Consumer Protection - Essay Example

Part A “Examining the impact of the Unfair Terms in Consumer Contracts Regulations 1999 in cases involving unauthorised bank charges” This essay would need to consider both the aspects of unfair or unfavourable terms in Consumer Contract Regulation 1999 in the instances of unauthorised bank charges. It is therefore necessary to consider these aspects with regard to CCR 1999 firstly with regard to unauthorised bank charges. This study also needs to show evidence of in-depth research from appropriate and diverse sources e.g. academic journals, internet, surveys, books, current awareness on Westlaw, web library searches, references to other primary and secondary sources and peer reviewed articles and materials on this subject. Project Plan: The Project Plan is on how this study would unfold itself is shown below: 1. Introduction ( around 250 words) Which would explain the rationale of the topic and how the writer proposes to take up this topic 2. Literature Review and references to previous research studies taken by others (1325 words) 3. Deliberation on legal position with regard to this topic under research (1000 words) 4. Analysis and evaluation of particular issue and its impacts. (500 words) 5. Critical reflection (250 words) 6. Conclusion (400 words) This Project Plan suggests that it becomes necessary to consider pragmatic and appropriate research question and during the course of deliberations this needs to be translated into achievable ends. Also, the enlightenment gained from appropriately decided case laws also needs to be included to substantiate arguments and underline facts. Besides, various sections in which this subject is dealt with also need to form a part of this paper. (Press summary, 2009). Introduction: “The Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs) protect consumers against unfair standard terms in contracts they make with traders. The Office of Fair Trading, together with certain other bodies, can take legal action to prevent the use of such terms.” (Unfair terms in consumer contracts, n.d.). It is necessary to conduct a study of this kind in order to assess the unfair terms that are often being enforced as pre-determined statements without being deliberated with the concerned consumers, who are thus placed at a detriment, due to the arbitrary and high handed dealings of producers of goods and services. Besides, it is also necessary to consider and apply necessary legal remedies if and when unfair terms are forced upon unwitting consumers. In order to understand these aspects in their proper perspectives, it is necessary to under the basics of these terms. According to the Unfair Terms in the CCR 99, if terms and conditions of business has not been individually dealt with and discussed and any decision has been reached without due negotiations with affected consumers; it could be said to be coming within the realms of being “unfair terms.” (Statutory instrument 1999 No. 2083. 1999). Besides this, the terms have been pre-determined without taking the concerned consumers into confidence. As a result of which the consumer may have to suffer detriment. It could correctly be said that unfair terms have been incorporated in the agreement which creates disadvantages for the consumers. Again, the pre-discussions and fabrication of the terms were carried out without inviting the advice or suggestions of concerned consumer such that he is not able, in any way, to influence the course of proceedings. It could be fairly judged that unfair terms have been invoked in such cases and the law has to consider the facts accordingly before forming a judgement. Thus, this topic, naturally, has to be seen and carried out keeping the best interests of consumers in mind. Literature Review: While it is important to understand the unfair terms; it could be subjective on certain occasions and may be contestable or arguably. However, from the perspective of consumers; the aspect of unfair terms in CCR are indeed a part of formidable concern that needs to be addressed to at the earliest to avoid the build up of detriment to consumers. The main aspect that needs to be seen is that customers are allowed to maintain accounts and deposits in banks on interest rates placed by the banks. Again, in the event of overdraft; the banker has to charge interest on overdraft accounts by debiting such parties. But, what is causing anxiety and vexation among overdraft holders is that such kinds of unauthorised overdrafts are being charged with separate service charges each time such a thing happens. It is this obnoxious fixed service charge that is being challenged by customers, clients and public interest groups. “Banks make nearly £5 billion a year from unauthorised overdraft charges. The OFT is investigating whether to cap these fees.” (Gilmore 2006). Again, it is also seen that “In November 2006 First Direct, the online banking arm of HSBC, announced that it is planning to introduce a £10 monthly charge for all customers who neither place a minimum of £1,500 of earnings into their account each month nor hold a minimum average balance in the account of £1,500.” (Gilmore 2006). It is against the backdrop of the proceedings by the Office of Fair Trading (OFT) who were supposed to be looking into the fairness and applicability of unauthorised bank charges that this research is based. Well now the OFT has won the first round of battle regarding unauthorised bank charges. According to the article” The ruling is not a final judgment on whether excessive current account charges, levied at up to £39, are fair, but means the OFT now has the right to assess the terms and conditions underlying overdraft charges for fairness.” (O’Sullivan 2008). The main issue that is at stake is that on the one hand bankers, clients and customers are having access to money which they should not have in the first place. Secondly, the banks are enriching themselves in the process which they should not be doing in the first place. Besides, “Banks earn approximately £3.5bn a year from the charges, which are believed to affect one in 10 of bank's 45m customers, according to price comparison group uSwitch.” (O’Sullivan 2008). “The argument that the charges exceed the customers losses and are not enforceable by law is covered in the Unfair Terms in Consumer Contracts Regulations 1999, Unfair Contract Terms Act 1977 and at Common Law. Some banks argue that charges are a fee for a service, however if this is the case then they must be reasonable under S.15 of the Supply of Goods and Services Act 1982.” (Clarke 2008). Thus, it is believed that it is not really the fact whether such service charges inputs are wrong or against public policy. But the amount involved should be reasonably placed around£ 15 per transactions instead of the rip offs amount being charged at the moment.“At the moment, people can be charged as much as £35 for going overdrawn without authorisation or for having a direct debit refused.” (BBC – Banks still being sued over fees, 2007). It’s believed that although banks have vigorously raising the issue of charges as a service charge are not punitive in nature. Again, “Eight banks -- Barclays, Clydesdale, HBOS, HSBC, Lloyds TSB, RBS and Nationwide BS -- argued that the OFT did not have the authority to investigate whether their charges for unauthorised overdrafts were unfair and, therefore, unenforceable. The Court of Appeal disagreed and backed the OFT.” (D’Arcy 2009). Thus, as far as these bank charges are concerned; it is seen that it would make more economic sense for these banks to lower or eliminate bank charges. Otherwise they would need to shell out hefty amounts as compensation against lost lawsuits. As it stands, the OFT is bent on eliminating or considerably reducing the incomes earned by banks through such charges. However, when thought from the bank’s point of view; these charges arise due to the negligence of the clients in not maintaining good balances that could offset imposition of these charges. This occurs only in overdraft accounts when nonexistent funds need to be withdrawn or debited. The bank is basically doing a favour to the customers and thus needs something in return like service charges. “The Office of Fair Trading argued the charges levied on bank customers who go overdrawn are too high. But the Supreme Court said bank customers agreed to pay the overdraft charges as part of the price of having a current account and that bank could not profitably offer such services without them.” (ISA – Fund supermarket, 2008). In the case of Director General of Fair Trading V First National Bank [2001] UKHL 5, the Courts held that “The House of Lords held that the clause was not a core term and therefore fell within the UTCCR 1999. It was decided that the clause did not cause an imbalance to the detriment of the consumer, so it was fair and valid. The absence of such a term would cause an imbalance to the detriment of the bank.” (Director of fair trading v first national bank [2001], n.d.). Again, in the case of the OFT v. Abbey Office of Fair Trading v Abbey National plc and Others [2009] UKSC 6, [2009] EWCA 116, [2008] EWHC 875 (Comm) the Courts upheld the “appeal” of the bank for charging service charges. (Press summary, 2009). From the above review of literature it is evident that, the law does not approve of banks raking large profits at the cost and expense of marginal depositors, especially those who have such kind of financial problems that require large funds that they do not presently possess and for which it becomes necessary to seek resort from banks. Thus, not only incurring interests on deposits but also exorbitant service charges are made each time such favours are sought. While on their part, banks may justify these service charges on the grounds of the risks taken by them and the need to make overdraft customers pay the price for favours asked by them in terms of additional lines of overdraft exceeding normal ones. However, banks need to be able to find their costs for such services and could charge only a reasonable amount. But, it is a fact that these costs cannot be easily amenable for calculation cannot, by any stretch of imagination allow companies to draw heavily from hapless and cash strapped overdraft account holders. Sometimes it is even beyond their immediate means. EC Directive.93/13/EEC. This Literature review next needs to consider impact of the European Directive.93/13/EEC. European Directive.93/13/EEC. Under its provisions, it is incumbent upon Member States to ensure that unfair terms are not included in contracts. In the event these are included, no detriment should occur. In the event they need to be removed, their removal should not cause any harm to such incumbents. “Drawing on the experience gained in implementing the Directive in the Member States, the report suggests a number of improvements. The suggestions mainly concern the scope of the Directive and its limitations, the notion of unfair terms, the list in the annex to the Directive, the failure to supervise pre-contractual terms and conditions, the principle of transparency and the right to information, penalties, existing national arrangements for eliminating unfair terms, the problems posed by certain economic sectors, and the future of the Club database.” (Unfair terms, 2006). Hence the courts need to seek a harmonious balance between the dictates of law on the one hand and practical aspects of achieving a remarkable degree of commercial success for products and services on the other. Since the bank charges are aspects that rake in immense profits for banks, much above the actual costs incurred for it. Courts may not look upon it with any special favour. On the contrary, there will always be disputes and court interventions and settlements for these vexatious issues. Therefore, it would be in the best interests of banks to lower the incidence and quantum of such bank charges. This brings more reasonable and pragmatic lines that may find favour with customers and thus avoid liability and legal risk on to themselves. Discussions on Legal Position With Regard to Topic Under Research: One of the major factors that impinge upon the bank charges is that of Consumer Contracts Regulations 1999; the EC Directive 93/13/EEC and several decided case laws on the subject, two of which have already been discussed in the earlier pages. First, it is proposed to take up the relevant portions of the CCR 1999 which deals with the issue and treatment of unsolicited bank charges. According to the CCR, it is necessary that unfair terms in contract is seen as those in which the consumers have not been taken into confidence and therefore have been passed arbitrarily and for the benefit of one party at the expense of another. Such kind of “unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.” (Statutory instrument 1999 No. 2083. 1999). In a nutshell, the unfair terms under CCR shall not be enforceable against the consumer. But, in the event the unfair clauses are removed and normalcy is restored; it becomes binding upon the consumer. The powers under CCR vest with the Director and it is incumbent upon him to ensure that justice prevails through submissions of applications to the qualifying bodies for assessment and evaluation of claims and their due processing and remedy. The Director needs to co-ordinate with the complainant and the qualifying bodies who are entrusted with taking necessary steps for tackling unfair clauses and removing them as far as is justifiable and possible. “The Director may arrange for the dissemination in such form and manner as he considers appropriate of such information and advice concerning the operation of these Regulations as may appear to him to be expedient to give to the public and to all persons likely to be affected by these Regulations.” (Statutory instrument 1999 No. 2083. 1999). It is possible that modifications could be carried out in the unfair terms in Consumer Contract Regulations in order to avoid liability and therefore the modified terms need to be in sync with the current laws and also the EU Directive on unfair terms in Consumer Contract. Hence, it is now necessary to consider the EU Directive in greater details. In the case of Pannon GSM Zrt v Erzsébet Sustikné Győrfi (Case C-243/08) [1] (2009); the case arouse regarding unfair terms in contracts and the Courts felt it necessary to consider that there should be ample evidence to suggest that the contract was not “individually negotiated” and thus resulted to an unfair disadvantage gained by one party at the expense of another. Thus, leading to a vitiation of the spirit of the EC Directives gives equal importance to all. (Judgement of the court if 4 June 2009, 2008). Also, it is in the best interests of the conduct of law that the principles of the EC Directives are honoured and enforced in Member States and in the event the national laws do not provide for induction of EC directives. They need to either be scrapped or amended to facilitate deployment of EC directives within State laws. “Coming now to another case- viz. Bairston Eves London Central Ltd.v. [Smith 2004] EWHC263 QB Case No: CC/2003/APP/0912, in which the question of admissionability or otherwise of 3% Marketing commission arouse. The Learned Court decided that “the provisions of the marketing agreement which require a 3% commission to be paid are not binding on the consumer." (In the high court of justice: Queens bench division, 2004). While considering the legal aspects impacting upon unfair terms in CCR, it is also necessary to consider the fact that there needs to be uniformity and consistency among EU member states with regard to unfair terms. Banks have argued that the charges made are well within standard banking practices and no discrimination between their clients is shown. They say that the prices for serviced made by banks is the processing charges. However, the Courts held that the important aspect is that banks pay on instructions of customers. However, the Courts argued that “the Banks do supply “services” when they pay upon their customers’ instructions. The question was whether the charges imposed are the price for these services within the meaning of regulation 6(2) (b). The Court of Appeal held that that depends on whether these charges are part of the essential bargain in a current account contract.” (Enonchong 2009). However, it does seem now that the controversy has been laid to rest with the Supreme Court stating that Section 6(2) (b) is very much in order and that the Courts; including the High Court and the Court of Appeal had overstepped in granting permission to OFT to explore the even handedness of charges charged by banks for unauthorised amounts. This has been justified on the ground that Section 6 (2) had been honoured in these instances and there have been no grounds on which these could be termed as unfair. “. The ruling may mark the end of this particular test case, but it is unlikely to be the end of the OFT's involvement in relation to the fairness of bank charges.” (Supreme court finds for banks in overdraft charges litigation, 2009). It is now necessary to consider the relevant Section6 (2) which states that the evaluation of fairness or equality of term shall not be connected to the way in which the crux of contract has been defined or even to the sufficiency of price or consideration as against the “goods or services supplied in exchange.” (1999 No. 2083: Consumer protection, 2009). The fate of Section 6 (2) have been sealed by the Supreme Court to consider other avenues by the OFT including the use of Section5 (1) on a case-to-case basis on grounds of unfairness which the agency would need to enforce. Also, the aspect of matching between prices and quality of product or service cannot be enforced by the agencies. Thus, it would now be necessary to seek other legal avenues to enforce compliance for bank charges aggrieved customers. Analysis and Evaluation of a Particular Issue and Its Impacts: The decision of the UK Supreme Court in the matter of unfair bank charges that comes at a time when the consumers were able to put banks on the back foot and claim damages and compensation for controversial and unauthorized bank charges levied on them. While the legitimacy and justification of such charges on personal bank accounts of customers are best decided by Courts, it is also necessary to consider the motive and intention of bank’s charges which is as much as £ 35 for a single transaction, further depleting the scarce bank resources of clients. While they claim that it is not punitive. Nevertheless, the lack of transparency in arriving at the amount of bank charges actually permissible. Also, the banks’ expenses incurred in transaction costs remains well within the realms of conjecture. In addition to this, charge is applicable on each transaction and is not calculated as percentage of overdraft value; which would have been even more plausible and agreeable. Thus, the quantum of overdrafts credited without the customer with funds; has little material bearing on its costs and impacts. It would thus not be incorrect to presume that from the Banks’ point of view. The idea of such charges is to augment revenues and increase cash profits of the bank. This may not be the right thing to do under the present economic situation where money market is tight and private funds may be at low ebbs. “They apply to contracts concluded with consumers and provide that a contractual term, which has not been individually negotiated, shall be regarded as unfair if it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.” (Supreme court finds for banks in overdraft charges litigation, 2009). However, now the highest law of the State has set the raging controversy by stating that; in seeking the benefit of overdrafts beyond their limits, the customers have themselves tacitly acquiesced to the bank charges. Besides, this is not charged on a preferential system and covers all customers who avail of this facility. As the Supreme Courts had rightly pointed out the COE had misinterpreted the provisions under Reg.6(2) perhaps limiting itself to what was the core, or essential aspect of the deal emanating from the side of the customers. This Court found it necessary to consider that “ it was clear that the relevant charges are part of the price or remuneration for the package of services the banks agree to supply in exchange and do therefore fall squarely within Regulation 6(2).” (Supreme Court finds for banks in overdraft charges litigation, 2009). Thus, as far as the legal status of this issue is concerned; it may be evidenced that the customers may be inconvenienced and economically deprived due to the ruling of the Supreme Court on this issue. The aggrieved customers may not now be in a position to press forth their claims for recompense for ‘wrongful debits’ into their personal bank accounts and perhaps banks may be more invigorated in dealing with unauthorized bank charges in future. Critical Reflection: At this stage is the advancement and flexibility available to the customers and clients of banks would be a shade lowered. The ruling in effect neutralize the unfair terms under the Consumers Contract Regulations. Under the circumstances, when banks would definitely be having an upper hand; it is necessary that clients adopt a careful and circumspect basis and try to avoid a direct confrontation since a legal precedence has now been created and established, as far as bank charges are concerned. Moreover, the banks would definitely put the Supreme Court ruling in good use to avoid having to pay compensation and damages for alleged wrongful charges in their personal accounts. There are also concerns that the decided laws initiated and engaged by the Office of Fair Trading (OFT) like the First National Bank and the Abbey National plc cases would not have much of legal relevance at this time, especially when newer cases have superseded them. However, it would also be injudicious for OFT to remain recalcitrant or indifferent to obvious cases of unfair terms that could be a major burden to unwitting and unknowing customers, not only in terms of the overall economic load that this would entail but also the psychological impacts that such transactions could create in the present scenario. On the one hand, we have the situation of banks using the economic resources of their clients and on the other, the need for customers to still agree to harsh and uncompromising attitude of their banks due to pecuniary needs. It would be in the best interests of all concerned if the OFT were able to exercise their powers and jurisdictional control more assertively and along with other institutional agencies and enterprises. Both the government and non government sectors act as moral law enforcement for erring banks that could actively dissuade them from pursing aggressive financial designs on hapless customers. The Government also needs to offer the kind of specialised support to empower and pre-ordain norms and regulations that could cater to offer wider support to a wide spectrum of bank customers in the United Kingdom. Conclusion: From the above deliberations it is evident that although the elements of unfair terms is applicable only for personal accounts of customers in the UK and abroad, it has created a great deal of controversy and acrimony, inviting the attention of Courts and legal machinery and also the OFT to fight its legal battles in Courts. Besides, there are also concerns that with the higher Courts adopting a case-to-case approach. It is possible that all instances of unfair terms in Consumers Contract Regulations may not be favourable for aggrieved customers. Therefore, it is necessary that expert panel is set up; that could look into the pros and cons of the various issues and offer their valued suggestions and advices on how best to create conducive grounds for better interactions between bankers and clients. This is of added importance in future since the banking industry would be facing more intense competition in future with the withdrawal of recession and the normal return of the economy in a more robust and buoyant manner. With increasing completion and entry of local and foreign banks into this arena, the quantum of business and growth would be on the increase and this would lend more propensity and probability for more issues and problems between the bankers and their clients. Part B Honours Level Reflective Statement In approximately 500 words, using supporting evidence where suitable; answer all of the following questions: 1. With respect to the project topic (subject-matter), describe why you chose the topic and how you planned the overall scope and content of the project. Describe which personal abilities you found most useful in planning and managing the research. The matter of unfair terms in as far as bank charges in personal bank overdraft accounts of customers has gathered a lot of storm in recent past. Also, despite the efforts of the Office of Fair Trade to protect and recompense aggrieved customers, the Higher Courts have ruled against the OFT in their appeals for due compensation in this field. Hard work, diligence and disciplined approach have been useful companions 2. With respect to supervision sessions, describe how you prepared for supervision meetings (i.e. what you did) and evaluate how your academic work benefited from the discussion and analysis with your supervisor. Planning and organising the structure of this work were important considerations as were discussions were conducted with supervisors who guided me during the course of this work. The direction and objective of this work were provided by supervisors for which I am very thankful to them. His support and guidance helped me during the course of this project work and has made this paper what it is really is. 3. Describe any difficulties encountered in writing the project and state how you adapted your work to meet these problems. Being a non-native speaker of English and without a strong legal vocabulary had posed problems initially, which I was able to overcome through hard work and careful preparation. Also, the time factor has been a major barrier which I managed to overcome through planning and organising the framework of the study in a clear and concise manner. Besides, the scope of this research offered much room for analytical thinking and introspection which is a major ingredient in a research project of this genre. 4. Describe and evaluate the academic skills developed in completing the project and state how you think that these will prepare you for employment or postgraduate study after completing your degree. The main academic skills that this project has enthused has been widening my vocabulary and learning skills especially in the areas of international laws and how it impacts upon business. Besides, communication skills and writing abilities have improved from preparing and drafting a research paper on my own has also boosted my confidence and myself belief. I look forward for competing projects of this kind which could offer ample testimonials while having to face competitive employment situations outside the learning process. There is also a need to project a positive self image that could instil confidence in others about one’s latent abilities and help oneself to improve and develop on them through constant practice and learning. 5. State how your experience of completing the project has enhanced completion of the CV that you produced as part of the employability module (Law of Torts I). My experience in completing this project has helped me to gain a larger perspective of the world in which we live. Although this paper is mainly concerned about the UK laws relating to a tiny segment of personal bank overdraft overruns, it has thrown open a numerous perplexing queries regarding the functioning of the legal machinery in this country. Besides, there is a need for the Courts in this country to consider all aspects of the case before delivering judgement Reference List 1999 No. 2083: Consumer protection, 2009. [Online] Crown. Available at: http://www.opsi.gov.uk/si/si1999/uksi_19992083_en.pdf [Accessed 2 May 2010]. BBC – Banks still being sued over fees, 2007. [Online] Claim Bank Charges Back. Available at: http://www.claimbankchargesback.co.uk/blog/1?page=19 [Accessed 2 May 2010]. Clarke, M., 2008. Ten steps to reclaim credit card charges. [Online] thisismoney.co.uk. 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Statutory instrument 1999 No. 2083. 1999. [Online] Crown. Available at: http://www.opsi.gov.uk/si/si1999/19992083.htm [Accessed 2 May 2010]. Supreme court finds for banks in overdraft charges litigation, 2009. [Online] Herbert Smith LLP. Available at: http://www.herbertsmith.com/NR/rdonlyres/4C712A52-85F9-48B9-A37A-CF8F1FFB59F8/13593/SupremeCourtfindsforbanksinoverdraftchargeslitigat.htm [Accessed 2 May 2010]. Unfair terms, 2006. [Online] Europa. Available at: http://europa.eu/legislation_summaries/consumers/protection_of_consumers/l32017_en.htm [Accessed 2 May 2010]. Unfair terms in consumer contracts, n.d. [Online] Crown. Available at: http://www.oft.gov.uk/advice_and_resources/resource_base/legal/unfair-terms/ [Accessed 2 May 2010]. Read More