News from the CMC - May (OFT v Banks)

[Budgie]

Re: News from the CMC (OFT v Banks)

Well i think he is very confident in his initial judgement which is a good thing so hes happy to continue working with his findings in that judgement. The appeals seperate isnt it.

There are many different paths at the moment.
1) Original judgment, now subject to permission to appeal being granted in the appeal Court.
2) Upcoming judgment regarding Basic accounts and historic terms ( bear in mind that aspects of these judgments may also be appealed ( and probably will ) by the Banks and or the OFT
3) Phase Two which is probably a series of CMC's and hearings to sort out the fairness / unfairness aspects. This is where the OFT's market study and PCA report are of key significance.

4) Lots of other procedural and case managagment issues. Bearing in mind the large numbers of QC's and support teams involved in the Test Case.

The Judge wants all the above seperate matters to proceed as quickly as possible. At various points in the future all these seperate matters will converge together and the managment of that convergance will be quite difficult. At the moment the appeals regarding the original judgment take precedance over everything else but the Judge is trying hard to ensure that anything that can be done is done to ensure the shortest possible time through convergance and to overall conclusion of the whole test case.

[EXC]

Re: News from the CMC (OFT v Banks)

why was the judge critisng the OFT for not having the fairness arguments ready - when the banks are going to appeal aginst the fact that the UTCCRs apply to them anyway?

Do you think he means that if the OFT said the charges were fair - the banks would be wasting their time appealing?

To me, the judge seemed to be saying that the PCA investigation and findings are part of the legal procceedings rather than the test case being part of the
PCA investigation and as such the judge needs the OFT's assessment of fairness decision for the court procceedings to continue uninterupted.

[Budgie]

Re: News from the CMC (OFT v Banks)

A few important points collected from various posts on this thread in relation to updating exercise for template letters and POC's etc. More for my later reference than anything else but I guess people will have an idea of the relevance I am placing on them.


Mr Justice Smith's Judgment of 24 April 2008 relates to relevant terms in current agreements between the Banks and customers and is restricted to those terms that were considered by the court.


the banks' current T&Cs are in plain intelligible language (PIL) except for Abbey, Barclays, Clydesdale and HBOS' T&Cs which are not in PIL in certain
specific and minor respects

Additional comment by Budgie - The 4 Banks concerned are pooping themselves over this part of the judgment, which is why they sought permission to appeal. We need to bear this in mind when updating letters and POCs and in any action taken by our members against these banks.

From Day one reports: The Judge was questioning how the claims currently in the county courts system are structured - re are they mentioning specific terms in banks T&Cs or just general claims that the terms are penalties. He did not appear to have seen any POCs from the thousands of claims currently in the system.

[Budgie]

Re: News from the CMC (OFT v Banks)

Nationwide babe pls. I want to know exactly what was said.

Pretty much already said in an earlier post on this thread:-

The one exception to this will Nationwide accounts, the OFT have not identified any terms in Nationwide terms and conditions, either current terms or historic terms ( Remember that Nationwide didn't update their terms once the Test Case was announced so current terms and historic terms are basically the same thing for Nationwide ). So the OFT have already effectively agreed that NO Nationwide terms are capable of amounting to penalties under common law.

Nationwide have therefore indicated that there is no need for them to attend the CMC on 7th / 8th July.

I would suggest we need to get hold of the OFT's annexes G1 and G2 and double check the terms that were actually identified by the OFT which were originally , in their view capable of amounting to penalties under common law. Check the reasoning the Judge applied in his judgment as to why these were not penalties. Review Nationwide terms and conditions and see if we can identify any additional terms that notwithstanding the judgment we can somehow argue as being penal.

Bear in mind that the Nationwide historic terms, by virtue of the fact that they haven't changed, although apparantly not penal, ARE subject to a test of fairness test under UTCCR anyway.

[Budgie]

Re: News from the CMC (OFT v Banks)

Didnt Kate say that annexes G1 and G2 would be published on their site after the last hearing ?

Getting the Nationwide bit off the judgement.

Yes, I think I have seen them somewhere, will try and find later.
Maybe Exc could ask if we cannot locate them.
We really need to get hold of the updated versions as submitted to the Banks in the last couple of days.

[Budgie]

Re: News from the CMC (OFT v Banks)

No, what I had seen were schedule A and B to the OFT amended test case POC's. These refer to the relevent terms for the OFT's UTCCR 1999 arguments. Schedule A is for Current terms and B for historic terms. These are useful documents themselves anyway for use in updating letters and POC's. But they need to interpreted alongside the judgment.

I do not think the seperate Annexes G1 and G2 have been published yet.

We need them !!!!

Budgie

[Amethyst]

Re: News from the CMC (OFT v Banks)

Beagles experiences of test case frivolities Legal Beagles

[Budgie]

Re: News from the CMC - May (OFT v Banks)

Update on Test Case taken from the FSA website
http://www.moneymadeclear.fsa.gov.uk...test_case.html



Unauthorised overdraft charges


24 May 2008 – Case Management Conference



As part of the test case process, a Case Management Conference (CMC) was held on 22 and 23 May. The CMC is a short hearing that takes place before the judge and is usually used to achieve three main things:

• review what the parties have done to prepare for a case;
• make decisions about how to take a case forward; and
• ensure as far as possible that the parties agree about how the case should be handled.

What did the CMC cover?


Three main issues were discussed:

• the scope of the next stage of the test case;
• what issues would be appealed; and
• future case management.

What happened about appeals?
The judge granted the banks permission to appeal his decision on whether the terms could be assessed for fairness. However, he refused to grant four of the banks permission to appeal his decision that some of their terms are not in plain intelligible language.
The OFT decided not to appeal the judge's decisions on penalties and plain intelligible language.
What happens next?
There will be another short hearing on 7-9 July. This will cover the remaining 'preliminary issues' about historic and basic bank account terms and conditions.
The banks and the OFT have agreed that the appeal should happen as quickly as possible. The exact date of the hearing depends on the Court's timetable but we hope it will be before the end of this year.

[showergirl]

Re: News from the CMC (OFT v Banks)

I think the suggestion that things need not move forward until a HOL ruling & that stays should remain without a moratorium on the banks charges is disgraceful

Its clear Justice Smith thinks that consumers being unable to recover their charges are a minor irritation for them. He probably thinks that any compensation is merely a windfall to be enjoyed by buying a new car, hi fi or an exotic holiday. He either doesn't know or chooses to ignore that for many it's the chance to become solvent again & ease the pressure on their day to day lives.

That whilst the banks are allowed to impose these charges with no possibility of relief for the consumer more & more are going to find themselves sinking deeper & deeper into debt

I agree with your comments. For me to get my charges back would mean I could get solvent again, and not constantly robbing peter to pay paul. How good would it feel te be free and sleep at night without the worry

[Froggy]

Re: News from the CMC - May (OFT v Banks)

The problem is that the test case is a process to establish what all charges campaigners have sought which is a precedent that is binding on the banks. To refer back to what justice smith has said:
"The OFT gave its commitment to Mr Justice Andrew Smith yesterday afternoon after its barrister had initially warned that he did not know how long the regulator's ongoing inquiry into unauthorised borrowing charges would take.

"We are facing a lot of litigants who have not had their claims struck out and who should be in a position to pursue their claims," Mr Justice Smith said. "How long should we hold up the county court litigation? Are we talking months, years or weeks?"

Until the law is clearly clarified then the banks are not acting unlawfully. They have paid out without admitting liability. The Test case will establish this and as speedily as possible. Remember: if no agreement had been reached then the case could be delayed further and further.