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


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Thanks barry2008 and IS. You have both made me laugh for the first time since 9.30 this morning

A few years ago when i split from my ex partner, even though i was depressed and seeing a therapist i was still calling at my exes when she was out to feed the cat and sort the parrot out. My therapist told me to get some healthy selfishness, ie sort them out one more time but tell the parrot to pass on to my ex that its now down to her.

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Are you saying that your bank had an order to pay up before the stay and still didnt have to pay it when the stay came into affect? My claim is also at southend court, against HSBC. I must be just behind you in the pile because I believe that they were also just about to be ordered to pay me!

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Actually, it may not be as bad as you think. It has opened the way for " business as usual" on CAG. All we do is claim under s5 of the UTCCR 1999 and otherwise go back to how we were 2 years ago. Waiver is lifted. Courts are open. Off we go!!

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Yeah I know. I said that about 12 hours ago.

 

(Before Money Saving Martin, I hasten to add) :D

 

Just because the OFT couldnt organise a party in a bordello on a Mississippi paddle steamer, doesnt mean we cant.

 

(If CAG is thinking of such a venue for the Crimbo party)

Edited by noomill060
Did I really write that??? ;-) Ooooo missus!
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Two parts to this off/on topic...

 

My Counsellor smoked and we had a cigarette outside this gloomy NHS (nutter centre as I call it) building. No carpets, no wood panels, no books, no couch and a single flourescent lamp (bare and naked!) plus 6 bog standard NHS chairs. Why they had a burglar alarm is beyond me as anyone must be ultra desperate to break in and nick the bare furniture I can assure you! Shame on me flirting with her but hopefully she had as good an experience as myself! Hmm, that sounds 'dodgy' I think! There's me asking a 20 something for her phone number too - what am I like with 35 years of marriage? LOL

 

Anyhow back to basics. I only ever did my complaint with HSBC (and got the acknowledgement) so never took it to court. I now seem to have grasped why the woman I spoke to was so friendly! Having gleaned what I have I can now do a S.A.R. and go to court and will wipe the floor with them. I've said previously 'karma' is for real you know!

 

Michael

(knowing he should have chosen this industry 40 years ago!)

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--I like to be helpful wherever possible however I'm not qualified in this field. I do consider carefully anything important (normally from personal experience) however please understand that any actions taken are at your own risk--

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'royboy68' - sincerely - thank you! Unfortunately my cynical humour tends to take over a bit too often. Appreciated though for the comment!

 

Michael

When I was young I thought that money was the most important thing in life; now that I am old I know that it is. (Oscar Wilde)

--I like to be helpful wherever possible however I'm not qualified in this field. I do consider carefully anything important (normally from personal experience) however please understand that any actions taken are at your own risk--

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I was just going over my court bundle and found this section in my 1st witness statement. Do I need to change my POC or can I proceed with the letter to the district judge?

33. Further under the UTCCR, Regulation 5 provides:

 

"5. - (1) 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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

34. It is submitted that the charges are unfair under regulation 5 because contrary to the requirement of good faith they cause a significant imbalance in the parties’ rights and obligations under the banking contract. The charges are most likely to penalise those customers with little or no credit and the charges could be imposed repeatedly with interest levied on top at the higher rate. The cumulative effect is therefore to substantially increase the debt burden on the customer who incurs the charges making it increasingly likely that further and repeated charges and interest would be charged.

 

 

35. The defendant is a powerful multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any part of the contract.

 

36. The cost of the Defendant's charges have increased substantially and indiscriminately during the period in which my account has been in operation, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank, a powerful financial institution, has unilaterally altered the terms of my account contract to my significant detriment, and to their advantage.

 

 

37. It is submitted that the account contract is within the ambit of the Regulation 5 as it was not individually negotiated. The requirement of good faith was described by Lord Bingham in Director General of Fair Trading v First National Bank[2001] UKHL 52 [exhibit SPM07] as:

 

"Good faith in this context is not an artificial or technical concept... It looks to good standards of commercial morality and practice. It lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the regulations are designed to promote. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position"

 

38. The Claimant submits that the charging regime operated by the Defendant by charging those who can least afford it to subsidise free banking of other customers takes advantage of the Claimant’s necessity indigence and weak bargaining power. The objectives which the Regulations are designed to promote include the protection of Consumers from commercial entities.

 

39. The Defendant may assert that the charges are within the requirement of good faith as they were in the published terms and conditions and the Claimant was aware of them. However, this is a purely procedural argument and according to Lord Steyn in Director General of Fair Trading v First National Bank:

 

"Any purely procedural or even predominantly procedural interpretation of the requirement of good faith must be rejected."

 

40. I thus assert that the substance of the clause is of paramount importance in looking at the requirement of good faith also the way it was packaged so as to deceive the consumer into believing it was a legitimate charge to compensate loss.

 

 

 

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I was just going over my court bundle and found this section in my 1st witness statement. Do I need to change my POC or can I proceed with the letter to the district judge?

 

 

33. Further under the UTCCR, Regulation 5 provides:

 

"5. - (1) 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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.”

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

34. It is submitted that the charges are unfair under regulation 5 because contrary to the requirement of good faith they cause a significant imbalance in the parties’ rights and obligations under the banking contract. The charges are most likely to penalise those customers with little or no credit and the charges could be imposed repeatedly with interest levied on top at the higher rate. The cumulative effect is therefore to substantially increase the debt burden on the customer who incurs the charges making it increasingly likely that further and repeated charges and interest would be charged.

 

 

35. The defendant is a powerful multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any part of the contract.

 

36. The cost of the Defendant's charges have increased substantially and indiscriminately during the period in which my account has been in operation, neither time was I given the opportunity to negotiate, or even notified of this increase. This means the bank, a powerful financial institution, has unilaterally altered the terms of my account contract to my significant detriment, and to their advantage.

 

 

37. It is submitted that the account contract is within the ambit of the Regulation 5 as it was not individually negotiated. The requirement of good faith was described by Lord Bingham in Director General of Fair Trading v First National Bank[2001] UKHL 52 [exhibit SPM07] as:

 

"Good faith in this context is not an artificial or technical concept... It looks to good standards of commercial morality and practice. It lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the regulations are designed to promote. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position"

 

38. The Claimant submits that the charging regime operated by the Defendant by charging those who can least afford it to subsidise free banking of other customers takes advantage of the Claimant’s necessity indigence and weak bargaining power. The objectives which the Regulations are designed to promote include the protection of Consumers from commercial entities.

 

39. The Defendant may assert that the charges are within the requirement of good faith as they were in the published terms and conditions and the Claimant was aware of them. However, this is a purely procedural argument and according to Lord Steyn in Director General of Fair Trading v First National Bank:

 

"Any purely procedural or even predominantly procedural interpretation of the requirement of good faith must be rejected."

 

40. I thus assert that the substance of the clause is of paramount importance in looking at the requirement of good faith also the way it was packaged so as to deceive the consumer into believing it was a legitimate charge to compensate loss.

 

 

 

 

Nope.

 

This is the bit the Supreme Court was saying the OFT should have used.

 

;)

Always happy to help where I can!

:lol:

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Donation made (been a while since I made one and I felt now might be a good time!)

 

I do object to the Paypal form requesting a home phone number though (they will have fun trying to obtain me on the number I entered!)

 

;)

omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

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14. Further, under the UTCCR:

 

5. - (1) 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.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was

 

Schedule 2 also includes such clauses (to define examples of unfair clauses) as:

 

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

 

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

 

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract."

 

The defendant is a multi-national corporation. The term regarding charges was inserted unilaterally in contract. The contract was pre and mass produced and I had no opportunity to negotiate the clause, or indeed any of the contract.

 

This is all I have in mine, do I need to elaborate??

Edited by RGS1
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Mods,

Will anyone be able to piece together a brief 'idiots' guide for folk like me, who are uncertain of direction and who, I believe, now have to contact the 'defendants' for voluntary agreement to alter pocs(?), or fill in a N244 and part with dosh (?) and all before the stays (NOT them stays) come off. I see from Mr Lex that new pocs appear to be up and running or should we wait until Banky et al have had the weekend to inwardly digest matters(?)

Advice PLEASE

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Signed!

 

:D

Edited by Bigredbus
Typo

---Aut viam inveniam aut faciam---

 

***All advice given should be taken as guidance... Professional advice should always be taken before any course of action is pursued***

 

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done it!!

 

by the way, im trying to get an answer on my situation but no-ones listening...boo hoo.....my fin hardship is with abbey who say its frozen for the next 2months....do i sit back and wait or take action? ive got richard harris head of complaints email and am dying to send him a message.

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Ditto:D

LTSB PPI on various loans (current/settled) - Refunded inc 8%

 

MBNA 1 Charges - Refunded inc CI

 

MBNA 1 PPI - Refunded

 

MBNA 2 Charges - Refunded inc 8%

 

MBNA 2 PPI - Refunded

 

MBNA 2 Accident Ins - Refunded

 

Swift Advances (settled) Mortgage Charges -Partially refunded

 

Swift Advances (settled) Mortgage PPI - Refunded inc CI & 8%

 

Sainsburys (settled) Loan PPI - Refunded inc CI +8%

 

Sainsburys (closed) Card Charges - Refunded inc CI + 8%

 

M&S Money (closed) Card Charges - Refunded inc CI

 

M&S Money (closed) Card PPI - Refunded inc 8%

 

Direct Line (settled) Loan PPI - Refunded inc CI + 8%

 

Debenhams Card (closed) PPI - Refunded inc 8%

 

Swift Mortgage Charges -Refunded

 

Hitachi Finance (closed) Charges - Refunded

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Has anyone taken the time to read 'the defendants' ('the banks') defences? It is available to read and download from the OFT website (The Office of Fair Trading: Test case - documents)...

 

Content is very interesting, moreso if you were or are a customer of any of these banks...

  • Haha 1

---Aut viam inveniam aut faciam---

 

***All advice given should be taken as guidance... Professional advice should always be taken before any course of action is pursued***

 

- I do not reply directly to any PMs, but you are more than welcome to enclose a link, in a PM, to your post. Thank you -

Make a contribution to this site... Help the CAG keeping on helping you for FREE.

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