Andrew Ellson
We've made some changes
to The Sunday Times
Tens of thousands of people reclaiming unauthorised overdraft charges will have to wait months – possibly years – to see if they will be refunded after the Financial Services Authority (FSA) decided to allow the banks to put all claims on hold.
The decision came after a group of banks including HSBC, Lloyds TSB and Barclays and the Office of Fair Trading (OFT) agreed to test the legality of the fees in the High Court.
The case will centre on whether overdraft charges are part of the "core" terms of current accounts and therefore subject to the Unfair Terms in Consumer Contract law. Under these regulations all fees should be a fair reflection of the administration costs and must not be used as a method of making money.
In a statement, the British Bankers’ Association (BBA) said: “The FSA has agreed to issue a waiver, with immediate effect, to suspend the handling of customer complaints on bank charges pending a decision by the court. Other banks who are not party to the court action will be applying to the FSA for a waiver and as such will be bound by the outcome of the court case.”
“Banks believe the fees customers pay for unarranged overdrafts are fair and clear. However, this is clearly an issue where customers, as well as the banks, would welcome legal clarity. “
The banks will be writing to customers with outstanding complaints advising them personally of their position.
The OFT said: “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 in court.”
The decision comes as a surprise as the banks have so far avoided defending their fees in court. The Banks have already paid out about £200 million this year to customers who have complained about the charges.
Bank customers have been encouraged by consumer groups to reclaim fees after the Office of Fair Trading said last year that it believed the charges of up to £39 are illegal. An estimated two million template letters for reclaiming charges have been downloaded from the internet since last year.
In May, the banking industry scored its first victory when Lloyds TSB won a county court case against a customer trying to reclaim almost £2,000 in unauthorised overdraft fees.
A district judge at Birmingham County Court dismissed a claim by Kevin Berwick for more than £1,982.37 in charges and interest on the ground that the fees levied were a legitimate part of the service. However, the case did not set a precedent because it was in the County Court.
If the High Court rules that the charges are subject to the Unfair Terms in Consumer Contract law, the decision will be binding and the banks would face the prospect of refunding all fees levied in the last six years, which would cost the industry about £10 billion.
Experts have warned customers reclaiming their charges that the test case may drag on for years with the “inevitable” result of the end of free banking.
David Black, the Head of Banking at Defaqto, the financial research group, said: “Whilst it is in no one’s interests for the unauthorised overdraft charges test case to drag on for ages it is very unlikely to achieve a quick resolution. The simple fact is that the amounts involved for the banks are enormous and they’re clearly going to argue their corner. Regardless of who wins the High Court case appeals are possible and, frankly, likely.”
Defaqto expects to see more accounts charging monthly fees in return for limiting charges on unauthorised overdrafts. Alliance & Leicester already offers an account charging £5 a month which limits charges for unauthorised overdrafts to £5 a day
“Banks are unlikely to reduce charges on existing accounts while the review is in place because it might be construed as their acceptance that charges are too high,” Mr Black says. “Longer term I still regard it as inevitable that the days of free in-credit banking for personal customers are numbered,” he added.
Doug Taylor, personal finance campaigner, Which?, the consumer group, said consumers should not be put off reclaiming their charges.
“A lot of time and money could have been saved if the banks had not tried to evade questions about their charging structures for the past year. It’s unfortunate that it has to go to court, but at least we will get a decision that banks cannot dispute.
“If the court does find that banks have been acting unfairly we hope they will proactively compensate all consumers who have been charged for going over their overdraft limit in the last six years.
“In the meantime people should not stop claiming. Anyone who thinks that they have been charged unfairly by their bank should use the template letters at www.which.co.uk/bankcharges.”
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I am a post graduate with a current account and have been stung with 28 pound charges from the RBS over the last three years. As a newly self-employed dancer I struggle to pay bills and the charges have added to the stresses and strains of paying my financial commitments, I have calculated that they have charged me over 2000 pounds in the last three years. I'm waiting to hear the outcome of the court case in hope that I can be fairly refunded.
Mrs Rachael Pinedo, Cheshire, England
I contacted my bank to arrange an overdraft to cover an expected expense of £34 (First installment of a new contents insurance policy). They refused, and consequentially the item was returned unpaid. The £39 unpaid item charge caused me to go £27 over-drawn, for which I was charged a further £25. I was then charged a further £25 for not clearing the overdraft in 5 days (including non-working days!).
In Summary, £89 in charges for refusing a £34 direct debit, plus I still have to pay the initial direct debit - despite me asking for an overdraft, and despite the bank being fully aware of my salary being paid into the account some six days later.
Fair?
I contacted the bank to complain, and they said that until the test case in the high court is resolved they're not looking at any bank charge complaints - regardless.
Alliance and Leicester, for the interested!
Mark Johnson, Nottingham, UK
I am self employed with a number of large direct debits on my account, late payments from invoices cause my monthly wage to be late. This wouldnt be a problem but the bank refuses to extend my OD, even though I have a morgage with an equity in excess of £230,000. Every failed Direct debit has cost £35.00 a plus £60.00 fine for exceeding authorised OD limit. To my mind these are excessive and unregulated charges and this has been the general crux of the matter. Why should any bank be able to put a finger in the air and charge whatever they deem suitable. On this rationale, I am surprised they haven't increased charges, whoose to stop them? When I write them a letter or call am I entitled to charge them a random fee? I challenge any bank to create an account with minimum fixed charges and equivalent terms to any high street . But none have, as there has been too much profit for everyone in charges. Its akin to price fixing which is illegal and causes debt cycles.
Neil, Blackpool,
Hi all I got into serious financial trouble 4 or 5 years ago £20k+, the banks made it a lot worse by charging £28 pounds for going over drawn and £39 for each bounced direct debit. When my wages were coming in I was paying back on average £200 - £300 in charges, arrears in loan payments that did not go through the previous month and then getting more charges because I could not afford the next months repayments which just made the situation 10 times worse then it should have been. Thankfully I have found a bank account now with the RBS that charges £12.50 a month and I do not get any charges and slowly getting out of debt as I no longer have to fork out upto £300 on charges each month. Banks are very quick to lend money but when a customer gets into financial difficulty quickly change their attitude and should be ashamed at that policy. I hope the courts rule in favour of the customer and realise the banks can no longer charge rediculous amounts for bounced direct debit
Chris, Milton Keynes, Bucks
If I pay interest on the overdraft, why does it cost 32 quid a month to administer it? I thought computers were supposed to make business efficient - you could employ a warehouse full of clerks with ledgers for the money the banks charge.
I strongly suspect that the interest charges are not base rate +2% either.
David, Dubai, UAE
I quite agree with Bill H. Nobody is forced to borrow money from banks. If they don't like the charges that they suffer for breaking the terms of their agreement with the bank they can close the account.
I have set up and run my own business, and cash has been extremely tight at times. When that happened I stopped spending on anything other than essentials, I didn't just keep on spending money I didn't have. How much of the money illegally borrowed has been spent on essentials as against clothes, CD's, entertainment etc?
This whole scenario is part of the compensation culture. Nobody wants to take responsibility for their own actions any more, and when, as a result of their own recklessness and greed people get into financial difficulties they expect the rest of us to bail them out.
Michael, Blackburn,
Bill H: You may not have sympathy, however it does not hide the fact that even big business (or especially even) should not be allowed to flout the law - the law of the land should be adhered be all in the land, not just the proles. This goes for banks too, or do you advocate one rule for them, another for us?
Derek, Kent, Kent
It would be much better if banks charged consumers explicitly for every kind of transaction. So much per debit card transaction, per cheque, per standing order, per statement page, per overdraft event, for monthly account maintenance etc. That way we could see how much they really charge and there would be proper competition. The present arrangement serves nobody except the banks (who are in fact charging us a lot) and the government should step in an legislate for proper competition.
colin forbes, malaga, spain
I am one of the many claimants, that have had the extortionate charges taken from an account that is used for my Benefit payments, which is given to ME and ONLY ME , by the Government an allowance which the LAW says I need to live on and under the "Social Security Act 1992" section 187... subject to the provision of this Act, every assignment of, or charge on,
[A] Benefit as defined in section 122 of the Contributions and Benefits Act ;
[B] any income related Benefit ; or
[C] Child Benefit,
And every agreement to assign or charge such benefit shall be VOID.
I am in my own opinion satisfied that Each and Every Bank knew of this particular legislation, but as the banks have been doing up to date Chose to ignore the Law in order to further line their pockets.
Michele Wheatley, Stanley , Ilkeston, Derbyshire
Andrew - I shall give you an example of an unfair scenario. A customer does not have an overdraft. The bank allows them to spend £20 more than what is actually present in their account, then stops allowing them to draw more money and charges roughly £20 for the privilege of having been allowed to overspend a little. Now, can the consumer be blamed for expecting their card to automatically stop working once their funds had been depleted? Can the consumer fairly, lawfully be made to pay £20 for using £20 of an entirely unauthorised overdraft? And in response to an earlier criticism, can the tiny amount of permissible overspending, for which such a huge charge is levied, really be referred to as a bank "bailing out" a customer? I guess the courts will decide soon enough.
Sonia, London,
It was illegal at the time of doing!!
It is theft and we deserve our money back!
If speeding became legal would people get all their fines back??? I doubt it!!!
You cant just change laws to suit certain people or businesses like that!
Barry, Middlesbrough, Cleveland
Purely and simply: the banks have stolen money, for decades, from (generally) its poorest customers.
Alan Howlett, Runcorn, Cheshire
I really don't understand why people think that it is unfair to pay charges when they exceed their overdraft limit. You arrange the limit with your bank, and they set aside a suitable amount of funds to cover this level of borrowing, based on the fact that some people will borrow up to their limit and others won't use their overdraft at all. If a significant number of people exceed their limit, then the bank will have to move funds out of medium/long term investments to cover this expense and incur substantial losses as a result, which are rightly passed onto the customers who breach their overdraft agreements.
If you boarded a train at Euston, with a ticket to Stoke-on-Trent, but stayed on till Manchester, because the train is going there anyway so you believed there was no extra expense incurred by the train company, you could expect to a penalty fair. Why is that different to arranging an overdraft for 500 pounds, but borrowing 550 pounds??
Andrew, Croydon, UK
To "Bill H, Pwllheli, Wales" whats your point, you being pompous and expect that you have eiher never run a business and experienced cash flow problems. I used to be an accountant and was dismayed at how a client of mine whos business closed due to the Banks accelerating problems for him. As his business folded no surprises they hit him with his personal banking for more charges despite holding the deeds for both properties.
With regards to the quote âIf the court does find that banks have been acting unfairly we hope they will proactively compensate all consumers who have been charged for going over their overdraft limit in the last six years" I could not agree more.. The Courts should force the Banks to cough up and the FSA fine them if they don't.
Markus, Thorpe Bay Essex, England
In Reply to Howard of Sussex. I can agree with you in as much that What is Good for The Goose is Good for the Gander.
If The FSA has the Power to Tell the Banks to suspend Refunds of Charges until the court rules. Then there is not a rule to say that the Banks are legal and fair therefore they must suspend these charges which I for one regard as illegal and unfair.
The FSA has a duty to the consumber to regulate the finance industry fairly to both it's instiutions and consumers alike.
What is good for the Goose is Good for the Gander suspend Bank charges until the Case is ruled in Court.
Liam J. Duncan, Bicester, United Kingdom
For every one pound you pay on your mortgage they make two pounds. They charge you £30 to send you a letter and they make more money that most countries! Slavery by another name! Stop the Banks now!
Sohiab Rehman, Hemel Hempstead, herts
It has never been claimed that the charges are ILLEGAL only that they are UNLAWFUL and UNFAIR.
daren, worcs, england
I must just add that Lloyds 'victory' in May was nothing of the sort - the claim was thrown out of court due to lack of evidence supplied by the claimant - the case was not 'Won' by Lloyds at all - there was no case heard.
Derek, Kent, Kent
In response to Bill H, its not the fact of being charged its the charges themselves. The banking code states that banks are not allowed to make a profit by applying charges.. Now since it was proved that a charge actually only costs the bank £1.50 - £2.50 to administer the remainder is obviously profit, Claimaints are demanding their money back or an explaination to where the remainder of the fee goes.
Dar£n (CAG), worcester, england
In reply to Bill H from Wales, nice to see your lack of sympathy goes all the way there bud . . . it simply does not come down to people not managing their money, many of the claims going through are from people on minimal wages that simply cannot afford to not use an overdraft . . if we all had your money then we wouldn't have this problem.
Once again the Banks have shafted the consumer, I was in the middle of claiming £2600 . . not a great amount, but would help . . looks like thats on hold now :-(
Mark, Coventry,
The banks never hide their charges, people were aware that if the used the banks money without permission there would be charges, so I have no sympathy for people who failed to manage their money and expected the banks to bail them out.
Bill H, Pwllheli, Wales
If all claims are put on hold are all charges also put on hold until a decision is arrived at? Or are they allowed to keep ripping us off. And if the decision comes out in favour of the consumer will all charges be automatically refunded to everyone who has ever been charged these astronomical fees.
Angela Wilson, Nottingham, Nottinghamshire
This is absolutely disgusting...I have been waiting nearly a year already for over £3,800, and don't feel I should wait any more..the banks have had enough time to get their act together.
I don't see why the existing claims should be put on hold, they should all be decided on their merits, it is another example of how the Legal system is being manipulated - a complete 'abuse of process' to say the least.
Howard Rutherford, Eastbourne, Sussex
Yet again the banks with their millions (bought from illegal levies) so it costs them nothing are ripping off the public . Hopefully they will fail and have to pay out even more .
Paul, trent Vale, Staffordshire