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

[rdm2006]

I haven't heard from Abbey, but I have had this from the Court, dated 22 January 2010 -

 

 

" Upon it appearing that this claim relates to bank charges, and it is or may be within the categories considered by the Supreme Court . . . . . .

 

It is ordered that

 

1. The claim be further stayed generally;

 

2. Either party may apply to remove the stay on application to the Court. Such an application may be made by way of a letter (accompanied by the appropriate court fee) and copied to the opposing party;

 

3. The application must state:

 

a. By reference to the decision of the Supreme Court the grounds upon which the application to remove the stay are based, and

 

b. Whether, and if so, what attempts have been made to settle the claim;

 

 

4. If no such application to remove the stay is made by 10 February 2010, the claim shall be struck out without further order.

 

This seems to me to be more or less the end of the road for this, and similar, claims!!!!!

 

Has anyone else recieved similar from the Court dealing with their claim? I'd be VERY grateful if anyone has any advice on what to do now.

 

Many thanks.

 

See the post before yours by The Phantom #4722

[kennyh]

Just a general enquiry:

If UTCCR Clause 5(1) states that "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.", is there any reason this shouldn't be used for credit card reclaims or is it a case of 'if it ain't broke don't try to mend it'?

[adamc6671]

Thanks rdm - I was aware of that - it really only deals with getting the Court fee waived- but my problem is how to deal with -

 

3. The application must state:

 

a. By reference to the decision of the Supreme Court the grounds upon which the application to remove the stay are based, and

 

b. Whether, and if so, what attempts have been made to settle the claim;

 

 

Does anyone know of a template letter that may help?

[speedtrip]

Very much sounds as if the court is trying to avoid more litigation clogging up the system and is saying only bring strong cases to court.

 

Any other views?

 

ST

 

Thanks rdm - I was aware of that - it really only deals with getting the Court fee waived- but my problem is how to deal with -

 

3. The application must state:

 

a. By reference to the decision of the Supreme Court the grounds upon which the application to remove the stay are based, and

 

b. Whether, and if so, what attempts have been made to settle the claim;

 

 

Does anyone know of a template letter that may help?

[Undercover-Elsa]

Hi Speedtrip,

Maybe in response to question 3a you could play around with and adapt one of the paragraphs in the Govan template linked earlier:

eg:

Although the OFT lost this case under regulation 6 of the Unfair Terms In Consumer Contract Regulations 1999 (UTCCR), the Supreme Court stated that this did “not resolve the myriad cases that are currently stayed in which customers have challenged Relevant Charges” (para 61 of the court’s judgment). In particular, the Supreme Court made it clear that “it remained open to question whether bank charges were fair” in relation to regulation 5(1) of the UTCCR (para 80 of the Supreme Court’s judgment).

Then going on to say you wish to amend your POC to take account of this?

 

Wait for other opinions though

Elsa x

[rdm2006]

Very much sounds as if the court is trying to avoid more litigation clogging up the system and is saying only bring strong cases to court.

 

Any other views?

 

ST

 

Or it is saying can't continue with current POC you need to change it, oh and here is where you will find it (by way of the supreme court judgement). nudge nudge wink wink (if he/she were to give you the page and paragraph numbers the bank could say he/she was leading you)

 

depends on how you read it

 

send your bank the govan law letter give them 7 days to deal with it, this will then be your attempt to settle.

 

Not the end of the road yet!

Edited February 1, 2010 by rdm2006

[adamc6671]

Or it is saying can't continue with current POC you need to change it, oh and here is where you will find it (by way of the supreme court judgement). nudge nudge wink wink (if he/she were to give you the page and paragraph numbers the bank could say he/she was leading you)

 

depends on how you read it

 

send your bank the govan law letter give them 7 days to deal with it, this will then be your attempt to settle.

 

Not the end of the road yet!

 

 

An interesting point rdm! I'll send the bank the Govan letter, linked here

 

Govan Law Centre: Unfair bank charges: free help to amend existing complaint letters

 

As regards my particular claim, I'm thinking of going down the route of applying to the Court to have the stay lifted, and asking for permission to ammend my Particulars of Claim.

 

However, I have to admit that I have a few concerns about this course of action, especially in light of the fact that the Govern Law Centre et al seem to be having significant problems in compiling a revised 'particulars of claim' - they have been promised within 2 weeks for the best part of 6 weeks now and still haven't appeared!

 

 

I'm concerned that if they don't appear within a very short time then the claim will be struck out, given that Ipswich county court have (unilaterally!) only given me till 10th Feb to apply to lift the stay. I'd feel far happier proceeding in this way if the new POC's were actually available. Does anyone happen to know if it is permissable to ask the Court to continue the stay beyond 10th Feb, pending the gathering and compilation of new evidence with specific reference to the UTCCR's and Consumer Credit Act 1974 which was not covered by 'The Test Case'?

 

 

I am also concerned that if only a few people proceed in this way, especially if the new POC's don't appear, there is a very real chance of having to face Abbey / Santander's top notch leagal seagulls in Court, which I don't actually relish doing, and if we loose, being ordered to pay the bank's huge legal costs. Does anyone have any views on that?

[sallysas]

Very interesting. I get the impression court response varies from court to court from previous readings. Just subbing - hope above suggestion works for you. At the very least it slows things down.

[landy_alert]

An interesting point rdm! I'll send the bank the Govan letter, linked here

 

Govan Law Centre: Unfair bank charges: free help to amend existing complaint letters

 

As regards my particular claim, I'm thinking of going down the route of applying to the Court to have the stay lifted, and asking for permission to ammend my Particulars of Claim.

 

However, I have to admit that I have a few concerns about this course of action, especially in light of the fact that the Govern Law Centre et al seem to be having significant problems in compiling a revised 'particulars of claim' - they have been promised within 2 weeks for the best part of 6 weeks now and still haven't appeared!

 

 

I'm concerned that if they don't appear within a very short time then the claim will be struck out, given that Ipswich county court have (unilaterally!) only given me till 10th Feb to apply to lift the stay. I'd feel far happier proceeding in this way if the new POC's were actually available. Does anyone happen to know if it is permissable to ask the Court to continue the stay beyond 10th Feb, pending the gathering and compilation of new evidence with specific reference to the UTCCR's and Consumer Credit Act 1974 which was not covered by 'The Test Case'?

 

 

I am also concerned that if only a few people proceed in this way, especially if the new POC's don't appear, there is a very real chance of having to face Abbey / Santander's top notch leagal seagulls in Court, which I don't actually relish doing, and if we loose, being ordered to pay the bank's huge legal costs. Does anyone have any views on that?

 

Totally agree with you on your last points Adam - I'm in a similar situation but with LTSB and have until late Feb to apply for my stay to be lifted - my claim is for far more than the small claims limit and the thought of having to pay the bank's costs if I lose is terrifying:eek:

 

I've sent a personalised version of the Govan Law Centre letter, but have yet to receive a reply - that's if they even bother to respond, which I severely doubt.

 

Good Luck with whatever you decide to do!

 

Landy x

[caro]

Totally agree with you on your last points Adam - I'm in a similar situation but with LTSB and have until late Feb to apply for my stay to be lifted - my claim is for far more than the small claims limit and the thought of having to pay the bank's costs if I lose is terrifying:eek:

 

I've sent a personalised version of the Govan Law Centre letter, but have yet to receive a reply - that's if they even bother to respond, which I severely doubt.

 

Good Luck with whatever you decide to do!

 

Landy x

 

IMHO it would be foolhardy to apply for your stay to be lifted unless you know how to proceed once the case gets going again.

 

In fact, I wonder if it may not be better to seek an extension to the stay as the test case has posed further questions.

 

Some of the courts are also asking what action has been taken to resolve the matter, and if no real attempt has been made to settle, and you went on to (shudders) lose, you risk the bank and/or court seeking to make an example of you with large costs.

 

Think carefully before deciding your next move.

[kennyh]

Posted by Caro above

IMHO it would be foolhardy to apply for your stay to be lifted unless you know how to proceed once the case gets going again.

 

Precisely - there must now be sooo many folk holding their collective breaths (I know I'm one of them) we really, but really, need those longawaited revised poc. Any news???

[landy_alert]

IMHO it would be foolhardy to apply for your stay to be lifted unless you know how to proceed once the case gets going again.

 

In fact, I wonder if it may not be better to seek an extension to the stay as the test case has posed further questions.

 

Some of the courts are also asking what action has been taken to resolve the matter, and if no real attempt has been made to settle, and you went on to (shudders) lose, you risk the bank and/or court seeking to make an example of you with large costs.

 

Think carefully before deciding your next move.

 

Hi Caro:)

 

Thank you, it had crossed my mind to do that. Do you think I have any chance of the court agreeing to extend the stay based on the fact that the test case result has posed further questions? I guess its worth a try!

 

Landy x

[adamc6671]

Hi All

 

Following the advice above, and taking into account my own worries, I've today requested a further stay of a max of 3 months on the grounds of obtaining further legal advice under UTCCR Section 5 and Consumer Credit Act Section 140A(1). I've also suggested that as a 'litigant in person' the Court may see it as prudent to allow me this extra time to obtain and consider this new advice, and to decide whether to ammend my POC's.

 

 

I've sent the Govan letter to Abbey and Lloyds, personalised to suit, and copied that to the Court with the stay extension requests as proof of attempting to settle.

 

 

With a bit of luck that will do the trick!

[kennyh]

Hi adam if you haven't got a thread please start one cos I, for one, would like to follow your progress.

[GuidoT]

Kennyh - This should be it:

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/85444-jimmyboy-lloydstsb-4.html

[kennyh]

Thanks Guido

[adamc6671]

Hi adam if you haven't got a thread please start one cos I, for one, would like to follow your progress.

 

 

Hi Kenny

 

As Guido says, http://www.consumeractiongroup.co.uk/forum/lloyds-bank/85444-jimmyboy-lloydstsb-4.html

 

and

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/77268-tish-abbey-4.html

[Poppay2]

Hi All

subscribing.

[Poppay2]

I had letter from Abbey (Santander) late last week, today I find I have a further 3 letters!!!

Nothing from the court about my stayed claim as yet.

Not sure how to proceed.

Will keep looking in to see how things are going, think there was something on MSE the other day about them meeting with the oft and three avenues one could go down.

One being lots of bank charges being incurred by only going over by a small amount like a £1 or so.

I went overdrawn by £1.56 and now they want £259 plus pending charges and interest! greedy arent they?

P.

[renegotiation]

I went overdrawn by £1.56 and now they want £259 plus pending charges and interest! greedy arent they?

P.

 

Sounds like criminal extortion to me...

[landy_alert]

Hi everyone:)

 

Well I also sent a personalised version of the Govan Law Centre letter to my bank (LTSB) and today received the standard template response, ie, 'We're very sorry to hear you have some concerns.........we will get a response to you as soon as we can'. There's no reference to any of the points I raised pertinent to my individual circumstances - no surprises there then!

 

Like Adamc6671 before me I will now copy my letter to the court and respectfully request that I be allowed an extension of my stay as per Caro's suggestion. As I had previously written to **** in an attempt to reach a settlement as per the DJ's Order and this letter was ignored I feel I for one (unlike Lloyds!) have been willing to negotiate/settle.

 

Landy x

[missdpd]

I wonder if anyone who is more clued up on reading and interpretating things could take a look at the following and then either clarify or tell me im way over my head and reading it all wrong.

 

After reading 'Restoring Consumer Trust in Retail Financial Services" ESBG Conference "Retail Banking in Europe – the way forward, lessons from the crisis and priorities for the future" Brussels, 22 September 2009 (not done a link as I am not sure I am allowed, but google it and it will come up), I was led to have a nosey at a couple of things, namely The Payment Services Regulations 2009 and The Consumer Protection from Unfair Trading Regulations 2008.

 

Within The Payment Services Regulations 2009 I was interested to find the following:

 

Charges

 

54.—(1) The payment service provider may only charge the payment service user for the fulfilment of any of its obligations under this Part—

(a) in accordance with regulation 66(3), 67(6) or 74(2)(b);

(b) where agreed between the parties; and

© where such charges reasonably correspond to the payment service provider’s actual costs.

(2) Where a payment transaction does not involve any currency conversion, the respective payment service providers must ensure that—

(a) the payee pays any charges levied by the payee’s payment service provider; and

(b) the payer pays any charges levied by the payer’s payment service provider.

(3) The payee’s payment service provider may not prevent the payee from—

(a) requiring payment of a charge by; or

(b) offering a reduction to,

the payer for the use of a particular payment instrument.

 

particular attention was drawn to 54(1)© where such charges reasonably correspond to the payment service provider’s actual costs

 

Now I know charges were found not to be penal, however, the actual true cost of the charges to the banks were not actually clarified. Am I right in thinking that maybe by using this bit of legislation this may be clarified?

 

Like I said before, I am totally floundering about here but want to feel I am at least doing something whilst we wait for further directions with regards to cases stayed so I do apologise if this is all nonscence and I am totally off the beaten track so to speak.

 

The second one The Consumer Protection from Unfair Trading Regulations 2008, I have no idea to be honest, I brought this up as it was mentioned within the report as being relevant with regards to bank fees. If someone could look and clarify what that part is it may or may not be helpful.

 

Right I have babbled enough, once again I apologise if what I have found and typed is not relevant, but if it is, maybe it might be helpful

 

xx

[speedtrip]

Makes complete sense to me, however, is the sticking point the actual position taken by the OFT.

 

I beleive the remit understood by the SPC meant that they were not able to look at whether charges were fair because the banks are claiming they are part on the overall package.

 

I realised that the banks have altered their argument as in the first they were claiming their charges were fair but could not prove this so changed their argument

 

Ill be interested to hear more views before my deadlines end

 

Regards

 

ST

I wonder if anyone who is more clued up on reading and interpretating things could take a look at the following and then either clarify or tell me im way over my head and reading it all wrong.

 

After reading 'Restoring Consumer Trust in Retail Financial Services" ESBG Conference "Retail Banking in Europe – the way forward, lessons from the crisis and priorities for the future" Brussels, 22 September 2009 (not done a link as I am not sure I am allowed, but google it and it will come up), I was led to have a nosey at a couple of things, namely The Payment Services Regulations 2009 and The Consumer Protection from Unfair Trading Regulations 2008.

 

Within The Payment Services Regulations 2009 I was interested to find the following:

 

Charges

 

54.—(1) The payment service provider may only charge the payment service user for the fulfilment of any of its obligations under this Part—

(a) in accordance with regulation 66(3), 67(6) or 74(2)(b);

(b) where agreed between the parties; and

© where such charges reasonably correspond to the payment service provider’s actual costs.

(2) Where a payment transaction does not involve any currency conversion, the respective payment service providers must ensure that—

(a) the payee pays any charges levied by the payee’s payment service provider; and

(b) the payer pays any charges levied by the payer’s payment service provider.

(3) The payee’s payment service provider may not prevent the payee from—

(a) requiring payment of a charge by; or

(b) offering a reduction to,

the payer for the use of a particular payment instrument.

 

particular attention was drawn to 54(1)© where such charges reasonably correspond to the payment service provider’s actual costs

 

Now I know charges were found not to be penal, however, the actual true cost of the charges to the banks were not actually clarified. Am I right in thinking that maybe by using this bit of legislation this may be clarified?

 

Like I said before, I am totally floundering about here but want to feel I am at least doing something whilst we wait for further directions with regards to cases stayed so I do apologise if this is all nonscence and I am totally off the beaten track so to speak.

 

The second one The Consumer Protection from Unfair Trading Regulations 2008, I have no idea to be honest, I brought this up as it was mentioned within the report as being relevant with regards to bank fees. If someone could look and clarify what that part is it may or may not be helpful.

 

Right I have babbled enough, once again I apologise if what I have found and typed is not relevant, but if it is, maybe it might be helpful

 

xx

[missdpd]

I like my straws today, keep grasping at them lol.

 

Have read a bit of The Consumer Protection from Unfair Trading 2008 and I keep coming back to this section:

 

Aggressive commercial practices

 

7.—(1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances—

(a) it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and

(b) it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.

(2) In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of—

(a) its timing, location, nature or persistence;

(b) the use of threatening or abusive language or behaviour;

© the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgment, of which the trader is aware, to influence the consumer’s decision with regard to the product;

(d) any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; and

(e) any threat to take any action which cannot legally be taken.

(3) In this regulation—

(a) “coercion” includes the use of physical force; and

(b) “undue influence” means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision.

 

Have highlighted the bits that stood out and my interpretation of it.

 

On 7(1)(a) im being drawn to the consumers 'Freedom of Choice' and the rights they have (or not) as to whether to make the decision to allow a transaction to progress through their account that may result in them going overdrawn. By my logical (or illogical) thinking, we do not have that choice unless we cancel a DD upon realisation it may take us overdrawn prior to the transaction. As the banks state in the T & C's it is at their discretion as to whether to allow a payment to go through or not, if this is the case then, us, the consumer, has had that freedom of choice taken away from us. This then places us in a position to incur charges because of the banks decision (not ours) and so the vicious cycle starts.

 

In the event that realisation is not made as to whether we may go into an unauthorised overdraft or not, the bank, by way of authorising this payment must surely put them in a position of power by the pure fact they authorised it and us, the consumer, were not even given an option to make an informed decision as to whether we would like it paid or not (where was the transactional decision? we were not allowed to make one, the bank did it for us?)

 

I would also like to know who is classed as an 'average' consumer? How do they define that?

 

Ok thats my thoughts on that bit, any other views would be most interesting

 

xx

[means2anend]

I like my straws today, keep grasping at them lol.

 

Have read a bit of The Consumer Protection from Unfair Trading 2008 and I keep coming back to this section:

 

Aggressive commercial practices

 

7.—(1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances—

(a) it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and

(b) it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.

(2) In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of—

(a) its timing, location, nature or persistence;

(b) the use of threatening or abusive language or behaviour;

© the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgment, of which the trader is aware, to influence the consumer’s decision with regard to the product;

(d) any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; and

(e) any threat to take any action which cannot legally be taken.

(3) In this regulation—

(a) “coercion” includes the use of physical force; and

(b) “undue influence” means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision.

 

Have highlighted the bits that stood out and my interpretation of it.

 

On 7(1)(a) im being drawn to the consumers 'Freedom of Choice' and the rights they have (or not) as to whether to make the decision to allow a transaction to progress through their account that may result in them going overdrawn. By my logical (or illogical) thinking, we do not have that choice unless we cancel a DD upon realisation it may take us overdrawn prior to the transaction. As the banks state in the T & C's it is at their discretion as to whether to allow a payment to go through or not, if this is the case then, us, the consumer, has had that freedom of choice taken away from us. This then places us in a position to incur charges because of the banks decision (not ours) and so the vicious cycle starts.

 

In the event that realisation is not made as to whether we may go into an unauthorised overdraft or not, the bank, by way of authorising this payment must surely put them in a position of power by the pure fact they authorised it and us, the consumer, were not even given an option to make an informed decision as to whether we would like it paid or not (where was the transactional decision? we were not allowed to make one, the bank did it for us?)

 

I would also like to know who is classed as an 'average' consumer? How do they define that?

 

Ok thats my thoughts on that bit, any other views would be most interesting

 

xx

 

Taking a parallel test from the context of the criminal law...certain conduct adjudged to be unacceptable is judged through the standard s of 'the reasonable man'...in other words 'the objective bystander' and what would or would not be acceptable through their spectacles...

 

I suppose therefore 'the average consumer' would probably be any person who you would expect to see down your local high street or shopping centre and to posses the level of knowledge one would expect of them to possess in connection with banking issues.Pretty low standard should assume in relation to the CAG who would probably not be labelled as your 'average consumer'.

 

From that analysis it would appear that the threshold before a breach has taken place is pretty low.Or put another way...the protection afforded to the consumer is pretty high in relation to the above legislation..the words likely to cause also includes behaviour that has not actually resulted in any detriment to the consumer and is therefore put in there to deter behaviour that results in the undesirable consequences per se. In other word there does not have to be damage to the consumer for the offence to have been completed.The test is also an OBJECTIVE one

 

But the threshold before a breach had taken place if the 'average consumer' was a cagger would be pretty high

 

The 'average consumer' however is NOT a cagger but probably your ordinary shopper down the high street IMHO.

 

Quite a few years ago in the USA there was a test case that involved the issue of stalking and harassment resulting in fear towards a particular woman.The defence attorney applied the reasonable man test to the level of harassment and stalking that was applied to the woman and stated that according to that test she was exaggerating her fears.She lost.

 

The Appeal went all the way to the Supreme Court whereby the Judges UNANIMOUSLY agreed that the wrong test had been applied.

 

HELD:Whether the actions caused by the man had in fact resulted in fear to the woman should not have been tested through the reasonable MAN test but the reasonable WOMAN.

The actions of that man were sufficient to have subjected 'the reasonable woman' to the level of fear that had indeed manifested itself in the particular female defendant.

She Won and made history in relation to which test ought be applied to which contextual fact issues

M2ae

Edited February 3, 2010 by means2anend