Jump to content


  • Tweets

  • Posts

  • Our picks

    • If you are buying a used car – you need to read this survival guide.
      • 1 reply
    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

      I’m not happy to do this, drive the car or with the after care experience (a sign of further stresses to come) so want a refund and to return the car asap.

      Please can you advise what I need to do today to get this done. 
       

      Many thanks 
      • 81 replies
    • Housing Association property flooding. https://www.consumeractiongroup.co.uk/topic/438641-housing-association-property-flooding/&do=findComment&comment=5124299
      • 160 replies
    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
        • Like

Sheriff puts Bank of Scotland to proof on bank charges


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 4061 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Sheriff puts Bank of Scotland to proof on bank charges

 

http://govanlc.blogspot.com/2010/02/...-to-proof.html

Friday, 19 February 2010

Sheriff puts Bank of Scotland to proof on bank charges

 

THE BANK OF SCOTLAND has failed in its attempt to prevent a customer amending her claim for unfair bank charges, recalling the sist, and fixing a full evidential hearing at Glasgow Sheriff Court this morning (Friday, 19 February 2010).

 

UK banks have been telling over one million of their customers in the UK that they now had no legal basis to reclaim unfair charges in light of last November's Supreme Court ruling. However, the Supreme Court itself had suggested that charges could still be challenged under different legal grounds, and Govan Law Centre (GLC) had sought to amend their client's claim to incorporate a revised 'regulation 5' case under the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR), and significantly, an additional claim under the new section 140A of the Consumer Credit Act (CCA, as amended in April 2007).

 

Counsel for the bank, instructed by Dundas and Wilson CS LLP, had objected strongly to the pursuer's substantial amendments, arguing it would be 'improper' to allow the customer to amend her claim in this way. GLC's Mike Dailly, representing the customer, explained to the court that it was necessary to amend the claim in order to take on board legal developments, and although consumers could no longer attack charges as 'excessive in price' under the UTCCR, they could do so under the s.140A of the CCA. The ability to do so was hugely significant, as was the fact the onus of proof to show charges were not excessive was on the bank under the CCA.

In
Sharp v. Bank of Scotland plc
, Sheriff Baird, a senior sheriff at Glasgow Sheriff Court, rejected the submissions for the defenders, and granted the pursuer's application to substantially amend her Statement of Claim and Crave, recalled the sist, and fixed a full evidential hearing (know as a 'proof' in Scotland) for 11th June 2010.

 

Mike Dailly, Principal Solicitor at Govan Law Centre said:

 

"Over the last few weeks, UK banks have been telling one million customers that there were now no grounds to reclaim bank charges, standing November's Supreme Court's decision. Of course, the Supreme Court itself had explained that charges could still be challenged under different legal grounds, and that is what Sheriff Baird has permitted our client to do today at Glasgow Sheriff Court".

 

"But besides a challenge under reg. 5 of the UTCCR, the Bank of Scotland now faces a fresh challenge that charges were excessive and unfair under the Consumer Credit Act. That is a potentially devastating case for them to answer, because under this new law the onus of proof is on the bank to show that charges were fair. Given that our banks have admitted they subsidise 'free-if-in-credit banking' by squeezing more money out their poorest customers through bank charges, they will now have to defend the indefensible. And, they will have the added problem that we are asking the court to prohibit them from imposing future charges under the CCA".

 

"In a nutshell, our new arguments are hugely more powerful than the ones deployed by the OFT in their unsuccessful test case. Evidentially, the new arguments require the bank to prove their charges were fair - which is tactically significant for consumers. The new arguments not only enable consumers to seek a refund of past charges, but entitle them to ask the court to prohibit future bank charges. That is hugely significant, and in many respects, we believe the new bank charges campaign is going to be a tougher propsect for the banks than the pre-July 2007 campaign. And of course that previous campaign saw refunds in excess of £1bn for consumers across the UK - so we are incredibly optimistic".

 

Not quite as earth-shattering as the headline suggests - only been granted permission to amend their POC's as opposed to the bank being ordered to show their charges were fair, but one more step in the right direction

 

  • Haha 1
Link to post
Share on other sites

  • Replies 1.5k
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Posted Images

We secured a bit more than permission to amend Michael; it might be helpful to give a more detailed explanation.

 

Yesterday's hearing took place with the fully amended Statement of Claim (amended POC) and amended crave before the court, and previously intimated to the bank's solicitors. Which may explain why counsel for the bank objected so strongly to the orders we sought, and hoped to get the case dismissed.

 

The court was taken through the new ss.140A-B CCA case, and the substantially revised reg.5 case, and full legal argument took place in light of same. The bank was ordained to lodge defences in light of the new and revised grounds of claim, and a full evidential hearing was fixed.

 

The reason we have said 'Sheriff puts Bank of Scotland to proof on bank charges' is twofold.

 

(1) Now that the court has accepted the new legal grounds, and appointed an evidential hearing on those grounds, the effect of this evidentially and tactically is very significant. Section 140B(9) of the Consumer Credit Act 1974 provides as follows:

 

(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.

 

What this means is that the Bank of Scotland now has to prove its charges are fair in relation to price (under s.140A of the CCA). If you go back to pre-July 2007, that never happened. It always for claimants to prove charges were unfair, which historically was never easy given the banks failure to disclose their true business model etc.,

 

Tactically, to place the bank under more pressure, we can enroll an application to ordain the bank 'to lead' at the evidential hearing i.e. we create a prima facie presumption that the charges are unlawful, which the bank can rebut, but the onus is on them, evidentially, to do so, and we can insist that they lead their witnesses and evidence first. We are entitled to do this, given the court has accepted the new grounds of claim.

 

Now, you wouldn't expect us to go into any more details - as our duty is to our client - but we believe we can show on the balance of probabilities that the charges were excessive, and if so, unfair under the CCA. We also have a pending claim to effectively ban the imposition of future charges - so this is considerably more powerful than a simple payment action (which is all we had pre-July 2007).

 

(2) The second reason for our description of this development, is that we believe it is important to counter the fact the banks have convinced most people it's now impossible to challenge their charges as unfair and unlawful. But more on that if we can secure a number of victories - which I believe we have reasonably good prospects to do so.

 

Mike

  • Haha 4
Link to post
Share on other sites

This is amazing progress Mike. I'm sure that we are all watching carefully

Link to post
Share on other sites

Brilliant.:D

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

Link to post
Share on other sites

Will most certainly be watching this one:)

Have we helped you ...?         Please Donate button to the Consumer Action Group

Uploading documents to CAG ** Instructions **

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

BCOBS

1: How can BCOBS protect you from your Banks unfair treatment

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Link to post
Share on other sites

Check... and soon to be mate...

 

That is a very positive and encouraging move...

---Aut viam inveniam aut faciam---

 

***All advice given should be taken as guidance... Professional advice should always be taken before any course of action is pursued***

 

- I do not reply directly to any PMs, but you are more than welcome to enclose a link, in a PM, to your post. Thank you -

Make a contribution to this site... Help the CAG keeping on helping you for FREE.

Link to post
Share on other sites

Excellent work - The Unfair Relationship is powerful legislation, there's no limitation arguments for the banks to use which, means banks will need to prove their charges were fair from the outset - the entire relationship is challengeable.

 

The banks are now in for a bumpy ride:):):):)

Edited by paulwlton

An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

Link to post
Share on other sites

Good work from the team. Keep it up.

 

Keep in mind that this has the potential to cost the BoS £millions and they will fight hard (and probably dirty) to counter these claims you have in progress so you should prepare for all eventualities.

The REAL Axis of evil: Banks, Credit Card Companies & Credit Reference Agencies.

Link to post
Share on other sites

I will be watching this with keen interest.

In my opinion, I cant blame GLC for keeping quiet about any new POCs until an actual case was before a court. Why give the banks pre notification and allow them time to fight the application. This wont mean that all courts will take the same view and i can now see the banks hurriedly applying to have cases struck out to prevent us amending our POCs.

Link to post
Share on other sites

All the more reason for amended POCs to be lodged with the court, especially in England & Wales

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

Link to post
Share on other sites

All the more reason for amended POCs to be lodged with the court, especially in England & Wales

 

Does anyone know when and how we can amend our POCs for cases that are currently stayed?

 

It would be great to take the initiative before the banks apply to strike out claims...

 

Gandolfi

Link to post
Share on other sites

All the more reason for amended POCs to be lodged with the court, especially in England & Wales

 

It would be foolish for us to amend our POCs without the correct wording as this would give the banks a better chance to defend the application. No doubt the correct wording will filter out from GLC in due course.

Link to post
Share on other sites

Excellent work GLC

 

:)

 

Will follow this developement extremely closely

 

(as will all the banks no doubt!)

omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

Link to post
Share on other sites

All the more reason for amended POCs to be lodged with the court, especially in England & Wales

Robroy - it might be foolish but if a direction has been made by the court (as in one of my claims) then we've currently no option other than roll over and die - and that ain't gonna happen.

Link to post
Share on other sites

I would agree with you completely there Kenny. I was actually talking about the ones of us that dont have the same problem. Most have cases in court that the courts seem to have for some reason, not actioned post the SC judgement. In those cases (like mine) it would seem prudent to wait and see if the amended POCs materialize rather than jump the gun and risk the banks defending due to badly worded POCs.

Link to post
Share on other sites

Yes......but in the majority of cases it's the Law that matters. In this case both the UTCCR's and the CCA's are law both sides of the border :D

srfrench :eek:

 

Fight incompetance, stupidity, greed and unfairness......There's no excuse and no place for it in society, unless they really are! :wink:

Link to post
Share on other sites

Can we not write to the courts asking them to deal under EU/EC directive 93/13

HTH (Hope This Helps) RDM2006

 

THE FORCE (OF CAG) IS WITH YOU

;)

 

We've Helped You To Claim - Now Help Us Remain

A live Site - Make a Donation

 

All advice and opinions given by people on this site are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, please seek qualified professional legal Help.

 

However, if you have found any advice you have been given helpful.

Why not show your gratitude And

Click the * on the post you found helpful.

Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...