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

HSBC trying for a Limitation Exercise?

How do you mean?

[MIKE770]

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

Without knowing the actual situation, in a lot of cases HSBC try to work to limit their possible liabilty if they begin to think there may be chance of loosing, that is all the comment questions, .

[EXC]

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

HSBC are certainly trying to do that in this case, as any defendant would really.

[MIKE770]

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

HSBC are certainly trying to do that in this case, as any defendant would really.

Like the Avator = They were the days watching & Mechanicing

[EXC]

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

I'm not sure if I've posted this before but it's a High Court judgment in the case of Spreadex v Cochrane:

http://www.bailii.org/cgi-bin/markup...method=boolean

Although the case had nothing to do with bank charges, it does alter our understanding of how sec 5.1 of UTCCR applies and how it could possibly be successfully used in a bank charges case.

Sec 5.1 of UTCCR reads:
5.(1) 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.

Since the Supreme Court judgment we had all assumed that a challenge under 5.1 would have to demonstrate that the claimant had actually suffered detriment due to an imbalance in the contract and that the test for fairness would be subjective and therefore could only apply to certain claimants.

But the Speadex judgment - which is binding - makes clear that the test for fairness under 5.1 is not subjective but actually objective:

''Importantly, the Regulations do not operate by precluding reliance on the contractual term in cases where it would be unfair to do so. Their prescription is absolute and binary: the term is either unfair, and hence unenforceable, or not. Its unfairness must therefore be judged by reference to all situations in which it might potentially be applicable.''

[enaid]

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

So does that mean detriment to anyone can count?
ie if the charges were taken before essential bills etc.
Sorry just trying to understand it that's all lol

[EXC]

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

So does that mean detriment to anyone can count?
ie if the charges were taken before essential bills etc.
Sorry just trying to understand it that's all lol

It means that if someone was ultimately successful in winning a bank charge case under sec 5.1, bank charges would be unenforcable generally because the test is for the potential to be imbalanced - there is no requirement to have experienced any detriment, only that the contract has the potential to be detrimental. So in theory someone could take a bank charge case to court even if they've never incurred a bank charge in their life.

[leclerc]

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

I'm not sure if I've posted this before but it's a High Court judgment in the case of Spreadex v Cochrane:

http://www.bailii.org/cgi-bin/markup...method=boolean

Although the case had nothing to do with bank charges, it does alter our understanding of how sec 5.1 of UTCCR applies and how it could possibly be successfully used in a bank charges case.

Sec 5.1 of UTCCR reads:
5.(1) 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.

Since the Supreme Court judgment we had all assumed that a challenge under 5.1 would have to demonstrate that the claimant had actually suffered detriment due to an imbalance in the contract and that the test for fairness would be subjective and therefore could only apply to certain claimants.

But the Speadex judgment - which is binding - makes clear that the test for fairness under 5.1 is not subjective but actually objective:

''Importantly, the Regulations do not operate by precluding reliance on the contractual term in cases where it would be unfair to do so. Their prescription is absolute and binary: the term is either unfair, and hence unenforceable, or not. Its unfairness must therefore be judged by reference to all situations in which it might potentially be applicable.''

Is that judgement being appealed as far as you are aware because that might be the case.

[EXC]

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

Is that judgement being appealed as far as you are aware because that might be the case.

I'm almost certain it isn't. Though I'm not sure it would matter as it's a very clear indication of how courts apply the test of unfairness.

In this particular case it was found that the clause in question didn't in fact form part of the contract, but if it did it would have fallen foul of sec 5.1.

[Dougal16T]

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

Good morning all, re: HDR -v -HSBC

Slight technical glitch on last post.....it should have read ''We have applied for an Oral Hearing for permission to Appeal, which will be heard in the Court of Appeal'.'

Watch this space........

Best wishes

Dougal

[MIKE770]

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

Watching!

[EXC]

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

This morning a judge in the Court of Appeal ruled that a Beagles' member cannot argue the Requirement of Good Faith in his case against a bank as it is precluded by sec 6. (2) (b) as per the Supreme Court judgment.

This is surely the final nail in the coffin for using sec 5.1 of UTCCR.

Nonetheless it was a tenacious, brave and above all necessary attempt for which the claimant and his legal team should be proud. Although the claimant was represented through the Pro Bono Unit there may be adverse costs involved for which Beagles will happily pick up the tab.

[enaid]

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

Well done all round again to everyone involved, sorry it was not the outcome that was hoped for. Just once again proves the law can be balanced in favour of who it pleases IMHO.

[leclerc]

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

When will the judgement be made available on Bailii?

[Dougal16T]

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

Afternoon all,

It may be sometime.... There are matters arising from this hearing which may require detailed examination by the Master of the Rolls.

More news in due course.
Kind regards to all,

Dougal.

ps: It is not over until it's over!!