Page last updated at 13:38 GMT, Thursday, 26 February 2009

Bank charges appeal is thrown out

Sir Anthony Clarke, Master of the Rolls
Sir Anthony Clarke suggested a further bank appeal would be a waste of time

An appeal by eight banks, against a High Court ruling that a regulator can investigate the fairness of overdraft charges, has been thrown out.

The Appeal Court ruled that the Office of Fair Trading (OFT) has the power to investigate the issue of bank charges.

The banks will ask the House of Lords for permission to appeal further, against the appeal judges' advice.

Tens of thousands of claims currently on hold in the English and Scottish legal systems will stay frozen.

The OFT welcomed the Appeal Court ruling.

"The court found that these terms are not part of the core or essential bargain between a consumer and their bank, and therefore consumers do have protection under the Unfair Terms in Consumer Contract Regulations (UTCCRs) for these terms," the OFT said.

"We expect to reach a final decision on fairness later this year," it added.

Banks continue fight

Sir Anthony Clarke, Master of the Rolls, dismissed the banks' appeal and told them they should now allow the OFT to decide whether their charges were fair or not.

They [the banks] know no shame
Marc Gander, Consumer Action Group

He said four High Court judges had now come to the same conclusion on the issue of the OFT's jurisdiction.

However, the British Bankers' Association (BBA) said its members still disputed the decision of the High Court and now the Appeal Court.

"The banks continue to believe that the Regulations do not apply to these type of charges," a spokesman said.

"The banks will apply to the House of Lords for permission to appeal the Court of Appeal's decision.

"The banks will work with the OFT to ensure the next stages in the test case process are progressed as quickly as possible," he added.

Marc Gander of the Consumer Action Group (CAG) said the bank's decision to appeal further was "amazing".

"They know no shame," he said.

"You'd have thought they would choose to come quietly and join the rest of society - it is astonishingly arrogant of these people," he added.

Unanimous decision

The banks had argued last year, in both the High Court and the Appeal Court, that their overdraft charges fell outside the scope of the 1999 Unfair Terms in Consumer Contracts regulations.

It is great to see the Court of Appeal being so unequivocal in their guidance to the banks
Chris Warner, Which?

However, the three Appeal Court judges rejected this view.

"We have unanimously concluded that the application should be refused," said Sir Anthony.

"The issues should now be resolved by an OFT assessment of fairness," he added.

He refused the banks leave to appeal further, but they have decided to apply anyway directly to the House of Lords for permission to appeal.

Bank charges campaigners were delighted with the Appeal Court ruling.

Chris Warner, of the consumers' association Which?, said: "It is great to see the Court of Appeal being so unequivocal in their guidance to the banks that this is the end of the road."

"They should now let the OFT do its job. The banks have the right to appeal to the House of Lords but the Court of Appeal could not have been clearer that that is not the appropriate way to go forward," he added.

County courts

The litigation between the OFT and eight banks started in July 2007 and now looks likely to run into 2010.

If the OFT ultimately wins the case, several billion pounds could potentially be refunded to millions of bank customers.

Since the test case started, tens of thousands of claims for the return of overdraft charges have been frozen in the English and Scottish legal systems, waiting for a final decision on whether bank overdraft charges are fair or not.

In 2007, when the campaign for the return of overdraft charges was threatening to swamp the court system, the UK's banks were estimated to have repaid more than three quarters of a billion pounds to about 378,000 customers.

A further 65,000 claims are known to be on hold in the English county courts alone.

Sir Anthony Clarke said it was "sensible" that the stay on county court proceedings should remain in place until a final decision on fairness of bank charges was made.

All county courts have now been sent a letter to this effect, from the deputy head of Civil Justice in England & Wales, inviting local judges to continue the existing stays, until either the House of Lords or the OFT's investigation come to a conclusion.

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