Alex Spence and Michael Herman
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Q&A: what is the OFT doing to ensure fairness in bank charges and how does the test case fit in?
High street banks have assembled a dream team of top-ranked QCs to fight a test case this week that could determine the future of retail bank fees.
The Office of Fair Trading will argue in the High Court that fees levied by seven banks and one building society against customers who exceeded overdraft limits were illegal under contract regulations introduced in 1999.
The case, which starts on Wednesday and could end as the biggest commercial case in 20 years, will affect tens of thousands of claims before the county courts that have been stayed pending the outcome. It is estimated that the banks have paid up to £1 billion in total to settle out of court claims from individual customers, but they stand to lose billions more if they are defeated in court.
Losing could force the banks to change their business model, since the retail fees generate profits of £10 million a day, according to OFT estimates. However, defeat for the banks could also be bad news for consumers, because it would almost certainly mean the end of “free” current accounts.
One lawyer close to the case said: “If the banks lose this case, the whole free-banking model will disappear.”
Banks use unauthorised-overdraft charges to subsidise what they say are unprofitable services such as cheques, free cash withdrawals and free day-to-day accounts.
Julian Skan, a senior executive in the retail banking practice at Accenture, said: “If the banks are forced to reduce their charges for unauthorised overdrafts, then prices may well go up elsewhere. This risks increased charges for people who remain in credit and possibly the withdrawal of banking services from unprofitable poorer customers.”
The defendants - Abbey, Barclays, Clydesdale, HSBC, HBOS, Lloyds TSB, Royal Bank of Scotland and the Nationwide building society – have lined up some of the City’s biggest law firms and leading Queen’s Counsel to represent them.
Legal sources estimate that the banks have each spent at least £1 million on the case on pretrial costs. Members of the Queen’s Counsel acting for the banks include Ali Malek, Iain Milligan, Laurence Rabinowitz and Geoffrey Vos, who until recently was the chairman of the Bar Council. Leading commercial silks charge up to £1,000 an hour.
In contrast, the OFT will be represented by only one Queen’s Counsel, Brian Doctor, who will be assisted by three junior barristers.
The large number of lawyers and intense media interest has forced the court to take the unusual step of moving proceedings from the Royal Courts of Justice to a larger venue, the International Dispute Resolution Centre, on Fleet Street.
The first part of the case will consider whether the Unfair Terms in Consumer Contracts Regulations 1999, a set of rules governing contracts between individuals and businesses, apply to the unauthorised overdraft charges. It is the first time that the regulations have been seriously tested in relation to the banking industry.
The OFT must convince the judge that the regulations apply; it will then have to prove at another hearing, probably later in the year, that they are unfair. If the court agrees with the banks that the charges do not fall under the scope of the regulations, the case will fall at the first hurdle.
The first hearing is expected to last eight days, with a judgment before Easter. However, given its public importance, the case is likely to go all the way to the House of Lords regardless of which side wins this round.
The last case that involved such a dazzling lineup of prominent lawyers was the so-called International Tin Council dispute in 1988, which involved 22 countries. The law firms that have been instructed by the banks are: Addleshaw Goddard, Allen & Overy, Ashurst, Freshfields Bruckhaus Deringer, Linklaters, Lovells, Simmons & Simmons, and Slaughter and May.
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unfortunately for stephen of southampton. going overdrawn isn't an issue of stupidity. it is an issue of a lack of money.
yes, of course you can cancel a direct debit to avoid a charge. but in some circumstances cancelling a direct debit will result in your creditors sending bailiffs to your house to take your possesions. so it's an issue of choosing the lesser of 2 evils.
i don't think people expect too much from the banks but they do expect to be treated fairly. research has shown that the most it costs a bank to return a direct debit is less than 4 pounds. so charging a fiver for the service is fair business, where charging £35 for it is simply unforgiveable.
if people have the misfortune of being in a bad financial position, then taking more of their money will only hinder their situation and plunge them deeper in to debt whilst creating greater profits for the bank.
i hope the banks are made to reduce their fees and repay what they have taken from their 'valued' customers
t
thomas, birmingham, UK
I can see both sides if the story, however if people werenât stupid enough to go overdrawn they wouldnât get charged, I check my account online nearly everyday so I always no how much I have, if I cant afford to pay a direct debit I cancel it, avoid the charge. I think people expect too much, they think they have the right to exceed the overdraft limit they have, I canât see why this is! Itâs not the banks responsibility to pay your bills.
Stephen, Southampton,
If you enjoy free banking at the expense of the Banks participating in an unlawful act and penalising the weakest incomes in the economy, examine your consciense, if farmers are being exploited in third world countries you will buy fair trade goods to ensure they get a fair deal, whats the difference between paying a "going rate " (which may still be £0, due to competition !) to have your account managed.
Has any one thought to ask HBOS how they manage to offer a free banking service in Ireland when they only charge £6 for letter charges ?? and yet they have to charge £39 for letter charges in UK to provide the same service...strange thing that !
Tim Russell, Cardiff,
The banks have taken it that they have a given right to up charges irrespective of inflation and the cost involved in executing the work.
To have paid out of court some £1 bllion must be telling us something and it is interesting that not all banks are in this syndicate.
What needs to be asked is at what point do we stop cow towing to banks and treat them like any other business that abuses its clients.
If the banks win then Labour will have signed their own death knell.
The electorate will see them as gutless and only capable of caving into large companies at the expense of the rest of the country.
Lets not forget Power companies and Endowment policies, Pension fund jokes, Payment protection schemes, Petrol companies, and now Northern Rock.
This no longer a situation of regulation this is now a political problem with a government utterly incompetant and incapable of doing anything save trying to spin out of every issue but actually doing nothing in the end.
Robert D Marshall, London, UK
âIf the banks are forced to reduce their charges for unauthorised overdrafts, then prices may well go up elsewhere. This risks increased charges for people who remain in credit and possibly the withdrawal of banking services from unprofitable poorer customers.â
The good news about this for some of us is that it might lead banks to view the ordinary current account as a source of profit, rather than as a loss-leader. That in turn could lead to genuine competition for retail customers and even an end to the policy of closing branches. Banks would still want to sell their services to poorer customers (they are not shy of trying to sell them loans or insurance), but those customers would have to pay more.
Frank Upton, Solihull,
I understand your point Anthony, and as someone who has also works within the limits of my bank's terms and conditions I would also not exactly welcome the iomplementation of "other" charges to supplement the possible loss of unauthorised overdraft charges.
However, the charges that are levied are excessive and unwarranted. The banks will have a hard time showing that it really costs them as much as they charge when someone goes overdrawn, particularly when in the majority of circumstances, this is rectified within a couple of days.
The reality is that these charges affect the poorer customers in the first place and place them under even more pressure to control what are already very tight budget restrictions. I am not in favour of abolition, but a bit of common sense by the banks would have prevented this whole situation.
Chris, London,
Even if an account holder, knowingly goes overdrawn, The Banking code all banks subscribe too, states that the Bank should only charge the customer its liquidated loses, I do not believe it costs Banks ã38, to send an automated letter. Banks in other countries, including Ireland charge ã4.50 for a bounced Cheque or Direct debit. Yes the Bank has a right to charge for extra work, but it must be fair.
The Chairman of an money institition who charges for arrangement fee for even 1 day., whereby you go into over draft should be taken to the hight court and sentenced for fraud, as they do it without consulting the named person, ie:- 10p phone call, WAKE UP BRITAIN, THERE IS NO EXCUSE , NO wonder overseas call this country TREASURE ISLAND, THE british are too laid back.
I work abroad and frequently open accounts in other countries.
There are NO charges to go O/D, No charges to open an Account, No Charges for D/Ds or S/Os. Very few at all.
They just Invest your Money.
paul, newbury, UK
Bank charges are a perfect example of robbing the poor to subsidise the rich.
I'm cynical. I dont believe those judges will want to start paying for their bank accounts.
Far better to have the low earners pay for those accounts for them.
Phill, The Wirral, England
Why so many lawyers? - surely this is absolute evidence that the Banks case is so very weak.
Robin, London,
The case may have been moved to a "larger" venue, but there will only be 11 spaces for all of the press and the public. So if your correspondent wishes to sit in on the case, he had better get there early!
Bob Egerton, Truro,
it seems to me that those who incur bank charges has breached the banks conditions of use. The penalty charges as the name implies, will include a punitive charge over and above the actual costs. I think the banks will argue along these lines and they will have a case.
I think the banks will win. I hope so, as I dont see why we who do not go into the red must pay for those who do if bank charges are imposed on all of us as a result of this case.
anthony wong, london, uk