OFT test case

[Guest vortex]

The first couple of lines seem to almost mirror the Treating Customers Fairly approach of the FSA.

 

second bullet point

introduces a general prohibition on traders not to treat consumers unfairly

[Bookworm]

introduces a general prohibition on traders not to treat consumers unfairly

Are you sure?

[tomterm8]

Are you sure?

 

it does, but the directives definition of "unfair" is not the same as most normal people. Besides, this is a directive, not law... there is a margin of appreciation.

[Guest Wild Billy]

Besides, this is a directive, not law... there is a margin of appreciation.

 

I don't understand.

 

The Unfair Commercial Practices Directive (UCPD) was adopted on 11 May 2005. Regulations implementing the Directive in the UK will come in to force by April 2008.

[Bookworm]

introduces a general prohibition on traders not to treat consumers unfairly

= Tom, work out the double negatives, it should be "a prohibition to treat consumers unfairly", otherwise it's really bad for us all! ;-)

[tomterm8]

= Tom, work out the double negatives, it should be "a prohibition to treat consumers unfairly", otherwise it's really bad for us all! ;-)

 

Bookie, do you get some sadistic pleasure taunting us mortals with grammar... if I wanted grammar, I might have listened in english lessons.

 

Hrmph.

[Bookworm]

No, dear, only when it rather radically alters the meaning of the sentence.

 

I'll shut up now on the subject, promise.

[tomterm8]

I don't understand.

 

 

Different nations can implement the directive in different ways... there is a margin of appreciation; they must fulfil the purpose of the directive, but not necessary in exactly the form specified in the directive.

 

edit: bookie PMSL

[Ladidi]

Hi Everyone,

 

I have a couple of questions but not enough time to go through all of the inscriptions left on here by everyone so I`ll just ask the questions and then shut up ok..lol

 

1) How is the case going? In short are we onto a winner or no hope at all?

 

2) I know the OFT are starting to outline their arguments starting next week and no matter who wins the losing side is expected to appeal all the way to the house of Lords, so in short no one is going to be winner for at least a another 1.5years, well except the banks they get to invest what they might be forced to repay effectively costing them nothing in long run! So can the OFT not force the banks if they win that any "stay" they have on cases already in the courts system to be allowed to continue or be upheld in favour of the "plaintiff"?

[Guest Wild Billy]

Hi Everyone,

 

I have a couple of questions but not enough time to go through all of the inscriptions left on here by everyone so I`ll just ask the questions and then shut up ok..lol

 

1) How is the case going? In short are we onto a winner or no hope at all?

 

2) I know the OFT are starting to outline their arguments starting next week and no matter who wins the losing side is expected to appeal all the way to the house of Lords, so in short no one is going to be winner for at least a another 1.5years, well except the banks they get to invest what they might be forced to repay effectively costing them nothing in long run! So can the OFT not force the banks if they win that any "stay" they have on cases already in the courts system to be allowed to continue or be upheld in favour of the "plaintiff"?

 

Yes. No. And then maybe.

 

If you haven't got time to read the thread and find this out yourself then I really havent got time to do anymore than wonder how important it is that you know.

[Ladidi]

I wouldn't mind going through the threads wildbilly, but I do when half of them mentioned on here dont have anything to do the OFT test case after all thats what the head title says doesn't it?

 

Dont get me wrong I believe people should post the questions and queries, but they could at least post them on the correct threads and keep all the upto date important day to day information of the test case in one place then people would have the questions and answers in one place and wouldn't need to ask the question if the answer can be found in front of them!

 

No offense or pun intended to anyone just my opinion.

[Guest Wild Billy]

No offence taken. Check this out for eveything you need:

 

TEST CASE NEWS - Penalty Charges Forum

[Ladidi]

Thanks for that Wild Billy, I have joined the site and added it to my favourites so I can keep up to speed.

[JonCris]

Hence the reason for the name change - over a year ago.

 

On a different note:

 

There are some users who seem to be stirring things up again (it's always the same few). These are users that declared "I'll never be back" etc... yet, here they are. Hardly at all predictable ;-)

 

Their attempts to disguise themselves are easily seen through, and we know who they are.

 

Also, I would disagree that this isn't a 'campaign' issue.

 

Surely the point of the campaign was to get the case heard in the first place - we've succeeded at doing that (of sorts), and as such I fail to see how the current case is not part of the campaign.

 

Of course it's a campaign Dave & anyone who thinks differently just ain't getting the message. If it wasn't for sites like CAG the banks would be going on their merry way & wouldn't now be in court trying to justify their greed.

 

Everything done here forms the part of some united campaign whether it's bringing the banks to book or retailers in fact the whole so called service industry who have for years ripped off the British consumer with impunity. This country is known throughout the business world, both here & abroad, as 'Treasure Island' ever wondered why?

[JOSH_IOU]

Practice Directions

 

References to the Europen Court of Justice by The Court of Appeal and The High Court under Article 177 of the EC Treaty

 

 

1. Before making a reference to the European Court of Justice under Article 177 of the EC Treaty the Court of Appeal and the High Court should pay close attention to (a) the terms of that Article, (b) Order 114 of the Rules of the Supreme Court and © Practice Form 109 (at para. 1A-114 of Volume 2 of the Supreme Court Practice 1999). Close attention should also be paid to the Guidance of the European Court of Justice on References by National Courts for Preliminary Rulings: this is incompletely reproduced at [1997] 1 CMLR 78, and the full Guidance is set out in Schedule B to this Practice Direction.

2. It is the responsibility of the British court, not the parties, to settle the terms of the reference. This should identify as clearly, succinctly and simply as the nature of the case permits the question to which the British court seeks an answer. It is very desirable that language should be used which lends itself readily to translation.

3. The referring court should, in a single document scheduled to the order:

(1) identify the parties and summarise the nature and history of the proceedings;

(2) summarise the salient facts, indicating whether these are proved or admitted or assumed;

(3) make reference to the rules of national law (substantive and procedural) relevant to the dispute;

(4) summarise the contentions of the parties so far as relevant;

(5) explain why a ruling of the European Court is sought, identifying the EC provisions whose effect is in issue;

(6) formulate, without avoidable complexity, the question(s) to which an answer is requested.

Where the document is in the form of a judgment, as will often be convenient, passages which are not relevant to the reference should be omitted from the text scheduled to the order. Incorporation of appendices, annexures or enclosures as part of the document should be avoided, unless the relevant passages lend themselves readily to translation and are clearly identified.

4. The referring court should ensure that the order of reference, when finalised, is promptly passed to the Senior Master of the Queen's Bench Division so that it may be transmitted to Luxembourg without avoidable delay. The title of the referring court should be stated, as appropriate (see Schedule A).

Lord Chief Justice of England and Wales

14 January 1999

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Schedule A - Schedule of Titles

Court of Appeal (Criminal Division) (England & Wales)

Court of Appeal (Civil Division) (England & Wales)

High Court of Justice - Queen's Bench Division (England & Wales)

High Court of Justice - Queen's Bench Division (Divisional Court) (England & Wales)

High Court of Justice - Queen's ;Bench Division (Commercial Court) (England & Wales)

High Court of Justice - Queen's Bench Division (Crown Office) (England & Wales)

High Court of Justice - Queen's Bench Division (Admiralty Court) (England & Wales)

High Court of Justice - Technology and Construction Court (England & Wales)

High Court of Justice - Employment Appeals Tribunal (England & Wales)

High Court of Justice - Chancery Division (England & Wales)

High Court of Justice - Chancery Division (Divisional Court) (England & Wales)

High Court of Justice - Chancery Division (Patent Court) (England & Wales)

High Court of Justice - Chancery Division (Companies Court) (England & Wales)

High Court of Justice - Chancery Division (Bankruptcy Court) (England & Wales)

High Court of Justice - Family Division (England & Wales)

High Court of Justice - Family Division (Divisional Court) (England & Wales)

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Schedule B - Guidance of the European Court of Justice on References by National Courts for Preliminary Rulings.

The development of the Community legal order is largely the result of cooperation between the Court of Justice of the European Communities and national courts and tribunals through the preliminary procedure under Article 177 EC and the corresponding provisions of the CSC and Erratum Treaties.

In order to make this cooperation more effective, and so enable the Court of Justice better to meet the requirements of national courts by providing helpful answers to preliminary questions, this Note for Guidance is addressed to all interested parties, in particular to all national courts and tribunals.

It must be emphasised that the Note is for guidance only and has no binding or interpretative effect in relation to the provisions governing the preliminary ruling procedure. It merely contains practical information which, in the light of experience in applying preliminary ruling procedure, may help to prevent the kind of difficulties which the Court has sometimes encountered.

1. Any court or tribunal of a Member State may ask the Court of Justice to interpret a rule of Community law, whether contained in the Treaties or in acts of secondary law, if it considers that this is necessary for it to give judgment in a case pending before it.

Courts or tribunals against whose decisions there is no judicial remedy under national law must refer questions of interpretation arising before them to the Court of Justice, unless the Court has already ruled on the point or unless the correct application of the rule of Community law is obvious.

2. The Court of Justice has jurisdiction to rule on the validity of acts of the Community institutions. National courts or tribunals may reject a plea challenging the validity of such an act. But where a national court (even one whose decision is still subject to appeal) intends to question the validity of a Community act, it must refer that question to the Court of Justice.

Where, however, a national court or tribunal has serious doubts about the validity of a Community act on which a national measure is based, it may, in exceptional cases, temporarily suspend application of the latter measure or grant other interim relief with respect to it. It must then refer the question of validity to the Court of Justice, stating the reasons for which it considers that the Community act is not valid.

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3. Questions referred for a preliminary ruling must be limited to the interpretation or validity of a provision of Community law, since the Court of Justice does not have jurisdiction to interpret national law or assess its validity. It is for the referring court or tribunal to apply the relevant rule of Community law in the specific case pending before it.

4. The order of the national court or tribunal referring a question to the Court of Justice for a preliminary ruling may be in any form allowed by national procedural law. Reference of a question or questions to the Court of Justice generally involves stay of the national proceedings until the Court has given its ruling, but the decision to stay proceedings is one which it is for the national court alone to take in accordance with its own national law.

5. The order of reference containing the question or questions referred to the Court will have to be translated by the Court's translators into the other official languages of the Community. Questions concerning the interpretation or validity of Community law are frequently of general interest and the Member States and Community institutions are entitled to submit observations. It is therefore desirable that the reference should be drafted as clearly and precisely as possible.

6. The order for reference should contain a statement of reasons which is succinct but sufficiently complete to give the Court, and those to whom it must be notified (the Member States, the Commission and in certain cases the Council and the European Parliament), a clear understanding of the factual and legal context of the main proceedings.

In particular, it should include:

- a statement of the facts which are essential to a full understanding of the legal significance of the main proceedings;

- an exposition of the national law which may be applicable;

- a statement of the reasons which have prompted the national court to refer the question or questions to the Court of Justice; and

- where appropriate, a summary of the arguments of the parties.

The aim should be to put the Court of Justice in a position to give the national court an answer which will be of assistance to it.

The order for reference should also be accompanied by copies of any documents needed for a proper understanding of the case, especially the text of the applicable national provisions. However, as the case-file or documents annexed to the order for reference are not always translated in full into the other official languages of the Community, the national court should ensure that the order for reference itself includes all the relevant information.

7. A national court or tribunal may refer a question to the Court of Justice as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment. It must be stressed, however, that it is not for the Court of Justice to decide issues of fact or to resolve disputes as to the interpretation or application of rules of national law. It is therefore desirable that a decision to refer should not be taken until the national proceedings have reached a stage where the national court is able to define, if only as a working hypothesis, the factual and legal context of the question; on any view, the administration of justice is likely to be best served if the reference is not made until both sides have been heard.

8. The order for reference and the relevant documents should be sent by the national court directly to the Court of Justice, by registered post, addressed to:

The Registry

Court of Justice of the European Communities

Bell L2925, Luxembourg

(352) 43031

The Court Registry will remain in contact with the national court until judgment is given, and will send copies of the various documents (written observations, Report for the Hearing, Opinion of the Advocate General). The Court will also send its judgment to the national court. The Court would appreciate being informed about the application of its judgment in the national proceedings and being sent a copy of the national court's final decision.

9. Proceedings for a preliminary ruling before the Court of Justice are free of charge. The Court does not rule on costs.

[JOSH_IOU]

Legal / Professional - Practice Directions

[Son of Shoestring]

Competition law.

 

That's what I believe will absolutly screw the banks up.

 

At the moment, the banks appear to be operating essentially as a cartel; seven banks who control 90% of the overdraft have essentially identical charges for these "services".

 

So if they win this case, the result is larger liability than if they lose.

 

I do agree. I think it is obvious that the banks are acting as a cartel. But I don't think the OFT cares to see it that way and so nothing will happen. Also, proving it would be almost impossible, I think.

 

The banks are far more powerful than anyone can imagine. They set out to take over the political elite and de facto control of various countries decades ago, using money as the leverage to achieve this.

 

CAG has to be congratulated for becoming an important lobby that is putting a spoke in the banks wheels...

[ginan]

Hi Everyone,

 

I have a couple of questions but not enough time to go through all of the inscriptions left on here by everyone so I`ll just ask the questions and then shut up ok..lol

 

1) How is the case going? In short are we onto a winner or no hope at all?

 

2) I know the OFT are starting to outline their arguments starting next week and no matter who wins the losing side is expected to appeal all the way to the house of Lords, so in short no one is going to be winner for at least a another 1.5years, well except the banks they get to invest what they might be forced to repay effectively costing them nothing in long run! So can the OFT not force the banks if they win that any "stay" they have on cases already in the courts system to be allowed to continue or be upheld in favour of the "plaintiff"?

 

For what it's worth here's my take on on it:

 

1) Although the judge has been thorough in probing the banks arguments and at times has been critical, the OFT are yet to set out their case so it’s difficult to form a balanced view. But I’d agree with most observers that on the basis of what we've seen so far the OFT are ahead on points.

 

2) The judge made it clear early on in the hearing that on giving his judgement - expected around May - he would make a recommendation to the County Courts on the matter of current stays and this he would do regardless of any appeal being made. However, on Thursday lead QC for all the banks, Laurence Rabinowitz suggested they would appeal the recommendation although I'm unclear as to what the legal position on this is.

 

The OFT can’t influence the status of County Court stays this but the FSA can and the judge has asked the FSA’s legal representative at the hearing for the FSA’s stance. The banks are very keen to involve the FSA for obvious reasons. The waiver cannot exist without court stays and probably visa versa.

[JOSH_IOU]

I

 

CAG has to be congratulated for becoming an important lobby that is putting a spoke in the banks wheels...

 

Here here.

[Guest Wild Billy]

I do agree. I think it is obvious that the banks are acting as a cartel. But I don't think the OFT cares to see it that way and so nothing will happen. Also, proving it would be almost impossible, I think.

 

So it is obvious but it is almost impossible to prove? Hardly obvious then is it!? But based on something that is in your mind almost impossible to prove, you'd have the authorities do what exactly?

[saintly_1]

Can we at least 'try' to keep this thread on topic .......

[Guest Wild Billy]

For what it's worth here's my take on on it:

 

1) Although the judge has been thorough in probing the banks arguments and at times has been critical, the OFT are yet to set out their case so it’s difficult to form a balanced view. But I’d agree with most observers that on the basis of what we've seen so far the OFT are ahead on points.

 

2) The judge made it clear early on in the hearing that on giving his judgement - expected around May - he would make a recommendation to the County Courts on the matter of current stays and this he would do regardless of any appeal being made. However, on Thursday lead QC for all the banks, Laurence Rabinowitz suggested they would appeal the recommendation although I'm unclear as to what the legal position on this is.

 

The OFT can’t influence the status of County Court stays this but the FSA can and the judge has asked the FSA’s legal representative at the hearing for the FSA’s stance. The banks are very keen to involve the FSA for obvious reasons. The waiver cannot exist without court stays and probably visa versa.

 

Excellent and helpful summary.

[Aequitas]

1. However large the room the number of people who could attend would be limited.

 

2. If the public are admitted the hearing is not in private.

 

3. The public cannot participate.

 

4. The proceedings will all be made public.

 

5. The outcome of the case will not be affected by the number of members of the public who attend.

 

6. There is no conspiracy.

[JonCris]

I shouldn't be to sure about that Aequitas. The courts might just be going through the motions.

 

Why did the OFT 'consult' the banks BEFORE issuing proceedings. Bit like telling the opposing forces where your army is & how you intend to use them

 

Also if not a conspiracy why did the FSA give the banks a waiver without demanding a moratorium on penalty charges, after all they ARE supposed to be even handed.

 

Anyway we'll know for sure when the verdict comes in.

[ginan]

I shouldn't be to sure about that Aequitas. The courts might just be going through the motions.

 

Why did the OFT 'consult' the banks BEFORE issuing proceedings. Bit like telling the opposing forces where your army is & how you intend to use them

 

Also if not a conspiracy why did the FSA give the banks a waiver without demanding a moratorium on penalty charges, after all they ARE supposed to be even handed.

 

Anyway we'll know for sure when the verdict comes in.

 

We're going round in circles again here.

 

There are lots of reasons the OFT had to 'consult' the banks not least to get a written agreement for a speedy conclusion that would not allow the banks to drag the legal proccess out for decades which they undoubtedly would do otherwise.

 

The FSA's waiver, although not untypical of them, cannot be attributed to a conspiricy as their decision was made independently of the OFT and in fact the OFT were unaware of it before it was announced.

 

And to say ''the courts might just be going through the motions'' then Justice Smith should get 'best actor' at the next oscars.