defendant is not sued earlier, he has only himself to blame."

Section 32(2) of the 1980 Act provides that

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.


The banks have always known that the charges imposed for breaches of the overdraft facility have been disproportionate to the true cost to the bank of such breaches. The banks have consistently maintained that such charges are fair and reasonable and reflect the true cost to the banks. If those charges are found to be disproportionate, then it follows that the banks have deliberately concealed that fact from the public and from any potential claimant. It follows from this that the 6 year period of limitations does not begin to run until those facts have been, or could have been discovered by any claimant, i.e. the investigation or conclusions of the OFT in respect of bank charges.

There is also support for this position from the European Court of Justice (ECJ). InCofidis SA v Jean-Louis Fredoutthe ECJ was considering the issue of time limits in respect of Unfair Terms. Under the French national law, the first paragraph of Article L. 311-37 of the Code de la consommation provides:

`The Tribunal d'instance shall have jurisdiction to hear disputes arising from the application of this chapter. Actions brought before it must be raised within two years of the event which gave rise to them and are otherwise time-barred ...'.

The question put to the ECJ was

'Does that requirement of an interpretation in conformity with the system of consumer protection under the directive require a national court, when hearing an action for payment brought by a seller or supplier against a consumer with whom he has contracted, to set aside a procedural rule on pleas in defence, such as that in Article L. 311-37 of the Code de la consommation, in so far as it prohibits the national court, either on the application of the consumer or of its own motion, from annulling any unfair term which vitiates the contract where the latter was made more than two years before the commencement of proceedings, and in so far as it thereby permits the seller or supplier to rely on those terms before a court and base its action on them?'

Essentially, the question was whether or not the court must apply a limitation period laid down by national legislature.

The court concluded:

“It is therefore apparent that, in proceedings aimed at the enforcement of unfair terms brought by sellers or suppliers against consumers, the fixing of a time-limit on the court's power to set aside such terms, of its own motion or following a plea raised by the consumer, is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of the Directive. To deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time-limit fixed by the national legislature before seeking enforcement of the unfair terms they would continue to use in contracts.

A procedural rule which prohibits the national court, on expiry of a limitation period, from finding of its own motion or following a plea raised by a consumer that a term sought to be enforced by a seller or supplier is unfair is therefore liable, in proceedings in which consumers are defendants, to render application of the protection intended to be conferred on them by the Directive excessively difficult.”

This indicates that national time limits on claims involving unfair terms should not, in principle, be used to prevent consumers from having effective protection. The problem is that this was a case of a seller or supplier seeking to enforce the unfair contract term against the consumer, rather than a consumer seeking redress for the past use of an unfair term. The policy considerations remain the same, however, that national limitation periods in respect of unfair terms should not be applied to consumer cases.

After all, a right without a remedy is no right at all.

[natweststaffmember]

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

Like I said it was published today BBA Association - Home

Also the Mail got it wrong in saying ''If the OFT wins, as expected, it will announce its findings early next year''. The OFT has twice stated that it will be by the end of this year and that is also confirmed in the BBA Fact Sheet.

I think they have updated their factsheet as Orc posted it on MSE last week but on their site it says today's date....I wish I had saved their first version now
------------------------------- merged -------------------------------

I'm sorry. But I disagree with a lot of the posters on here who think that this is going to be a drawn out affair. Whilst I agree that a court needs to set the level of charges, I honestly don't think that Banks will want that to happen.

People seem to think that the Banks will fight this all the way. But in my eyes, if the Banks lose on Wednesday (and for all the speculation around the Net and Press it looks like they have lost) then I can see the Banks pre-empting everything and starting to pay out on a level that they think is fair.
Jester, here is where I see the difference. Wednesday is about whether the terms can be assessed for fairness. If the term is unfair then the contract as a whole is null and void and the charges are refundable in their entirety. If the banks paid out partially on a charge that they believe is going to be fair then we have a situation in which the term and contract are null and void but because they pay out on what today would be classed as fair that they somehow denullify(if such a word exists) or for want of a better word change the unenforceable into an enforceable contract because the charge would be fair TODAY but not YESTERDAY. It's like saying a CCA is unenforceable yesterday because the signature could not be read but because they have printed the name today that it makes it enforceable. I hope that long winded argument makes sense?
It is no secret that the reason the Banks paid out before everything was put on hold while the Test Case happened was the simple reason that they did not want to have to reveal what the TRUE cost to them of these charges were. Why is the situation any different now ?
The difference now is that if the banks' appeal fails then the banks can argue on the minutiae of a term that allows either for someone to be charged for be over their limit, for returning a payment, for paying a card payment or for paying an item increasing an unarranged in advance overdraft(for want of a better term). Before the argument was Penalties in law and UTCCR 1999 and now it is UTCCR 1999.
True, we all now know that the charges they inflicted bore no relation to what it actually cost them, but the situation is running parallel to that scenario. All that will change is that the OFT will be able to assess the charges for fairness. As soon as the Banks know this is going to happen, they will either negotiate directly with the OFT or pay out on a level they feel will be acceptable. On no account will they want a court to tell them what level that charge will sit at as it will then be set by law. Setting it by law will be better for us (the consumer) in the long run, but it won't suit the Banks. Far from it.
If the court does not tell them or agree that legally it is a fair charge then I will be urging claimants to take their case through the county court again. There is no half way house, its either in court or not and the OFT most certainly said that in their report on credit card charges.
To quote directly:
"1.14 It must be stressed that this is a statement of our position and reflects the exercise of our discretion as an enforcement agency. Only a court can decide finally whether a term is unfair, or at what level default charges should be set to meet the requirements of the UTCCRs. It should be kept in mind that other enforcers may apply for injunctions under the UTCCRs and that the UTCCRs may be relied upon by consumers in private claims"
If they now say that it isn't the case in 2009 and it was in 2006 then I would like to know why that is not the case anymore.
Plus, they are all coming under pressure from ministers who are desperate for us all to vote them back in next year.

A lot of you will pooh-pooh me for my assertion, but having done work for several banks AND dealt with a lot of board-level people at these Banks, this is what I believe the Banks will do. From now on it will be damage limitation for them.
I can understand that they may WANT to do this but they simply WILL NOT be able to do this under the regulations.
That is my belief pure and simple. If I am proved wrong then so be it. But I believe the Banks to be too devious to allow a court to set what the level of fairness is. They will try everything in their power to avoid that scenario. The only people who will be able to force a court decision is the OFT ... and the Banks will negotiate for all they are worth with the OFT to avoid a court setting the level.
Jester I respect your view but for the reasons set out above I don't disagree with it.
Everyone ignored my last post alluding to this, and you probably all will again. But I think we are about to see a big shift in things if everything goes the way of the OFT on Wednesday.

Jester if they settle the same as with Credit Cards, the advice I would have to claimants is that the County Courts can decide it as I would do with credit cards. Whilst they may want to do it that way, the politicians might want settlement, I want CLOSURE once and for all and that for me involves the courts.

[EXC]

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

Well good on Orc then.

It is no secret that the reason the Banks paid out before everything was put on hold while the Test Case happened was the simple reason that they did not want to have to reveal what the TRUE cost to them of these charges were. Why is the situation any different now ?

Though I agree with a lot of your sentiments I don't think the banks charge costs will ever be made public as - whether we like it or not - they are a matter of commercial confidentiality that a court has an obligation to protect and as someone from the OFT told me long ago, the court would be closed to press and public when dealing with that kind of evidence.

Though it's easy for me to say on a personal level (I don't have any claims in) and although there continues to be a great deal of genuine suffering while the test case grinds on, I like Amethyst hope that the test case reaches a firm legal conclusion in court. But the reality is that both the banks and the OFT have repeatedly said that only a court can rule on what a fair charge is anyway.

Although the OFT are initially obliged to seek voluntary compliance before going to court to enforce it, it would, in a practical way, have the same outcome as the OFT's investigation (not the test case itself) is a UTCCR investigation and as such they will seek a remedy within the framework of the regulations, just as a court would, and so there is no room for negotiation.

The best source of information on how the second stage proceedings of the test case will unfold is the Litigation Agreement http://www.oft.gov.uk/shared_oft/per...-Banks-FSA.pdf at section G and section 3.1 (a).

[Budgie]

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

Whilst I do not wish to disrespect any person's viewpoint I am growing increasingly tired of people on this and other sites crediting the banks with some form of moral conscience.

When will people realise that the banks do not care.

They do not care about the financial hardship and misery, anger and upset that they have caused to countless millions of Consumer by the use of these unfair unlawful charges.

They do not care about the families evicted from their homes or individuals losing their businesses or taking their lives because of financial difficulties significantly worsened by the implemenation of sadistic charging regimes.

They do not care about the damage caused to people's credit rating because they have taken people to Court because of failure to pay off overdrafts comprised mainly of charges.

They do not care about families unable to properly feed or cloth their children or themselves because all of the weeks benefit money has been taken by the bank to pay the previous months charges.

The only thing that banks are remotely interested in is money.

and to be honest they do not care very much about money either because the banks know, at the end of the day, whether they were eventually forced to pay back just the charges over the last six years or every single charge they have ever stolen from a Customer or whether they are forced to pay simple interest or compound interest by way of additional compensation none of it actually really matters to them because the Government will bail them out ( ie we the taxpayers will actually foot the bill for whatever refunds and compensation we end up securing ).

They certainly do not care about damage limitation, if they did they would have held there hands up after the first judgment went against them in the High Court.

The banks will just implement other devious ways of replacing the revenue lost as a result of whatever is eventually decided about charges. Charges for withdawing cash from ATM's, monthly account charges, higher interest rates plus a whole host of other little chargeable bits and pieces will soon replace any lost revenue.

The banks don't care how long it takes to resolve the issues in the substantive issues phase of the test case. In fact, as far as they are concerned, the longer it takes the better because that means they can continue to unjustly enrich themselves via their excessive charging regimes and by using stolen money to relend out at exhorbitant rates of interest and in so doing provide themselves with even more unjust enrichment.

The banks also don't care because they know that any money paid out in settlement to Customers is going to end up back with the banks in fairly short timescales anyway. People will use money to pay off other debts they have with the bank or other finacial institutions or will spend it in the shops ( which means the money will end up back in the banks ) or will spend it on holidays ( which means the money will end up back in the banks ).

No, the banks do not care, they dont care if it costs them £50 million or £100 million to fund their legal costs in fighting to the bitter end, they make £2.5 billion per annum minimum from charges, why should they care!

Oh I could go on and on. But am bored.

Roll on Wednesday !!!!!!!!

[stewie082]

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

I was actually called by Lloyds collections debt today, for the first time in about 2 months. Asking me when I was going to bring my current account upto date. It is currently in arrears for £95 with charges.

I was very polite and asked for the matter to be passed to the legal debt, and for them to take me to court because I'm not allowed to. And I am not paying!

I will stick with Bud on this one, Roll on wednesday! I dont expect the sun to shine and birds chirping, but just to know we are one step closer....
And before I get shouted down, yes Natwest I know this is one step in a long road of many etc etc.

Thanks to everyone for a great forum and always the first out with the news. I have no doubt on the day of the ruling, this is the place to be to get the news first!

Stewie

[WendyB]

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

I am torn on this one. I agree with Jester in that that is what the banks would like to see happen, and to be honest, as I have said before, (on the OFTthread, I think, I know it's there somewhere lol) if a situation happened whereby charges were refunded down to some sort of default level, then a lot of people, especially those in major hardship, would be glad of taking whatever was on offer, especially if it meant the difference between feeding their kids, losing their house etc. And who could blame them? By the same token, if this were to happen, then as Nattie says, take them to Court for the rest of the charges, as with Credit Card claims they would probably pay up before it hit court, instead of quoting para 1.1 of OFT 664 we would now quote para 1.4, as posted by Nattie.

BUT, from a legal precedent, law, logical point of view etc, and for a once and for all end to this, then it has to go all the way. Human nature, not to mention a lot of desperate people, hope for a speedy end although everyone knows this may not happen.

However, human nature and desperation being what it is, those desperate people won't care about the fact that it needs to go all the way, they want it finishing now, whether it's a partial result or not, because some of their charges now would be better than all of their charges in god knows how long by which time they might be living on the pavement..

Soooo, I'm not really sure which side of the fence to be on. My heart says yes, it's got to go to a conclusion. My head says, see what happens on Wednesday etc, if the banks offer a compromise and start paying out to a default level, take what I can now then see how it goes. Unfortunately I am not idealistic enough (or well off enough lol) to turn down money if they want to refund it to me.

Finally, I completely agree with everything Budgie has said in that THE BANKS DO NOT CARE, they will get the money back one way or another.

Roll on Wednesday, even if it's only to see what the next move needs to be!

Can I offer a suggestion for the thread title

"THE RESULT - What It Means and What Happens Next" (In P.I.L of course!_

[Amethyst]

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

first news SHOULD be on twitter, then here within a couple minutes after that in a new thread in announcements (set up to automatically do that), then possibly the full judgment will be on the supreme court site, then as soon as we get out the court and the dongles working we'll post in more detail. I expect the bbc will be pretty speedy with more detail too as they usually are............ anyone be at home wednesday between 9.45 and 10.30 and on puter willing to type incessant babbling onto this thread send me your phone number and I can call as soon as I get out the door?

[EXC]

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

first news SHOULD be on twitter, then here within a couple minutes after that in a new thread in announcements (set up to automatically do that), then possibly the full judgment will be on the supreme court site, then as soon as we get out the court and the dongles working we'll post in more detail. I expect the bbc will be pretty speedy with more detail too as they usually are............ anyone be at home wednesday between 9.45 and 10.30 and on puter willing to type incessant babbling onto this thread send me your phone number and I can call as soon as I get out the door?

And as a back up I'll be calling Enaid - hopefully during the hearing - with a 'win' or 'lose' to be posted on this thread.

[Amethyst]

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

sorted best warn her to get her speed listening ears out

[enaid]

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

sorted best warn her to get her speed listening ears out

They are prepared

[TANZARELLI]

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

Just wanted to wish us all good luck for Wednesday not that we are going need it but hey ho.

Whilst I do not wish to disrespect any person's viewpoint I am growing increasingly tired of people on this and other sites crediting the banks with some form of moral conscience.

When will people realise that the banks do not care.

They do not care about the financial hardship and misery, anger and upset that they have caused to countless millions of Consumer by the use of these unfair unlawful charges.

They do not care about the families evicted from their homes or individuals losing their businesses or taking their lives because of financial difficulties significantly worsened by the implemenation of sadistic charging regimes.

They do not care about the damage caused to people's credit rating because they have taken people to Court because of failure to pay off overdrafts comprised mainly of charges.

They do not care about families unable to properly feed or cloth their children or themselves because all of the weeks benefit money has been taken by the bank to pay the previous months charges.

The only thing that banks are remotely interested in is money.

and to be honest they do not care very much about money either because the banks know, at the end of the day, whether they were eventually forced to pay back just the charges over the last six years or every single charge they have ever stolen from a Customer or whether they are forced to pay simple interest or compound interest by way of additional compensation none of it actually really matters to them because the Government will bail them out ( ie we the taxpayers will actually foot the bill for whatever refunds and compensation we end up securing ).

They certainly do not care about damage limitation, if they did they would have held there hands up after the first judgment went against them in the High Court.

The banks will just implement other devious ways of replacing the revenue lost as a result of whatever is eventually decided about charges. Charges for withdawing cash from ATM's, monthly account charges, higher interest rates plus a whole host of other little chargeable bits and pieces will soon replace any lost revenue.

The banks don't care how long it takes to resolve the issues in the substantive issues phase of the test case. In fact, as far as they are concerned, the longer it takes the better because that means they can continue to unjustly enrich themselves via their excessive charging regimes and by using stolen money to relend out at exhorbitant rates of interest and in so doing provide themselves with even more unjust enrichment.

The banks also don't care because they know that any money paid out in settlement to Customers is going to end up back with the banks in fairly short timescales anyway. People will use money to pay off other debts they have with the bank or other finacial institutions or will spend it in the shops ( which means the money will end up back in the banks ) or will spend it on holidays ( which means the money will end up back in the banks ).

No, the banks do not care, they dont care if it costs them £50 million or £100 million to fund their legal costs in fighting to the bitter end, they make £2.5 billion per annum minimum from charges, why should they care!

Oh I could go on and on. But am bored.

Roll on Wednesday !!!!!!!!

Couldn't agree more Bud mate. I think if people try to imagine banks less as and organisation/firm/business but more like a collective of individuals all out to get rich and fleece us by any way they can then its easier to see why they are so uncaring, ruthless, scavaging, heartless, uncompassionate, devious, unjust, unemotive scuzzbuckets.

[Luminol]

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

Just a note, to say thanks to the beagles team that are attending and endeavoring to get the news here first, I know you all have your own lives so thank you for taking the time and expense on behalf of us all.

Lumi x

[gaz2006]

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

poor poor banks always maligned just because they are arrogant and charge abusive charges that they cant justify .....lol