Sheriff puts Bank of Scotland to proof on bank charges

[Carningli]

HI all Caggers,

Surely a first step should be to deal with the misinformation being issued by the Banks regarding the Supreme Court Ruling, that Challenges cannot be brought under Regulations 5 and 6 of the UTCCR 1999 and Sec 140A of CCA 2007. Trading Standards Departments covering all the Banks Registered Offices should be informed of the true position and Banks required to send out correct information to all those customers sent the "we've won you lost" missives.

 

Carningli

[luckysandpiper]

subbing - Barclays Beware

 

LSP

[kennyh]

Carningli,

In an ideal world I'd agree but when trying to meet court deadlines without cusomised poc.....!

[TheyrCriminals]

Hi Guys,

 

Something troubles me. Me and my friend are currently in the process of drafting a letter to the County Court, we are trying to stop HSBC's attempts to strikeout my friends bank charges claim by asking for permission for the Particluars of Claim to be amended so as to incorporate the two new legal arguments. There is one line in the letter however that is worrying and we don't know how to respond it states:

 

‘On the 25th November 2009 the Supreme Court ruled that it was not permissible to challenge the fairness of bank charges under Regulation 5(1) of the UTCCR’s on the basis that they are too high because that form of challenge is precluded by Regulation 6(2)(b). Regulation 6(2)(b) provides that the assessment (under Regulation 5(1)) of the fairness of a term in a contract "shall not relate...to the adequacy of the price or remuneration, as aagainst the goods or services supplied in exchange" In other words, the value for money equation is excluded.

 

Surely, even for a bank, this is a pretty bold 'lie'?

 

What is the best way to respond to this? I am assuming of course that the above position is not correct.

 

TheyrCriminals

[Bigdebtor]

I think these "ha ha we won" letters are actually fraudulent and they should be jailed for fraud or attempting to pervert the course of justice!

 

BD

[TheyrCriminals]

Hi,

 

Could anyone please post up the relevant section of the Supreme Court judgement that speaks of the new legal avenue under S.5 UTCCR's?

 

Thanks,

 

TheyrCriminals

[means2anend]

Hi Guys,

 

Something troubles me. Me and my friend are currently in the process of drafting a letter to the County Court, we are trying to stop HSBC's attempts to strikeout my friends bank charges claim by asking for permission for the Particluars of Claim to be amended so as to incorporate the two new legal arguments. There is one line in the letter however that is worrying and we don't know how to respond it states:

 

‘On the 25th November 2009 the Supreme Court ruled that it was not permissible to challenge the fairness of bank charges under Regulation 5(1) of the UTCCR’s on the basis that they are too high because that form of challenge is precluded by Regulation 6(2)(b). Regulation 6(2)(b) provides that the assessment (under Regulation 5(1)) of the fairness of a term in a contract "shall not relate...to the adequacy of the price or remuneration, as aagainst the goods or services supplied in exchange" In other words, the value for money equation is excluded.

 

Surely, even for a bank, this is a pretty bold 'lie'?

 

What is the best way to respond to this? I am assuming of course that the above position is not correct.

 

TheyrCriminals

 

Why dont you amend your POC to take notice of the developments in Scotland and argue under the OTHER assessment limb that is still open....either 'as having not being individually been negotiated'...

 

or The Unfair Relationship argument in S140A(9)..PUTTING THEM TO PROOF

 

AND use Sharp v BOS in your argument as PERSUASIVE AUTHORITY...

 

Go on ??? be bold...after all SaS...who dares wins!!! The Court will have to at least take notice of these developments...

 

Bear in mind that it was/is essentially an EU DIRECTIVE and that its divergence in interpretation in differing MEMBER STATES should be avoided by the national courts in the interests of the TREATY'S OBJECtIVES of uniformity and fair and equal market competition.

 

There are already judgements existing and the ECJ does not want to see market distortion which would be the very antithesis of the Treaty's aims.

 

You never know you could be the standard bearer here in England and Wales

m2ae:wink8)

Edited February 24, 2010 by means2anend

[means2anend]

There are EU decisions already that require national courts provided that they (national courts have all the facts and information in front of them ) to actually 'of their OWN motion look at whether there is an unfair relationship existing...problem is that no one in THIS Country has brought it to their attention and argued the relevant provisions...This already exists in HUNGARY

 

The fact that England and Scotland are landlocked and neighbours reinforces the fact that there should not be market distortion and so consumers in one country are more disadvantaged than those in another and therefore there would also be a restriction in the free movement of services which is another objective.

 

If the Courts here in England do not go the way of Scotland.AND HUNGARY..as well as a couple of others...in effect they would be putting up 'artificial tarriffs' on Banking Services(thereby disproportionately affecting consumers and discriminating against those in England in favour of those in Scotland) which the Single European Market tried to erode..just my view in arguing in favour of the decision being applied HERE in this Country.

 

In practical terms it would be more prudent and financially worthwhile to invest in Scotland because of the favourable Financial Services and this would have an detrimental effect on the Financial Services in this Country in terms of negatively affecting the consumers...remembering that this DIRECTIVE's PURPOSE is CONSUMER PROTECTION

 

These effects are in total contradiction to the Philosophy and aims of THE TREATY OF ROME 1957 (The Patriarchal Treaty ) and hence it's successors

 

 

m2ae

Edited February 24, 2010 by means2anend

[srfrench]

If ever there was a singular persuasive argument this is one of them.

[srfrench]

They'reCriminals......here's a link bud to your query.

 

Read carefully.

 

Supreme Court decision in OFT's bank charges case: analysis of scope for further challenge

[means2anend]

In fact if the the Court's in THIS Country DO NOT find in FAVOUR against the banks they will have in EFFECT put up these 'artificial tarriffs'

 

The ECJ always almost looks to its provisions being implemented properly not necessarily as to form or substance BUT TO IT's EFFECT 'to give effect to the Treaty' is a phrase that is commonly used by the EU Judges

 

Something that would be subject to being looked at by ECJ..BUT the very fact that the ECJ have said in effect to all national courts of member states..''you know what decision you must come to do not continually burden us with preliminary rulings...sort it out of your own motion..they (the National Courts) have in effect have been given a FORM of residual power(or for the want of a better word territorial jurisdiction) to come to THE decision while the ECJ concentrates on moving forward on other matters within the EU...to the ECJ this is old news.

Is that not exactly what the SC did in coming to it's decision under THAT other provision..it decided without a preliminary ruling 'of its own motion' so the WILL is there and SO was THE HINT ABOUT ASSESSMENT OF an unfair term by 'other means'

 

rgds

 

m2ae

[means2anend]

A significant imbalance between the contracting parties?

 

I would argue that as soon as Scotland 'put the banks to proof' there is now a significant imbalance BETWEEN England and Scotland (both being Member States) in affording the same level of protection to the consumers on both sides of the Border.

 

The decision may not be out until June BUT THIS PROCEDURAL PROTECTION has already been implemented in Scotland and is now therefore affording consumers in Scotland a higher level of protection in not having to bear the burden.

 

Whilst the Regulation does say that the imbalance should be between the parties to the contract..i.e consumer/supplier or seller...

 

There is a higher principle at stake here involving THE HIGHER CONTRACTING PARTIES (Member States) to THE TREATY.(and therefore to each other)..and so not implementing the legislation in a manner that gives effect to the Treaty's aims and objectives in providing a truly single market without any internal frontiers or customs borders is not giving effect to the Treaty's fundamental aims and objectives.

Indeed in terms of antecedence the abolishing of these things were necessary and logical before the Directives were to be implemented and to have any meaning at all.

 

It is my submission therefore based upon the above observations and separate from the issue of the substantive questions and analysis of the UCCTR 1999 and CCA 140a(9)....that the 'putting of banks to proof' must be implemented in England and Wales without further delay in order to avoid the continuing injustices and further injustices of thousands of consumers who are currently finding themselves in a 'legal no man's land'.

 

 

m2ae

Edited February 24, 2010 by means2anend

[Gaznkaz08]

The date range that can be used for this is not as wide as the previous law. This piece of law applies to all new charges from 6 April 2007, and to people who had charges before April 2007 providing the borrowing was still outstanding on 6 April 2008. It also may not apply to accounts closed before April 2007

 

would this mean i'm out of the running then as my charges were all from 2002-2004

 

what does the highlighted section mean?

[TheyrCriminals]

Hi srfrench,

 

Thanks for that,

 

TheyrCriminals

[TheyrCriminals]

Hi,

 

If we were to cite the recent Scottish decision in allowing an amendment of PoC in our bid to block HSBC's strikeout application is there any official referencing system I can use when I bring this case to the attention of the Judge?

 

TheyrCriminals

[rdm2006]

Hi Guys,

 

Something troubles me. Me and my friend are currently in the process of drafting a letter to the County Court, we are trying to stop HSBC's attempts to strikeout my friends bank charges claim by asking for permission for the Particluars of Claim to be amended so as to incorporate the two new legal arguments. There is one line in the letter however that is worrying and we don't know how to respond it states:

 

‘On the 25th November 2009 the Supreme Court ruled that it was not permissible to challenge the fairness of bank charges under Regulation 5(1) of the UTCCR’s on the basis that they are too high because that form of challenge is precluded by Regulation 6(2)(b). Regulation 6(2)(b) provides that the assessment (under Regulation 5(1)) of the fairness of a term in a contract "shall not relate...to the adequacy of the price or remuneration, as aagainst the goods or services supplied in exchange" In other words, the value for money equation is excluded.

 

Surely, even for a bank, this is a pretty bold 'lie'?

 

What is the best way to respond to this? I am assuming of course that the above position is not correct.

 

TheyrCriminals

 

Sorry you are missing the point. the above is correct and not a lie.

 

Think of the charges as a two pronged fork

 

prong 1. Is the amount of the charge fair - this has already been lost as stated above.

 

prong 2. The charge is used to supply free banking - is it fair that those who can least afford it are funding free banking for those who don't need it.

 

A robin hood in reverse if you like take from the poor and give to the rich

 

Does not matter if its a 1p, £1 or £38

Edited February 24, 2010 by rdm2006

[rdm2006]

Here is a link to the regulations.

 

Interesting schedule 2 is a list of things that are already classed as unfair

 

Item d

 

permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;

 

if the same spirit or principle of this was applied to the charges then they would be automatically be unfair.

 

if it is already unfair to end a contract in this way then it should also be unfair to run it in this way ?????

 

can we not use this as an argument also

Edited February 24, 2010 by rdm2006

[TheyrCriminals]

Hi means2anend,

 

Many thanks for your previous post, it was very useful.

 

TheyrCriminals

[Undercover-Elsa]

New FAQ's on reclaiming:

The Consumer Forums - Announcements in Forum : Debt Collection Industry

 

[GLoyal]

Great work from Govan Law Centre.

 

Well done Mike.

 

My Bank has been suspiciously quiet since my case was put on hold by the FOS.

 

This has provided me with renewed hope.

[citizenB]

Also read...

 

The Consumer Forums - FAQ - The New Bank Charges Position

 

HTH

[GLoyal]

Petition signed

[HSBCrusher]

Bank charges position, not petition!

[GLoyal]

Please CLICK HERE and support the petition to stop unfair bank charges and return the charges retrospectively.

 

 

 

[HSBCrusher]

right you are!