Tweet
Day 9
The OFTs Brian Doctor picked up where he left off yesterday on the interpretation and the interpretations of interpretations of the all important meaning of ‘the main subject matter ‘ referred to in section 62b of UTCCR. ‘’We must adopt the typical consumers’ view of what the main subject matter is as it is ultimately a matter of interpretation’’ and that it ‘’cannot include services the supplier is not obliged to supply’’.On 62a he said that the First National Bank appeal judgement in the House of Lords made no real distinction between 62a and b and that the banks were not putting forward 62a independently.
Doctor then spent quite some time on defining the word ‘price’ in the regulations which state that the price for the main subject matter in the contract is exempt from regulation. ‘’The price’’ he said ‘’is the agreed sum for the exchange of services and goods but many payments in contracts are not the price’’. And he made an analogy of vacating a rented property and being charged for repairs but what the regulation stipulates is ‘price’.
He said that ‘’nothing has changed’’ between historical and current terms and conditions. ‘’Some banks have written 2 new versions since these proceedings have begun’’ and that ‘’the receipt of all this bumph by the consumer hasn’t changed a thing. The new contracts have been introduced to provide a theoretical construction to meet the regulations and the clauses were designed to fit the exemption’’.
Quoting some T&Cs that warned customers of unwanted charges the judge joked ‘’as opposed to wanted charges?’’. He said that as the banks conceded that only a minority of people incurred the charges they cannot claim it is a core part of the bargain. ‘’If the charges were for the main subject matter, why do they have a discretionary policy to waive them?.
Pushing his luck a bit, Doctor said that ‘’in some countries in Europe drawing a cheque without the funds is an offence’’ but the judge smiled and said ‘’we’re not in Europe’’. Although Doctor conceded that the level of the charges is not relevant to this hearing, he said that they were ‘’prohibitively expensive’’. He argued that if a customer wanted to make use of the service ‘’it would be extremely difficult to work out the cost. You’d need a wet towel to work out what it is‘’.
On the banks submission that the charges were for ‘consideration‘ , ‘’we reject that out of hand. There is virtually no consideration charge elsewhere (outside the banking industry)‘’ and ‘’the service charge has been created and is a metaphor for what actually happens.
Overall his performance today was marginally better than yesterday. Although he didn‘t get in quite the same muddle it seems to me that his haphazard delivery is part and parcel of his style. But it was clear the judge found his submission difficult to follow. On several occasions when Doctor was pressing home a point the judge had to ask him which area of his case it was referring it to.
On occasion he would labour over a point that it was clear the judge had already understood and accepted. He also repeated points from yesterday that the judge had to remind him ‘’we’ve covered that’’.
But his strategy of concentrating his case on the interpretation and applicability of the regulations must be right as this is what this hearing is all about. He did come up with some very convincing arguments that the judge appeared to accept.
In my very humble opinion, if the OFT is to win it’ll be on the weakness of the banks case rather than the strength of the OFTs’ as effectively this hearing is about the banks challenging the authorities view that the charges are exempt from regulation and to a large degree it’s for the banks to prove otherwise. We live in hope.
At the end of today the judge asked the parties to take stock and map out the schedule for the rest of the hearing. The OFT are expecting to finish by tomorrow ( which should be the most interesting day of their submission when they go through the banks T&Cs) and Friday is adjourned. On Monday Brian Doctor will set out his stance on PIL and the banks will each give their reply and the hearing could be completed by Thursday.
Comment