Sheriff puts Bank of Scotland to proof on bank charges

[Michael Browne]

Sheriff puts Bank of Scotland to proof on bank charges

 

http://govanlc.blogspot.com/2010/02/...-to-proof.html

Friday, 19 February 2010

Sheriff puts Bank of Scotland to proof on bank charges

 

THE BANK OF SCOTLAND has failed in its attempt to prevent a customer amending her claim for unfair bank charges, recalling the sist, and fixing a full evidential hearing at Glasgow Sheriff Court this morning (Friday, 19 February 2010).

 

UK banks have been telling over one million of their customers in the UK that they now had no legal basis to reclaim unfair charges in light of last November's Supreme Court ruling. However, the Supreme Court itself had suggested that charges could still be challenged under different legal grounds, and Govan Law Centre (GLC) had sought to amend their client's claim to incorporate a revised 'regulation 5' case under the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR), and significantly, an additional claim under the new section 140A of the Consumer Credit Act (CCA, as amended in April 2007).

 

Counsel for the bank, instructed by Dundas and Wilson CS LLP, had objected strongly to the pursuer's substantial amendments, arguing it would be 'improper' to allow the customer to amend her claim in this way. GLC's Mike Dailly, representing the customer, explained to the court that it was necessary to amend the claim in order to take on board legal developments, and although consumers could no longer attack charges as 'excessive in price' under the UTCCR, they could do so under the s.140A of the CCA. The ability to do so was hugely significant, as was the fact the onus of proof to show charges were not excessive was on the bank under the CCA.

In

Sharp v. Bank of Scotland plc

, Sheriff Baird, a senior sheriff at Glasgow Sheriff Court, rejected the submissions for the defenders, and granted the pursuer's application to substantially amend her Statement of Claim and Crave, recalled the sist, and fixed a full evidential hearing (know as a 'proof' in Scotland) for 11th June 2010.

 

Mike Dailly, Principal Solicitor at Govan Law Centre said:

 

"Over the last few weeks, UK banks have been telling one million customers that there were now no grounds to reclaim bank charges, standing November's Supreme Court's decision. Of course, the Supreme Court itself had explained that charges could still be challenged under different legal grounds, and that is what Sheriff Baird has permitted our client to do today at Glasgow Sheriff Court".

 

"But besides a challenge under reg. 5 of the UTCCR, the Bank of Scotland now faces a fresh challenge that charges were excessive and unfair under the Consumer Credit Act. That is a potentially devastating case for them to answer, because under this new law the onus of proof is on the bank to show that charges were fair. Given that our banks have admitted they subsidise 'free-if-in-credit banking' by squeezing more money out their poorest customers through bank charges, they will now have to defend the indefensible. And, they will have the added problem that we are asking the court to prohibit them from imposing future charges under the CCA".

 

"In a nutshell, our new arguments are hugely more powerful than the ones deployed by the OFT in their unsuccessful test case. Evidentially, the new arguments require the bank to prove their charges were fair - which is tactically significant for consumers. The new arguments not only enable consumers to seek a refund of past charges, but entitle them to ask the court to prohibit future bank charges. That is hugely significant, and in many respects, we believe the new bank charges campaign is going to be a tougher propsect for the banks than the pre-July 2007 campaign. And of course that previous campaign saw refunds in excess of £1bn for consumers across the UK - so we are incredibly optimistic".

 

Not quite as earth-shattering as the headline suggests - only been granted permission to amend their POC's as opposed to the bank being ordered to show their charges were fair, but one more step in the right direction

 

[Michael Browne]

Thanks for expanding on that. Seems promising.

[Michael Browne]

According to MSE:

 

MoneySavingExpert.com Forums - View Single Post - Heard from your bank/court about your claim being restarted? Please let us know.

 

I think the Govan case has been put back a bit as the banks wanted to make it a non small claims case.

[Michael Browne]

Sorry, can't find it.

Bookworm Report

 

Subject: Research

 

Must try harder.

 

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[Michael Browne]

Too have read it (although i wish i could find it to read it again) and in paragraph 80 lord whoever clearly stated that they could be challenged under UTCCR 5 (1) for other reasons......

 

http://lmgtfy.com/?q=oft+v+abbey+national+supreme+court

[Michael Browne]

Bearing in mind Mike Dailly's post (#933) on 10th December at 19.33, can I ask why the CAG newsletter states quite clearly "Scottish Legal Aid Board kills off hope of reclaiming unfair bank charges in Scotland"

 

I think Mike's point was that clearly the decision was a set back but that it was being appealed and could be subject to judicial review.

Could it possibly be that the headline of the Govan Law blog is:

 

 

Access to justice denied: Scottish Legal Aid Board kills off hope of reclaiming unfair bank charges in Scotland

 

 

http://govanlc.blogspot.com/2010/12/access-to-justice-denied-scottish-legal.html

[Michael Browne]

GLC has settled a claim in full for the refund for overdraft charges with Santander UK plc. The claim was extra-judicially after proceedings had been raised utlising new legal and factual arguments.

 

Some of these arguments (but not all) are scheduled to be test in the cases of Reid v. Clydesdale Bank plc, and Sharp v. Bank of Scotland plc.

 

A debate will take at Glasgow Sheriff Court on 2 April 2012 in the case of Reid v. Clydesdale Bank plc, with GLC's Mike Dailly appearing for the pursuer, and Clydesdale's in-house legal team and counsel appearing for the defender.

 

The case of Sharp v. Bank of Scotland awaits a fresh hearing date.

[Michael Browne]

It means some posts (may be off-topic or abusive) have been removed. The post numbers within the thread are re-adjusted but the total page nos and post nos at the top are not.

 

Thus this is the last page (page 71) even though at the top is showing Page 71 of 74 pages and 1465 posts