The decision otherwise upholds Justice Gordon's findings that honour, dishonour and overlimit fees charged by ANZ were not penalties, unconscionable or unfair.
While the decision is very fact specific, it represented a major setback for other class actions based on penalties. The last chapter of the bank fees saga took place in July 2016 where the High Court dismissed the appeal for leave and held that the full court was correct to characterise the loss provision costs, regulatory capital costs and collection costs as affecting the legitimate interests of the Bank.
The High Court found that fees were not incapable of being characterised as penalties merely because they were not charged upon breach of contract.
The credit card companies did not produce evidence of their actual costs to the OFT, instead insisting their charges are in line with clear policy and information provided to customers.
In its report, the OFT claimed these charges were unlawful under UK law as they amounted to a penalty.
It said it would be prepared to investigate any charge over £12, though this was not intended to indicate that £12 is a fair and acceptable charge.
Hence, it is a capital receipt in the hands of the assessee.
In 2009 the Supreme Court ruled (see Office of Fair Trading v Abbey National plc) that terms in bank account contracts were not capable of being penal, bar those applicable to Nat West Bank customers between 20.