CCA and UTCCR arguments

[Amethyst]

Re: CCA and UTCCR arguments

I think we were looking more at negligent or innocent misrep rather than fraud, but now I have been through it in more depth I dont think any of them truely apply and we are trying to make them fit.

The only way the misrep of the purpose of the charges can be used is within the UTCCR imbalance or CCA unfair relationship arguments - thats my conclusion today anyway lol.

[natweststaffmember]

Re: CCA and UTCCR arguments

The issue will still be on interpretation of the wording of letters with regards to whether you use letters from banks to claimants. I am not quite convinced that misrepresentation currently is an argument winnable in court to be honest

[hicskis]

Re: CCA and UTCCR arguments

By Amethyst:
"The only way the misrep of the purpose of the charges can be used is within the UTCCR imbalance or CCA unfair relationship arguments - thats my conclusion today anyway lol."

1. Charges are not penalties - they therefore are administratative costs;

2. The purpose of administration charges is in some way, in the broader sense of terms - for the banks to recover some of their overall operational costs;

3. These administratative costs (charges) form an integral part of the core contract - and are clearly detailed in plain and simple language;

4. Cross Subsidy - i.e the bank's charge for some services and not others.

This is what the courts have decided - so where's the Misrepresentation.

Be very careful - any argument based on this will have to firstly overturn the rulings of the lower courts i.e this would have to go all the way to Europe because what you're trying to do is overturn the previous decision - are you not?

[Amethyst]

Re: CCA and UTCCR arguments

I did think I was being quite negative about the misrep argument ?

People are arguing that the bank led them to believe by virtue of contract terms, charging leaflets and notification letters (so strongly that it took the supreme court to work out what the charges actually are ) the charges were penalties for breaching your contract and that the charges covered the banks cost of dealing with your misdemeanour.

I dont think it can be used as misrep as the material meaning is the same, you overdraw you get charged, which is what I am trying to say.

but can it be used as part of the unfair relationship argument ?

[hicskis]

Re: CCA and UTCCR arguments

By Amethyst:
"I dont think it can be used as misrep as the material meaning is the same, you overdraw you get charged, which is what I am trying to say.

but can it be used as part of the unfair relationship argument ?"

Why? If it's already been decided that it's Fair.

This is what's going around in my head at the moment. This is why i don't see people being successful on the new arguments - not in their current form anyways.

I would add however that when a Supreme Court Judge leaves a marker as they did with UTCCR (5) then they think there generally could be grounds - however this can also be a good way of sending everybody away chasing their tails so they are not looking at the Judgment itself and what just happened. I don't think it's the latter - that is just silly.

So it comes back to this:

Regulation 5 of the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999

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.

Question?

Under what circumstance would the contract term, or any other term within the contract - that gives reason to or permits a bank to charge, by anthing done or not done (140a CCA) - cause a significant imbalance in your rights?

[TUTTSI]

Re: CCA and UTCCR arguments

As I understand it, the bank when you open your account give you a set of T&C's which you agree to. They then amend then periodically and give you the chance to walk away or continue. Now if you continue with them after receiving amended T&C's from them, this aparently acceptance of the new T&C's.

I was having this conversation with someone last week and when it is put to me that way it narrowed the argument and favoured the banks.

So if that section of the act that the Supreme Court left open for consumers can be worked on for a legal argument against their charging regime not being individually negotiated then maybe this will help?

Tuttsi

Why? If it's already been decided that it's Fair.

This is what's going around in my head at the moment. This is why i don't see people being successful on the new arguments - not in their current form anyways.

I would add however that when a Supreme Court Judge leaves a marker as they did with UTCCR (5) then they think there generally could be grounds - however this can also be a good way of sending everybody away chasing their tails so they are not looking at the Judgment itself and what just happened. I don't think it's the latter - that is just silly.

So it comes back to this:

Regulation 5 of the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999

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.

Question?

Under what circumstance would the contract term, or any other term within the contract - that gives reason to or permits a bank to charge, by anthing done or not done (140a CCA) - cause a significant imbalance in your rights?

[Amethyst]

Re: CCA and UTCCR arguments

It hasn't been decided to be fair. Its been decided the charges can't be judged to be fair or unfair on the basis of price under the UTCCR, and that they are incapable of being penal.

We're not looking at the individual terms with the CCA - we're looking at how the contract and terms in it is used to create an unfair relationship. But we can only use that in recent cases.

So cases from pre 2007 (which a majority of cases in the courts system are) only have UTCCR 5(1). So you have to look at the entire contract - the terms are in PIL individually, but what about as a unit ?

In the case of Nationwide, yes they are in PIL (we've been through fine tooth comby wise) and they are (when you take price out of the equation) fair, in my opinion. Unless a Nationwide customer has a case where the bank DID allow transactions to take you over your agreed limit and applied charges upon charges, or had a linked loan and issues with payments to that from the current account.

Lloyds had no T&Cs for current accounts before November 2007 and argue terms were implied - is there an implied term that Lloyds can unilaterally alter the implied terms ? That needs testing in court.

The others, historical terms wise, created the spiralling of charges which have had such a massive effect on so many people, mostly those most vulnerable people and those on the lowest incomes. We know it isnt fair, but legally, is it actually an argument ?

I don't agree with the cross subsidy argument (legally).
I don't agree with Misrepresentation (legally).
I don't think there is a competition argument on the charges (legally)
The CRA parts follow the law (however wrong we may feel that is) - there is no requirement on reporting so the terms are correct to say MAY - even though it feels unfair.

Thats just my opinion. I'm not a lawyer or legally qualified in any way shape or form, I'm a layman like most others campaigning for fairness in banking.

People who want to continue, because they feel so passionately about the issues and have been so badly affected by the charges themselves - we should try our very best to help them get the best chance possible of gaining some redress, but we have to balance this with being honest about the chances of winning and how hard the banks will fight this.

Just read Tutts post - the terms which allow the bank to make the charges have already been qualified as not being individually negotiated, but this does only mean they CAN be looked at under the UTCCR - (and not on price as per 6(2) ) the actual lack of negotiation isnt unfair in itself.

[thincat]

Re: CCA and UTCCR arguments

eace:Hi Everyone,
I read the thread so far and I'm starting to get an understanding of where things are. One
issue though which I want to throw into the mix as it were- The "dreaded" HUNG PARLIAMENT. Apparently things tend to slow down if there is one which could be a 2 edged sword for us all who are challenging the current status quo re banking in general
as well as banking charges. I feel, despite setbacks that it IS better to keep trying
because I feel something IS going to come out of this.

Thincat:fencing:

[hicskis]

Re: CCA and UTCCR arguments

"Victory goes to the player who makes the next-to-last mistake." - Chessmaster Savielly Grigorievitch Tartakower (1887-1956)

Indeed there is no legal requirment that banks must report to the CRAs - so they use the word "may" and don't -

But - we all have a right to an accurate Credit File (legally) - so the reality is that they must.

[ThunderBird]

Re: CCA and UTCCR arguments

That old law about 'an eye for an eye' leaves everybody blind. The time is always right to do the right thing.

Martin Luther King, Jr.

[Amethyst]

Re: CCA and UTCCR arguments

A wet fish in the eye is worth a skunk at a garden party ?
Me 2010

lol, so can we go with plain english say what you mean rather than quotes that can be read any which way ............ especially by tired minds - as I see it you are both saying what I've been thinking - that we're so bent of some retribution for the people who have been so terribly screwed by the banks that we are trying too hard to make arguments fit when they really just don't.

Yes ?


(sorry)

[hicskis]

Re: CCA and UTCCR arguments

I think what Thundrbird is getting at is that this rip off could stop or be stopped today if the powers at be really wanted....

I would agree.

I'm not sure i fancy coming to your next Garden Party though...

[ed.]

Re: CCA and UTCCR arguments

The only problem with the misrep angles I see is it basically only causes two outcomes:

the banks 'spun' the truth in court documents and in the appeal to get cross subsidy in

or

if, as a consumer we believed we were paying in these moments of 'perceived and led to believe wrongly' default a price for a cross subsidy we may have attempted negotiation or moved to a better model, say credit agency as brain isn't warm yet

Whatever 'the true state' of these charges is doesn't necessary change the application of them or the instances they'd have been incurred in which is the counter argument I'm expecting ie you'd gone over your limit, you'd have to still forgotten about that direct debit etc etc

As a solitary standalone argument, like mistake in law stuff, I can't see it being the silverbullet - however the clear thought 'default' gives you, as the banks originally stuck to AND have had to stick to on credit cards (and let's face it, same sort of charge, same price, samey same) you think there's nothig you can do about it. The fact it was for (as they now say) cross subsidy it adds a nail to unfairness for me.

I like the misrep argument, even though there are only two outcomes that I can see as above, but I don't think it would be enough on it's own. The angle has to be believing they were default charges, admin costs etc 'we' were left with no choice but to accept them UNTIL they were challenged.

Natty I do sort of agree, but I'd say the misrep was clear because no charge notification etc ever just said 'administration costs' it was always qualified with 'because of this' or 'owing to we've incurred extra costs' and some banks are still kicking out that wording now.

The qualification there, especially with broadly similar language on credit cards etc, makes it instance specific for me. But I've read equally 'clear' wording before that Judge's have gone their own way on.

Hikskis, but you could also say by being administration charges, and not penal, it's therefore implied that the liquidated damages taken by the bank in such instances are clearly therefore proportional on the basis they aren't penal and I can see a very skewed way back to the penalty issue on this. Problem is Smithy ruled the terms weren't capable of being penal even though in effect he found that the charges taken against the terms were disproportional - but all of that is irrelevant in reality for the Supreme court because they were taken in by the part price argument.

The ridiculous thing is the charges really weren't the price or part price for the individual work the Bank 'suffers' when you exceed a limit BUT it is when the Bank doesn't charge you to cover your direct costs, but levies you with a spurious charge to subsidise others.

I'm rambling -ignore me!

[hicskis]

Re: CCA and UTCCR arguments

I've spent the last few days having another look at the Consumer Credit Directive (Europe) that's coming in to force in June, and at the progress of the Financial Services Bill which in reality won't get Royal Ascent until after the next election which has to be held by June.

The interesting thing though is this Bill must pass relatively quickly because it has to address issues that are contained within the European Directive.

If changes to this legislation bring about a fairer relationship with the banks with more transparent charging regimes (in the broadest sense of terms) - then i wonder where we are actually going with the UTCCR and CCA.

My pondering is that legal cases will be appealled and appelaed again - and this takes years. So even if people are successful - by the time an ultimate decision is made the Law will already have been changed.

This will i'm sure leave a small but i'm siding with Amethyst now - when i say i don't think any other legal argument can win - or even if there were and it was presented right - would be allowed to win for the sake of the Stability of the Financial System.

I start to wonder whether our work is already done?

[ed.]

Re: CCA and UTCCR arguments

Change has already been achieved there's no doubts there - you look at the bigger picture and while everything isn't rosy - far from it - things are slowly moving in the right direction overall.

Not much comfort for those who got 'stayed' though which is the biggest problem now.