H.O.L Test case appeal. Judgement Declared. ***See Announcements***

[means2anend]

THE OPERATIVE PART OF THE JUDGEMENT

Judgement of the Court (Fouth Chamber) of 4 June 2009 (reference for a preliminary ruling from the Budaorsi Varosi Birosag (Hungary)

Case C-243/08

 

Applicant: Pannon GSM Zrt

 

Defendant:Erzsebet Sustikne Gyorfi

 

Directive 93/13/EEC-Unfair Terms in consumer contracts-Legal effects of an unfair term-Power and obligation on the national court to examine of its own motion the unfairness of a term conferring jurisdiction-Criteria for assessment

 

Language of the Case-Hungarian

 

Referring court-Budaorsi Varosi Birosag

 

Re:Reference for a preliminary ruling-Budaorsi Varosi Birosag-Interpretation of Council Directive 93/13/EEC of April 5th 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p29 )-

 

Clause conferring jurisdiction on a court in the territorial jurisdiction of which the seller or supplier has his principal place of business-Power of the Court to examine of its own motion, and in the context and in the context of its own jurisdiction, whether the clause conferring jurisdiction is unfair-Criteria to be applied in determining whether the clause is unfair

 

Operative Part Of The Judgement

 

1. Article 6(1) of Council Directive 93/13/EEC of April 5th 1993, on unfair terms in consumer contracts, must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand.

 

2. The national court is required to examine of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task.Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non-application.That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction.

 

3:It is for the national court to determine whether a contractual term, such as that which is the subject-matter of the dispute in the main proceedings, satisfies the criteria to be categorised as unfair within the meaning of Article 3(1) of Directive 93/13/EEC.In so doing, the national court must take account of the fact that a term, contained in a contract concluded between a consumer and a seller or a supplier, which has been included without being individually negotiated and which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business may be considered to be unfair

[means2anend]

The ECJ are also EAGERLY concerned to see that the national courts of each of the member states actually make sure that when they interpret and apply these judgements the difference in interpretation between them is minimal in the interests of uniformity and harmonisation bearing in mind the nature of the problem of differing languages and meanings...

 

Make that of what you will in the light of recent developments...

 

And because of the above ..I think that the boogie man gonna come a knocking on the banks THIS SIDE of the border ...soooooonnn!!!

 

rgds

 

m2ae;)

[Bigdebtor]

Of course we Scots are lighting the way ahead yet again - as we have done consistently since the Age of Enlightenment.

[kennyh]

Of course we Scots are lighting the way ahead yet again - as we have done consistently since the Age of Enlightenment.

Of course you are madam - OH! is that a kilt I see before me?

They certainly lit the way at Culloden.

Let's concentrate on the battles (in court) to come.

[kennyh]

I've a, more or less, real time enquiry; in that my response to the court order isn't due until 26th but I now have to give support to my very aged in-laws from am 25th.

I'm well into redrafting my poc using UTCCR 99 regulation 5 paras 1-5, as my mainstay but am not sure how I finish the statement in terms of asking for my money back - in using UTCCR 5, I believe I am concluding that their charges are 'unlawful' - am I correct?

Also the period of claim is from 1998 - 2007; can anybody advise a valid argument for deploying s.32 of the Limitation Act.

I would normally confine this to a specific thread but it generically it will affect many folk and I have tried pm to various folk/mods etc but all mail boxes seem to be full. As I said at the start this is as near 'real time' as it gets so help really would be appreciated.

[Bigdebtor]

Kenny

I got this from another CAGGER on a Cr*p One thread. The full letter is there but this bit covers why the the Limitation Act does not stop you going back into the 1990's.

Hope it helps.

BD

I note your comments regarding the Limitation Act 1980 and I would draw your attention to section 32 of the Act as outlined below:

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

In the case of Kleinwort Benson -v- Lincoln City Council & Others in the House of Lords on 29 October 1998 their Lordships ruled:

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have become evident. It is my assertion that I could not, with reasonable diligence, have discovered this issue before April 2006, this being the date of publication of the Office of Fair Trading referred to by you, and so the 6 year period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from September 2000

[kennyh]

You're a bighearted person, BD, particularly after my digs

[Bigdebtor]

We Scots can rise above such jibes;) and still have time to help you lot while inventing everything (including proper justice) and running two Parliaments!

 

BD

 

PS Up here "kent" is th epast tense of "knowing"!

[kennyh]

running two Parliaments

! Wouldn't be tooooo proud of that achievement

[hsbcfiddled]

Quote:

running two Parliaments

 

Was the running two parliaments well?- or into the ground?

[means2anend]

We Scots can rise above such jibes;) and still have time to help you lot while inventing everything (including proper justice) and running two Parliaments!

 

BD

 

PS Up here "kent" is th epast tense of "knowing"!

 

NOW THAT

 

is an ACT Of UNION....which no doubt this forum has intellectually

:grin:

 

m2ae

[rdm2006]

We Scots can rise above such jibes;) and still have time to help you lot while inventing everything (including proper justice) and running two Parliaments!

 

BD

 

PS Up here "kent" is th epast tense of "knowing"!

 

Inventing everything ?

 

Apart from underwear by all accounts lol :grin:

[Bigdebtor]

I think I had better stop goading you lot with all our acheivements before we get another row for being off topic! Suffice to say we are content just to know we are the chosen peeeeepul - even if others forget it or can't quite see it!

 

BD

[Helford]

MSE has just posted their new Bank Charges Refund Guide

 

Bank Charges Court Guide: New legal arguments to take on the banks...

[kennyh]

Looks encouraging but can someone expand on the interest elements please - I see no place to include compound int already charged as a specific sum.

[tifo]

can someone explain how charges can be reclaimed by going back as far as 1 Jan 1995? I've seen this mentioned but not read how and why (put your mouse pointer over the 'limitation act' links in posts and read the last sentence in the pop up box).

 

thanks.

[Bigdebtor]

can someone explain how charges can be reclaimed by going back as far as 1 Jan 1995? I've seen this mentioned but not read how and why (put your mouse pointer over the 'limitation act' links in posts and read the last sentence in the pop up box).

 

thanks.

 

Tifo

 

The attached - originally provided by Shadow - should answer your question and can be used in any required response by you to refute any moves to limit you to the last 6 years.

 

I note your comments regarding the Limitation Act 1980 and I would draw your attention to section 32 of the Act as outlined below:

 

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

 

In the case of Kleinwort Benson -v- Lincoln City Council & Others in the House of Lords on 29 October 1998 their Lordships ruled:

 

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

 

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have become evident. It is my assertion that I could not, with reasonable diligence, have discovered this issue before April 2006, this being the date of publication of the Office of Fair Trading referred to by you, and so the 6 year period of limitation should not have started to run until that time. I therefore resubmit my claim for the refund of all default charges and accrued contractual interest arising from

[tifo]

I did read this extract from the previous post but it mentions 6 years again and again.

 

I understood it as 3 years for the discovery and 6 years before that, amounting to 9 years within which to claim.

 

Or is the extract above saying 6 years from the date of discovery and going back 6 years from that, meaning 12 years in total?

 

But that still doesn't explain 1995 - 2010 which is 15 years?

[hsbcfiddled]

I did read this extract from the previous post but it mentions 6 years again and again.

 

I understood it as 3 years for the discovery and 6 years before that, amounting to 9 years within which to claim.

 

Or is the extract above saying 6 years from the date of discovery and going back 6 years from that, meaning 12 years in total?

 

But that still doesn't explain 1995 - 2010 which is 15 years?

 

I understood the six years was the time period in which you had to take action. So if you discovered it today you have until 24/02/2016 to seek redress. IMHO

Someone please correct me if i am wrong.

[matt_smith2000]

Hello

 

I successfully reclaimed all my charges before the waiver came into force, however, I have since racked up a shed load of charges which I would like back.

 

This means that I have to start with a preliminary letter and LBA again.

 

I have amended my original preliminary letter, as below:

 

Request for repayment of charges

Dear Sir/Madam,

 

ACCOUNT NUMBER: xxxxxxxx

SORT CODE: xxxxxxxxxxx

My request

I am writing to ask you to refund to me the charges which you have levied from my account since April 2007. I wish to bring your attention to two points in law.

Regulation 5 (Section 1) of the UTCCR states:

5. – (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

Section 140a of the Consumer Credit Act (CCA) states:

S.140a The court may make an order in connection with a credit agreement if it determines that the relationship between the creditor and the debtor is unfair to the debtor.

 

At the time of opening my account with Royal Bank of Scotland, I was presented with a standard set of Terms and Conditions, with no option to negotiate individual terms within those Terms and Conditions, to my detriment.

Your responsibilities

 

By drawing your attention to the two points in law detailed above, I require a details of the price of the charges I incurred, and, more specifically, how that price was derived.

It is my belief that the price of the charge greatly exceed the actual cost incurred due to my indiscretion, and as such is subject to the above points in law. By providing me with details of how the price was derived, I also require the actual cost to yourselves.

What I require

I calculate that you have taken £xxxx. I enclose a schedule of the charges which I am claiming with this letter

 

My targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

 

Yours faithfully,

 

Can anybody see any issues with this?

[Bigdebtor]

I understood the six years was the time period in which you had to take action. So if you discovered it today you have until 24/02/2016 to seek redress. IMHO

Someone please correct me if i am wrong.

 

H

 

I think the same. You can go back to year dot to recaim charges which should not have been levied (whether by fraud or erroretc.) - provided you do so within 6 years of discovering you have a claim - which in the case of card default charges was when the OFT reported - and for bank charges may not yet have started becasue of SC shambles etc.

 

BD

[the_shadow]

I did read this extract from the previous post but it mentions 6 years again and again.

 

I understood it as 3 years for the discovery and 6 years before that, amounting to 9 years within which to claim.

 

Or is the extract above saying 6 years from the date of discovery and going back 6 years from that, meaning 12 years in total?

 

But that still doesn't explain 1995 - 2010 which is 15 years?

 

Hi tifo,

 

I see Bigdebtor quoted me above but I was quoting someone else ;-)

 

Basically that passage of text was for a letter for Credit Card charges so the dates will be wrong.

 

AIUI its always 6 years, its just where that 6 years start. I like to look at it as being the date you would be reasonably informed about the cause of action.... so if the OFT made an announcement that charges would be looked at in 2006, I would claim back all charges to the anniversary date in 2000 (FOR EXAMPLE, no idea of the real dates)

 

S.

[Bigdebtor]

Hi tifo,

 

I see Bigdebtor quoted me above but I was quoting someone else ;-)

 

Basically that passage of text was for a letter for Credit Card charges so the dates will be wrong.

 

AIUI its always 6 years, its just where that 6 years start. I like to look at it as being the date you would be reasonably informed about the cause of action.... so if the OFT made an announcement that charges would be looked at in 2006, I would claim back all charges to the anniversary date in 2000 (FOR EXAMPLE, no idea of the real dates)

 

S.

 

Shadow

 

Based on the text you (via someone else) provided quoting the Limitation Act I believe this Act gives you 6 years FROM THE TIME WHEN YOU COULD REASONABLY BE EXPECTED TO KNOW you had such a claim - so for Credit Cards you have until April 2012 to make a claim for ALL unfair/illegal credit card default charges.

 

Since the Law is not yet clear on Bank Charges :confused:then I believe the 6 years has yet to start - see the text here:

 

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

 

· If a party pays another on the basis of settled law and that law is subsequently overturned, the paying party may seek recovery of the sums paid over even though this may be many years after the event.

· The party seeking repayment now has six years from the date of any new decision affecting it in which to bring an action for recovery of monies paid out under the old, overruled law.

 

The Court also held that if a payment is made under a mistaken understanding of the law, then the person who has made such payment has six years to recover sums paid as a result of this mistaken understanding dating from the date when such mistake should have become evident.

 

The Banlks won't help by giving info over 6 years old (although they should if they have it) - but that is the only time 6 years comes into play imvho.

 

I may be wrong - but this is the tack I have taken with Cr*p one so far (not won or lost yet) - and will take the same tack with the Banks once we eventually do win.

 

BD

[means2anend]

The provisions above are similar in effect to provisions for claiming for illnesses (mesotholemia,asbestos related) that miners and those in the industrial sector contracted but had no knowledge about and therefore could not reasonably be expected to point to a specific date that he knew he had contracted that disease.

 

Many years after when these diseases become diagnosed by the medical profession on an individual that individual then has knowledge that he does indeed suffer from a recognised type of damage and the and the clock starts ticking down from then ...

 

For example..a miner left working in the mines in 1976.In 2001 he was diagnosed as having the disease and provided the causal element is satisfied he would then have no later than 6 years from 2001 or what ever the limitation period would be for that claim..I am speaking within the context of personal injury claims but the principle is basically the same.

 

The nature of the disease was such that he could not have reasonably known what it was nor when it started.

 

Therefore each case will be determined upon its own material facts....

 

m2ae

[means2anend]

Basically what the above comes down to is this.....

 

Once the TRUE facts have been established...the relevant limitation period will start ticking down ...only ONCE the individual has ACTUAL KNOWLEDGE or CONSTRUCTIVE KNOWLEDGE (ought/could/should reasonably have been expected to know) ...the circumstance pertaining to him

 

So in effect is is HIS KNOWLEDGE that triggers the clock ticking down..The true facts could have been established already a year earlier but without his personal knowledge the limitation period has not started ticking down until he is fixed with that knowledge Actual or Constructive...

 

This is in essence an equitable principle where sticking to the black letter of the law would cause injustices...and were primarily developed in the Court of Chancery long time ago.But thats another subject.

 

 

m2ae

Edited February 24, 2010 by means2anend