1st credit and Lloyds TSB Platinum credit card

[leothelioncub]

Dont gamble..i'm a manager of a betting shop and also had the same prob with worst credit, good luck... lets stick all our next DCA payments on the second favourite at the 3.30 Brighton! doubled up on the 1 dog in the 3.47 crayford!

[hunterandthehunted]

the solicitors have sent me a copy of the cca and stated that county court proceedings are next if i do not pay.

 

i havent had my statements yet from my sar so can they do this, also

pink lady stated the cca is on microfich and that a true copy would be

needed in court.

 

could an expert have a look at the cca again in post 1 and advice on a

letter to send them please.

 

could really use some help on this urgently....

[lilly white]

Well As Far As I Can See There Is No Total Charge For Credit It Does Mention It However It Can Be Found It Is Not There Also The Cash Withdrawels Are Wrong They Give 2 % And Apr Which One Is It

 

So You Are The Same As The Loan Re 1st Credit Put It On Them

 

Re Pt Simple Letter

 

The St Ledger So You Do Know Your Ponys

 

Kind Regards Lilly

[hunterandthehunted]

hi lilly,

 

this one is a credit card, so no total charge for credit. i was thinking

about pt's letter but it would have to be cut about to suit and i got

no inclination to do this.

 

no i don't know my ponys just having a bit of fun

 

lets stick all our next DCA payments on the second favourite at the 3.30 Brighton! doubled up on the 1 dog in the 3.47 crayford!

 

 

who said anything about gambling. your comments are inapropiate.

i am in debt upto my eyeballs and the last thing i would want to do

is gamble..

 

the derby and st ledger are special races and i like to sit and enjoy

these kind of races like i do with any sport..

 

some people are so narrow minded:evil:

[babybear39]

who said anything about gambling. your comments are inapropiate.

i am in debt upto my eyeballs and the last thing i would want to do

is gamble..

 

the derby and st ledger are special races and i like to sit and enjoy

these kind of races like i do with any sport..

 

some people are so narrow minded:evil:

 

I think the poster was trying to inject a little humour into the situation.

 

FTR, I don't condone gambling in any form, even the national lottery.

[hunterandthehunted]

is pinky69's letter appropiate in post 7

[Pinky69]

Don't panic. I have discovered they can produce a microfiche in court provided they have other evidence of the account - transactions, statements etc. Tell the solicitors that you are awaiting a reply from Lloyds to your SAR because the Terms and Conditions they sent are for a card upgrade which you never had. Tell them that the copy of the microfiche is not easily read, as it is supposed to be, and that if there are any court proceedings you will expect a technical expert from Lloyds who was a witness to the filing of the microfiche in court to swear under oath that the microfiche was entered on LLoyds system correctly and was not tampered with in any way in the process.

 

There is a set of regulations for filing with microfiche and there used to be a poster on here that could quote them - it made solicitors run a mile!

 

At the end of the day they may take you to court then it is up to you to fight with everything you have - you cannot read the alleged agreement, the Terms and Conditions are for an upgrade you never had, and there is no proof the microfiche wasn't tampered with during filing. The alternative is to offer them £1 a month if a judgement went against you.

 

The advice on here is the best people can give based on their knowledge and experience - there are no experts. At the end of the day it is for each poster to look at the advice given and decide which route they want to follow.

[lilly white]

WELL OK THIS IS FOR DEBATE

 

Egg credit card agreements are fundamentally flawed in my view, i have seen a number of the older Egg agreements (Pre 2005) and on each one there are a number of defects

 

Firstly, the word Approved Limit is used, my view which is supported by case law is that the word 3.Limit which is set out in the margin and the word Approved limit is not sufficient to advise you what the credit limit is or how it will be decided. therefore a prescribed term is not correctly stated

 

the case i refer to is Central Trust Plc V Spurway [2005] CCLR,where HHJ Overend states

 

24. In my judgment, the passages of Lord Nicholls’ speech cited by Mr Say persuade me that:

 

(a)The amount of credit must mean credit in its technical sense, and

(b)That although the use of the word “credit” is not prescribed, there should not be any confusion in the mind of the lay reader as to what the amount of credit is

 

Following HHJ Overend’s view, the agreement should make clear to the consumer, who is likely to be a lay man, what the credit limit is or how it will be determined. It is not possible to say with any certainty that the documents EGG have provided are clear, unambiguous or that a consumer would understand that the approved limit would be their credit limit.

 

secondly, the agreements fail to state the rate of interest for cash withdrawals. From what i have seen the agreement only states an APR which is not sufficient for cash purchases as cash purchases includes a 1.25% handling fee which is included in the APR so it cannot be an accurate reflection of the rate of interest. Again a prescribed term is missing

 

Finally Egg will try to tell you that the missing information is set out within their terms and conditions, if they do this, then in stern words tell them IT CANNOT BE. The reasons for this is that Regulation 2 (4) Consumer Credit Agreement Regulations 1983 (SI1983/1553) requires that the statutory information set out within Para 3-19 of schedule 1 and 2 SI1983/1553 should be shown as a whole and not interspersed with other information if the agreement is to be properly executed and compliant with section 61 CCA 1974

 

 

Also it is worth noting that, Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable and Egg Agreements DO NOT

 

SO APPLY THE SAME RULES TO TSB CREDIT CARD

 

THANKS TO PT WHO STARTED THIS THANKS PAUL

[hunterandthehunted]

very confusing lilly, for me anyway.

 

are you saying thats pt's letter which i sent to 1st credit is in order and if so which bits should i leave in/out. i am totally confused, this is all getting on top of me now.

 

i think i will write back stating that i have not received my sar request

for now as pinky69 said. this should hold them up for a week or so and

hopefully i will get a letter sorted.

 

thanks for your continued support lilly

 

p.s. just received another cca from co-op today:mad:. i have made 4 cca requests and have had all of them back:eek:

[lilly white]

WELL AS FAR AS I CAN SEE THE FAILED LETTER WOULD DO

 

EDIT TO SUIT THEY SEND THE CCA WHERE ARE THE STATMENTS YOU CAN JUST ABOUT READ THE .... THING ITS A APPLICATION HOWEVER WE NEED A LIITLE LONGER TO GO THROUGH THE BITS ONE BY ONE

 

 

Account In Dispute

Ref:

Dear Sir/Madam

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.(12+2 days after you sent the CCA request)

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

This limit has expired

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

Therefore this account has become unenforceable at law.

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Should you not respond within 14 days I expect that this means you agree to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully,

 

SEND THIS TO THE LAW FIRM

 

 

A letter when solicitors are threatening with legal action whilst a company are in default of your request for your agreement.

 

Dear Sirs

 

I refer to your letter of XXXXX 2008, the content of which is noted. No debt to your client is acknowledged.

 

On (date) I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. They have failed to comply within the statutory time limit, or at all. It should not be necessary to have to remind solicitors that the provisions of s.78(6) now apply.

 

In the circumstances, your/your clients threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection. Should you or your client bring proceedings, they will be robustly defended, and the Court's attention drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

 

WELL again the 1st scan is application so

 

the following applies

 

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to

Enter as debtor or hirer into a prospective regulated agreement.

 

 

the terms where do they come into the picture i can see a date

[hunterandthehunted]

go on lilly white,

 

looking good. i sent the second letter or something like that to their solicitors and they sent me another copy of the cca.

[lilly white]

may i asked you this question did or where you inform what your credit limit was at the time because what i have seen i could not work it out in lay man terms

 

where in this load of mature are you allow to spend please show me

 

these is part of the debate. i know you are trying to take this in we are all trying to help

 

so

Following HHJ Overend’s view, the agreement should make clear to the consumer, who is likely to be a lay man, what the credit limit is or how it will be determined. It is not possible to say with any certainty that the documents tsb have provided are clear, unambiguous or that a consumer would understand that the approved limit would be their credit limit.

 

please read i will be back again again if you think it helps

[hunterandthehunted]

i blanked out the date lilly

 

lilly,

 

up the top it states that if i reply by the 5th july 2002 that the gaurenteed credit limit is £5000.

also as i said in earlier posts i remember paying this card up in full and cancelling it.

 

i rang them up several months later and asked if i could re-open the account, they obliged but

i never received any more forms to sign, hense the sar request which i am still waiting on.

 

lilly your comments are always welcomed

[lilly white]

yes i saw that however the 5k has a * where in the application is it confirmed

 

or in the tc

[hunterandthehunted]

sorry if i came across patronising,

 

it isnt

 

* = provided that you have continued to maintain your account with us properly and your circumstances have not changed.

 

i had a current account with them

 

so its not a proper executed agreement then,

prescribed terms????

 

i have seen a letter for this somewhere

[lilly white]

good morning

 

IN REGARDS TO THE ACCOUNTS DO THEY HAVE 2 DIFFERENT ACCOUNT NUMBERS OR ARE THEY TRADING AS ONE.

 

HOPE IT IS SUNNY WHERE YOU ARE.

 

THE TERMS IN MY VEIW ARE THERE TO BE GOT AT HOWEVER WE NEED TO PUT THE RIGHT BITS OF THE ACT TO THEM.

 

SPEAK AGAIN.

[hunterandthehunted]

morning lilly,

 

i am not sure, hopefully the sar request will reveal this.

i did notice however that the account number in the top

right, the last 2 digits have been changed. i have the last

card to hand which started in july 03 not july 02 as stated

on cca.

 

in the short term i am going to send a letter to soliciters stating

that no sar has been recived so account still in dispute.

do you think that will suffice for now?

 

 

its blistering hot and sunny in east anglia:D

 

regards

 

hunterandthehunted

 

lilly,

what do you reckon of this letter to buy me some time,

 

Dear sir/mam

I refer to your letter of 24th June 2009, the content of which is noted. No debt to your client is acknowledged.

 

On 16th March 2009 I requested a true copy of the executed agreement pertaining to an alleged credit card agreement with the above reference.

On 24th June 2009 I received a copy of a microfiched document comprising an application form and Terms for an upgraded card. I never at any time applied for a card upgrade from any bank and have no idea what this document pertains to.

I am also awaiting the outcome of a complaint made on the 11th may of which Lloyds tsb are investigating and I have a letter from them stating that I will have a response by the 4th august 2009, I enclose a copy for your records.

Furthermore I am awaiting a SAR which was made on the 17th may 2009 for which I Have had no response, I enclose a copy of my request for your records.

Therefore this account is firmly in dispute and you may not take any enforcing action, including but not limited to, adding charges and interest, demanding payment, passing the account in dispute onto any 3rd party or entering any information on my credit reference reports. Any attempt to do so will cause me to take further action, including but not limited to, a formal complaint to the OFT for breaches of the Consumer credit Act 1974, the CPUTR 2008 and OFT guidelines. I will further complain to the Information Commissioner in the event of any breach of the Data Proection Act 1998.

 

I look forward to hearing from you. If there is anything about this letter you do not understand, I advise you to consult a solicitor.

 

maybe the solicitor bit at the end is a bit cheeky:p

 

letter is ready to post,

would anyone like to comment

[Pinky69]

Great letter - and I agree it may not be appropriate to advise a solicitor to consult another solicitor. That's alright if your telling a bank/DCA that they are talking garbage and should get advice.

[lilly white]

good morning

 

yes let the letter go, however not to sure, about the solicitors bit, hey ho

 

the very best regards

 

just one more thing did you get default notice for the account was it ok

and are they now asking for the full amount.

 

we may need to look at this

 

Section 82 CCA clearly states that a modifying agreement revokes the earlier agreement. They cannot be the same agreement or account for the purposes of the Act.

 

something i stole from another tread

 

 

regards lilly

[hunterandthehunted]

thank lilly and pinky69,

i will let that letter go without the soliciters bit at the end. i am not sure

about the default notice, its been with bls collections for a few years so

i probably got one then.

 

the modyfying agreement bit will hopefully be revealed when the sar comes

as i am sure it will have to state that card was paid in full and cancelled,

then re-opened again and also the last 2 digits i am sure where changed.

 

i am off to work now so enjoy the sunshine:D

[hunterandthehunted]

received the statements today and surprise suprise, they only go

back to july 2003 the start date on the card still in my possesion.

 

now the cca states that i signed and dated in june 2002 which i have

already said was paid up and closed by my self. now when i rang up

and asked to have it re-opened is it common practise to just keep

the same number on a new card with new start up date.

[lilly white]

just reading the cca again i am starting to dream about the bloody thing

 

however the tc state bank copy if they where the bank copy they would not have been part of agreedment prove if prove was needed.

 

o happy days i am sure that is a song o well the heat is getting to me

 

i can post a recent court case that will give you joy if you like

 

regards lilly

[hammyhound]

I am subbing as I have a similar situation.

 

My thread is too long to read at the moment but I had a LTSB credit card and have done for donkeys years. They sent me the same application form like you in 2002 and asked me if I wanted to upgrade and that my balance would transfer over. I sent it back but realising there would be charges each month cancelled it immediately. Never received a statement and started using my old card again.

 

What the solicitors have sent me with regard to my CCA request is the application form for the new upgrade card - nothing on the back.

 

What they sent with regard to my CPR request is the same app form but bank copy terms and conditions on the back. Oops they forgot to photocopy the terms and conditions originally:)

 

Now they are saying that the debt relates to the new account - balance zero and the balance transfer never happened - this was confirmed by LTSB.

 

They are all over the place with this but I will look in on your thread as time goes by.

 

Good luck

 

HH

[hunterandthehunted]

welcome aboard hammyhound, the more the merrier.

 

special thanks to lilly white who has gave me new hope.

my question is should i write and complain about the sar

being incomplete because my theory is if i can prove that

i indeed closed the account it will show on the statements

for the whole year that is missing and then i could argue

that i haven't or rather they haven't a relevant cca.

 

there is even a slight chance that it was a different number

and they would be definitely sunk because they would have

used fraud in putting the last known number on the original.

 

i hope you follow because i am getting a bit in a muddle, i think

the sun is getting to me as well.

 

lilly i am interested in the court case letter. i don't understand the

latest discrepancy you have found. is this another prescribed term?

i hope you will help me with a letter armed with all the flaws you

have found ready for when they respond with probably more court action...

[lilly white]

god i hope it rains

 

well in my view the T/C are the banks not yours not any bodies but the banks

 

so they are not part of the original agreement ie a true copy.

 

Again the terms must not be implied they must be part of the agreedment

they cant because they are the banks copies.

 

SO READ THIS

 

his should warm the cockles of your heart (this was halifax)

 

Here is the transcript of the recent Bank of Scotland v Mitchell case in the Leeds County Court.

I have just copied and pasted as I don't know how to attach a copy here,hope its ok

 

IN THE LEEDS COUNTY COURT Case No: 9LS70096

The Combined Court Centre

Oxford Row

Leeds

1st June 2009

Before

HIS HONOUR JUDGE LANGAN QC

__________

BANK OF SCOTLAND

(Claimant)

-v-

ROBERT MITCHELL

(Defendant)

__________

APPROVED JUDGMENT

__________

APPEARANCES:

For the Claimant: MISS GARDNER

For the Defendant: MR BERKLEY QC

__________

Transcribed from tape by

J L Harpham Limited

Official Court Reporters and Tape Transcribers

55 Queen Street

Sheffield S1 2DX

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003,

issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set aside. That application came before District Judge Jordan on 29th January this year and was

successful. The recitals to the District Judge's order say this:

 

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be,

 

"A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the

defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costsas between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should

operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms

of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a

pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It

is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt, in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with

litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an

abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on theindemnity basis is appropriate.

 

__________

 

Yesterday, 10:36 #44 (permalink

 

THANKS TO CAGGER WHO POSTED THIS YESTERDAY

 

AS YOU CAN SEE THE JUDGE AGREE WITH USE WHICH IS NICE

Edited August 11, 2009 by citizenB
tidied up for easier reading