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Last Updated: Wednesday, 21 November 2007, 22:38 GMT
FSA defends role over bank charges
By Ian Pollock
Personal finance reporter, BBC News

FSA headquarters in London
The FSA is investigating if banks have unfairly changed their charges
The Financial Services Authority (FSA) has defended its decision to keep in place the "waiver" that allows banks to put complaints about overdraft charges to one side.

First put in place in July, it was renewed this week, ahead of a High Court test case early next year which may settle the legality of the banks' charges.

Some consumer and campaign groups have criticised the waiver as being one-sided and unfair to bank customers.

But Clive Briault, a senior FSA executive said: "The aim is not to disadvantage people, the purpose is to get the legal certainty and deal with the complaints on the basis of that."

New charges

The consumers association Which? has taken a dim view of the FSA's approach.

Have they moved the charges definitively against the interests of their customers? We have not seen any evidence of that
Clive Briault, FSA

Its personal finance campaigner, Doug Taylor, said that since the test case was initiated in July, some banks had "muddied the waters by amending their terms and conditions to make their charges appear fairer".

"We do not agree with them [the FSA] that everything is working as it should," he added.

"The FSA needs to be more proactive."

Mr Briault replied that the possibility that a few people might have been disadvantaged did not mean the waiver should be cancelled.

"What we are doing is reviewing very carefully if there are any individual firms that are not complying with the conditions of the waiver," he said.

"Have they moved the charges definitively against the interests of their customers? We have not seen any evidence of that."

However not everyone is convinced.

"Not only have the banks continued charging, some have made their fee structure even more punitive to consumers," said Martin Lewis of the campaigning website Moneysavingexpert.com.

Credit cards

In April 2006 the banks agreed, under pressure from the Office of Fair Trading (OFT) to reduce their default fees on credit cards to 12.

If there has been evidence of the banks using our waiver to delay handling other complaints then that is something we want to see evidence of
Clive Briault, FSA

That left some people trying to recover money paid before the agreement was in place.

But there have been examples, in some local courts, of barristers representing banks arguing that the general halt to overdraft claims should also mean a halt to the return of credit card charges.

Both the OFT and the British Bankers' Association (BBA) have said explicitly that the two types of claim should not be confused.

And Mr Briault added that such behaviour by banks would be a clear breach of the conditions of the FSA waiver.

But he said the regulator had not been given any direct evidence that this was actually happening.

"If there has been evidence of the banks using our waiver to delay handling other complaints then that is something we want to see evidence of," he said.

"That would sound contrary to the conditions of our waiver."

Confusion

Some apparent confusion over the issue has been revealed at the highest level of the English and Welsh judiciary.

Letter from Lord Justice Moore-Bick

One bank charges campaigner, Bob Egerton, wrote recently to the Lord Justice Moore-Bick, the deputy head of civil justice.

In response, Lord Justice Moore-Bick wrote that it was "for the judge who deals with each case to decide what course to take in the light of the evidence before the court".

"However, I imagine that one thing judges will wish to take into account is the existence of the OFT proceedings," he added.

So the door has been officially opened for local judges, under pressure from banks, to overturn what had been regarded, until now, as an industry-wide settlement.

"It is our impression that it is standard practice," said Marc Gander of the Consumer Action Group (CAG).

"It is disappointing that the courts, who should know better, are going along with it."

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