H.O.L Test case appeal. Judgement Declared. ***See Announcements***

[barry_2008]

Granted... I can see how it is hard to believe but its true.

[speedtrip]

Thanks for this.

 

I read through this thread when the court decision was heard on 25 November and I have been awaiting the amended POC.

 

My case is currently stayed with a 28 day time limit pending following the courts decision which means I have until the 23rd December to respond to the court.

 

In absence of the amended POC and that there must be other consumers in my position (im an ex Lloyds customer) what should be course of action at thus time.

 

Should i do a holding letter requesting extension as is suspect that the next steps from the various pressure groups wont be availble for me to respond to the court by the deadline.

 

Would appreciate some guidance here,

 

Thanks

 

ST

 

JUst gleaned from the Legal seagulls site...... (hope they don't mind reproduction?)

 

Earlier this week the OFT invited consumer campaigning groups to meet with them to discuss the ongoing UTCCR and Market Study investigations into the banks charging structures and fairness. Budgie and EXC from disneyland attended the meeting this afternoon with the people from the OFT who are running the investigations.

 

Despite hoping for an announcement early in December, due to the complex issues involved a decision is not now expected until near, or beyond, Christmas. Although it will be as soon as possible. We are seeking clarity from the courts of the claims that are stayed and whether these can be held until such an announcement is made.

 

The OFT's counsel are working hard on progressing the arguments under regulation 5(1). There is a concern that it will be difficult to litigate on fairness of structure, good faith or cross subsidy under 5(1) without touching on the adequacy of price which has been ruled out by the Supreme Court under regulation 6(2).

 

Depending on counsels opinion, there is a possiblity of referring directly to the UTCCR greylist from EU directives and taking the case on consumers failing to fulfill an obligation under the contract to keep the account in credit or within an agreed limit. This would however need to go through the high court and be referred to the ECJ, so again would take a long time.

 

The OFT are committed to resolving the issues as quickly as possible and to achieveing certainty and clarity for consumers, but they have to get it right, and if that takes a little longer at this stage then we are behind them 100%.

 

We will be opening some discussions on the varying possible outcomes, which are just theoretical. The OFT would like to understand how consumer groups would react to them not taking any further action in litigation and what we would expect to happen, also what would we like to see happen should the OFT continue litigation.

 

Of course the litigation primarily affects historical charging and thus refunds. It shouldn't affect hardship cases, or the work the OFT and FSA and consumer groups are putting into the future of banking and the PCA market and making it fairer and more transparent for everyone.

 

We also have been asked to update our response to the Personal Current Account market study report consultation ( ~~~~~seagulls formal response to OFT PCA Market Study Consultation Nov 2008~~~~~~ - Legal seagulls ) to take into account the improvements (or not) since we first submitted it in November 2008.

 

Much has happened in the way of the financial services bill, new updated guidance, changes to banks terms, the post office bank and so on and so on, so we will be looking for some assistance with this.

 

Budgie and EXC will be posting further later with more detail and will correct any misconstructions I have made.

 

The OFT are due to meet with representatives from MoneySavingExpert tomorrow afternoon, counsel for the consumers in the morning, and Stephen Hone on Friday. The Consumer Action Group were unable to attend todays meeting but are hoping to hold a telephone conference later in the week. The groups will be pooling opinions and ideas and working together to take this forward and get your voice heard.

 

So its not positive, but its not negative either. The OFT WANT to know our opinions and they value consumers views on the way forward.

 

Look out for some discussion threads over the next day or two and get our voice heard

[yourbank]

Comments edited. I'm an orange is legal B eagles as per the announcements on the forum.

 

The post quoted above has also been updated since then with a bit more info.

Edited December 13, 2009 by yourbank

[yourbank]

Whack-a-banker Games - GamesClub.com

 

YOU HAVE GOT TO PLAY THIS and enjoy it

[EricTheRed]

The Principal Solicitor at Govan Law Centre gave a good interpretation of the Supreme Court judgement and also eluded that there is ample evidence of the banks acting in bad faith in respect of their explanations to their customers about the reaon and purpose of bank charges.

 

He went on to sat that the evidence the banks gave to the House of Commons Treasury Committee on how bank charges were calculated was contradictory to what they told the court in the OFT test case. Is this not admissible as evidence?

 

Sorry to quote my own posting

 

"perjury" - that was the word I was looking for!!!!!

 

OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case - Page 30 - Legal seagulls

[koalaattack]

Hi everyone,

 

I posted this in my thread but figured it would be useful for all to see - it may have been covered already, apologies if so...

 

...I was out for a mates birthday on Friday and got chatting to a lawyer (not my normal company, honest!). Anyway, we chatted about my situation (case stayed, waiting for more information) and he explained that as a lawyer he would expect banks to try for all expenses related to each case. He said they would have a definite case and that they could be looking for some serious money (he reckoned up to around £3,000 for my case). When I asked whether I would be expected to pay this all back in one go (I don't have £3K just laying around) he said that would be up to the banks and I, but he also said that I could end up having the costs stuck onto my mortgage. I explained that my mortgage wasn't with Barclays, he said that didn't matter!

 

I just wanted to put this out there and see what people thought about it all?

 

Thanks,

 

Luke.

[Dougal16T]

Sorry to quote my own posting

 

"perjury" - that was the word I was looking for!!!!!

 

OFT v Banks Judgment 25th November 2009 - 9.45am- Supreme Court - Test case - Page 30 - Legal seagulls

 

Morning all

 

Perjury Act 1911

Perverting the Course of Justice

 

(Archbold 28-1 to 28-28)

 

 

The offence of Perverting the Course of Justice is committed when an accused:-

• does an act or series of acts;
  

• which has or have a tendency to pervert; and
  

• which is or are intended to pervert;
  

• the course of public justice.
  

The offence is contrary to common law and triable only on indictment. It carries a maximum penalty of life imprisonment and/or a fine.

 

The course of justice must be in existence at the time of the act(s). The course of justice starts when:-

• an event has occurred, from which it can reasonably be expected that an investigation will follow; or
  

• investigations which could/might bring proceedings have actually started; or
  

• proceedings have started or are about to start.
  

In (R v Cotter and Others [2000] TLR) it was held that 'the course of public justice included the process of criminal investigation following a false allegation against either an identifiable or unidentifiable individual.'

The offence of perverting the course of justice is sometimes referred to as "attempting to pervert the course of justice". It does not matter whether or not the acts result in a perversion of the course of justice: the offence is committed when acts tending and intended to pervert a course of justice are done. The words "attempting to" should not appear in the charge. It is charged contrary to common law, not the Criminal Attempts Act 1981: (R v Williams 92 Cr. App. R. 158 CA).

 

It is likely that perverting the course of justice will be the appropriate charge when:-

• the acts wrongfully expose another person to risk of arrest or prosecution;
  

• the obstruction of a police investigation is premeditated, prolonged or elaborate;
  

• the acts hide from the police the commission of a serious crime;
  

• a police investigation into serious crime has been significantly or wholly
  

frustrated or misled;

• the arrest of a wanted person for a serious crime has been prevented or substantially delayed, particularly if the wanted person presents a danger to the public or commits further crimes;
  

• the acts completely frustrate a drink/drive investigation thereby enabling the accused to avoid a mandatory disqualification;
  

• the acts strike at the evidence in the case. For example, influencing a vital witness to give evidence/altered evidence/false evidence, or destroying vital exhibits or frustrating a scientific examination;
  

• the acts enable a defendant to secure bail when he would probably not have otherwise secured it;
  

• the acts strike at the proceedings in a fundamental way. (For example, by giving a false name so as to avoid a mandatory disqualification or a 'totting' disqualification: giving false details which might significantly influence the sentence passed); giving details which may result in a caution instead of prosecution);
  

• concerted attempts to interfere with jurors; attacks on counsel or the judge; or conduct designed to cause the proceedings to be completely abandoned);
  

• a concerted attempt has been made to influence significant witnesses, particularly if accompanied by serious violence;
  

• the sentencing powers of the court for an alternative offence would be inadequate.
  

Perjury

 

(Archbold 28-152 to 28-174)

 

By section 1(1) of the Perjury Act 1911, perjury is committed when:-

• a lawfully sworn witness or interpreter
  

• in judicial proceedings
  

• wilfully makes a false statement
  

• which he knows to be false or does not believe to be true, and
  

• which is material in the proceedings.
  

The offence is triable only on indictment and carries a maximum penalty of seven years' imprisonment and/or a fine.

A conviction cannot be obtained solely on the evidence of a single witness as to the falsity of any statement. There must, by virtue of section 13 Perjury Act 1991, be some other evidence of the falsity of the statement, for example, a letter or account written by the defendant contradicting his sworn evidence is sufficient if supported by a single witness.

Perjury is regarded as "one of the most serious offences on the criminal calendar because it wholly undermines the whole basis of the administration of justice":- Chapman J in (R v Warne(1980) 2 Cr. App.R. (S) 42). It is regarded as serious whether it is committed in the context of a minor case, for example a car passenger who falsely states that the driver did not jump a red light as alleged, or a serious case, for example a false alibi witness in a bank robbery case.

In most cases, an offence of perjury will also amount to perverting the course of justice. If the perjury is the sole or principal act, then it will be normal to charge perjury. If the perjury is part of a much more significant series of acts aimed at perverting justice, then a charge of perverting the course of justice would be more appropriate.

A charge of perverting the course of justice cannot be brought simply to avoid the requirements of corroboration of the falsity of the evidence as required by s.13: (Tsang Ping Nam v R 74 Cr. App. R. 139 PC).

Perjury by a Defendant

 

If a defendant is convicted despite giving perjured evidence, the decision to prosecute must take note of the sentence imposed for the original offence. If you think a conviction for perjury is unlikely to result in a substantial increase in sentence, then the public interest probably does not require a prosecution.

Consider also the possible consequences to the original conviction of an acquittal of the defendant on a charge of perjury arising out of the earlier proceedings. You should, therefore, be satisfied that the evidence of perjury is exceptionally strong before instituting proceedings.

Evidence of premeditation is an important factor in coming to a decision on whether or not to prosecute. If the defendant's lies have been planned before the hearing as opposed to arising on the spur of the moment during cross-examination, the public interest in prosecuting will be stronger.

Where a defendant is acquitted, wholly or partly because of false evidence given by him or her, a prosecution for perjury might be appropriate. Where there is clear evidence of perjury, which emerges after the trial, and which goes to the heart of the issues raised at the trial, a prosecution for perjury may be appropriate. A prosecution should not be brought, however, where it may give the appearance that the prosecution is seeking to go behind the earlier acquittal: see dicta by Lord Hailsham L.C. in (D.P.P. v Humphrys [1977] AC).

Perjury by a Defence Witness

 

 

The decision to prosecute a defence witness for perjury partly depends on whether the defendant in the earlier trial was convicted:

• If the defendant was convicted, and there is no clear evidence of collusion, a prosecution would not usually be appropriate;
  

• If the defendant was convicted and there is clear evidence of collusion between the witness and defendant to give perjured evidence, a prosecution may be appropriate. Where it is in the public interest to prosecute for perjury others involved in fabricating false evidence with the defendant, then the defendant should also be prosecuted, except in exceptional circumstances;
  

• In the event of an acquittal, in the absence of clear evidence of collusion, the evidential test for a prosecution is unlikely to be met. Where there is clear evidence of collusion, and where the perjured evidence is sufficiently material to the case, then careful consideration should be given to a prosecution.
  

Offences Akin to Perjury

 

(Archbold 28-175 to 28-190)

 

There are a number of offences akin to perjury in the perjury act 1911 which, though not detailed in this charging standard, should be considered, including:-

• false statements on oath made otherwise than in a judicial proceeding: s.2;
  

• false statements etc with reference to marriage: s.3;
  

• false statements as to births or deaths: s.4;
  

• false statutory declarations and other false statements without oath: s.5;
  

• false declarations etc to obtain registration etc for carrying on a vocation: s.6;
  

• subornation of perjury: s.7.
  

Thought this might help....

 

Best wishes as always

 

Dougal

[MilkTrayMan]

Hi koalaattack,

 

Most peeps re-claiming of unlawful bank penalty charges are going through the Small Claims Track + aren't subjected to the exorbitant legal fees which U have quoted.

 

The definitive guide is laid out in following relevant Civil Procedure Rules...

 

PART 27 - THE SMALL CLAIMS TRACK

 

PART 45 - FIXED COSTS

 

 

[Dougal16T]

Hi koalaattack,

 

Most peeps re-claiming of unlawful bank penalty charges are going through the Small Claims Track + aren't subjected to the exorbitant legal fees which U have quoted.

 

The definitive guide is laid out in following relevant Civil Procedure Rules...

 

PART 27 - THE SMALL CLAIMS TRACK

 

PART 45 - FIXED COSTS

 

 

 

Morning again

...and in CPR 38(3)

 

Best wishes

Dougal

[Night Owl]

MSE update

 

Bank charges round two: a new legal hope - MoneySavingExpert News

[bornrich]

Koalaattack,

 

Hmmm interesting.

 

The county courts have a primary function to serve the lay person in low value claims. I doubt if any county court judge will entertain trumped up solicitor fees from the banks.

 

If it were true, what's to stop anyone drawing their present case to a close and then submitting a new case? That would immediately scupper any claw back plans from the banks?

 

The advice over the fees being added to your mortgage are slightly basic to say the least. I think your solicitor may have been referring to a charge on the property but this is the last resort and most judges won't grant it if at all possible. He/she would have to explain this to you if in professional capacity mode, but then you were at a party so...

 

Sounds like this solicitor was trying to scare you or puff herself up. I hope it didn't prevent you from enjoying the party!

 

I'd be interested to hear what others think.

 

Bornrich

[the_shadow]

If it were true, what's to stop anyone drawing their present case to a close and then submitting a new case? That would immediately scupper any claw back plans from the banks?

 

I suspect the claimant would be hit with a wasted costs order as soon as they discontinued... plus if the defendant has issued a defence then afaiu they cant be taken to court again for the same claim.

 

The advice over the fees being added to your mortgage are slightly basic to say the least. I think your solicitor may have been referring to a charge on the property but this is the last resort and most judges won't grant it if at all possible. He/she would have to explain this to you if in professional capacity mode, but then you were at a party so...

 

Sounds like this solicitor was trying to scare you or puff herself up. I hope it didn't prevent you from enjoying the party!

 

I'd be interested to hear what others think.

 

Bornrich

 

Agree with the above tho, typical solicitor trying to sound all pompous and knowledgeable I suspect.

 

S.

[MilkTrayMan]

 

...and in CPR 38.6(3)

...To be precise Dougal16T.

 

PART 38 - DISCONTINUANCE

 

But one tries to think + proceed positively.

[bornrich]

I imagine the banks and their well-funded PR machine will be trying to scatter many reasons to dissuade people from proceeding with their claims. Threat of paying costs, black-listing by financial institutions, the good of the majority, endangering free banking etc.

[adamc6671]

MSE update

 

Bank charges round two: a new legal hope - MoneySavingExpert News

 

A VERY interesting statement from MSE! Well worth reading, IMO, as it puts everything in clear english that even I can understand!

 

In a nutshell, MSE recommends no revised POC's at this stage because the, very strong, new case that their barrister has come up with is likely to be too complex for individuals to take up, and is lobbying the OFT to follow that course themselves, in a new case.

 

It seems to me that, although the 'new' case may be very strong, that this will lead to another 2 year delay (at least) in progressing claims, if indeed the OFT do choose to follow that course.

 

Oh well - at least we're getting interest at 8%!!!

[stonedecroze]

O.K.

So where does this leave us all with claims stayed, I was under the impression that something had to be done by 23 Dec to stop claims being dismissed

[koalaattack]

Cheers to those who have replied to my earlier post; I have to say, it got me a little worried. I figured even if I did end up paying costs I could sort something with Barclays based on a fair amount per month - it was the mortgage bit that worried me the most as I don't want to affect my girlfriend with this! I need to check which track my case is on as I was just on the cusp of the limit for small claims/fast track (that's how I remember it anyway).

 

For those who worried about me not enjoying the party because of it, fear not! It was the knowledge that I had to get up the next morning and run 11 miles that ruined it for me!

 

It seems to me that, although the 'new' case may be very strong, that this will lead to another 2 year delay (at least) in progressing claims, if indeed the OFT do choose to follow that course.

 

Wasn't the first argument really strong?! Strength of argument doesn't seem to matter based on the last ruling

 

It is interesting though; I went down to the Court at lunchtime as I wasn't sure whether I'd notified them that I'd moved. They have stayed all cases for another 12 months as the courts are aware that the OFT are taking the claim higher. That's what I was told by the counter clerk anyway. Not sure what that means but it may add some hope. She said she thought it was far from over.

[yourbank]

O.K.

So where does this leave us all with claims stayed, I was under the impression that something had to be done by 23 Dec to stop claims being dismissed

 

Is it possible that CAG and MSE etc,etc, could look at this question and give advice since these cases are URGENT and some people's claims could potentially be struck out if they do nothing.

Can site team come back on this question at some point over the next few days? Thanks

[koalaattack]

Is it possible that CAG and MSE etc,etc, could look at this question and give advice since these cases are URGENT and some people's claims could potentially be struck out if they do nothing.

Can site team come back on this question at some point over the next few days? Thanks

Surely if the courts follow suit and stay the claims for a futher 12 months as they have down here, that would negate the 23rd date? Or is that too simplistic of me?

[speedtrip]

Please see my post #4174

 

I agreed with yourbank and stonethecroze.

 

Where does this leave us?

 

Can we apply to the court to stay our cases so we can await clarification of the OFT/FSA position plus 28 days to respond to the court.

 

This seems the minimum given we have been waiting 2 years.

 

When can we expect guidance on the next step for consumers as we really need to have a prepared response for the end of the week as we only have 8 working days including today.

 

Deadline approaching very quickly.

 

Regards

 

ST

 

Thanks for this.

 

I read through this thread when the court decision was heard on 25 November and I have been awaiting the amended POC.

 

My case is currently stayed with a 28 day time limit pending following the courts decision which means I have until the 23rd December to respond to the court.

 

In absence of the amended POC and that there must be other consumers in my position (im an ex Lloyds customer) what should be course of action at thus time.

 

Should i do a holding letter requesting extension as is suspect that the next steps from the various pressure groups wont be availble for me to respond to the court by the deadline.

 

Would appreciate some guidance here,

 

Thanks

 

ST

[ncf355]

Joy

 

another 2 year delay only to be told weve lost again no doubt

 

Not normally defeatist but even I'm P'd off now

[the_shadow]

O.K.

So where does this leave us all with claims stayed, I was under the impression that something had to be done by 23 Dec to stop claims being dismissed

 

err dont shout ;-) ;-)

 

It depends on each individual claim, your stay document from the court should state what would happen to remove the stay and when it'll happen. If it doesnt state anything then a letter to the courts should be sent asap imho

 

S.

[yourbank]

saying what ?

[car2403]

O.K.

So where does this leave us all with claims stayed, I was under the impression that something had to be done by 23 Dec to stop claims being dismissed

 

Is it possible that CAG and MSE etc,etc, could look at this question and give advice since these cases are URGENT and some people's claims could potentially be struck out if they do nothing.

Can site team come back on this question at some point over the next few days? Thanks

 

The situation hasn't changed, as far as I know it. Check the Announcement section, which is where the announcements will be made (sorry ) when there's an update, then.

 

As for what to do, that should be check your paperwork and comply with the directions.

 

I've already written to my Court(s) and asked them to lift the stay, give me 2 weeks to amend my POC and another 2 weeks for an amended defence, in the hope that these new POC are available this week, or that it takes the Court(s) 2 weeks to process my request.

 

Each claimant should make their own Judgment call as to what to do next, though

[the_shadow]

saying what ?

 

Well at the very least you need the stay in place until the OFT make their announcement next year so...

 

I respectfully ask the court that the current stay in place remains for a period of 28days after the OFT make their public announcement on further action in relation to the test case.

 

Something along those lines.

 

S.