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

[JGJ]

srfrench.

 

If they are professionals they the banks "they will do!! SORRY to disagree with you, I did all the prelims with the most dysfunctional professionals of them all, Lloyds Tsb and went to court on the dreaded 25th Nov.

Lloyds counsel awaiting, DJ (IMHO) primed. the court does "NOT" always agree to it as you say and the costs will not always be the banks.

 

I was there armed with what I thought was a good case to be argued with Info and POCs from this site, exactly as you appear to believe, but alas all was not rosy the bank did not accept the amended POCs and "they he" wanted costs of 2x£300.

The DDJ did not accept the amended POCs at the hearing which cost me 2x£40 and he promptly adjourned the hearing for 28days with costs reserved. I now have to go back to court within the 28days hopefully re-armed with the new POCs.

What may have been is not the way the courts see it now and the banks counsel will harass and harangue LIPs to discontinue before going into court. See my thread "Amending bank charges claim" (Advice Please) Debt action group. Legal issues.

 

"EXEMPLO DUCEMUS"

[InformedSearcher]

@Natty (Sorry 'YourBank' Lol)

 

"With regards to the argument on what service is given. The consideration of whether to pay or not pay or increase an overdraft is what was argued in the courts so that is the service provided."

 

My Halifax account is a Cardcash account that is not 'underwritten' and as such does not allow you to go overdrawn, so how come if their are insufficient funds they charge me £39.00 (Laterly £35.00) not to pay an item? If I go to a cashpoint and try and draw funds when there are insufficient funds, 'Computer says no!', but no charge. With a direct debit, the charge always results. No logic here (I don't want to give the *ankers ideas though, they will probably want to introduce a 'Service Fee' on the cashpoints shortly for telling you you have insufficient funds!)

 

I believe that ATM's if I read correctly recently WILL be adding a fee for ALL cash withdrawls. Hmm, that'll be applicable to those in credit too, you know those who said we should never make mistakes and go overdrawn. LOL

 

I think that the concept of ATM's versus say D/D's and S/O's is that it's a 'cash check decision'. Therefore no funds just returns a 'no' and your card comes back or gets swallowed. With other items it requires (albeit automated) it means the bank must inform the D/D caller that the request was refused giving them chance to reapply/and or contact you (probably with their own fine) for instructions.

 

It's worth checking though because even Cash/Card Accounts that have D/D's or S/O's called against them that fail around 6 times means they will close the account. Personally when I had money I also had so many D/D's and when the cash ran out my nightmare began. It might be a good time to have a check of all the Cash/Card Accounts available because there are large variances on charges if you slip up.

 

Michael

[Bookworm]

Yet another good reason to switch from DD to SO then. With SO, it's YOUR instruction, therefore if there are no funds avaialble to pay it out, there is no more justification for a charge than an ATM refusal, IMO. The onus is on YOU, the customer, to notify the company that you couldn't pay them, not the bank's problem, and it never was.

[d1cky]

Dont have d/d or s/o, Just get bill from who ever then log on to ur banks online service and pay the bill if you have the money, or dont if you havnt. At least then you will only have an issue with who ever billed you rather than them and the bank!

[egbb]

According to another website, announcement for new poc to be made on Monday.

[freakyleaky]

Yes Martin Lewis announced it on Radio 2 earlier. I'm just trying to get confirmation that this is definite.

Edited December 18, 2009 by freakyleaky

[bobbyh99]

Aren't CAG meant to be having a telephone conference with OFT this week?

[ncf355]

Yes Martin Lewis announced it on Radio 2 earlier. I'm just trying to get confirmation that this is definite.

 

 

On Radio 2?

 

 

Good grief, the banks are going to drown in POC's!

 

(quick, get them a life jacket!...................actually......)

 

 

[srfrench]

Well....I'm extremely impressed and inspired with much confidence. If this chap can't get the win for us then no-one can......

 

Raymond Cox QC

 

Call date

 

1982

Silk date

 

2002

Practice Areas

 

Raymond Cox has a wide practice focused on commercial disputes and regulation, with an emphasis on:

• banking and financial services
  
• reinsurance and insurance
  
• regulation relating to insurance and financial services
  
• professional negligence
  

Recommendations (Practitioners' Guides)

 

“a terrific advocate” with “finely balanced judgment”: Chambers Guide to the UK Legal Profession 2008.

“continues to impress the market” and “sources remark that his evident expertise is added to by the fact that he is “extremely easy to get on with”: Chambers, 2009.

“achieves results in an easy way”, Chambers 2006.

“knows the financial regulatory arena well”, Legal 500, 2009.

“is seen as having great acumen in retail banking issues, such as overdraft and credit card fees, and is not flashy, but very, very clever” Legal 500, 2007.

Recommended in banking and finance, and insurance, Chambers 2009, and banking and finance, insurance and reinsurance Legal 500, 2009.

Education

 

Mansfield College, Oxford University 1978-1981: BA Hons. Jurisprudence, First Class

Eldon Scholar, Oxford University

Arden Scholar, Gray's Inn

Appointments

 

Bencher of Gray's Inn, 2008

Professional Experience

 

Recent banking experience includes the administration of Awal Bank BSC, Icelandic bank deposits, the OFT credit card inquiry, the bank charges litigation, disputes relating to split capital bonds, and structured finance. Regulatory work spans all financial services, in particular banking and insurance (including s. 45 orders and s. 166 reviews), money laundering, POCA, documentary credits and bills. Insurance and reinsurance experience includes, the Kuwait Airways and Exxon recoveries, split capital investment trust market, the PA LMX market, film finance, the ERAS EIL pollution scheme, the Stetzel Thompson pool and the Weavers stamp companies. Professional negligence work ranges over all professions, including in particular bankers, barristers, solicitors, and construction professionals. Raymond Cox advises on matters in Singapore and has acted as an expert there.

Recent Practice

 

Banking and Financial Services

 

Recent practice includes:

• acting for the global administrators of Awal Bank in relation to recognition of the Bahrain administration in England under the Cross-Border Insolvency Regulations 2006. Advising in relation to asset protection, recovery and freezing order proceedings in USA, Cayman, Guernsey, Saudi Arabia, UK and elsewhere, relating to Awal Bank, Saad Group. Al Gosaibi, and Al Sanea.
  
• acted for claimants on advance payment and performance bonds: Enka Insaat Ve Sanayi AS v Banca Popolare dell'Alto Adige SPA [2009] EWHC 2410 (Comm);
  
• advising in relation to UK regulation of a 15 billion euro loan note programme.
  
• advising in relation to FSA regulation of loans containing ‘debt cancellation and suspension’ provisions, and contracts of insurance.
  
• acting in dispute between UK and US banks re CREST payments for eligible debt securities involving Kaupthing Singer and Friedlander
  
• advising depositors in relation to deposits in Landsbanki, Kaupthing and Glitnir Icelandic banks.
  
• advising in relation to operation of loan facilities by Kaupthing in administration.
  
• advising in relation to recovery of CHAPS payment made to Kaupthing before administration.
  
• acting for bank in dispute relating to trading in reverse knock-in foreign currency options (FSA classification and conduct of business issues).
  
• advising in relation to Ancillary Bank set off rights (pre and post insolvency) where there is a syndicated loan, intercreditor agreement, flawed asset account, debenture and set-off and netting agreement.
  
• advising re UK regulation of securitised mortgage investment vehicle.
  
• acting for corporate finance house in relation to dispute with execution agent re settlement for certificated and uncertificated shares under the LSE and CREST rules.
  
• advising financial institution in relation to contracts for differences and establishment, regulated activities and financial promotions under the FSMA.
  
• advising major exchange in relation to regulation of £200m insurance/guarantee cover.
  
• acting for a major bank in relation to FSA credit card charge investigation.
  
• advising investment manager in relation to client and funds handling obligations under FSMA and Handbook.
  
• advising a building society in relation to an FSA “assets requirement” notice under s.45, and money laundering.
  
• advising in relation to Regulatory Transactions Committee of the FSA hearing and s.166 review (report by skilled person) for multinational financial institution.
  
• acting in relation to various default bank charge hearings and regulatory matters.
  
• advising in relation to breaches of regulation by an IFA in relation to contracts for differences.
  
• advising European bank re liability for forged transfers from Singapore branch.
  

Insurance and Reinsurance, including arbitration

 

Recent practice includes:

• advising insurers in relation to FSA regulation of contracts of insurance and ‘debt cancellation and suspension’ contracts.
  
• advising on claims co-operation in relation to a banker’s blanket bond negligence claim for up to $850m.
  
• advising Lloyd’s broker in relation to regulation of mortgage intermediary business and policy wording, and client funds.
  
• advising on a business interruption and property damage cover - inwards insurance and outwards reinsurance claims of over £150m arising from nuclear plant shutdown.
  
• acting in relation to arbitration proceedings relating to Exxon and Kuwait spiral recoveries.
  
• advising on an arbitration in Belgium as to the terms of a retrocession agreement.
  
• advising major exchange in relation to regulation of £200m insurance/guarantee cover.
  
• advising re bankers blanket bond coverage of claims arising from dishonest employee.
  
• Sphere Drake Insurance v Stirling Cooke Brown Reinsurance Brokers – various court and arbitration proceedings in relation to the Personal Accident retrocessional LMX market.
  
• Split Capital Investment Trusts (zeros) – advising on various insurance claims arising from the collapse of the zeros market and regulation.
  
• acting in relation to numerous film finance litigation and arbitration proceedings relating to ‘gap’ insurance policies covering losses made in financing films.
  
• pensions mis-selling claims – advising on various insurance claims.
  
• advising in relation to title insurance.
  

Professional Negligence

 

Recent experience includes:

• advising in relation to the liability of an IFA in respect of contracts for differences.
  
• acting on a claim against bank advisers, architects and engineers re property subsidence and lack of insurance.
  
• Comunica v BDO Binder Hamlyn – acting for claimant in an audit negligence case.
  
• John Mowlem Construction plc v NF Jones & Co– solicitors’ negligence action relating to advice about professional indemnity insurance.
  
• AXA v MSL–series of claims against centralised mortgage administrators.
  
• Astra v Stoy Hayward and Paine Webber – claim of negligence against a merchant bank solicitors and accountants relating to a take-over.
  

Other commercial

 

Recent practice includes:

• Freezing orders in UK and Cayman in relation to Awal Bank BSC.
  
• Societe Generale v Goldas advising on freezing injunction proceedings in relation to missing consignments of gold valued at US$500m.
  
• ENKA v Banco Popolare: acting in challenge to English court jurisdiction, raising articles 27 and 28, Brussels I Regulation (lis pendens), in relation to London proceedings on demand guarantee and Italian proceedings for order for non payment.
  
• proceedings to obtain order under European Enforcement Order regulation 2004
  
• advising on break up of international joint venture for hotels.
  
• acting on break up of US/UK solicitor partnership.
  
• acting for a Singapore buyer of a missing shipment of mobile phones, in relation to claims for conspiracy, breach of trust and damages.
  
• Gemini Investments v Botolph - acting for sellers of property in relation to freezing injunction proceedings arising from apparently fraudulent rent guarantees amounting to over £50m.
  
• R v Leaf, advising on civil law aspects of criminal proceedings for tax fraud which involved fraudulently reclaiming £55m of corporation tax on the basis of losses made on loans and transactions between a group of companies.
  
• Cronos Containers NV v Palatin – claim in respect of international fraud and constructive trust against a bank.
  
• British Sugar v Babbini– jurisdiction under Brussels Convention.
  
• Knauf (UK) v British Gypsum– major industry-wide dispute relating to defects in plaster or plasterboard.
  
• Instance v Denny – worldwide injunction against use of without prejudice documents.
  

Reported Cases

 

Recent cases include:

Enka Insaat Ve Sanayi AS v Banca Popolare dell'Alto Adige SPA [2009] EWHC 2410 (Comm)

Film Finances Inc v The Royal Bank of Scotland [2007] 1 Lloyd's Rep. 382

British Sugar v Fratelli Babbini [2005] 1 Lloyd’s Law Reports 332

Sphere Drake Insurance v Stirling Cooke Brown Reinsurance Brokers Ltd. and others [2003] Lloyd’s Law Reports IR 525

John Mowlem Construction v Neil F Jones [2003] EWHC 2894 (TCC);

Instance v Denny [2000] FSR 869

DSG Retail v QBE International Insurance [1999] Lloyd’s Rep. IR 263

Publications

 

Law of Bank Payments(2004, 3rd ed.) joint editor with Michael Brindle QC, (Sweet & Maxwell)

Private International Law of Reinsurance and Insurance, December 2006, Informa (LLP) with Louise Merrett and Marcus Smith

Commercial Court Procedure 2001, general editor with Stephen Moriarty QC, (2000, Sweet & Maxwell)

Contributor to Professional Negligence and Liability (LLP 2000), edited by Mark Simpson QC

Joint editor of Regulatory part of Encyclopaedia of Insurance Law(ed. Prof John Birds, Sweet and Maxwell, 2006)

Recent articles include:

 

• "Banking and Payment Services regime", In House Lawyer magazine, September 2009
  
• "The Banking Code 2008", Law Soc. Gazette, 24 April 2008
  
• “Election Time?”, Insurance & Reinsurance Law Briefing (I. & R.L.B. 2008, 137/138(Apr), 1–5, (Kosmar Villa Holidays v Trustees of Syndicate 1243 [2008] EWCA Civ 147 (CA))
  

[GuidoT]

How much were the OFT's legal costs? See here.

[barry_2008]

Remember they may say OFT legal costs but its our tax money there using.

[yourbank]

for us !

it's less than £1 for every person who is actively reclaiming charges (approx 1.3 million at last count ) and the banks bills will be much higher.

 

The OFT's budget for the year (2006-2007) is Ł55m (plus Ł19m for. Consumer Direct)

Edited December 12, 2009 by yourbank

[Helford]

How much were the OFT's legal costs? See here.

 

Small fry against the 8% (or higher?!!!) county court interest accumulating though the 'stayed' court claims, thanks to the OFT's and FSA's intervention!

 

 

H

[kennyh]

Posted by YB

and the banks bills will be much higher.

 

Our dosh also for a significant part?

[yourbank]

Posted by YB

 

Our dosh also for a significant part?

 

Nope since the bank bail out was debts within the investment sections of the banks rather than the litigation side of the banks and they always have budgets set aside anyway. Further, we don't own the majority of banks and it was Barclays QC, who advised Sumption for the HoL Appeal.

[kennyh]

But they'll cost share - won't they? And I'd lay money on 'virement' occuring within the bank budgets!

[yourbank]

But we do not own any banks, and we are shareholders in 2 banks. If the bank paid for legal advice in the test case so be it. It is not really that relevant is it really?

[kennyh]

But we do not own any banks, and we are shareholders in 2 banks

Agreed - in spades.

So far as relevance is concerned, I get really p****d off with apparent lack of control of the public funds which have been 'donated'; makes us look like turkeys voting for Xmas. Like lending someone funds to buy a gun then they shoot the donor!

Of course we can't pin down specific bank notes but there's no reason why I shouldn't aim some angst and frustration at the banking world! Please don't say that 'they' can prevent that also - otherwise it comes down to kicking the cat!

[yourbank]

Agreed - in spades.

So far as relevance is concerned, I get really p****d off with apparent lack of control of the public funds which have been 'donated'; makes us look like turkeys voting for Xmas. Like lending someone funds to buy a gun then they shoot the donor!

Of course we can't pin down specific bank notes but there's no reason why I shouldn't aim some angst and frustration at the banking world! Please don't say that 'they' can prevent that also - otherwise it comes down to kicking the cat!

 

Have you written to your MP if you are unhappy with the way public funds have been used?

I'm not angry yet......once they put the taxes up then I will be livid but not quite yet

[kennyh]

YB

I managed public funds (and co-ordinated the 'spend') in the 70s/80s in the billions and used to balance the books to within 0.2% AND none of our 'front line' services were hamstrung. Now I see a defence 'black hole' of £6bn open up and I KNOW just how slipshod the Treasury were at the time (cowtowing to Maggy for the most part) and nothing seems to have improved - I'm not 'angry' - I'm bloody FURIOUS!!

[barry_2008]

A distraction for that fury there kenny H.

 

Every thing in democracy is planned by the civil service 10 years in advance you just don't know it. If they say they do not know what the outcome is going to be there lying.

[kennyh]

planned by the civil service 10 years in advance

AND I did LTCs (Long Term Costings) with strategic assumptions drawn up by people straitjacketed by politics and costed by total amateurs! All cost & management specialists/accountants exist at a much lower level (I also had the task of arranging for their training and subsequent allocation throughout the service earlier in my career.)

If they say they do not know what the outcome is going to be they're lying.

You give them too much credit!!

[barry_2008]

Hi Kenny.

I worked for National Insurance and sorted the papers out for them and they planned sometimes 35 years in advance.

 

You have to remember they know what there procedure is so they can work it out before you do.

[srfrench]

Unless you're a Labour MP who can't think into the future further than 10 mins and anything other than themselves? Rant over....blood pressure returning to normal

[kennyh]

Labour MP

LOL