Brennan v Rabinowitz

[TUTTSI]

Re: Brennan v Rabinowitz

I am looking forward to your reporting of the event - I am sure that both of you will will be able to report back with all the gory details.

xxx

[crashbandicoot]

Re: Brennan v Rabinowitz

Me too, just seen it should be over by now...

Crash

[EXC]

Re: Brennan v Rabinowitz

I'll write up a little something in the next hour or so.

[Budgie]

Re: Brennan v Rabinowitz

Haha, Exc you beat me home.

I will post after Exc as for certain reasons, which I am not at liberty to divulge, Exc's report is likely to be a lot more accurate than mine would be LOL.

It was great to meet up with Exc again, to be introduced to Tom Brennan and also to stare out Rabinowitz. It was also very pleasant to gaze at the extremely fit Megan Murphy of the FT.

Budgie

[EXC]

Re: Brennan v Rabinowitz

Hopfully Budgie will post somethimg up tonight - I haven't had a chance to write anything up yet and will do it tomorrow but briefly:

Tom started first and was excelent - very polished. Rabinowitz was disapointing in that he was very on the record and in fact was more pro bank than he was at the test case. He didn't even attempt to address the main issue - ''are the charges fair'' - and simply looked at it in legal terms. He was quite derogatory to those who ran into an unauthorised overdraft and showed no humanity at all. And he bu**ered off
without attending the drinks do after. Chicken.

Financial Times court correspondent Megan Murphy however did put an interesting slant on the issue. And as Budgie alluded to earlier, she was seriously attractive and easily won the 'Debate Babe' of the evening award.

Tom looked like he was enjoying the wine laid on after and I wouldn't be at all surprised if he had at least a mild headache in the morning.

[Budgie]

Re: Brennan v Rabinowitz

I am looking forward to Exc's full report, because I know what's coming !!!! But here are a few quotes to wet your appetite. Under Chatham House rules I can't attribute them to anyone but I guess it's not to difficult to work out who said what.

"No one knows the potential value of the bank charges situation, it is certainly millions, even billions and will probably be the biggest case this century"

"If you had been asked by the bank if you would like services such as these then at the time you would most certainly have said NO"

"The OFT are continuing with the Test Case because they actually believe the charges are unfair"

"Customers wanted a free if in credit model"

"Terms and conditions are quite clear, unless you are stupid or cannot read "

"Something cannot be a penalty if you don't actually breach the contract"

"It's only by focussing on the wrong thing that you get the wrong result"

"If you went into Starbucks and purchased a cup of coffee for £2.80 you wouldn't then start a claim against them because it costs them a lot less than £2.80 to make it would you".

"Is there some sort of irresponsible consumer behaviour going on here that hasn't really been picked up on by the media coverage"

"90% of people never make use of an overdraft facility or experience a charging situation"

"The Banks are taking a huge risk by moving this legal issue forward"

[EXC]

Re: Brennan v Rabinowitz

Debate
Part 1 of 2

The 3 speakers on the debate panel were Tom Brennan, lead RBS test case QC Laurence Rabinowitz and gorgeous pouting blonde Californian FT court correspondent Megan Murphy. The host, on behalf of the event promoter, the Financial Services Lawyers Association, was Miss Moneypenny look alike, Professor Eva Lomnika.

As there was some vague reference to the debate being held under Chatham House Rules I will refer to the panel speakers as A, B & C.

The host set the scene by saying that ‘’I’m sure everyone has had experience of bank charges’’ and that the amounts ‘’were not insignificant’’ and that one can ‘’get zapped and zapped again’’. and the charges can ‘’mushroom’’. She set out the current legal position and introduced the speakers.

First speaker A started by questioning the legitimacy of the charges under common law and the UTCCR regulations. ‘’Why should there be a £39 charge for ‘computer says no?’ ‘’ He cited charges in the Republic of Ireland where the Ulster Bank charges just £3.50 for going overdrawn. ‘’The irony is that Ulster bank is owned by the Royal Bank of Scotland who charge £38 here’’.

On the banks’ service charge argument he said that bouncing a payment ‘’by any common sense definition is the refusal of a service. I can’t follow the logic that the refusal of a service is also the provision of one’’. In a lot of cases, he said, ‘’you didn’t realise you were going overdrawn and therefore making an informal request for an overdraft so you are being charged for a service that you didn’t know you asked for and if you had been asked, you would have almost certainly have said no’’.

Speaking of the UTCCR core terms argument he said ‘’If you sat down with your bank manager and asked how much it would cost to bounce a direct debit and he says ‘’that’ll be £38 sir’’ and you say ‘’great, I’ll take 8 of those’’ , so if that was a main term of the contract I would accept it but that is not purpose of the contract’’.

On penalties he said ‘’ from my position the House of Lords have already dealt with this issue in a case between the Director General and First National Bank’’ where the ‘’Director General said that terms which only come into play in default are actually unfair’’.

‘’So where are we now? The OFT has finished it’s investigation but continue with the test case. That’s got to lead me to the conclusion that they believe these terms are unfair. This is not an academic exercise, it’s a real legal issue’’.

‘’If I were the banks faced with this investigation and a growing consumer revolt, I would throw a lot of money at this and get the best lawyers and as many as I could and take this case through the courts for as long as I could. I would also ask for a waiver from the FSA and the courts in order to stop any current challenges and in the meantime I would carry on charging. This is exactly what appears to be happening’’.

If I were the OFT , the day that I had finished my report I would go to the High Court and seek an interim injunction to prevent the continued use of these unfair charges because I am the government, I have decided that these charges are unfair, and I have a duty to stop them being used. No more waivers, no more dilly dallying.

Speaker B began by explaining the ‘free if in credit banking model’ and that ‘’this is what customers want. A free if in credit model means that you can bank for free as long as you stay in credit and the bank will process all your instructions to pay without charge. Now what involves the banks in committing substantial resources to customers apparently for no money at all? The banks have to have tellers, everyone whinges when there aren’t enough tellers. they have to have branches, everyone whinges when branches close. The bank has to stay open as long as we want. Now you have to believe in Santa Clause and the tooth fairy to think that anyone is going to do something for free without any sort of compensation ever. The banks don’t believe in tooth fairies and nor do I. The economic model in effect involves saying that if you are out of credit and you put in what you say is an instruction to pay but in fact can’t be an instruction to pay, then you will get charged. Now is this tricking anyone? How can it be tricking anyone where you sign a contract at the outset?….. as soon as they go into debit however, they whinge’’.

‘’There’s been a lot of publicity, most of it adverse, that the banks are behaving unfairly…they’re bad….they’re making big profits….it’s terrible….we want our money back. Any contract lawyer will tell you that if you sign a contract, unless you’re absolutely stupid or can’t read, you are bound by the terms and conditions’’.

Referring to speaker A he said ‘’what does he think is happening? When a customer makes a payment instruction effectively what they are doing is triggering a process which requires the bank to process that payment instruction. The payment instruction doesn’t just pop into the hands of a cashier. It goes through systems which are expensive, it goes through controls which are expensive, it gets to someone who’s employment is expensive and they have to decide if they are in credit. That is a service’’.

He did give what could be an indication as to how the banks would react if the court decided on the outcome of the initial hearing that the charges terms could be assessed under UTCCR.. ‘’The next step is, if the regulations do apply,…it would be absurd to suggest that they were unfair…look at the provision of the tellers, look at the provision of the buildings…it is only by focusing on the wrong things that you get to the wrong result’’.

[EXC]

Re: Brennan v Rabinowitz

Some photos from the evening.

The panel members, from left to right, are Tom Brennan, gorgeous pouting Megan Murphy, RBS QC Lawrence Rabinowitz and host Eva Lomnicka.


http://www.fsla.org.uk/content/view/52/15/