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After looking at a lot of cases and doing a lot of reading since, and before, the final blow in the Supreme Court I think it would be a jolly good idea to have a discussion on the ACTUAL merits of continuing the fight for redress for historical bank charges in the courts system.
I know I WANT there to be a case, but I am also very aware that this desire to get some redress for the banks actions in the past may be clouding my judgment and that I'm not looking entirely objectively at the merits of the 'new arguments'
The main arguments for discussion are
1. UTCCR Reg. 5(1) – An imbalance of rights and obligations, contrary to good faith, and to the detriment of the consumer.
2. The Misrepresentation Act 1967 or common law Mistake
3. The Competition Act 1998, Chapter II
4. Undue influence (common law)
5. CCA 1974 (as amended), s140A & 140B – unfair relationship
6. Common law penalty
So hopefully looking at the converse side (ie the side that isnt trying to make the law fit our case ) and think about what the banks will defend, will help us make our case stronger
So one bit I've been thinking on is Misrepresentation.
2. The Misrepresentation Act 1967 or common law Mistake
To use this to gain any redress the consumer needs to show the misrepresentation or Mistake acted to their DETRIMENT. Can we do this? I'm not so sure.
The Banks told us all, over and over, that the charges for what are now called 'instant overdraft requests', were punishment fees for put us off doing it again and to cover their costs. We know thats what they were, but obviously the Supreme Court and High Court have found that was not the case. SO the banks misrepresented a legitimate facility to allow you to spend money you dont have in a very expensive way. Had the banks NOT misrepresented the charges as penalties (a punishment for breaking the terms of your contract) then would you have been better or worse off ? or would there have been no difference in the way you acted with your account ? My thoughts are that if you think you will be punished by a fee you will take more care to avoid the fees than if you know you are applying for an expensive short term loan.
As we put it in our submissions to the OFT ''Consumers would aver that they had been acting on a misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and would contend that the charges should not have been part of the consideration in exchange for any so called contracted 'package' of services. Should it matter if the relevant charges are for a service disguised as a penalty or for a cross subsidy disguised as a service? ''
So can we, and if so how, prove that the misrepresentation of the charges historically was to our detriment ?????????
The other bit is the obvious...
1. UTCCR Reg. 5(1) – An imbalance of rights and obligations, contrary to good faith, and to the detriment of the consumer.
I have problems with some of the arguments put forwards relating to the grey list in the UTCCR
Yep that all sounds okay until you reach para 2 of the schedule....
self explanatory really - take for example the Penalty Charges defence to strike out list of reasons their might be an unfair imbalance...
a. The bank reserves itself the right to vary terms and conditions as it sees fit. ( COVERED BY a above)
b. These variations are imposed without discussion with the customer. (covered by b)
c. The customer has no choice other than to accept the imposition of new or varied terms or else to accept the contract as terminated. (covered by b)
d. The bank not only varies the banking contract because of business necessity such as to reflect an increased level of inflation or an increased bank base rate – but also to restructure a banking product or to raise interest rates beyond what is needed to maintain the status quo. Such variations are to the prejudice of the customer. yep agree but how do you prove that ? and is it actually against competition rather than UTCCR ?
e. It is submitted that such accumulated variations over a period of time add up to substantially a banking relationship which is wholly different to that which existed at the time the original contract was made and wholly different to expectations of either party (bank/customer) at the time the original contract was made. (covered by b)
Any thoughts ?
and then of course there is the limited scope of
5. CCA 1974 (as amended), s140A & 140B – unfair relationship
It only applies to charges incurred after April 08, or to charges which remain outstanding which were incurred previously.
also
6. Common law penalty
without overturning the Supreme Court Judgment and SMiths high court judgment I can't see a way on earth to get that argument back and accepted.
As I said a few days back talking about the UTCCR judgment obliterating any penalty arguments - ''I think it does because the charges are the same which ever law you look at them under so if they are deemed 'a part of the price for a package of services' under UTCCR then they ARE 'part of the price for the package of services ' generally and as such cannot possibly be a breach. They can't be a breach under common law AND 'a part of the price for a package of services' which destroys any hopes of getting ANY of the charges deemed as capable of being penaltys (even those judged to be in Smiths judgment) as the UTCCR ''a part of the price for a package of services' superceeds that.''
Okay thats me for now, I have some issues with the Competition arguments too but I need to go back and collect up the references as its all a bit complicated lol, hope you understand why I want to look at the other side of the coin and understand I'm not being defeatist by any stretch of the imagination, and will want to thrash out these points as well.
Any views, thoughts, slaps etc very welcome
I know I WANT there to be a case, but I am also very aware that this desire to get some redress for the banks actions in the past may be clouding my judgment and that I'm not looking entirely objectively at the merits of the 'new arguments'
The main arguments for discussion are
1. UTCCR Reg. 5(1) – An imbalance of rights and obligations, contrary to good faith, and to the detriment of the consumer.
2. The Misrepresentation Act 1967 or common law Mistake
3. The Competition Act 1998, Chapter II
4. Undue influence (common law)
5. CCA 1974 (as amended), s140A & 140B – unfair relationship
6. Common law penalty
So hopefully looking at the converse side (ie the side that isnt trying to make the law fit our case ) and think about what the banks will defend, will help us make our case stronger
So one bit I've been thinking on is Misrepresentation.
2. The Misrepresentation Act 1967 or common law Mistake
To use this to gain any redress the consumer needs to show the misrepresentation or Mistake acted to their DETRIMENT. Can we do this? I'm not so sure.
The Banks told us all, over and over, that the charges for what are now called 'instant overdraft requests', were punishment fees for put us off doing it again and to cover their costs. We know thats what they were, but obviously the Supreme Court and High Court have found that was not the case. SO the banks misrepresented a legitimate facility to allow you to spend money you dont have in a very expensive way. Had the banks NOT misrepresented the charges as penalties (a punishment for breaking the terms of your contract) then would you have been better or worse off ? or would there have been no difference in the way you acted with your account ? My thoughts are that if you think you will be punished by a fee you will take more care to avoid the fees than if you know you are applying for an expensive short term loan.
As we put it in our submissions to the OFT ''Consumers would aver that they had been acting on a misrepresented but reasonable assumption that the relevant terms were related to costs rather than service charges and would contend that the charges should not have been part of the consideration in exchange for any so called contracted 'package' of services. Should it matter if the relevant charges are for a service disguised as a penalty or for a cross subsidy disguised as a service? ''
So can we, and if so how, prove that the misrepresentation of the charges historically was to our detriment ?????????
The other bit is the obvious...
1. UTCCR Reg. 5(1) – An imbalance of rights and obligations, contrary to good faith, and to the detriment of the consumer.
I have problems with some of the arguments put forwards relating to the grey list in the UTCCR
(g) enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;
(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;
(l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;
(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;
(l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;
2. Scope of paragraphs 1(g), (j) and (l)
- (a) Paragraph 1(g) is without hindrance to terms by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof immediately.
(b) Paragraph 1(j) is without hindrance to terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately.
Paragraph 1(j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.
a. The bank reserves itself the right to vary terms and conditions as it sees fit. ( COVERED BY a above)
b. These variations are imposed without discussion with the customer. (covered by b)
c. The customer has no choice other than to accept the imposition of new or varied terms or else to accept the contract as terminated. (covered by b)
d. The bank not only varies the banking contract because of business necessity such as to reflect an increased level of inflation or an increased bank base rate – but also to restructure a banking product or to raise interest rates beyond what is needed to maintain the status quo. Such variations are to the prejudice of the customer. yep agree but how do you prove that ? and is it actually against competition rather than UTCCR ?
e. It is submitted that such accumulated variations over a period of time add up to substantially a banking relationship which is wholly different to that which existed at the time the original contract was made and wholly different to expectations of either party (bank/customer) at the time the original contract was made. (covered by b)
Any thoughts ?
and then of course there is the limited scope of
5. CCA 1974 (as amended), s140A & 140B – unfair relationship
It only applies to charges incurred after April 08, or to charges which remain outstanding which were incurred previously.
also
6. Common law penalty
without overturning the Supreme Court Judgment and SMiths high court judgment I can't see a way on earth to get that argument back and accepted.
As I said a few days back talking about the UTCCR judgment obliterating any penalty arguments - ''I think it does because the charges are the same which ever law you look at them under so if they are deemed 'a part of the price for a package of services' under UTCCR then they ARE 'part of the price for the package of services ' generally and as such cannot possibly be a breach. They can't be a breach under common law AND 'a part of the price for a package of services' which destroys any hopes of getting ANY of the charges deemed as capable of being penaltys (even those judged to be in Smiths judgment) as the UTCCR ''a part of the price for a package of services' superceeds that.''
Okay thats me for now, I have some issues with the Competition arguments too but I need to go back and collect up the references as its all a bit complicated lol, hope you understand why I want to look at the other side of the coin and understand I'm not being defeatist by any stretch of the imagination, and will want to thrash out these points as well.
Any views, thoughts, slaps etc very welcome
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