Bank Charges Case: the Devil's in the detail (Part One) - rewind, the banks may not have won, after all!

By John Clancy on Nov 25, 09 03:10 PM in Finance

On reading the full judgement, it is looking very much like every case that is in court will now proceed as normal and the court dealing with the case will have to address the issue of fairness as argued before them; even though the OFT cannot determine the matter, a court can.

Contrary to what the immediate media reporting has been, the Supreme Court judgement has not let the banks off the hook.

Even the OFT could come back to court: effectively, the Supreme Court has simply said that the OFT cannot address the issue of fairness under one specific rule under the regulations that was the specific subject of the appeal (but hinted they might be able to address it under another regulation, but they hadn't been asked about that one!).

You'd have thought the Supreme Court would be so...er...Supreme that they could create a legal fiction that the argument had been put to them and clarify the law accordingly, but as we all know, that's not the way lawyers and the law works. It's not what pays the legal fees, either. So they indicate they are itching to give a judgement the other way, but teasingly, they can't!

The OFT seemed to have messed up in their choice of legal avenue and appears simply to have got in the way over the last 2 years.

It could be said that we're simply back where we were before the OFT stepped in. The OFT should consider looking at appealing against the penalty charges decision from the Court of Appeal: there are some indications in the judgement that they might have had a 'better' decision from them in this area!

The OFT has really bungled this here, I believe. Should someone be considering his position?

The initial lie of the land seems to indicate that if you've got a case in court, carry on; if not, you are not prevented from doing so by this judgement. It could all get very messy again.The Banks are not going around cock-a-hoop, because, unlike us, they've had a few days to think this through. You can bet your bottom pound sterling they'd like us all to think it's all over, so no-one bothers to continue or bring new cases. It's not.