Banks postpone refunds for bank charge victims

22 May 2008

Banks have appealed a High Court ruling that gave the Office of Fair Trading the right to cap overdraft fees - meaning any resolution for victims of unfair bank charges looks a long way off.

On 9 May, the High Court ruled that the Office of Fair Trading (OFT) had the right to decide whether bank overdraft charges are fair or not. The judge, Mr Justice Andrew Smith, ruled that charges on unauthorised overdraft usage are subject to the Unfair Terms in Consumer Contract regulations. This effectively gave the OFT the right to cap charges.

However, the judge's other ruling - that banks' current terms and conditions are “plain and intelligible” - paved the way for an appeal.

And the stakes are high. Banks are estimated to earn around £3.5 billion a year from fees on unauthorised overdrafts.

Next steps

The legal battle resulting from the appeal could continue for more than a year - meaning people who have been hit by huge fees will face a long wait before they get their money back.

The case will be passed to the Appeals Court and is likely to be heard before the end of 2008. However, if any side launches further appeals the case could be referred to the House of Lords before a final decision is reached.

David Black, banking expert at data provider Defaqto, says the European Commission could even be involved at some point: “The stakes for both sides are extremely high so this has all the hallmarks ofbeing a very lengthy judicial process. Next step is the Court of Appeal and after that the House of Lords and maybe even Europe.”

The OFT is currently investigating what a fair overdraft fee should be. However, the judge involved in the case has indicated he is keen it reaches a conclusion sooner rather than later.

It has now suggested it will report the findings of its investigation during the second week of July 2008.

Impact for customers

At the end of 2007, the Financial Services Authority (FSA) put a waiver in place that removes the obligation of banks to deal with complaints and refund requests surrounding unauthorised bank charges until a final decision is reached.

Which? says that for every year the issue remains unresolved, customers will pay £3.6 billion in new overdraft charges.

A spokesman for Which?, which has campaigned against high overdraft fees, says: "[We are] frustrated that the banks didn't just throw in the towel back [in] April and start working with the OFT on establishing what fair charges are."

If the OFT is eventually given the legal right to impose caps on charges then experts warn the current account market will “change significantly”.

Black says: “Limited facility basic bank accounts, which do not have overdraft facilities, will almost certainly remain free but it looks increasingly likely that charges will eventually be introduced for full service current account customers.

“These may take the form of either pay per transaction or a flat fee with or without discounts for taking other products from the bank or maintaining a specified minimum balance.”

None of the seven banks or Natonwide Building Society involved in the case or the OFT were able to comment on the appeal for legal reasons.

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