Hi Guido The Judge was excellent - in fact he said that he had given as clear an indication as to where his sympathies lay and that how he felt that LTSB could have dealt with this in a much fairer and more just way. Sadly, I don't think LTSB are listening. It was Cambridge County Court. My present case has been allocated to the Small Claims track, even though it is inexcess of £5,000. If I do issue a further claim for the earlier charges I suspect a defence would be issued by LTSB at which stage that too would be Stayed. If that happened then the risk of exposure to costs should be minimal? John

Hi The same has happened in my case (i've put more on my thread). Even though the Judge was sympathetic, the reality is that no County Court is likely to allow a case to proceed further pending the outcome of the OFT case. John

Hi Benjy I'm sorry that i didn't say what you wanted to hear - i was only sharing my own experiences. Without a doubt you are entitled to object to the Stay being granted, or to apply for a Stay to be lifted, but the general feeling now is that the Courts are reluctant to agree in the light of the forthcoming OFT test case. For what it is worth, I have shown below my letter to the Court and my Skeleton Argument on which I relied at my hearing to have the Stay in my case lifted (unsuccessfully): Dear Sir xxx – v – Lloyds TSB Bank plc Case No xxxxx in the xxxxx County Court I have been provided with a copy of a letter dated xth September 2007 to the Court from the defendant’s solicitors, Sechiari Clark & Mitchell. Reference is made to a hearing on xth September of which I had no previous knowledge. Can you kindly confirm a hearing is to take place? I have taken note of the contents of the above letter in support of the defendant’s application for the stay, ordered on xth August 2007, to remain in place. I have already set out in my witness statement the grounds of my application for the stay to be removed and the Court will see the basis of my claim as set out in the Claim issued in March 2007. It is germane that prior to the defendant’s current application it had not seen fit to make any contact with me whatsoever or to comply with directions or orders of this Court. However, the defendant’s application relies solely on the fact that a test case is being taken by the OFT in the High Court; a case which deals solely with the fairness or otherwise of the bank’s charges for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999. My claim, however, also addresses the issue of the bank’s charges being penalties for breach of contract – an aspect not, I believe, to be addressed by the OFT case. In fact the correspondence sent to me over the years by the defendant (through it’s local business banking department) has consistently referred to the implications of any breach of contract by me, namely the incurring of charges and the request to seek alternative banking arrangements. It is my contention that the charges levied are punitive in nature and thus unlawful ab initio. I respectfully request, therefore, that the Court orders that the stay of xth August 2007 be lifted to allow my claim to continue on the substantive issue of determining that the bank charges are penalties and thus unlawful. Yours faithfully ______________________________________________________________ SKELETON ARGUMENT FOR THE CLAIMANT (Litigant in person) In the proceedings on xx September 2007 at 10.00 am relating to the Defendant’s application for Continuation of the Stay and the Claimant’s application to lift the Stay The Claimant will rely on the following submissions: 1. Human Rights To impose a stay in the present proceedings would infringe my rights conferred by Article 6 of the European Convention of Human Rights, to receive a fair hearing within a reasonable time. The case of Wilson v Robertsons (London) Ltd referred to by the defendant in their skeleton argument is not authoritative since the issue of Human Rights was not argued. The appeal in that case was against costs not against the imposition of a stay and therefore the point was not fully argued. No definitive statement of the law can emerge. 2. Blanket stays The imposition of blanket stays runs contrary to the wishes of the Master of the Rolls and my right to have my case decided on its merits. 3. Distinguishing factors The test case between the banks and the OFT is primarily to determine whether or not the terms permitting the banks to levy their ‘overdraft charges’ are subject to an assessment of fairness under the Unfair Terms in Consumer Contracts Regulations 1999. The OFT's Particulars of Claim are attached. The fundamental issue to be tested is whether the contractual provisions which permit such charges are subject to an assessment of fairness under the Regulations and fall within the ambit of regulation 5, as the OFT contend, or whether they are, as the banks contend, excluded by virtue of Regulation 6 because they are a 'core term'. Regulation 6 provides; "(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate - (a) to the definition of the main subject matter of the contract, or (b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange." It is accepted that this is a complex issue of legal interpretation and one on which clarity is needed. However, this issue should be viewed in the context of the banks’ recent policy of restructuring their account contracts to present the charges as being fees for banking services as opposed to damages payable on a breach of contract. All terms expressly prohibiting the exceeding of overdraft limits and making payments without sufficient funds have been re-drafted so as to present the event leading to a charge being made as an “informal request” for an increased overdraft limit. It is in this respect that the test case will determine whether or not the charges are subject to the assessment of fairness notwithstanding such re-drafting of contract terms. In view of the preceding paragraphs, I wish to draw the courts attention to the following matters; a) The OFT Test Case will not, primarily, test the position at common law of whether or not such clauses amount to an unenforceable penalty; and, b) It is settled by virtue of the unanimous decision of the House of Lords in the case of Director General of Fair Trading v First National Bank [2001] UKHL 52 that a default provision, that is one concerning the consequences of a breach of contract, is not and cannot be excluded from the regulations by virtue of regulation 6. It is thus submitted that my claim should proceed on the grounds that the vast majority of the charges imposed by the bank were levied in advance of the redrafting of its contractual terms and as such were imposed as default charges as a consequence of breaches of contract. The issues are therefore distinguishable from the fundamental issues of the OFT Test Case, are relatively straightforward issues of fact, and can be routinely and expeditiously disposed of by the County Court. 4. Balance of convenience A stay will disproportionately affect myself and operate oppressively whereas it will relieve the defendant of all obligations towards me until the outcome of the test case 5. Defendant’s conduct The present case has now been ongoing for seven months, during which time the defendant has failed to reply to any of my correspondence and has failed to comply with orders and directions made by this Honourable Court. Therefore I submit that to stay this claim at this stage is wholly unjust and would have the obvious effect of favouring a defendant notorious for its wilful refusal to comply with court orders and the litigation process in general. In the defendant’s skeleton argument reference is made to many tens of thousands of complaints having been received by banks relating to their charges. It should be mentioned that the defendant in many similar cases has settled those complaints in full without the matter being heard in Court. 6. Status quo A stay would not maintain the status quo but would favour the defendant by allowing them to continue to apply charges to my account without allowing myself to pursue a legitimate claim to a remedy 7. Conditional order Should the court be minded to order a stay it is respectfully requested that conditions should attach to the order so as not to prejudice the claimants position. Such an order should include: a) That the defendant bank is prevented from applying further penalty charges to my account until the final settlement of the matter. b) That the defendant is prevented from applying interest charges to any outstanding amounts which are comprised of penalties until the settlement of the matter. c) That the defendant is prevented from closing my account. d) That the defendant is prevented from making any entry on its own systems or from communicating any similar information to any third party about any matter insofar as it relates to penalty charges until the final settlement of the matter. e) That the defendant removes any derogatory entry on its own records insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998) f) That the defendant arranges the removal of entries from the records of any third parties to whom it has previously communicated information insofar as it relates to penalty charges. (The Court has the power to do this under the Data Protection Act 1998.) g) That these injunctions remain in place until the settlement of my claim. h) That should my claim proceed to a hearing that a decision should be made at the hearing as to whether these injunctions should be made permanent. i) That if the matter should not proceed to a hearing because the defendant decides to settle outside court, that these injunctions should become permanent. I suspect that the reality of what I am saying is that if you apply now for the stay to be lifted, a hearing date will be set for around some four weeks from now, which will take you to almost November. By that time we would only be some two and a bit months away from the hearing of the OFT test case - and it would be unlikely that (if you were successful) your case would be heard before then. In all probability the Court would not, in those circumstances, lift the Stay and you may also be faced with an application from the bank for their costs to be awarded against you. Having said all that, I'd be delighted to see you succeed in having the Stay lifted. Good luck! J

Hi benjy Whilst it is extremely frustrating to be the subject of a Stay in proceedings, my own experience is that it is extremely unlikely that you will succeed in having that overturned prior to the outcome of the OFT case. Not only would the bank be unlikely to allow that to go unchallenged by them, the Courts would be wary of allowing a case to proceed in the expectation that (in the event of a claimant being successful) the bank would appeal to a higher court. That has serious costs implications for claimants. I honestly believe that the only thing to do now is sit and wait for the outcome of the OFT case. If that addresses all issues (including the "penalty" aspect) then the way forward is clear. If it does not (and frankly it would be strange if, having proceeded that far, the OFT and the banks did not deal with all aspects) then our claims would continue. J

Well I had my "day in court" yesterday seeking to overturn the Stay in my case. LTSB sent along Counsel (from Lincoln's Inn in London, no less!) to argue their case and to apply for costs against me. Although the Stay was not lifted (the claim was adjourned generally with liberty to restore), the Judge was extremely sympathetic to my case and spoke of the terrible injustices being carried out by the banks towards claimants insofar as they were arbitrarily settling some cases and not others. He accepted that I had a good case to argue that my claim was primarily on the basis that the charges were penalties rather than an unfair "charge for services" (as covered by the OFT case) but, on a practical basis, said by the time a full days hearing could be arranged it was highly likely that the OFT case would have been heard. Alternatively, there would be a risk that my claim would otherwise become a "test case" with all the costs implications of that. Counsel for LTSB stated that the banks intend that the OFT case would be expanded to deal with the "penalties" aspect and that it was anticipated that following the hearing (set down for 8 days commencing 14 January 2008) judgment would be issued in March 2008. On the question of costs the Judge (who had seen many of these cases before) said he was reserving an order on those until after the OFT case decision - on the basis that if the matter went against the banks it was highly likely to be settled and would not return to Court. If the banks won (and therefore my claim failed) then it would be up to the bank to return to Court to ask for costs against me - a matter that the Judge particularly stated would only be dealt with by him personally. All in all I feel that it was a worthwhile excercise - if only to hear the overwhelming support the Courts have for claimants like me, in the light of the way the banks have so far dealt with the judicial system. I think that it is now just a question of waiting - although I am seriously thinking of commencing a claim now for the bank charges levied in the period 1991 to 2001. Any thoughts on the merits of that? J

Thanks Gary - I'll let you know what happens! J

Any idea where I can obtain details of the actual "advice" given to local Courts on how they should approach stays in these cases? I've received from SC&M today a copy of their "Skeleton Argument" for the hearing tomorrow wherein they repeatedly refer to "complex issues" and how a stay would facilitate an orderly resolution and not undermine the (OFT) test case. The hearing in Court is tomorrow - does anyone have any last thoughts on this? J

Any news on what happened in Court?

As the Court have ordered the bank to serve a copy of the POC on the claimant that should not be difficult for them to do - especially as it is readily available? What I would be interested in is why the Court made that order - are they doubting, perhaps, that the test case is actually going to deal properly with all the arguments raised? John

Hi Can you let me know on what basis the request for a stay was refused by the Court? John

Thanks Gary, that's what I was hoping - all I have to do now is persuade the Judge! From all i've read on all other threads regarding stays, the Courts seem to be happily going along with the idea that ALL cases should be stayed pending the outcome of the OFT case simply because they have received some kind of "directive from above". I can see the advantage of this from a local Courts point of view (as it clears their lists considerably) but if we could see the actual directive it would be possible to address that somehow? Is there a way of obtaining more information on that? John

Gary Many thanks for your help. I've printed the T&C's off and will take them to Court with me on the 26th. I'm hoping that as my claim is made firstly on the basis of "breach of contract" (and secondly on the unfairness angle) that the Judge will agree that the OFT case is not wholly relevant to me and allow my claim to continue? John

Hi Just checking in - how did you get on today? John

I'm sorry, I must be having a "Friday moment" in not being able to explain myself........but what I meant was, is this a claim, albeit started by you in April, which LTSB probably initially defended in Court, but which they then offered to settle after the announcement of the OFT test case or before then (even though you may have only received the money at the end of August)?

Thanks Gary - I'll have a look. Essentially I have two personal accounts (one of which was an original basic TSB account opened in 1992 but which has now migrated to an "enhanced account" and the other is a Lloyds TSB "enhanced account") and a business account opened originally with TSB in 1992. I'm afraid I've lost track over the years of the T&C's that have applied to each account, especially as they have changed the type of accounts whilst keeping the same account numbers, if you know what I mean. John

Hi thanks for your reply - was the first offer of a settlement with you made at the end of August?

Hi Gary No I don't have the T&C's - can I get copies anywhere? John

Gary Thanks for your reply. What do you mean by "what sort of letters are they?". They are all from the local LTSB business banking manager written personally to me. John

I think the judiciary have been dragged along by the hope that they are all off the hook in these cases, on the basis the OFT case will solve all. The fact is, and I don't know how this can best argued, that the OFT case as it presently stands, does not seek to test the fact that the charges are penalties, only that they are unfair within the Unfair Terms in Consumer Contracts legislation. The Courts seem to show no willingness to accept this is the position - and ignores one of the bases on which most cases brought have been pleaded. John

Thanks CB The letter indicates they were bound by an offer made prior to the announcement of the OFT matter, but thank you anyway. John

Hi CB Can I ask if the offer letter you received from SC&M was dated in August; in other words, notwithstanding the OFT case, they can still be shown to be settling certain cases? John

Hi Gary Thanks for your reply. I have some more examples as follows: "the maximum amount owing under the facility at any time must not exceed £xxx (the "limit")". "..you should only write cheques when there are enough cleared funds in your account to cover them". "...I see that your account is still over the limit we agreed. I must ask you to take action immediately to put your account in order. Umless you repay the money you us I'm afraid we will instruct our solicitors to start proceedings against you" "...I cannot allow any payments from your account if they would take you beyond your overdraft limit. For borrowing more than we have agreed you may be charged additional fees and higher rates of interest" Do you think the above indicate that LTSB took the view I was breaching an agreement with them? John

May I ask how and when they have settled? Was this pre the OFT announcement? John

I suspect it isn't the right place (unless part of the overdraft includes unauthorised overdraft fees etc?) but nevertheless I guess you are still looking for help. The way the "Collections" departments of most banks and credit card companies work is by applying pressure (by telephone and post) to get the debtor to agree some form of repayment schedule - but without that getting to the point of harrassment; in many cases there is a very fine line between the two. The bottom line is that if you do actually owe the money to the bank they are entitled to look to you for repayment of that and in the absence of agreement, they will instigate court action against you. To avoid that, and depending on your financial circumstances, it might not be a bad idea to actually talk to them to see if some acceptable arrangement can be reached? John

.......does what I have shown an example of above indicate that by exceeding my overdraft limits I have expressly breached my agreement with the bank, with the consequence that they then made the charges on my accounts for returning cheques, unauthorised overdraft fees etc etc? Any thoughts? John