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http://www.judiciary.gov.uk/docs/jud...ent_240408.pdf
446. The focus of the third proposed declaration is that the Banks’ wish to establish that, provided a Bank acted properly (as it was put in Mr Rabinowitz’s opening submissions) with regard to the manner in which it obtained its customer’s agreement to the terms under scrutiny, the requirement of good faith is satisfied and any enquiry as to how the Bank acted thereafter and any enquiry as to whether any contractual term causes a significant imbalance in the parties’ rights and obligations arising under the contract would be superfluous. They argue that this follows from a proper understanding and application of the speeches in the First National Bank case and the decision of the Court of Appeal in Bryan & Langley v Boston, [2005] EWCA Civ 973.
447. I have serious doubts whether in any case it would be appropriate to make a declaration of this kind in abstract terms and without regard to the facts of any particular case, but in any event I am not willing to make one without forming some view as to when, for the purposes of the declaration that the Banks seek, the process of making the contract containing the Relevant Terms is to be taken to be complete. Otherwise, I am not in a position to consider the implications of deciding that subsequent conduct cannot bear upon whether the requirement of good faith is satisfied, and otherwise the meaning of any declaration that I might make would be inappropriately obscure.
448. For these reasons I shall make none of the declarations about the requirement of good faith that the Banks seek.
446. The focus of the third proposed declaration is that the Banks’ wish to establish that, provided a Bank acted properly (as it was put in Mr Rabinowitz’s opening submissions) with regard to the manner in which it obtained its customer’s agreement to the terms under scrutiny, the requirement of good faith is satisfied and any enquiry as to how the Bank acted thereafter and any enquiry as to whether any contractual term causes a significant imbalance in the parties’ rights and obligations arising under the contract would be superfluous. They argue that this follows from a proper understanding and application of the speeches in the First National Bank case and the decision of the Court of Appeal in Bryan & Langley v Boston, [2005] EWCA Civ 973.
447. I have serious doubts whether in any case it would be appropriate to make a declaration of this kind in abstract terms and without regard to the facts of any particular case, but in any event I am not willing to make one without forming some view as to when, for the purposes of the declaration that the Banks seek, the process of making the contract containing the Relevant Terms is to be taken to be complete. Otherwise, I am not in a position to consider the implications of deciding that subsequent conduct cannot bear upon whether the requirement of good faith is satisfied, and otherwise the meaning of any declaration that I might make would be inappropriately obscure.
448. For these reasons I shall make none of the declarations about the requirement of good faith that the Banks seek.
