Sheriff puts Bank of Scotland to proof on bank charges

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".

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:

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

Thanks for expanding on that. Seems promising.

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

Brilliant.

This is fantastic news and proof that the fight goes on!

Well done to all involved

Gandolfi

Will most certainly be watching this one:)

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

That is a very positive and encouraging move...

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:):)

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.

subbing with interest

keeping my eye on this one

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.

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

well done!!!

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

subbing

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.

Excellent work GLC

Will follow this developement extremely closely

(as will all the banks no doubt!)

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.

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.

I feel cautiously optomistic.

do cases in Scotland have any significance in England?

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

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