OK, so it's not the end of the world

[tomterm8]

Looking at the judgement, I don't think it's the end of the world. The supreme court has ruled that bank charges are a part of the core cost of service, and so the court can't rule on the matter of whether they are unfair under the UTCCR.

However, 99% of agreemets are fall under the consumer credit act 1974 as ammened by the consumer credit act 2006.

The consumer credit act 2006 gives the court explicit powers to alter credit agreements it deems result in an unfair relationship between the parties.

So, what the claims sites should be doing is getting together with lawyers, and rewriting the claims documents under the CCA 2006 unfair relationship clauses, and ditching the UTCCR argument.

Anyone following me?

[Curlyben]

Re: OK, so it's not the end of the world

Yes indeedy do.
Still fairness, but from a different angle.

Good to see you Tom.

[tomterm8]

Re: OK, so it's not the end of the world

Nice to see you, too, Ben.

[enaid]

Re: OK, so it's not the end of the world

Seconded Tom, it is nice to see you again and thanks for your opinion and input.
I am not with you as you will more than likely know lol, but them that do will suss it no danger.
Enaid x

[ed.]

Re: OK, so it's not the end of the world

Not finished Judgement yet (but so far I don't think the door is closed to old arguments given some wording) but completely agree on CCA matters....I've already been using it in newer - non bank claims.

Far from the end of the battle yet - to be honest if the Banks have any sense whatsoever they will start offering 35/65% settlements to get rid of people - because don't forget Reg 5 is still live albeit not for renumeration in this sense.

[Colin Power]

Re: OK, so it's not the end of the world

I agree we should not forget that we can still challenge the charges under s5(1) of the UTCCR 1999, I don't believe that this is the end at all.

[TUTTSI]

Re: OK, so it's not the end of the world

Ed,do you believe that the cases already in court which have been stayed, would we have to change our POC's in any way?

Not finished Judgement yet (but so far I don't think the door is closed to old arguments given some wording) but completely agree on CCA matters....I've already been using it in newer - non bank claims.

Far from the end of the battle yet - to be honest if the Banks have any sense whatsoever they will start offering 35/65% settlements to get rid of people - because don't forget Reg 5 is still live albeit not for renumeration in this sense.

[tomterm8]

Re: OK, so it's not the end of the world

It is vital to change the PoC of cases in court to reflect the judgement, and to include a line of action like I say in post 1, and to make claims under s5(1) if that hasn't already beein included. Otherwise, game over.

[ed.]

Re: OK, so it's not the end of the world

Tutts, yeah some tweaks would've been needed to existing POC's anyway - if for nothing else than to show why the TC so far had got penalties wrong etc so that's no great shake in reality.

We just have to knuckle down what new POC's should look like.

As posted elsewhere as well:

62. There is a further general point to be made. It seems likely that many of the
customers who have challenged Relevant Charges have done so on the basis that they are
excessive for the individual services to which they relate. They have treated the Relevant
Charges as being levied in exchange for those services.

Hands up anyone who was arguing that in Court???

Big difference between high fee for obligation failure and high fee for services received.

[Budgie]

Re: OK, so it's not the end of the world

My POC ( submitted via MCOL) from June 2007 ( yes it was that bloomin close ) stated.

Claimant contends:
a-The charges exceed the Defendant's losses
caused by such breaches. b-The Terms
permitting the Defendant to levy such
charges are unenforceable under Unfair Terms
in Consumer Contracts Regulations 1999,
Unfair Contract Terms Act 1977 and at Common
Law. c-If charges are a fee for a service,
then they must be reasonable under S.15 of
Supply of Goods and Services Act 1982.



I will definitely need to redraft my POC although I think I may have already done that in the later stages of the litigation (once the claim had been filed and I was contesting the stay )


But as a few quick first thoughts.



OK the penalty aspect is out of the window, although in some obscure way it may actually be possible to ressurect that argument. As the charges are now part of a complete package of services the contractual conditions by which Smith made his original decision have now altered.

The whole contract is still capable of being considered unfair using S5(1) and other regulatory criteria under S5.

It is also possible they could be considered unreasonable under the Supply of goods and services act.

Additionally I believe it is highly probable that there is a case under the Misrepresentation Act. How many of us actually received letters from our banks during the initial stages of our claims stating that the charges were in respect of our breach of contract and that these charges were considered fair and to cover the banks costs etc etc. The banks cannot have their cake and eat it too.

Just a few initial thoughts but will of course expand on these as matters become clearer.

Budgie

[Budgie]

Re: OK, so it's not the end of the world

Extract from a statement of evidence I produced in 2007.

-Further, under the UTCCR:
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.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract.
-The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in the contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.
-Halifax PLC’s charges have increased twice during the period in which my account was held, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank has unilaterally altered the terms of my account contract to my detriment, and to their advantage.
-The Claimant refers to the statement from the Office of Fair Trading (April 2006). With regard to the ‘cloaking’ or disguising of penalties, the OFT said this;

“4.21 The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for ‘agreeing’ or ‘allowing’ a customer to exceed a credit limit is no different from a customers default in exceeding a credit limit.) The UTCCR’s are concerned with the intentions and effects of terms, not just their mechanism”.
-However, and without prejudice to the above, in the event that the charges were accepted as being a fee for a service, the claimant submits that they are unreasonable under section 15 of the Supply of Goods and Services Act 1982.

[Smasher]

Re: OK, so it's not the end of the world

The banks cannot have their cake and eat it too.

Budgie

You're kidding, they've eaten theirs, yours and mine.. and still got their mitts on ones we haven't even baked yet!

But yes, there's surely a case to be had for misrepresentation. The PCA report already proves that they were not what they said they were..

[Budgie]

Re: OK, so it's not the end of the world

You're kidding, they've eaten theirs, yours and mine.. and still got their mitts on ones we haven't even baked yet!

But yes, there's surely a case to be had for misrepresentation. The PCA report already proves that they were not what they said they were..

They may have my cake on their plate but they haven't eaten it yet and if they try they may find it pretty difficult to digest.

The test case halted me in my tracks 2 years ago and I was prevented from pursuing my own claim for justice. Today has changed all that and if the OFT decide not to continue matters then I for one will certainly be taking matters into my own hands.

[Smasher]

Re: OK, so it's not the end of the world

Yeh, I just meant so far, we've done all the baking and they've done all the eating.

I'm in the same boat, I still have a claim and I'm itching to have make a go of it..

[thincat]

Re: OK, so it's not the end of the world

Having read the above posts I can see that this is going to get VERY interesting indeed.

Thincat