Sheriff puts Bank of Scotland to proof on bank charges

[Govan Law Centre]

We secured a bit more than permission to amend Michael; it might be helpful to give a more detailed explanation.

 

Yesterday's hearing took place with the fully amended Statement of Claim (amended POC) and amended crave before the court, and previously intimated to the bank's solicitors. Which may explain why counsel for the bank objected so strongly to the orders we sought, and hoped to get the case dismissed.

 

The court was taken through the new ss.140A-B CCA case, and the substantially revised reg.5 case, and full legal argument took place in light of same. The bank was ordained to lodge defences in light of the new and revised grounds of claim, and a full evidential hearing was fixed.

 

The reason we have said 'Sheriff puts Bank of Scotland to proof on bank charges' is twofold.

 

(1) Now that the court has accepted the new legal grounds, and appointed an evidential hearing on those grounds, the effect of this evidentially and tactically is very significant. Section 140B(9) of the Consumer Credit Act 1974 provides as follows:

 

(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.

 

What this means is that the Bank of Scotland now has to prove its charges are fair in relation to price (under s.140A of the CCA). If you go back to pre-July 2007, that never happened. It always for claimants to prove charges were unfair, which historically was never easy given the banks failure to disclose their true business model etc.,

 

Tactically, to place the bank under more pressure, we can enroll an application to ordain the bank 'to lead' at the evidential hearing i.e. we create a prima facie presumption that the charges are unlawful, which the bank can rebut, but the onus is on them, evidentially, to do so, and we can insist that they lead their witnesses and evidence first. We are entitled to do this, given the court has accepted the new grounds of claim.

 

Now, you wouldn't expect us to go into any more details - as our duty is to our client - but we believe we can show on the balance of probabilities that the charges were excessive, and if so, unfair under the CCA. We also have a pending claim to effectively ban the imposition of future charges - so this is considerably more powerful than a simple payment action (which is all we had pre-July 2007).

 

(2) The second reason for our description of this development, is that we believe it is important to counter the fact the banks have convinced most people it's now impossible to challenge their charges as unfair and unlawful. But more on that if we can secure a number of victories - which I believe we have reasonably good prospects to do so.

 

Mike

[Govan Law Centre]

Dear Caggers

 

Just to explain the reason we sought a civil legal aid certificate in the case of Sharp v. BOS (and we have other legal aid applications and other bank charge cases before the courts too) is not for Govan Law Centre to be paid a fee (we have always undertaken our bank charges work for free in the UK public interest) but rather because these cases have been remitted to the ordinary court (at the instance of the banks, where there is no protection against expenses) and therefore it would have been professionally irresponsible for me to run a case and expose my client to an award of expenses if we were to lose.

 

As you may know the banks have employed advocates (barristers) instructed by solicitors to act on their behalf in these cases, and if the Sharp case ended up with a QC and junior counsel, and Dundas + Wilson LLP instructing them, you could be looking at many tens of thousands of pounds if we lost. I don't think we will lose, we have good prospects, but as a solicitor I cannot expose a client to that level of risk.

 

A legal aid certificate in Scotland provides an insurance policy against costs in the event of contra expenses or failure - section 18 of the Legal Aid (Scotland) Act 1986 entitles a legally aided client to ask the court to modify expenses to nil. That is why legal aid is so important in any contentious case, where the opponent has very deep pockets.

 

I can assure you that the new bank charges arguments will be argued before the courts by GLC, and the reason why we are making such a fuss here, is for tactical reasons.

 

Mike

 

Govan Law Centre

[Govan Law Centre]

Friday, 10 December 2010

GLC response to Scottish Legal Aid Board statement re bank charges

 

On Wednedsay 8 December 2010 the Scottish Legal Aid Board (SLAB) issued a formal statement in relation to GLC's case of Sharp v. Bank of Scotland and the generally availablity of civil legal aid for Scottish consumers to pursue claims for unfair bank charges.

 

SLAB alleged that "Following receipt, the application was considered but refused as it did not meet the reasonableness test for civil legal aid. No mention was made of wider public interest by Govan Law Centre at this time". That assertion was false. The statutory statement at page 19 of the application expressly stated the strong public interest in this case, on the following basis:

 

"Page 19: Para 5. On the motion of the opponents these proceedings were remitted to the ordinary cause roll due to exceptional complexity. The applicant also seeks an order under the 1974 Act to prohibit any further charges being levied to her account in the future. Approximately 100,000 people in Scotland lodged complaints with their bank seeking a refund of overdraft charges, and therefore, there is a very strong public interest element to this case".

 

Before SLAB issued its original refusal of legal aid in this case on 12 October 2010, Dundas + Wilson, solicitors for the Bank of Scotland, lodged a 6 page letter of objections to SLAB on 27 August raising exceptionally complex and novel points of consumer credit law, issues around the UK Supreme Court's decision in OFT v. Abbey Nationals and others, and contentious issues around the Unfair Terms in Consumer Contract Regulations 1999, as well as complex issues of fact, in objection to the granting of civil legal aid in this case.

 

GLC responded to these points on 14 September 2010 with an equally complex and detailed letter. The fact such novel points of law were at stake - from a Scottish and UK perspective - with such a massive public interest to at least 100,000 Scottish consumers (and by implication 900,000 consumers in England, Wales, and Northern Ireland), renders it extremely worrying that SLAB has chosen to falsely claim none of these issues were mentioned to them.

 

 

Separately, SLAB had claimed "GLC’s press release suggests that legal aid is unlikely to be obtained for certain cases. This is not accurate". We have just received another refusal of civil legal aid, this time in the case of Reid v. Clydesdale Bank plc, where SLAB once again rely on the 'cost/benefit test'. GLC believes the that ridgid reliance on this test is unreasonable, irrational and unlawful for the reasons set out in our most recent letter to SLAB.

 

GLC's Principal Solicitor, Mike Dailly, said: "The Scottish Legal Aid Board's statement is fundamentally flawed and represents a failure to accept responsibility. It claims that GLC made 'no mention' of the wider public interest of the case when we lodged our client's application for legal aid. We believe, the Board's CEO should apologise for that false and unfair statement, and take responsibility for the self-evident failure to correctly apply the statutory tests in this case".

[Govan Law Centre]

Absolutely, but we're really positive that the Legal Aid Board will get this right and grant legal aid here; if not we can judicially review them urgently, and the legal aid application for such a JR challenge can ultimately be decided by the court (given the conflict of interest), so we are optimistic. But we want to get a move on as the delay has been unacceptable, and it's time to move up a few gears.

 

Mike