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Brunel Franklin & Company, one of the largest regulated claims management companies in the UK, has said it has serious concerns that consumers are being badly short-changed and misled by the financial services sector.

The firm said it believes that the recent Office of Fair Trading (OFT) agreement leading to a waiver on bank charges cases and a stay on related Court proceedings is "totally" against the consumer interest. It claims that, in reality, it could be more than three years until consumers know where they stand.

Just like the Governor of the Bank of England was recently called to account by the Treasury Select Committee, the firm would like to see the Public Administration Committee be appointed to review the conduct of both the OFT, the Financial Services Authority (FSA) and the Financial Ombudsman Services (FOS) in this matter. It said that these views are echoed by other leading players in the claims sector.

The public do not understand the very limited nature of the bank charges test case because it only seeks to deal with certain preliminary issues, and is not structured so as to deal with the issue of whether excessive bank charges are lawful or not. The net result is that it could be years before there is clarity on where people stand with their bank charges.

Moratorium

Anthony M Sultan, managing director of Brunel Franklin, explained that the test case has been brought by the OFT in its capacity as Regulator, and supported by the FSA. He said that the OFT is concerned primarily with the application of the Unfair Terms in Consumer Contracts Regulations 1999 which deals with the question of fairness. The test case seeks to determine whether the regulations apply to bank charges or not.

The OFT believes that the regulations apply, and the banks believe they are exempt from the regulations. Therefore, Sultan believes that, in itself, the question of whether or not the regulations apply does nothing to resolve matters one way or another, whatever the outcome of the test case.

“Although well intentioned, the OFT Agreement has the effect of providing the banks with a moratorium on repayments, and allows them to continue charging. It is well known that until the agreement was concluded at the end of this year, banks were voluntarily refunding 100 per cent of such charges when faced with Court proceedings. In hiding behind the waiver, the banks will save an estimated £500m on claims they would have been paying out, this year alone."

“It is difficult not to draw an inference that the banks must feel their position is in serious jeopardy, and they are stringing the public along for as long as they can."

”We have written to the FSA and FOS in the strongest possible terms, outlining we feel the waiver is so one sided in favour of the Banks and should be withdrawn immediately. Furthermore, we are involved with ongoing briefings with a number of MPs across all parties who agree with our stance."

Unintended consequences

Rodney Gardner, director of Miller Gardner Solicitors, says: “Whilst the OFT proceedings allow the OFT to seek an injunction and to consider the position on penalty charges at common law, it does appear that the law of unintended consequences has given the banks an unexpected windfall in freezing complaints; this has resulted in Court actions being stayed, and banks being allowed to continue making excessive - and in some cases increased – charges in the interim. The banks are cock a hoop at the negotiated deal that can only be bad news for consumers.”

Whilst in the very long run the OFT agreement may eventually claim to champion the consumers’ corner, he says that in the short-medium term of 1-3 years it has done exactly the opposite.

Anthony M Sultan concludes: “Hundreds of thousands of bank charges claims have been submitted over the past 12 months. It was open to any bank, at any stage, to allow Courts to adjudicate on the common law position regarding penalties not least, as well as the regulations. Had this taken place, appeals to the High Court could have been dealt with by now and the law clarified."

"The OFT, FSA and FOS between them have done nothing to accelerate the process, indeed they have in fact exacerbated the situation; one can only assume that this is because they are protecting the banks that fund their existence.”

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Related links

• Office of Fair Trading
• Financial Services Authority
• British Bankers' Association
• Miller Gardner Solicitors
• Brunel Franklin & Company