Colin Passmore acts for Barclays in Supreme Court challenge
Thursday 10 December 2009 by Jonathan Rayner
Who? Colin Passmore, 50, solicitor-advocate and senior commercial litigation partner at City firm Simmons & Simmons.
Why is he in the news? Acted for Barclays Bank in its successful Supreme Court challenge to the decisions in the High Court and Court of Appeal that the bank’s overdraft charges were assessable for fairness under the Unfair Terms in Consumer Contracts Regulations 1999, and therefore subject to Office of Fair Trading (OFT) regulation.
The OFT was investigating whether charges for unauthorised overdrafts were ‘unfair’ on the basis that they were too high and, if so, whether banks should repay customers. It is believed that a finding in favour of the OFT could have cost the banks £2.6bn per year in lost revenues and obliged them to refund up to £1bn.
Barclays, along with Clydesdale, HBOS, HSBC, Lloyds TSB, Nationwide, RBS and Santander, argued that analysing current account charges was outside the scope of the OFT’s powers. The five justices of the Supreme Court unanimously upheld the banks’ argument.
Thoughts on the case: 'The case is important because of the clarity it has brought to some key consumer legislation, in particular the legitimacy of overdraft charging structures. Had the Supreme Court decision gone the other way, the impact on the retail banking industry – from an economic and reputational perspective - cannot be underestimated. All suppliers of goods and services would have faced the spectre of elements of their pricing packages (for example, charges for the use of inflight services, such as catering) being subjected to a fairness challenge – a litigator's dream and a supplier's nightmare.’
Dealing with the media: ‘The unprecedented public and media interest the case generated was exemplified by the numbers of people prepared, perhaps for the first time in their lives, to engage in county court litigation. The reporting was accurate and balanced in most sections of the media.’
Why become a lawyer? ‘I had a summer job in 1975 as a clerk in a now defunct barristers chambers. I was fascinated by the law’s history, structure, procedures and – frankly – the dressing up.’
Career high: ‘Perhaps spending the entire night of 19 October 1987, when the stockmarket crashed, advising investment bankers in Hong Kong on what to do next. Or perhaps the present bank charges case. Quite apart from the importance of the legal issues at stake, it was one of the last matters to be heard in the House of Lords and was a chance to work with so many excellent and challenging legal minds.’
Career low: ‘I was an articled clerk acting for the defence of the senior partner’s brother. I made a mistake and was a day late serving the acknowledgement of service. I was at the court the next morning as the doors opened and was able to sort it out. Career saved.’
