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EricTheRed

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  1. This topic was closed on 10 March 2019.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  2. This topic was closed on 09 March 2019.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  3. This topic was closed on 08 March 2019.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  4. This topic was closed on 2019-03-08.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  5. This topic was closed on 03/06/19.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  6. This topic was closed on 03/06/19.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  7. This topic was closed on 03/06/19.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  8. This topic was closed on 03/06/19.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  9. This topic was closed on 03/06/19.

    If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

    If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

    - Consumer Action Group

  10. 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

     

    If as in the case in Scotland the banks are to prove that their charges are not unfair in relation to price (S140A of the CCA) could we refer in court to the findings of Professors Molyneux and Struthers and Ian Jarrett?

    I know this was a hot topic quite a while ago but if price is back on the legal agenda then there is strong evidence from the Professors to rebut any assertions from the banks that their charges are fair (in relation to price).

    If this type of evidence is before the court then it blows the free if in credit argument put by the banks clear out of the water.

     

    Q – Have I spectacularly missed the point?

     

     

     

    I’ll get me coat.

  11. The 1966 Practice Statement is binding on the Supreme Court of Justice?

     

    It is even more binding now as the judiciary has found a new lease of life totally independent from the legislature and the executive.

     

    Stolen from Wikpedia –

     

    Practice Statement [1966] 3 All ER 77, was a statement made in the House of Lords by Lord Gardiner, L.C., on July 26, 1966 on behalf of himself and the Lords of Appeal in ordinary. Until 1966, the House of Lords in the United Kingdom was bound to follow all of its previous decisions under the principle of stare decisis, even if this created "injustice" and "unduly restrict(s) the proper development of the law" (London Tramways Co. v London City Council [1898] AC 375). The Practice Statement 1966 is authority for the House of Lords to depart from their previous decisions. It does not affect the precedential value of cases in lower courts; all other courts that recognise the House of Lords as the court of last resort are still bound by House of Lords decisions. Before this, the only way a binding precedent could be avoided was to create new legislation on the matter.

     

    This is the text of the Practice Statement:

     

    Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

     

    Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating formal decisions of this house as normally binding, to depart from a previous decision when it appears to be right to do so.

     

    In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property, and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

     

    This announcement is not intended to affect the use of precedent elsewhere than in this House.

     

    — Lord Gardiner's statement in the House of Lords, July 26, 1966.

     

    Beginning of rant......................

     

    In the recent case of The Office of Fair Trading (Respondents) v Abbey National plc & Others [2009] UKSC 6, the Supreme Court was extremely careful to say that their Lordships’ judgment did not “close the door on the OFT’s investigations and “may well not resolve the myriad cases that are currently stayed in which customers have challenged [bank Charges].” (para.61 of the Supreme Court judgment). Lady Hale even suggested that the lack of competition was the cause of the present bank charges problems. (Para.93 of the Supreme Court judgment)

     

    These two statements alone recognise that it is time for the Government to act and amend the ridiculous wording of Reg 6(2) upon which the SCOJ made their very narrow decision and suggests that the 1966 Practice Statement should be followed in line with their Lordships dicta of the time “when it appears right to do so”.

     

    Assessment of fairness by the OFT, although the Supreme Court decision has prevented the OFT from applying any finding of unfairness for the purposes of the Unfair Terms in Consumer Contracts Regs 1999 and in line with the Practice Statement this would give the Government an opportunity to further develop the law in respect of the strictures of the current version of the UTCCR Regs particularly the wording of Reg 6(2).

     

    Again from Wikipedia - The Office of Fair Trading (OFT) is a non-ministerial government department of the United Kingdom, established by the Fair Trading Act 1973, which enforces both consumer protection and competition law, acting as the UK's economic regulator. Clearly and despite being able to asses the fairness of credit card charges this ludicrous piece of legislation weak in comparison to some of or European brethren denies the OFT the opportunity to do what the consumer expects it to do in respect of bank charges and also follow the legally binding rules of the 1973 Act.

     

    In (Para.52 of the Supreme Court judgment) Lord Walker clearly stated that if the Banks appeal was allowed that it would cause great disappointment to a very large number of bank customers who felt they had been subject to unfairly high charges. He further went on to say “But this decision is not the end of the matter as Lord Phillips explained in his judgement. Moreover Ministers and Parliament may wish to consider the matter further. They decided, in an era of so called “light touch” regulation, to transpose the Directive as it stood rather than to confer the higher degree of consumer protection afforded by the national laws of some other member states. Parliament may wish to consider whether to revisit that decision.”– once again giving weight to the intention of the their Lordships when publishing the Practice Statement in respect of injustice in a particular case and unduly restrict further development of the law.

     

     

     

    We need a class action and I am sending this to my MP

  12. Re Edinburgh - you're right on James Fountain Court - People - James Duffy - I just get worried with these fountain court people - still not a local solicitor though but yes better than it being a QC.

     

    The claimant was ordered to expand on his POCs and Mr Duffy wasn't given the opportunity to put his case forward.

     

    I understand that James Duffy launched into the SCOJ ruling and was stopped in his tracks by the judge. Was any decision reached at court? It was on the LB site but has been moved.

  13. Re Edinburgh - you're right on James Fountain Court - People - James Duffy - I just get worried with these fountain court people - still not a local solicitor though but yes better than it being a QC.

     

    The claimant was ordered to expand on his POCs and Mr Duffy wasn't given the opportunity to put his case forward.

     

    Interestingly enough Giles Wheeler works at the same chambers as James Duffy – not that I think there is any collusion but I haven’t been called the world’s greatest conspiracy theorist for nothing.

  14. I emailed my MP to find out what the Government intend to do about bank charges now, and his response does not tally with what the banks are saying.

     

    Dear Caro

     

    Thank you very much for your e-mail dated 11th January 2009 (was 2010 actually), on the subject of bank charges.

     

    The Government has taken a look at the Supreme Court's ruling. We see that it has left open possible routes for dealing with the issue of bank charges. Some media reports suggested that the Supreme Court had closed off the opportunity for taking action. On the closer reading of the ruling it is clear that is not the case.

     

    The Government does want action to be taken on the subject of bank charges and we have made that view clear. We are in discussion with some of the groups concerned about this and we would certainly be supportive of further action to try to tackle the problem.

     

    Yours sincerely

     

    James Plaskitt MP

     

    I am going to write back and ask what form of action he anticipates.

     

    I think I'll mention that the banks are deliberately misleading people with their letters suggesting that they can do as they like now.

     

    I can't say how disappointed I am that MSE/Raymond Cox have not produced a POC that will get things moving again, but realistically 2 and half years of legal wrangling amongst the highest courts in the land hasn't resolved the issue so, IMHO, they were never going to solve it within a couple of weeks - or even months. There are no guarantees that if/when a new POC materialises, it will result in a successful outcome so people shouldn't depend on that alone and need to be proactive, as on this thread.

     

    There are no easy answers here, but it's good to see that people aren't giving up.:)

     

    I wrote to my MP and this is his reply.

     

    “Thank you for your email regarding the recent Supreme Court ruling on bank charges,

     

    I was extremely disappointed about the ruling as I believe that if the OFT cannot regulate this sort of activity then the banks may regards themselves above the rules. I am seeking to raise the matter with the appropriate authorities to see if there is another national body that can take on this class action on behalf of bank customers to prevent individuals having to pursue cases without support.

     

    Yours sincerely

     

     

    Terry Rooney MP

    Bradford North”

     

    Doesn’t say that much but I will give him a reminder

  15. James Duffy QC attended a return hearing in Edinburgh on 14th Jan. Might be a one off, might not be.

     

    absolutely agree ! Are CAG continuing to work with the other groups as per the announcment ?

     

    again absolutely agree :D

     

    Maybe, the level of each individual charge is not challengeable under UTCCR. It may be under CCA and it may be with a overall contract standpoint under UTCCR.

     

    There's a hearing for defending a strike application in court tmw.

     

    James Duffy was called in 2005. He is NOT a QC. He is a junior barrister.

     

    What happened in Edinburgh on 14th january can anybody post the result?

  16. THE OFT BOTTLES IT

     

    This is an absolute disgrace. The OFT despite being championed as the custodian of consumer protection have not listened properly to the voice of the consumer.

     

    I’ve written to my MP, The Prime Minister and Lord Phillips. As soon as I get a response I’ll post it here.

     

    “As you are probably aware that the Office of Fair Trading has decided not to take any further court action over the fairness of bank overdraft charges.

     

    The Supreme Court ruled last month that overdraft charges were part of the price that customers agreed to pay for the package of services their banks provided, and as such were excluded from the scope of the regulations.

     

    Could you please therefore let me know who you think would be responsible in deciding whether or not unauthorised overdrafts are fair? In the Supreme Court case the five judges did not rule on the issue of fairness itself. They decided that the parts of the 1999 Unfair Terms in Consumer Contract Regulations (UTCCR) that the OFT was trying to invoke did not, in fact, give it the powers it thought it had.

     

    I am of the opinion that the charges are unfair and I am sure the banks are of the opinion that they are fair.

     

    I look forward to your reply.

     

    Yours sincerely”

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