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  #1  
Old 03-08-2007, 04:09 PM
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Default The OFT Test Case - Business as usual? Directions...

Notice to all members
As you will all no doubt be aware, The Office of Fair Trading has announced that it is taking a Test Case to the High Court with 8/9 High Street banks.
In replies to this post below, I will post up copies of all the relevant announcements from the Office of Fair Trading, The Finacial Ombudsman Service and some general released information as it becomes available.
But for now...........

Carry on as before.

We can't stress that enough.
If you are in the process of submitting a request for reclaiming charges, sent a prelim; a Letter Before Action; issued a claim at MoneyClaimOnLine or submitted your completed N1; already have a claim at County Court (whether or not it has been allocated, defended or just acknowledged) -
UNLESS YOU RECEIVE A LETTER FROM THE COURT YOU HAVE ISSUED IN - CARRY ON AS NORMAL.

Whilst the Test Case is ongoing, the FSA, FOS and OFT has announced that they will suspend their involvement in resolving complaints regarding current accounts (namely overdraft charges). They have also given leave or a waiver for banks to suspend their complaints procedure.

Again, if you are submitting a CLAIM to a bank, it is not a complaint, it is a request for refund of charges, and is a pre-litigation request.
Our Templates will be revisited shortly to ensure that they reflect this.

If you have chosen to submit a complaint to any of the above authorities regarding your request for refunds - no doubt you will shortly receive confirmation that your complaint is suspended pending the Test Case outcome.
Whilst this site cannot TELL you what to do with your claim, we would urge caution here.
Effectively your claim could be on hold for a minimum of a year, likely more with any appeals etc.
You may wish to reconsider submitting a refund request direct to the banks, allow the appropriate time periods, then submit your claim directly with your local County Court.

Here are some key points to note regarding the effect of this test case...
  • The only official and legitimate notice that your claim has been stayed (suspended) will come from the County Court you have issued your claim in!
  • The Limitations Act will continue in effect, until your claim is submitted in court and the court advises it has been stayed!
  • If your claim is in the Court process, and you receive communications from them (Allocation Questionaire, request for evidence/information, directions etc) you must comply and respond within the time given.
  • The Office of Fair Trading, the Financial Ombudsman Service and the Financial Services Authority are all involved in this case with the banks.
  • Your complaint with the authorities above, will be suspended until the result is issued from the case.
  • Any legal request you make with regard to information under the Data Protection Act 1998, or copy of agreement requests under the Consumer Credit Act 1974 are still legally required to be complied with.
  • If any bank should 'fob you off' using the test case as a reason to suspend your request for;
    • Refund of Charges - this is not a complaint, it is a letter issued with the advice that you will seek legal action; it is therefore pre-litigation.
    • Request for Information under DPA 1998 - complain immediately to the Information Commissioners Office. This Act is unaffected by the Test Case.
    • Request for True Copy of a Signed, Executed Agreement - again, the template will be shown to be pre-litigation, as again this section of the CCA1974 is not affected.
    • Refund of Charges for Businesses - as business claims rely on common law, not the 'UTCCR1999 Act, there is no justification to suspend or stay a common law case.
    • Claim submitted under S187 of the Social Security Administration Act 1992 - is also outside of the remit of the Test Case. This claim should be allowed to proceed.
So - carry on as before. You will no doubt receive different template letters from your bank other than a gesture of goodwill, (which must be considered on its own merits - not under the threat of 'To resolve your case in court may take years...'etc) or 'We have a waiver that entitles us to suspend looking into your complaint re the Test Case'... If in any doubt, post up a question on your thread here, and we'll do our best to answer as soon as possible.

In the meantime - go get your money back!
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  #2  
Old 04-08-2007, 12:11 PM
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Default OFT Press Release 26th July 2007

Newsroom

Press releases 2007


OFT launches test case on unauthorised overdraft charges

106/07 26 July 2007
The OFT will tomorrow commence proceedings in the High Court for a declaration on the application of the law in respect of unauthorised overdraft charges.

See questions and answers for test case announcement.

Tens of thousands of complaints that these charges are unfair have been received by the County Courts and the Financial Ombudsman Service. The banks do not accept that the unfairness rules of the Unfair Terms in Consumer Contract Regulations apply. The OFT believes that they do and is seeking to establish this legal principle clearly in the court. The OFT considers that a quick determination of this point of principle will assist in securing a clear and orderly resolution of the fairness of these charges.

The test case complements the ongoing market study into personal current accounts, which addresses wider questions about competition and price transparency in the provision of personal current accounts.

The OFT will continue to work closely with the Financial Ombudsman Service and the Financial Services Authority, in addition to consulting with banks and consumer groups.

NOTES

1. In March 2007 the OFT announced a formal investigation into the fairness of unauthorised overdraft and returned item fees (referred to as 'unauthorised overdraft charges'). This followed on from the OFT's initial review of such charges, where the OFT concluded that it shared the public concern about the level and incidence of bank current account charges, but recognised that applying the general principles set out in 2006 in relation to credit card charges is not straight forward.
2. The other parties to the test case are Abbey National plc, Barclays Bank plc, Clydesdale Bank plc, HBOS plc, HSBC Bank plc, Lloyds TSB Bank plc, Royal Bank of Scotland Group plc, and Nationwide Building Society. Together these current account providers account for about 90% of personal current accounts in the UK. The OFT has entered into an agreement with these current account providers in relation to the litigation process to facilitate an orderly and timely resolution of the legal issues.
3. The OFT continues its UTCCRs investigation into whether the level of charges is fair and will publish its findings and proposed action by the end of the year, as announced in March 2007.
4. If, in the light of the UTCCRs investigation, the OFT decides to take action because it finds the charges to be unfair but is not able to secure voluntary compliance, it will proceed to a second stage court case applying for a ruling that the charges are unfair.
5. In the course of its work on the issue the OFT has liaised closely with the Financial Services Authority and Financial Ombudsman Service and has also held discussions with the main banks. The FSA is announcing today that it is issuing a waiver from its complaints handling rules that apply to unauthorised overdraft charges, following the OFT's decision to initiate a test case.
5. The OFT's market study is taking a holistic look at whether the personal current account market is working well for consumers. In particular it will assess the extent to which consumers help drive competition. The market study is currently in its evidence gathering phase, and the OFT will publish its findings by the end of the year.
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  #3  
Old 04-08-2007, 12:15 PM
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Default FSA Press Release 27th July 2007

FSA grants waiver to firms on complaints handling


FSA/PN/090/2007
27 July 2007
The Financial Services Authority (FSA) today (Friday 27 July) issued a 'waiver' from its complaints handling rules that apply to unauthorised overdraft charges complaints. This follows the decision by the Office of Fair Trading (OFT) and some firms to initiate a test case in the High Court to resolve legal uncertainties on the application of the law to these charges.
This action means that, until the test case is resolved, any bank or building society that applies for the waiver will not be required to handle complaints relating to unauthorised overdraft charges within the time limits set out in the FSA rules. The Financial Ombudsman Service (FOS) has adopted a similar approach and the county courts are expected to follow.
Clive Briault, Managing Director, Retail Markets, said:
"The FSA supports the test case on unauthorised overdraft charges as the current situation does not provide certainty or consistency for consumers or firms.
"We have granted the waiver to help facilitate this test case. We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way. Once there is certainty on these charges, complaints can be dealt with fairly and consistently. To ensure consumer protection we have imposed a number of conditions on the waiver that firms must adhere to."
The conditions in the waiver include dealing promptly with complaints once clarity is achieved and communicating clearly with consumers throughout the process. The FSA also expects firms to continue to help their customers avoid incurring unauthorised overdraft charges in the first instance and to continue to deal with hardship cases.
The FSA will review the waiver in two months time to ensure, among other things, that firms are complying with its conditions. The FSA can also revoke the waiver at any time if it considers that the waiver is no longer appropriate, for example if progress on the test case is not being made or if a delay in the resolution of the test case is likely to cause undue risk to consumers.
The FSA will publish later today the results of thematic work on how firms are currently handling complaints on unauthorised overdraft charges. Practices varied across the visited firms, but in some the FSA found significant deficiencies and important areas of weakness in their approach. These included:
  • a failure to respond to complaints fairly and consistently; to address adequately the subject matter of complaints; or to ensure complaints are resolved at the earliest possible opportunity;
  • unfair closure of accounts, or threats to do so; and
  • false or misleading statements made to complainants.
FAQs

1. What is a waiver?

A 'waiver' from a rule means a firm does not have to comply with the requirement being waived.
2. What is being waived?

In the main, we are waiving our rules that specify time limits for dealing with any complaint about the level, fairness or lawfulness of unauthorised overdraft charges. This means firms will not have to deal with these complaints within the normal time periods required by our rules.
A firm will still have to record the complaint and acknowledge it within 5 days of receipt, but the normal time limit for handling complaints will not apply. Time will be treated as not running in relation to complaints on charges for the duration of the waiver.
Normal time periods:
  • within 4 weeks of receiving the complaint, the firm must issue a written response or a holding reply; and
  • within 8 weeks of receiving the complaint, the firm must issue a written response or reply informing the complainant of the reason for delay, expected date of final response and right to go to FOS.
The waiver is initially being granted for one year, or until the resolution of the test case. We will review it after two months to ensure that there is a stay of proceedings in the courts of England, Wales, Scotland and Northern Ireland; the FOS is not proceeding with cases about unauthorised overdraft charges until resolution of the test case; that firms granted the waiver are complying with the conditions; and, more generally, the continuation of the waiver remains appropriate.
3. Why has the FSA granted a waiver?

We have granted the waiver to help facilitate this test case. We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way. Once there is certainty on these charges complaints can be dealt with fairly and consistently. To ensure consumer protection we have imposed a number of conditions on the waiver that firms must adhere to.
4. What does it mean for consumers and banks and building societies?

Consumers:
  • Consumers with complaints outstanding (currently with a bank/building society)
    The complaint will remain with the bank/building society; normal time processing rules will not apply. Complaints will be dealt with as quickly as possible once the test case is concluded.
  • Consumers who have just been given an offer from the bank/building society
    Consumers will have two months to decide whether to accept the bank or building society's offer or to wait for the outcome of the test case. If consumers choose to accept the offer, it is unlikely that they will be able to complain again later regardless of the outcome of the test case. If consumers choose to wait for the outcome of the test case, they will not be able to take up the firm's original offer and the firm will only deal with the complaint once the test case is concluded.
  • Consumers who may wish to complain from today
    Consumers can still complain now or they can wait until the test case is complete - they will not be disadvantaged. The complaint will be recorded and stored by the firm and will be dealt with as quickly as possible once the test case is concluded.
We will still require any new complaints to be acknowledged within 5 days.
  • Consumers for whom Scotland is the most likely jurisdiction
    Consumers may choose to take their complaint to the FOS or the courts in Scotland. The right to refer the complaint to the FOS will not be affected. However, if the customer wants to bring a claim to the courts in Scotland, the timing of when the claim is raised may be important. They are advised to seek independent advice on filing a claim now to protect their rights (although a court fee will be payable).
  • Consumers who have already had a settlement and think they may want it reviewed
    A full and final settlement stands. In some exceptional circumstances the complaint can be reviewed, for example, if there is evidence of coercion or bullying.
Consumers can still complain about new charges incurred.
  • Consumers who have received a final response from the bank/building society which does not include an offer
    Consumers still have the option of complaining to FOS. However, the banks and building societies have also requested that the FOS does not consider any complaints about unauthorised overdraft charges until resolution of the test case.
  • Consumers who are in very difficult financial circumstances - 'hardship cases'
    Banks and building societies will have to conduct a filtering process to ensure that cases of genuine hardship are still dealt with during the waiver period. Cases of hardship would still be entitled to be referred to, and dealt with by, the FOS.
  • Consumers who want to complain to the bank/building society about other issues
    Consumers can continue to use the existing complaints process to seek redress about other financial matters, such as insurance, mortgages and current accounts. However, if their complaint relates to the level, fairness or unlawfulness of unauthorised overdraft charges, that element of the complaint will be registered but not dealt with until a resolution has been achieved.
Banks/building societies:
  • Banks/building societies will not have to meet the requirements on time limits for dealing with any complaint which relates to unauthorised overdraft charges during the duration of the waiver.
  • A bank/building society will still have to acknowledge the complaint within 5 days of receipt, but the normal time limits for handling complaints will not apply.
  • Banks/building societies will have to comply with a number of conditions set out by the FSA in the waiver, including:
  • Banks/building societies must communicate with complainants, potential complainants and other customers in a way that is clear, fair and not misleading;
  • Banks/building societies will have to keep proper records; and
  • Banks/building societies need to have processes in place to deal with complaints in an orderly and efficient manner once the waiver expires and complaints handling restarts.
5. How will the FSA ensure all the conditions of the waiver are being met?

We will review the waiver in two months to ensure the criteria for granting the waiver are being met, including whether banks and building societies are complying with the conditions set out in the direction. If we are not satisfied that these criteria are being met after two months or at any time after that, we can revoke the waiver.
For individual firms, senior management is responsible for its activities and for ensuring its business complies with our regulatory requirements and this will be monitored through our normal supervisory procedures.
6. How long could the waiver ultimately last - will the FSA withdraw it if the case continues for years?

We cannot predict how long this will last. The waiver has been initially granted for 12 months or until the resolution of the test case (which ever comes sooner). After this period, the FSA will consider whether renewal of the waiver is necessary and appropriate in the light of the prevailing circumstances at the time.
Notes for editors
  1. The waiver is available on the FSA website.
  2. Detail on our thematic work will be available on the FSA website later today.
  3. The FSA regulates the financial services industry and has four objectives under the Financial Services and Markets Act 2000: maintaining market confidence; promoting public understanding of the financial system; securing the appropriate degree of protection for consumers; and fighting financial crime.
  4. The FSA aims to promote efficient, orderly and fair markets, help retail consumers achieve a fair deal and improve its business capability and effectiveness.
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Any advice or guidance given by Perseus or Consumer Credit Support is provided without prejudice, and is based on personal experience only. Please seek professional legal assistance to clarify your particular case. Thank you.

If we've helped in recovering bank charges, please help us keep this site alive for others by donating.

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  #4  
Old 04-08-2007, 12:17 PM
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Default Details of FSA Waiver given

Modification by consent of certain DISP rules


<!-- InstanceEndEditable --><!-- InstanceBeginEditable name="Right top image" --><!-- InstanceEndEditable -->
<!-- InstanceBeginEditable name="Content Right" -->
<!-- InstanceEndEditable -->
<!-- InstanceBeginEditable name="Body Copy" -->Which firms does this apply to?

We are making this waiver by consent available only to providers of current accounts with overdraft facilities ('the firms').
Background

The waiver is part of a package of measures designed to support a test case through the courts. The test case aims to establish legal certainty on the lawfulness and fairness of charges levied by current account providers for unauthorised overdrafts.
The Office of Fair Trading and several major UK current account providers announced the test case on 27 July 2007. Alongside this, these providers are looking to stay county court cases on unauthorised overdraft charges and will also ask the Financial Ombudsman Service (the FOS) to stay its determination of related complaints while the test case is carried out. The firms have agreed to conduct the test case in an efficient, prompt and orderly manner.
The purpose of the waiver is to allow current account providers to stop resolving complaints about unauthorised overdrafts charges while the test case continues through the courts. Until the test case is completed, participating firms will put unresolved and new complaints on hold. Complainants who already have an offer from a firm (but not yet accepted or rejected it) will be given the option to accept the offer or to wait for the result of the test case. If they choose to wait, the offer will lapse. It will then be dealt with under the principles established in the test case.
We are supporting this approach as we hope it will give customers consistent and fair outcomes.
What does this mean for firms?

The main practical effect of this waiver is to allow the firms to stop resolving complaints about unauthorised overdraft charges. We have reserved the right to revoke the waiver after two months if the county court and the FOS stays sought by the firms do not happen, or if we believe continuing with the waiver is inappropriate. We will renew it after 12 months if we are satisfied the criteria for granting the waiver are still being met and we think continuing it is not inappropriate (see Section 7 of the modification direction).
What does this mean for consumers?

The waiver contains several detailed conditions intended to ensure complainants are not materially damaged by the delay in dealing with their complaints. We set out these conditions in the modification direction. To take advantage of the waiver, the firms must comply with these conditions.
At suitable stages we, and the firms, will update consumers on the progress of the test case. Consumers can find out more on the Moneymadeclear product newspage. The firms we grant a waiver to will also write to any customers who already have a relevant complaint or who complain about this issue during the waiver, to give them more details.
How do firms take this forward?

If your firm wishes to take advantage of this waiver please write to:
The Waivers Team
The Financial Services Authority
25 The North Colonnade
Canary Wharf
London E14 5HS
Or email centralwaiversteam@fsa.gov.uk.
For us to grant the waiver, you must state you will comply with all the conditions attached to it and give us the full legal names of all the entities within your group that the waiver should apply to. We will write to tell you whether we will grant your firm a waiver and we will publish each waiver we grant on our website.
Details of waivers we have given as of 3 August 2007
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  #5  
Old 04-08-2007, 12:32 PM
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Default Waiver Directions from FSA to Banks

Here is the PDF, containing Waiver Direction from the FSA to the Banks.
In short, it confirm how the banks and FSA/OFT/FOS have agreed suspension of complaints, and direct the banks as to the content of their replies to requests for refunds from consumers.
It even provides the banks with suggested templates to use.

Now, call me a sceptic, but the way that the letter templates offered from the FSA to the banks, you'd think that they were the ones who were defending charges!
Collusion is very clear here, and the FSA's direction encourages the banks to pretty much delay and ignore any all complaints, and actively encourages their discouragement to consumers of pursuing the matter in court.

There are immediately a number of anomolies in the waiver direct, and in the first few pages - are comments which I believe are immediately challengeable!
Anyway, read for yourselves...
Attached Images
File Type: pdf Waiver Directions from FSA.pdf (89.9 KB, 9 views)
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  #6  
Old 04-08-2007, 01:54 PM
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Default List of Registered 'Firms' applied for a Waiver with FSA/OFT

Here is a pdf list of all banks (as of todays date) who have registered with the FSA for a waiver under their directions in the previous posts.
This will be updated (as has been already under 'Modifications') and the link is ; www.fsa.gov.uk/register

We will update this thread with any further developments, proceedings or notices as they are released.
Attached Images
File Type: pdf List of Banks Waiver.pdf (94.2 KB, 7 views)
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  #7  
Old 26-09-2007, 06:05 PM
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Default

just seen this on MSE

Last week I met with the Office of Fair Trading to discuss Bank Charges and learnt the test case is scheduled for 14 Jan and should take around 10 days. It'll only decide whether 'unfair contractual terms' rules can apply to bank charges; after that OFT must decide if they are unfair. At that point it'll return to the banks who'll either concede or it'll go back to court. While there, I strongly requested it clarify that the test case and ‘stay’ on reclaiming only applies to bank charges; outrageously some courts are incorrectly blocking credit card cases too.
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Old 26-09-2007, 07:41 PM
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We already know that though dont we?
What did he find out and what questions did he put forward is what we want to know???
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  #9  
Old 26-09-2007, 08:24 PM
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sorry

i didn't know that a day had been set yet. i thought i was well up with it then
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  #10  
Old 27-09-2007, 09:35 AM
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Default

Quote:
Originally Posted by Jster$$$ View Post
just seen this on MSE

Last week I met with the Office of Fair Trading to discuss Bank Charges and learnt the test case is scheduled for 14 Jan and should take around 10 days. It'll only decide whether 'unfair contractual terms' rules can apply to bank charges; after that OFT must decide if they are unfair. At that point it'll return to the banks who'll either concede or it'll go back to court. While there, I strongly requested it clarify that the test case and ‘stay’ on reclaiming only applies to bank charges; outrageously some courts are incorrectly blocking credit card cases too.
Well that is about as useful as a chocolate teapot. If thats all he asked then what was the point in him going.

Have you a link to where this is from ie the thread it was posted on jster?
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