Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
The title to this thread is the same as the title to the article that can be found here: Test case reflection
I refrain from commenting at length on the article, but will say that I think it is unfair to the OFT. The author argues simultaneously that the OFT got it all wrong and that it was the victim of a rogue decision by the Supreme Court. Whilst it is of course the final decision that counts, I think he is forgetting that the OFT won on the UTCCR point at first instance and in the Court of Appeal and that it terms of judges the score was 5-4. So, whilst in the end the OFT got it wrong, it could not have got it that wrong - pace those who insist that right and wrong are absolute and mutually exclusive. Indeed, I have to ask where the voices were on this forum expressing doubt that the OFT would win the final appeal.
The whole thrust of the author's argument seems to be that we were all doing very well until the courts stepped and told us what the law was. Now of course we would have all been very happy if the final appeal had gone against the bank and then the Director of the OFT would have been shouldered high along Strand amidst scenes of general rejoicing.
No. I think the OFT is being used as a scapegoat and a screen to hide the fact that it was the consumer movement that got it horribly wrong. If the consumer movement is right that the OFT got it wrong, then why do POC need to be changed? Surely they cannot have been drafted on the basis that the OFT was going to win when looking back everyone asserts that the OFT was on a looser all along? It seems though that they were drafted on the basis that the OFT was going to win as it is only after the OFT lost that it is found that POC...er...actually... might need tweaking a bit.
The consumer movement has achieved much and can be proud of its achievements. It proceeds by making consumers aware of their rights, publicising the failure of business to allow consumers their rights and arguing for new rights for consumers. In the case of bank charges it is not so much that it bit off more than it could chew, but that it bit off the wrong bit.
Someone, somewhere whispered that bank charges were contractual penalties and that the UTCCR would ride to the rescue. Those who believed, entirely justifiably, that consumers were being ripped off by banks welcomed the suggestions with open arms. They misled themselves because whilst in ordinary parlance bank charges can be considered either penal or unfair, they are not so in legal terms, at least so far as has been decided to date.
Let's make no mistake about this. The OFT was pressurised into taking on the test case by the consumer movement. The consumer movement backed the OFT. The consumer movement rejoiced when the OFT won at first instance and in the Court of Appeal on the UTTCR - the loss on the point about contractual penalties was dismissed on the grounds that it was never really about that anyway. Come the result from the Supreme Court which went against all expectation, the OFT is suddenly the villain who spoilt it for the rest of us. History has been re-written to airbrush out inconvenient truths.
Huge expectations were raised by the consumer movement that the Supreme Court decision dashed to the ground. I have read no apologies. Instead of retreating with dignity to consider its position, the movement looks like repeating its errors, snatching at the straws of comments made by the judges as an aside and now apparently finding a whole new answer that, if anyone had thought of before, they declined to mention.
Then perhaps you can tell us why the banks refused for years to argue their case in court UNTIL the OFT the FSA & they came to an agreement. A fact your ignoring which IMHO is hugely significant
Then perhaps you can tell us why the banks refused for years to argue their case in court UNTIL the OFT the FSA & they came to an agreement. A fact your ignoring which IMHO is hugely significant
It started to get out of control. Something had to be done.
Include me out of that statement. I, along with thousands of others, was quite happy suing the banks and getting paid out.
Els
As I said above, it started to get out of control. If the claims had just been ticking over they would still be ticking over. Ironically it was broadcasting the success that brought it all to an end. Everyone wanted a piece of the action.
Obviously, someone hasn't read what is happening in Scotland on Friday with the Govan Law Centre?
I have. It emphasises my point. POC are being changed to refer to the CCA. Why was that not recommended before? Who was recommending people to claim relying on the UTCCR?
much less debt than before I discovered CAG and can now sleep at night at home in Glasgow
Posts
1,996
Re: The Test Case: where it all went wrong
Originally Posted by Aequitas
As I said above, it started to get out of control. If the claims had just been ticking over they would still be ticking over. Ironically it was broadcasting the success that brought it all to an end. Everyone wanted a piece of the action.
QUESTIONS: Out of control for whom? Something had to be done to help whom?
The individual claimants? Could they not easily keep control of their individual claims? Didn't everyone just want their OWN money back from these theives?
ANSWER: Only the Banks were helped by the OFT etc. butting in in 2007 - claims put on hold, only one case to fight now etc. etc.
CONCLUSION: No one was actually on the consumer's side in this. Thank Goodness we have CAG!
BD
£50k saved and £7k charges refunded:
MBNA & A&L 35% F&F direct - saved £23k. Birmingham Midshires £1700 charges refunded
Abbey Loan/BCW 50% - saved £2k. Barclaycard/CSL 40% - saved £6k
Monument/DCA 35% - saved £1k. LTSB/Wescot 50% - saved £4k
HBOS Visa £5k charges refund via Blair Oliver Scott
RBS Direct Line/(genuine) solicitors June 2010 40% - saved £3k
Morgan Stanley/Aktiv Kapital £11k SB Nov 2010 Over £40k balance write off and charges refunds to fight for:
HBOS O/d Charges £5k. Egg Loan/Aktiv Kapital CCA Dispute £8k
Egg Card/Fredrickson taking £5 monthly but CCA & Charges Dispute £4k
Goldfish/1st Credit DN/TN Dispute £9k. Capital One/CSL charges claim £4k
Barclaycard/CSL taking £5 monthly on £10k debt
I hope I have helped - if I have please hit my star - and recognise the others who have helped too.
Bigdebtor
Let's make no mistake about this. The OFT was pressurised into taking on the test case by the consumer movement.
You are making a mistake about it. The OFT was pressurised into the test case by the banks.
Furthermore, the OFT was pressurised into agreeing with the banks prior to filing what they would or wouldn't debate in the test case.
You say the consumer movement backed the OFT. What choice did we have? Publicly decrying what the body supposibly responsible for upholding our consumer rights was apparently doing to "resolve all the issues in one case" and was thus presented as a great step forward for us all?
The reality is that then, as in now, a lot of us had serious misgivings into this cosy arrangement between the OFT and the banks. A lot of us were worried about being sold down the river. A lot of us heard for whom the bell tolled when the OFT lost on penalties and chose not to pursue it further, instead choosing to concentrate on a much narrower issue of the UTCCR. For a lot of us, we dared hope that maybe just maybe the OFT wasn't out to betray us after all when their UTCCR tactics seemed to go our way in the long haul. A lot of us were dismayed and a tad suspicious when the banks decided to challenge the appeals decision even though they hadn't been told they needn't bother. And then a HUGE amount of us felt their jaws drop to the floor in dismay when the SC decided after all that the banks were right and we were wrong.
Apologies? For WHAT? For still believing that we ARE right to challenge being treated like serfs and cash cows by the multi-billion corporations? For trying to find a way to fight yet again when we are being told and shown time and again that we should know our place and just cower and doff our caps? Sod that for a game of soldiers. :-|
If you don't want to "make a mistake", consider this:
The banks hastily re-wrote their T&Cs a few months before making the OFT start the test case.
The judge presiding in the test case decided to analyse THOSE new terms as yardstick for ALL T&Cs, THEN decided to pick a few "randomly" chosen historical terms to support his decision that the T&Cs were in fact not contractual penalties, starting with a preconceived mind that he wouldn't find them to be. To make it look balanced and unbiased, he picked the small window of ONE bank's T&Cs between well-defined dates and decided that they may be penalties. Oooh, what a bone.
Oh, I could go on and on about all the ways in which way the consumer was stitched up, bit by bit, piece by piece, but what would be the point? It's been done to death for the last 2 1/2 years and the damage donw by the OFT has set us back consumers years. Excuse me for being a tad bitter about it.
The Establishment may have told us over and over again that we are wrong, but you will not shake the belief that we are in fact right. Those charges, even though the courts now tell us they're not, are penalties, yes, in the contractual sense. They are unfair, yes, also in the contractual sense. I will state again what I have said before, but which you every time conveniently choose to disregard because it doesn't fit in with your theory: the people who drafted the templates letters and POCs were not laypeople who misinterpreted the law and believed what they wanted to believe, as you so patronisingly have been telling us for so long. These are lawyers, solicitors, law people. We also have judges (in the Mercantile Court for example) who have made it clear that their analysis of the law was the same as the one presented on here.
Aequitas, I am going to ask what so many have asked, but you never answer: Why are you here? All you have ever done is try to put people off, pour derision and scorn on any of the legal arguments which didn't fit your beliefs, and now crow about how you were right and we were wrong in a none too subtle manner. Have you actually applied that legal knowledge of yours to try and assist people instead of trying to discourage them? Wouldn't THAT be a better use of your time, energy and legal knowledge? :-?
Apologies to people who I was in the process of helping, I may be gone some time.
QUESTIONS: Out of control for whom? Something had to be done to help whom?
The individual claimants? Could they not easily keep control of their individual claims? Didn't everyone just want their OWN money back from these theives?
ANSWER: Only the Banks were helped by the OFT etc. butting in in 2007 - claims put on hold, only one case to fight now etc. etc.
CONCLUSION: No one was actually on the consumer's side in this. Thank Goodness we have CAG!
BD
Out of control from the banks' point of view - and the courts.
All this started off with people posting on sites like this saying something like: "Hey! Guess what? If you put a court claim for a refund of bank charges the bank will send you a cheque in next to no time. It's like falling off a log." I am not privy to any bank's decision making process, but I suspect that so long as the claims were manageable the banks made a pragmatic business decision that it was more economic to pay up than defend claims. There may have been an element of not wishing a precedent to be set - I do not know. Whatever the reasons for settling claims without defending them, there came a point when the policy was clearly no longer tenable. The number of claims was so high that continuing to pay out was no longer an option. If they were not going to pay out then thousands of cases would go to trial. That clearly presented the banks with the logistical problem of how to conduct a huge number of defences simultaneously. Now of course the mere fact that you may be sued by more than one person at a time ought not to interfere with each individual case against you. However, the number of cases pending against the banks had reached an unprecedented level; unusual situations may justify unusual measures.
We also need to consider what effect all these cases going to trial would have on the court system. I leave it to someone else to do the calculation of how much court time would be involved in hearing all the cases.
More important though than these logistical problems was the very distinct possibility that one county court judge would interpret the law one way and another in a different way. It could not possibly have been in the interests of justice to have that happen, especially on wide scale; confusion would have reigned. Someone would have appealed and a real test case would have been the inevitable outcome in any event. Guidance from a higher court was essential.
Over all, both the decision to have a test case and the stay were correct and in the public interest.
Out of control from the banks' point of view - and the courts.
All this started off with people posting on sites like this saying something like: "Hey! Guess what? If you put a court claim for a refund of bank charges the bank will send you a cheque in next to no time. It's like falling off a log." I am not privy to any bank's decision making process, but I suspect that so long as the claims were manageable the banks made a pragmatic business decision that it was more economic to pay up than defend claims. There may have been an element of not wishing a precedent to be set - I do not know. Whatever the reasons for settling claims without defending them, there came a point when the policy was clearly no longer tenable. The number of claims was so high that continuing to pay out was no longer an option. If they were not going to pay out then thousands of cases would go to trial. That clearly presented the banks with the logistical problem of how to conduct a huge number of defences simultaneously. Now of course the mere fact that you may be sued by more than one person at a time ought not to interfere with each individual case against you. However, the number of cases pending against the banks had reached an unprecedented level; unusual situations may justify unusual measures.
We also need to consider what effect all these cases going to trial would have on the court system. I leave it to someone else to do the calculation of how much court time would be involved in hearing all the cases.
More important though than these logistical problems was the very distinct possibility that one county court judge would interpret the law one way and another in a different way. It could not possibly have been in the interests of justice to have that happen, especially on wide scale; confusion would have reigned. Someone would have appealed and a real test case would have been the inevitable outcome in any event. Guidance from a higher court was essential.
Over all, both the decision to have a test case and the stay were correct and in the public interest.
A very reasonable, albeit somewhat rose-tinted interpretation, but which leaves major gaps in the face of what was really happening:
Economic decision: whilst this could have been true for some of the bigger cases, it flies in the face of evidence of most of the cases. Let's not forget that the banks' attitude was never to settle in the first instance. They near-systematically made the consumer file at court, and the only variation was at which level they settled, some before filing their defence, some at AQ level, and a lot of them as close to court date as they could, by which time they would have incurred costs of their legal team etc... which often would over-ride the cost of the claim itself. Example: My currently still stayed case with Barclays was for £60 + court fee + 8% interest. Barclays sent a barrister + application fee to get it stayed. I could give you hundreds more examples, but you only have to trawl through the forum to find them yourself. So the "economic decision" excuse doesn't fly. At all.
Effect on court system: See above. The court system jamming up was of the banks' making. They systematically made the customer go all the way to filing and beyond, in the full knowledge they would eventually pay up, in what can only be described as an intimidation plan, knowing well that a lot of people are scared of the idea of court and would give up before filing. To this day, I don't think any of us can accurately assess how many people abandoned their claim for fear of the court system.
Guidance from a higher court: Again ignores what was really happening. The Mercantile Court was trying to get precedent setting cases in front of its judges months before the test case was announced, and the banks were settling them faster than any other. It was however very clear that the courts were sick and tired of the banks' use of the court system as an intimidatory tool for their own purpose, and it was only a matter of time before one of them slipped through the net and ended being heard, which would have been catastrophic for the banks, since they would then have had precious little control on the matters to be discussed in court. THAT and that alone is in my view what finally forced the banks into moving beyond the status quo and forcing the OFT into the infamous test case.
Public interest? Public school network interest maybe, I see little evidence that the public at large has benefited in any shape or form. Thousands of cases are still stayed with no indication that the courts are doing anything about it, since most of the cases were filed under the argument of 5.1, the final decision about 6.2 doesn't really apply even though the banks say otherwise, the banks have again the upper hand in every aspect of our lives, propped up by our taxpayers' money, remind me where is the public interest in that again? I sure as hell can't see it.
Apologies to people who I was in the process of helping, I may be gone some time.
The banks needed a get out of jail card & the OFT/FSA road to the rescue The courts were clearly getting fed up with the banks forcing claimants to issue proceedings only to concede defeat at the 11th hour. Some DJ's had started demanding that certain banks prove their determination to defend by revealing how many cases they had fought
The banks risked being considered vexatious litigants
much less debt than before I discovered CAG and can now sleep at night at home in Glasgow
Posts
1,996
Re: The Test Case: where it all went wrong
Originally Posted by Aequitas
Out of control from the banks' point of view - and the courts.
Over all, both the decision to have a test case and the stay were correct and in the public interest.
Aequitas.
Words (nearly) fail me! If WE are the public and WE are the ones that the Banks were sh*fting then HOW THE H*LL can it be in the "public" interest for the OFT to have conducted such a cack handed case in "our" interest?
Thank Goodness the Scottish Sheriff Courts seem to riding to the rescue - having given the world the Bank of England, Telephone, Bicycle, Efficient Steam Engine, TV, Tarmac, Pneumatic Tyres, Decent Poetry, Anaesthesia, Sterile Operations, Peniciiin, Billy Connolly and Darius we Scots now give the rest of the UK - JUSTICE AGAINST THE BANKS!
Nemo impune laccesset!
BD
£50k saved and £7k charges refunded:
MBNA & A&L 35% F&F direct - saved £23k. Birmingham Midshires £1700 charges refunded
Abbey Loan/BCW 50% - saved £2k. Barclaycard/CSL 40% - saved £6k
Monument/DCA 35% - saved £1k. LTSB/Wescot 50% - saved £4k
HBOS Visa £5k charges refund via Blair Oliver Scott
RBS Direct Line/(genuine) solicitors June 2010 40% - saved £3k
Morgan Stanley/Aktiv Kapital £11k SB Nov 2010 Over £40k balance write off and charges refunds to fight for:
HBOS O/d Charges £5k. Egg Loan/Aktiv Kapital CCA Dispute £8k
Egg Card/Fredrickson taking £5 monthly but CCA & Charges Dispute £4k
Goldfish/1st Credit DN/TN Dispute £9k. Capital One/CSL charges claim £4k
Barclaycard/CSL taking £5 monthly on £10k debt
I hope I have helped - if I have please hit my star - and recognise the others who have helped too.
Bigdebtor
Aequitas, I am going to ask what so many have asked, but you never answer: Why are you here? All you have ever done is try to put people off, pour derision and scorn on any of the legal arguments which didn't fit your beliefs, and now crow about how you were right and we were wrong in a none too subtle manner. Have you actually applied that legal knowledge of yours to try and assist people instead of trying to discourage them? Wouldn't THAT be a better use of your time, energy and legal knowledge
Aequitas - An answer to the above and my own questions last year would be appreciated.
We can argue about who did what, why and when and probably not agree.
Let me ask some specific questions:
1. Is it not unreasonable to now insist that the OFT got it wholly wrong when:
(a) a lot of Caggers insisted the OFT would win?
(b) a lot of Caggers insisted that the banks decision to appeal was purely to buy time?
(c) POC were drafted on the basis that the law was as argued by the OFT?
(d) the OFT won at first instance and in the Court of Appeal and judicial opinion was split 5-4?
(e) it is argued that the Supreme Court got it wrong?
(f) Caggers expressed extreme disappointment with the Supreme Court decision?
(g) it is argued that really the Supreme Court decision was unimportant?
(h) there was in fact some misunderstanding of what the UTCCR aspect of the court case was about and what the powers of the OFT are? (See the opening part of Lord Walker's speech and the UTCCR.)
2. Is it not the case that Caggers had convinced themselves that the law was other than it turned out to be (a) because it seemed entirely reasonable to them that it ought to be what they thought it was and (b) the banks seemed to be accepting their legal argument and, accordingly, when the law turned out to be different they were understandably peeved and started to look for someone to blame?
3. Most members of the public have bank accounts and accordingly have not benefited from the Supreme Court decision; in that sense the decision was not in the public interest. But we cannot require decisions to be made on the basis that the public would like them. It has to be in the public interest in the widest sense to ensure so far as possible that decisions made by the county courts are made applying the law correctly. We had the position where a huge number of claims were being made relying on the law being what consumer activists insisted it was, but which was in fact unclear in the sense that there had been no binding judicial decision confirming the position one way or the other. Accordingly, was it not in the public interest that there should be a binding judicial decision that the county courts had to follow since it would not have been in the interests of justice if, when a case eventually went to appeal, it was found that decisions had gone the wrong way, whether in favour of or against consumers?
Include me out of that statement. I, along with thousands of others, was quite happy suing the banks and getting paid out.
Els
But, as it has turned out, the law was not as you thought it was. Should the banks now be able to claim back what they paid out on the basis it was paid out on a mistake?
The Test Case: where it all went wrong
need to be changed? Surely they cannot have been drafted on the basis that the OFT was going to win when looking back everyone asserts that the OFT was on a looser all along? It seems though that they were drafted on the basis that the OFT was going to win as it is only after the OFT lost that it is found that POC...er...actually... might need tweaking a bit.
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Originally Posted by Aequitas
Could they not easily keep control of their individual claims? 
