July 7th Hearing

[EXC]

The hearing is listed for 3 days - 7 to 9 July and is again scheduled to be heard at the RCJ.

I have asked the OFT to clarify the format ie will the judgment on historicals simply be handed down or will submissions be made? The OFT said that the Market Study that was due for publication about now, is still ''a few weeks'' away.

Needless to say this will be a very significant hearing and I would reccomend anyone who can make it to attend. I'll be organising a LB bunker for the duration with overnight accomodation.

[EXC]

Re: July 7th Hearing

Bugger. Looks like we won't get a judgment on historicals at the July hearing.

Also. the OFT have issued a policy statement on the publication of test case documents which dosen't bode well for obtaining annexes G1 & G2.




----- Original Message -----
From: Kate Farrow
To: EXC
Sent: Thursday, June 12, 2008 7:19 PM
Subject: July hearing



Hi Nick

I understand that you would like some clarification on the format of the 7-9 July hearing.

The hearing is to determine whether the UOD terms in the test case banks' basic account and historic personal current account contracts (and certain other non-mainstream current accounts) can also be assessed for fairness under the UTCCRs and whether they are capable of being penalties at common law.

There will be skeleton arguments submitted by the parties in advance which will cover both of these issues.

• On Penalties, there will be submissions with opposing positions between the parties on some terms; and
• On 6(2) exemption, the position is agreed between the parties. There are not likely to be real issues unless the judge raises some.

He may make certain rulings at the hearing, however it is more likely that he will reserve judgment for a later date.

On a related matter, we have tried to improve clarity on our website by publishing details of our policy for publication of the test case documents. The policy is available on the test case document page at http://www.oft.gov.uk/advice_and_resources/resource_base/market-studies/current/personal/personal-test-case/personal-documents


Kate


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Test case - documents

Policy for publication of test case documents on our website

We recognise the importance of being as open as we can about our work on personal current accounts, what we are doing, how long it is likely to take and how we will engage with stakeholders. So we have made our personal current accounts website as up-to-date and useful a source of information as we can.

Owing to the public's interest in the test case, and suggestions from stakeholders and the court service, we will publish some of the test case court documents on the website.

When deciding which documents to publish, and when, we will consider things like:

• confidentiality restrictions, and
• whether a document increases understanding of the case.

Generally, we will publish documents that are publicly available from the court, for example the 'statements of case' (minus attachments).

We will not automatically publish other types of documents which are only available on application to the court, but you can put a request to us.
In each case, we will consider:

• whether it is in the public interest to disclose the information, and
• whether it will increase understanding of the test case.

Where the answer to either of these questions is 'no', we will not disclose it at that time. But, when the test case is finished, we will reconsider whether any documents not disclosed during the case, should be disclosed.
We have published Schedules A and B to the particulars of claim, even though they were not publicly available. This is because we decided that it was in the public interest to publish them and the court and the other parties to the case agreed. Publication of these Schedules should not be taken as setting a precedent for disclosure of other restricted documents, any disclosure will only be made after carrying out the assessment set out above and getting any necessary agreement from others.

If you wish to access a court document which is not available on the website, or offer any other suggestions about improving understanding of our work, please email retailbanking.study@oft.gsi.gov.uk.
All files are pdf unless specified
24 April 2008
High Court judgment on bank charge test case (653 kb)
15 November 2007
OFT's joint reply and defence to counterclaims (940 kb)
Banks defence and counterclaim documents
Abbey National plc (2.5mb)
Barclays Bank plc (377 kb)
Clydesdale Bank plc (326 kb)
HBOS plc (6.2 mb)
HSBC Bank plc (1.1 mb)
Lloyds TSB Bank plc (474 kb)
Nationwide Building Society (583 kb)
Royal Bank of Scotland Group plc (3.6 mb)
15 October 2007
Amended Particulars of Claim (278 kb)
Schedule A to OFT's particulars of claim (Excel 156 kb)
Schedule B to OFT's particulars of claim (Excel 586 kb)
31 August 2007
Particulars of Claim (55 kb)
26 July 2007
OFT/Banks/FSA litigation agreement (258 kb)
OFT/RBS/FSA litigation agreement (59 kb)

[EXC]

Re: July 7th Hearing

From: EXC
Sent: 13 June 2008 06:51
To: Kate Farrow
Subject: Re: July hearing



Hi Kate

As ever, many thanks for that. Your'e a star.

It's really useful to know that we probably won't get a judgment on historicals during the hearing as I can manage the expectations that we will.

I seem to spend half my time these days, in some quarters of the campaign, trying to dispel the conspiricy theories and accusations that the OFT are not interested in pushing the proccess forward on behalf of consumers and not communicating with them!

Cheers

Nick



----- Original Message -----
From: Kate Farrow OFT
To: EXC
Sent: Friday, June 13, 2008 8:44 AM
Subject: RE: July hearing

Hi Nick

We're always happy to receive suggestions about ways to improve understanding of our work through our communications. I am currently reviewing the latest Q&As to see if they could be any clearer in light of the questions you sent me.

Thanks
Kate

[Amethyst]

Re: July 7th Hearing

Thats really good info to know EXC. A shame on historicals but not that suprising as they havent really been discussed as yet. I'll amend notices accordingly.


I'm trying to get down at least for one of the days hopefully all three.

[Budgie]

Re: July 7th Hearing

The hearing is to determine whether the UOD terms in the test case banks' basic account and historic personal current account contracts (and certain other non-mainstream current accounts) can also be assessed for fairness under the UTCCRs and whether they are capable of being penalties at common law.


There will be skeleton arguments submitted by the parties in advance which will cover both of these issues.

• On Penalties, there will be submissions with opposing positions between the parties on some terms; and
• On 6(2) exemption, the position is agreed between the parties. There are not likely to be real issues unless the judge raises some.

He may make certain rulings at the hearing, however it is more likely that he will reserve judgment for a later date.

1) On penalties. The OFT should, by now have submitted their updated G1 and G2 annexes ( the OFT advised at the CMC that this would be done by 5th June ) The updated G1 lists all the individual terms, from the current T+C's, that the OFT originally claimed were capable of being penalties but which the Judge decided in his original ruling were not. I believe the updating to G1 was being performed to show the Judges reasons why these are not considered penalties. The updated G2 annexe relates to historic terms and lists all the individual terms that the OFT originally thought were capable of amounting to penalties in the historic T+C's. The updating should show which of those terms the OFT considers will fall under the Judges original ruling and are therefore not penalties and others which the OFT ( even taking into account the original judgment ) still consider are capable of being penalties and WHY so. I am sure that the Judge ( with the additional skeletals being provided by the OFT and the Banks ) will be pretty much decided before the commencement of the 7th July hearing as to which way his decisions will fall. We will just have to wait and see whether he is sufficiently decided so as to actually issue judgment on these matters at the hearing itself. He will certainly have had enough time to consider matters.
Also bear in mind that the penalty aspects for both the current and historic terms need to be considered for the very basic accounts ( as the original judgment did not cover these account types).

2) It was basically decided and was agreed between the OFT and the Banks that all historic terms, as well as the present terms, are subject to assessment of fairness under UTCCR1999. So this part should be just a rubber stamping exercise.

I checked with the RCJ and it is unlikley that we will be able to get copies of the G1 and G2 annexes from the Court. We would need to call into Room EB13 at the RCJ and ask to see the list of submitted documents that are available for public release. The Court Manager that I spoke to suggested that these would normally just be the main court documents such as POC and Defences etc. He suggested that we ask the OFT if they were prepared to issue us with copies of the G1 and G2 annexes. Exc has already done this !

[EXC]

Re: July 7th Hearing

The OFT were not prepared to play ball on supplying the annexes.

[Budgie]

Re: July 7th Hearing

Bugger

OK, so they can't let us have a physical copy.

How about cheekily asking Kate if she can tell us verbally what's contained within. IE the nitty gritty. Which Banks are the OFT claiming still have Terms and conditions in historic terms and those of basic accounts that they still consider contain clauses that are capable of amounting to penalties under common law.

As this information has already been passed to the Court and the Banks and will be made public on 7th 8th July its not that much of a secret anyway is it.

I psomise I won't tell anyone.

It would be nice to have the details, it would be like having a look at the menu before we go to the restaurant !!!!!

Budgie

[ed.]

Re: July 7th Hearing

We know the banks like their restaurant analogies Budgie, so it's worth a try!

Nice try though Exc, if they won't cough before hand at least it sounds like we will get them afterwards with some fingers crossed.

[EXC]

Re: July 7th Hearing

I don't think it's worth pushing the issue Bud. As helpful as she is she's not going to compromise herself if she dosen't have to and as Ed says, we'll probably get to see them at some point anyway. We may well get to know some of the details at the hearing.

Shame though as I would have liked to have seen what terms the OFT did not consider capable of being penalties.

[Budgie]

Re: July 7th Hearing

We will get to know all of the details at the hearing as they will of course be discussed and argued.

But I doubt if we will actually get to see the annexes. After all we haven't been able to get hold of the original G1 and G2 annexes yet.

However, I am just an inquisitive nosey bugger and want to know NOW.

The description of the annexes is interesting and although I may be grasping at straws I think we may safely assume that there will be some good news at the 7th July hearing.

Even taking into account the original judgment and all the circumstances and explantions we do at least we know there are some terms which the OFT still consider are capable of amounting to penalties under common law, otherwise there wouldn't be two annexes.

It is difficult to imagine that there could be any different circumstances to be taken into account for historic terms that have not already been covered in the discussions relating to to present terms. So there is a bloody good chance that the terms that the OFT have identified have a good chance of actually being accepted by the Judge. A judgment on those lines, subject to appeal, would at least mean that some claims could be given the green light to proceed and I seriously doubt that the Banks would appeal the Judges decision in this matter. It would be seriously taking the ****.


Budgie

My guess is that it is most of the BASIC ACCOUNTS that contain terms that are capable of being penalties. The basic accounts are the ones with no overdraft facility.

[Tools]

Re: July 7th Hearing

Sticking my neck out here, but I would also like to further speculate that Lloyds and Clydesdales historics be contained in the `subject to penalties` Annex

This is only speculation(and a bit of hoping as I have a counterclaim with Yorkshire Bank[Clydesdale]) and more than likely be proved completely wrong on the 7th

[EXC]

Re: July 7th Hearing

Yet another delay to the publication of the OFT's Market Study into retail banking that is to determine:

''the wider questions about competition and value for money in the provision of personal current accounts, such as:
• transparency of costs to consumers, and • ease of switching.''

The Market Study began in March 2007 and was due to be published ''by the end of the year.''

On 15 Nov 2007 they announced ''After reviewing interactions with court proceedings and taking legal advice it has been decided that the findings of the market study into banks will not be published in advance of the test case. When they are published there will be a consultation with stakeholders before the final recommendations are published.''


In the CMC statement on 23 May it was ''in the next few weeks''

In the test case Q&A's updated on 30 May it was ''in a few weeks time''

And then in a conversation with Emily Woodman in early June, ''a couple of weeks''.

She's now saying it will be ''July'' although I've asked her to confirm if it will be before of after the hearing.

I'm not quite sure what to read in to this. In my view the test case should have no bearing on the Market Study (not to be confused with the PCA investigation) but one can only assume it has. It now looks quite possible that the Market Study will not be published until after the PCA investigation despite KF telling me recently that the Market Study will throw some light on when the PCA investigation will be completed!

I have to say it is disappointing that the OFT appears to be procrastinating yet again.

[EXC]

Re: July 7th Hearing

----- Original Message -----

From: Emily Woodman OFT
To: EXC
Sent: Tuesday, June 24, 2008 1:43 PM
Subject: RE: Market Study

Hi Nick

Can't be more specific than that I'm afraid!

Regards

Emily

[Budgie]

Re: July 7th Hearing

Thanks for the update EXC.

I suspect they have a numebr of versions of the Market study and PCA report ready to go ( and continually being updated with recent changes in the Banks T and C's ). It's probably unlikely they will issue anything before the 7th July hearing and will wait to see how the Judge sees things wrt to the penalty charge issue and the UTCCR1999 aspects related to historic accounts. I suppose there will also be an update regarding the appeal against the judgment for current terms on the 7th July and the OFT will probably want to delay things because of the appeal as well.

I suppose you cannot blame them but it doesn't help those of us sitting patiently waiting.

Budgie

[TANZARELLI]

Re: July 7th Hearing

Thanks for the update EXC