ojk6 wrote:I think the case is due to be concluded in January. Hopefully, it will be in favour of the consumer and large numbers will apply to the Banks to get their money back.
If you are referring to the
OFT v Abbey National PLC & Ors case, that has already been through two hearings ((1)preliminary findings of principle and application to current terms and (2) application to historic terms) in the Commercial Court.
In the first judgment, Smith J ruled that the terms that the relevant banks currently have in place to deal with unauthorised borrowing are not capable of being legally characterised as a penalty. Broadly put, a contractual provision risks characterisation as a penalty where a breach of such provision by the promisee (here, the account holder) would require the promisee to make a payment to the promisor (here, the bank) in an amount that would not be representative of a genuine pre-estimate by the parties at the time of entering into such provisions of the loss sufferable by the promisor in the event of such a breach. A penalty clause is deemed unenforceable at law and therefore any monies paid pursuant to such a clause could have been reclaimed. The judgment turned on whether, on an overdraft being exceeded, a claim under the contract for payment arose as a consequence of a breach of the contract. Smith J found that there was no breach of the current terms offered and therefore the terms could not amount to a penalty at common law.
The second judgment applied this to the historic terms offered by the banks and the judge found that payments made pursuant to most of these terms could likewise not be deemed to amount to a penalty at common law (however there are some further submissions being made in respect of the historic terms offered by Lloyds TSB and RBS before a ruling is made on these).
The OFT did obtain a finding in its favour in respect of one issue, namely that the unfairness rules of the Unfair Terms in Consumer Contract Regulations 1999 can be applied to assess unarranged overdraft charges in personal current accounts (similar to the challenge with respect to credit card charges). If a term is found to be unfair under the regulations, it will not be binding on the consumer. The banks are appealing the non-application to these terms of the carve-out provision in the regulations (though the judge at first instance flatly rejected the OFT argument that the terms the banks offered were not set out in plain intelligible English, which is a principal method of proving the unfairness of a provision).
All of which is to say that I would not be overly confident of a windfall any time soon, particularly as the relationship between the banks and the government has shifted a smidge over the last couple of months. The repayment of historic bank charges would only act to delay the government's recovery of its little investment in the financial sector and I suspect that the everyman taxpayer who had managed his accounts prudently would have rather less sympathy for a claimant in these proceedings now he knows that he is indirectly subsidising any pay-out.