Lauren Thompson and David Budworth
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Britain's biggest banks today lost a landmark test case at the High Court over unauthorised overdraft charges.
The case went to the High Court to decide if the Office of Fair Trading (OFT) had the power to decide whether it was unfair that banks charge borrowers fees of up to £39 for exceeding overdrafts. Seven banks and one building society jointly brought the case.
Mr Justice Andrew Smith ruled in favour of the OFT, stating that it can apply consumer contract regulations to decide if bank overdraft charges are fair or not.
In summing up, Judge Smith said: “I reject the banks’ contention that the Relevant Terms (the bank terms being challenged by the OFT) are exempt from assessment as to fairness under the 1999 Regulations.”
But he continued: “This does not mean that the Relevant Terms are necessarily to be regarded as unfair or that they are not binding on consumers under the Regulations.
“Those are not questions for me to decide in this judgment.”
The ruling gives the OFT the green light to decide whether the charges are unfair and, if so, what a fair fee should be.
The banks, however, are expected to appeal, delaying an investigation and holding up the cases of thousands of claimants.
Since the beginning of 2006 hundreds of thousands of bank customers have tried to reclaim their charges on the grounds that they were too high and unfair. UK banks have paid an estimated £784 million in out-of-court settlements to customers who have reclaimed up to six years' worth of overdraft charges.
However, last July the Financial Services Authority (FSA) gave the banks permission to suspend refunds until the test case is completed. Claims will remain on ice for the near future. Thousands more cases launched in the county courts or with the Financial Ombudsman Service will also remain on hold.
A spokesman for the FSA says: "The waiver will continue for the time being. When we granted it it we said it would run for 12 months or until the test case was resolved, whichever was sooner. The test case is not yet resolved as the parties could still decide to appeal."
The banks have until 22 May to decide whether they are going to appeal against the ruling.
Doug Taylor, personal finance campaigns manager at Which?, said: "The banks should do the right thing now: concede defeat, agree with the OFT what constitutes a fair unauthorised overdraft fee and refund their customers as soon as possible.
“The FSA must now drop its waiver so that the thousands of cases pending in the county courts and Financial Ombudsman Service can be processed. Every second that this issue remains unresolved is costing consumers up to £111 in overdraft charges.
“This whole saga has severely damaged the reputation of the UK’s high street banks. If they appeal, drag their heels in refunding their customers or try to introduce back-door charges to recoup their losses, their customers will see this as adding insult to injury.”
If an OFT investigation concludes that the charges are unfair it could cap fees at a much lower rate.This could open the floodgates for hundreds of thousands more applications for fee refunds.
The OFT has already ruled that excessive credit card fees are unfair and forced the banks to slash charges from up to £35 to £12.
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There is no justification in their methods, at the age of 19, i have managed to accumulate total charges of nearly £400, purely for paying late one phone bill, which without checking my balance gave way to charges and since i was not aware i was in the red, many more charges accrued. Is this right?
L T, Torquay, Devon
"no more free banking for those who act responsibly. They will now subsidise the irresponsible." (quote James from Cambridgeshire) Actually so far the less well of and poorer have subsidied free banking for the well-off and rich. Charges should be spread amongst all consumers at a fairly set level
Nicky, Plymouth,
"Not wanting to subsidise those who can't manage their money" is missing the point. These charges are AGAINST THE LAW. Banking is not free: charges pay for the richer client's gratis accounts. The banks want to keep potential mortgage/credit card/insurance buyers sweet; sod the poorer customers.
Kate, London,
Samuel, Just because a company makes £bn profits, it doesn't mean that each individual product sold makes a big profit. Look at Asda. The big profits come from selling so many individual products.
Worldwide, no bank offers a free curr acc with low penalties. Doesn't that tell us about feasibility?
Mark, Nottingham, UK
Mark, how can you justify your comment about costs being "nowhere near covered" when the banks regularly make billion-pound profits? It's very hard to stomach any such organisation complaining about how it struggles with anything.
Samuel, Bury St Edmunds, UK
It's strange how the banks get away with conning us into believing that they are doing us a favour in providing current accounts. In all of this, don't forget that they are borrowing money from their customers interest free. And then they have the cheek to demand the right to charge customers for it
Jim Dandring, Droitwich,
I agree that you should get an overdraft like a "Free loan" as a Loan is what it is but on the other hand the banks are acting ciminaly in the way they work this, I was fined £175 when I made a small calculation error and tried to pay £3 too much to my credit card when every penny counts.
Eden, MK UK,
"All we have to do is to learn to manage our personal finances,"
It's gone beyond that. Food, petrol and housing is so expensive that people with low incomes have to borrow so they can afford to buy food, not luxury goods.
M.R., Stockport,
The fact is that current accounts are v expensive for banks to run, and the costs are nowhere near covered by the interest that can earned on the balances.
So the only ways of making them at all viable is monthly fees or high penalty charges.
We don't tell Tesco they must reduce price of bread...
Mark, Nottingham, UK
Genuine competition between banks for current accounts would solve the problem of excessive charges. Come on OFT show what you are made of.
sid, derby,
The law says the banks can't charge penal amounts. They flout that, seemingly believing they're above the law.
Those most affected by bank charges are those on low or irregular incomes, so the poorest fund free banking for everyone else. That's blatantly unfair.
Kate, London,
Being able to see common sense does not make me a 'Bank Sympathiser' All we have to do is to learn to manage our personal finances, live within our means and do not withdraw money that does not belong to us. Tesco would not hand out free food, don't expect banks to do the same with cash!!
Andy, Poole, England
£30 for not paying a £10 DD or charging for a transaction then charging again for unauthorised overdraft, then charging because the charges have put you in overdraft is daylight robbery
Income can stop or go down but bills dont. Not everyone has a secure, regular income for life!
PA, Berkshire, UK
Note that it isn't the feckless who'll be fee-subsidised by 'prudent savers', but shareholders who already enjoy double-digit profits. In the direct debit age it is not always possible to avoid being a penny in the red. Basic banking is a public good, free access to which may need guaranteeing.
Jonathan, Baldock, UK
Wake up and smell the coffee all you bank sympathisers! There is no such thing as free banking...just take 5 minutes to look at your own banking history.
A fair fee is all we are asking for. We are entitled to be affronted if we are being taken for a ride with disproportionately high fees.
Debbie, Oxford, UK
i am one of those who supposedly canot manage their finances and am grateful for this ruling
agreed banks are likely to introduce charging for there accounts now
but why blame thoose of us working on minimum wage who have buy societies dictates have to use DD etc so all my DD's hit on the 1st
jason, clacton, england
Chris from Rugby should realise that for many it is close to impossible to spend within your limits as bills and food take up almost all your money and prices keep increasing but income does not. And lots of people have forfeited control of their finances by allowing direct debits from their account
MFPA, UK,
I can see this dragging on for yeas.As I understand,I cannot claim any charges back from the UK banks because they are more than 6 years old.It will probably be another 6 years before this is sorted out and no-one will get anything.
stephen hulton, eure, france
Manson, you feel the T&C's are fair. Try this one: Our electronic systems can deal in real time with your money. From the day you bank it, we get to use it for three full days without paying interest. If, during that time, you try to use your money - we'll call foul, and will charge you £35
sapphie, Windsor,
I will prefer to pay to have an account than allow the poor to subsidise my "free banking" facility. The rich and poor should see this as an opportunity to pay your own way - no favours. This ruling is a victory for common sense and equality in our society.
Bernard, London, UK
If the cost to the banks of Customers going overdrawn without authorisation is minimal, where did the "Credit Crunch" come from.
Dave, Winchester,
If the banks reintroduce charges for those who keep their accounts in credit, it will mean that once again savers are bailing out borrowers.
Paul, Coventry,
It's the end of "free" banking as we know it. People who can manage their finances will be forced to subsidise people who can't.
Ian, UK,
If the banks were not acting unlawfully in the 1st place then this would not be so!!!
Andrew Smithies, Oldham, UK
The banks will just pass the charges on to account holders that don't go into debt. This country seems determined to encourage financial irresponsibility, bailing out bank and mortgage debtors while screwing those of us who work hard and save.
Oliver, Bristol,
I have been charged by my bank and have never (and will never) attempt to claim these back, simply because I agreed when I opened my account that I would be liable for these charges if I had an unauthorised overdraft.
Take some responsibility for your actions!
AK, Pig Hill,
Am I alone in still wondering why people who ''borrow'' other people's money without asking can complain about the amount of money they are charged when their actions are uncovered. Personal finances cannot always be balanced but surely unauthorised overdrafts are not so difficult to avoid.
Michael, Cambridge,
Is anyone aware whether similar proceedings are possible in ireland?
caoimhe, dublin, ireland
First the mortgage market, now charges is there anything the banks aren't doing to rip off the average person. We need accountability and we need to take some of these excessive bonuses away!
sohiab rehman, hemel hempstead, herts
This will cost us all.
Stu Preston, Leeds,
Quite right, Oscillator, if the banks lose in one area, they will simply make it up elsewhere. Expect charges on your current account any day soon, well, after the routine appeals are over and they lose.
Colin, shrewsbury,
They will just get the money another way, probably from us customers who don't abuse our accounts..great, just what we needed, more charges.
David, St Albans, UK
Bank's have systematically and deliberately been impoverishing their customers whilst enriching themselves.
It will be a source of great joy to many ordinary people that this band of greedy, grasping extortionists, crooks and thieves has at last got its come-uppance.
Nick Rogers, Newton Ferrers, Devon.
It is manifestly unfair that the free services provided to the wealthy and paid for by swinging charges levied on the poorest and most vulnerable. Anyone arguing for the status quo to remain is, in the main, just advocating yet more parastic behaviour from our glorious finance industry on the poor.
Chris, Edinburgh,
I agree that bank charges had to be reined in but unfortunately this is just another example of people not wishing to be responsible for their own actions and as Oscillator rightly says, the responsible are going to have to pay for the irresponsible!
A thorn, London,
Banks could very easily prevent people from going over the allowed overdraft limits, as they do with under 18s "cash cards". The banks deliberatly allow people to exceed their limits so that they can apply these charges. Clearly not very fair considering their superior bargaining position.
Phil, London, UK
So Ocillator you believe that the people who aren struggling with debt in the current financial circumstances should be unfairly and illegally penalised for having financial difficulties so those who do earn good livings can continue to have free banking? That sounds very reasonable!
stephen, Ipswich,
Oscillator (if thats your REAL name...)
You have a legitimate concern, but this doesn't alter the fact that banks shouldnt be allowed to rip off their less conscientious customers. Often a minor breach of the terms is unavodable. punitive charges in consumer contracts are unreasonable.
james, london,
Oscillator from Harrow is correct, though I believe that with the current troubles banks are undergoing,it's probably inevitable that all banks will now be making plans to end free banking in the UK once and for all.
Brye Milling, Willenhall, West Midlands
Being charged £30 for a bounced direct debit isn't right when it only costs the banks a maximum of £5 for all the paper work involved. This is money which the banks stole from the customers. So its only fair they pay the customers this money back.
Pete, Wirral,
i am constantly in my overdraft and yet have never found my self in the situation of being charged the unarranged fee. If those people are more careful about thier money the banks can't charge them. Cut back on those TVs and handbags people if you can't afford them.
Joe, london,
Is it really going to be a victory for consumers? How will the banks recoup this loss of revenue? Answer, no more free banking for those who act responsibly. They will now subsidise the irresponsible.
James MacInnis, Sawtry, Cambridgeshire
Victory for consumers, only for those who can not manage their affairs.
For those who can, these are the people like me who have lost and will have to pay.Why oh why should I subsidies these people.
Is this justice? It is type of the justice that one finds and now expects in this country.
David, Birmingham, England
Only last week my bank wrote to me saying i had gone overdrawn by £8. I was charged £15 for going overdrawn plus £15 pounds a day for each day i left the account overdrawn for a max 10 days per month. So, for £8 pounds i could possibly have been charged £165 plus interest. Its Criminal!
Stuart, Sheffield, UK
That is fantastic news. Soon I will be able to overdraw without permission, using other peoples money, and only have to pay a small fee.
Of course, we will all have no more free banking, so we will pay more in the long run. All because of some people who are in fact stealing money from the banks.
Peterr, Northants, Engand
Isn't there some kind of responsibility for account holders to abide by their contract with the bank and not to overdraw their acount without authorisation? I understood it to be illegal to offer cheques or other payment to anyone without the funds in hand to cover that payment.
Peter, Brixham, Devon
Mr Justice Andrew Smith should ask the "man on the Clapham Omnibus" if they understand the banks' terms and conditions or think they are fair - I think not!!
Manson, London,
We will only pay for it an another charging mechanism.
steve tea, manchester, cheshire
Bank's have systematically and deliberately been impoverishing their customers whilst enriching themselves.
It will be a source of great joy to many ordinary people that this band of greedy, grasping extortionists, crooks and thieves has at last got its come-uppance.
Nick Rogers, Newton Ferrers, Devon.
If my bank starts charging for in-credit banking, I'll change banks. They won't all do it; the market's much too competitive. If they want to recoup the money, they should stop lending money to people who can't afford to pay it back. Then they wouldn't have to write off so many bad debts.
Paul, London,
At the end of the day these charges were clearly stated, I as a careful customer have be fortunate to never pay a single penalty charge to a bank.
With banks desperatley trying to protect there profit base because of the credit crunch, the result will be higher mortgage payments for all.
adrian, aldershot, England
unfortunately the imprudent have subsidised the prudent for too long. i see no reason why i should be made to subsidise your banking as quite plainly you are a far better financial manager than myself. surely if you have had a service you should expect to pay for it at a REASONABLE cost as we do?
a.wright, leicester, england
My 19 year old son was charged ove £80 by Lloyds for accidentally going £2 overdrawn for a few days. Letters had been sent to an incorrect address and even though the bank had his mobile number they failed to ring him to inform him of the situation. The sooner this disgrace is sorted the better.
Neil, Congleton, cheshire
Rats... how annoying. I keep my account in credit and haven't paid any bank charges in years. Having lived overseas, banks there will charge you monthly fees and transaction fees and this case will just herald the introduction of these fees here... Thanks for nothing OFT.
Ed, Edinburgh,
So once again the prudent will be forced to subsidise the imprudent.
No more free banking for those who always stay in credit.
Tony Peterson, kendal,
Yet again no one is considering the knock on effect - last year when credit card charges were reduced - interest rates were raised by at least 6% across the board.
Now it will be the end of free banking - why should I suffer thanks to those who go over there limits when not reading T&T!
Jason Day, Bury St Edmunds, England
>>Every second that this issue remains unresolved is costing consumers up to £111 in overdraft charges<<
No! not for me. How hard can it be to spend within your limits? I may now face having to pay to even have an account.
Chris, Rugby,
I think this is a brilliant triumph to society.
Yesterday I had a meeting with my bank manager regarding charges, which could have ended up being £215, because of a £20 daily charge.
Hopefully, as said above, they wont drag their backsides and appealor take their time to refund.
Tom, Caernarfon, North Wales
The only effect if the banks eventually lose this case is that those people who operate their accounts in accordance with the terms they agreed will now find themselves being charged to pay for this.
Oscillator, HARROW, UK