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Sheriff puts Bank of Scotland to proof on bank charges


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Not really, just being a bit light hearted. No offense intended.

 

Back to topic, when you read (and read it well)

 

The Consumer Forums - FAQ - The New Bank Charges Position

 

please be aware we will require written evedence of banks telling us the charges were proportionate to their costs. The whole argument rests on providing this evidence. Personally I dont think we will have any trouble finding enough for each bank.

 

Effectively they have cut their own throats IMHO.

 

 

HSBC WON three times!!!!! Read about my continuing battle (claim FOUR!) Link HERE

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HERE

GE capital (5 accounts) WON link HERE

Lloyds bank account WON second claim starting! link HERE

Budget insurance cough up WON link HERE

Principles WON link HERE

A&L (Mrs Crusher's account) claim link HERE

Barclays claim link HERE

 

Any advice given is on an informal basis only and without prejudice or liability. In in any doubt, consult a qualified lawyer.

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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

 

If as in the case in Scotland the banks are to prove that their charges are not unfair in relation to price (S140A of the CCA) could we refer in court to the findings of Professors Molyneux and Struthers and Ian Jarrett?

I know this was a hot topic quite a while ago but if price is back on the legal agenda then there is strong evidence from the Professors to rebut any assertions from the banks that their charges are fair (in relation to price).

If this type of evidence is before the court then it blows the free if in credit argument put by the banks clear out of the water.

 

Q – Have I spectacularly missed the point?

 

 

 

I’ll get me coat.

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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.

 

m2ae

 

m2ae

 

I don't want to be pedantic or weaken your argument in any way - but Scotland and England are actually part of the same member state (UK).

 

As a Scot I know this becasue we are awfully busy at present running both Scottish and UK Parliaments! ;)

 

Good luck!

 

BD

£50k saved and £7k charges refunded:

MBNA & A&L 35% F&F direct - saved £23k. Birmingham Midshires £1700 charges refunded

Abbey Loan/BCW 50% - saved £2k. Barclaycard/CSL 40% - saved £6k

Monument/DCA 35% - saved £1k. LTSB/Wescot 50% - saved £4k

HBOS Visa £5k charges refund via Blair Oliver Scott

RBS Direct Line/(genuine) solicitors June 2010 40% - saved £3k

Morgan Stanley/Aktiv Kapital £11k SB Nov 2010

Over £40k balance write off and charges refunds to fight for:

HBOS O/d Charges £5k. Egg Loan/Aktiv Kapital CCA Dispute £8k

Egg Card/Fredrickson taking £5 monthly but CCA & Charges Dispute £4k

Goldfish/1st Credit DN/TN Dispute £9k. Capital One/CSL charges claim £4k

Barclaycard/CSL taking £5 monthly on £10k debt

 

I hope I have helped - if I have please hit my star - and recognise the others who have helped too.

Bigdebtor

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m2ae

 

I don't want to be pedantic or weaken your argument in any way - but Scotland and England are actually part of the same member state (UK).

 

As a Scot I know this becasue we are awfully busy at present running both Scottish and UK Parliaments! ;)

 

Good luck!

 

BD

 

 

Thanks BD

 

In that case the argument is ever MORE strenghtened not weakend because this imbalance is happening WITHIN THE SAME UK Member State. There is even less room for excuses.

 

It does not make sense to apply that particular provision in a different manner in one part of the UK Member State differently to a region in a different part of that same UK Member State.

 

This suggests that 'fiscal borders' could be set up within Member States as well as between Member States within the European ''Union''

 

rgds

 

m2ae:-o

Edited by means2anend
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BD..

Not meaning to be disrespectful in anyway ...but if the interpretation and application of ECJ decisions vary somewhat BETWEEN MEMBER STATEs then that may be down to a substantail difference in the Language-Sense and meanings used.

 

BUT when the dominant language WITHIN the UK MEMBER STATE is English there really should be very little room for excuses in the mis-understanding of what has been interpreted and applied in Scotland by the Scottish Judges..... by English Court's to be applied in England and Wales.

 

m2ae

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m2ae

 

I totally accept the logic of your point - but then again I always saw the logic in £39 bank charges being unfair - so sadly logic, law and justice don't necessarily go together (unlike freedom and whisky - which always "gang thegither").

 

BD

£50k saved and £7k charges refunded:

MBNA & A&L 35% F&F direct - saved £23k. Birmingham Midshires £1700 charges refunded

Abbey Loan/BCW 50% - saved £2k. Barclaycard/CSL 40% - saved £6k

Monument/DCA 35% - saved £1k. LTSB/Wescot 50% - saved £4k

HBOS Visa £5k charges refund via Blair Oliver Scott

RBS Direct Line/(genuine) solicitors June 2010 40% - saved £3k

Morgan Stanley/Aktiv Kapital £11k SB Nov 2010

Over £40k balance write off and charges refunds to fight for:

HBOS O/d Charges £5k. Egg Loan/Aktiv Kapital CCA Dispute £8k

Egg Card/Fredrickson taking £5 monthly but CCA & Charges Dispute £4k

Goldfish/1st Credit DN/TN Dispute £9k. Capital One/CSL charges claim £4k

Barclaycard/CSL taking £5 monthly on £10k debt

 

I hope I have helped - if I have please hit my star - and recognise the others who have helped too.

Bigdebtor

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Hi,

 

Sorry to ask again but does anyone know of any official referencing system I can use to reference the recent Scottish case of Sharp v Bank of Scotland plc. The reason being is that I am inserting the case into a letter to bring to the judges attention in an attempt to stop HSBC being successful in their strikeout application. It's great that I have the name and year of the case but the judge will want a full reference, or even a copy of the judgement/Order, so that it can be verified. I have one hour left before we have to send the letter off.

 

Urgent help appreciated,

 

TheyrCriminals

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Hi,

 

Sorry to ask again but does anyone know of any official referencing system I can use to reference the recent Scottish case of Sharp v Bank of Scotland plc. The reason being is that I am inserting the case into a letter to bring to the judges attention in an attempt to stop HSBC being successful in their strikeout application. It's great that I have the name and year of the case but the judge will want a full reference, or even a copy of the judgement/Order, so that it can be verified. I have one hour left before we have to send the letter off.

 

Urgent help appreciated,

 

TheyrCriminals

 

Found this but no reference;

 

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.

 

Got it from here;

 

Govan Law Centre: Sharp v Bank of Scotland plc

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Also, is it Bank of Scotland or RBS? Dont all us taxpayers own some of this?

 

It's Bank of Scotland (not the Royal one) but taxpayers do own a share in it through the Lloyds Banking Group (after the merger of Lloyds TSB and Halifax Bank of Scotland).

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It's Bank of Scotland (not the Royal one) but taxpayers do own a share in it through the Lloyds Banking Group (after the merger of Lloyds TSB and Halifax Bank of Scotland).

 

Thanks tifo, was just thinking out loud. Trying to figure out if English based banks would try and wriggle out of it, but on face value it would appear they cant.

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Q. If the fairness of the charges is irrelevant, then that could mean that we can claim back charges even if they are fair

A. Absolutely right. Any unfair treatment of you as a customer by the bank can invalidate any contractual term which they are trying to enforce by unfair means.

Q. So what kind of unfair treatment of me might invalidate the banks’ charges?

A. Well the kind of treatment which springs immediately to mind is if the bank has misrepresented their charges to you. In other words they have claimed that they were something which they were not and this had the effect of making you accept them with very little fuss.

 

Extract above taken from The Consumer Forums - FAQ - The New Bank Charges Position

 

Would this then mean that any borrowing and payments made on Managed loans as a result of the bank charges, and subsequent life cover, for the loans would all be recoverable using the same argument?

Edited by hsbcfiddled
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Thanks tifo, was just thinking out loud. Trying to figure out if English based banks would try and wriggle out of it, but on face value it would appear they cant.

 

All of these banks are in the same UK Member state...the 'put to proof' scenarion has been applied in one area within the Member State...In my opinion only it can on ly be a matter of time before that reversal of burden actually spreads throughout England and Wales...the question is WHEN?

 

It needs to be now:!:

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I have started a complaint and refund request using these specific arguments against a well known name (saying no more for now). I was quite surprised when it was taken immediately high up the line of command.

 

Excellent work GLC!

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Sheriff puts Bank of Scotland to proof on bank charges

 

 

Friday, 19 February 2010

 

 

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

 

 

This new development is, of course, hugely welcome aand hopefully will be hugely significant. Well done to your senior solicitor working for Govan. Speaking personally, I got a letter from the Abbey (now Santander, I suppose) saying basically that I have no further claim following the Supreme Court's decision. Letter was dated December 2009 saying if they don't hear from me within 8 weeks they'll consider the case closed, so if I send them a letter now saying I want the case still open it'll hopefully be not too late! Thanks again Michael for letting us know!

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Yes an excellent result for GLC.

I think claims this side of the border will still be difficult. Banking Institutions need to refill their coffers. They will pull as much money in as they can whether by fair means or foul.

Banks will use this money as means to racking up profits affecting share prices and also through the use of equity, invest hugely in (and make considerable profits) in investment banking.

 

The government who have bailed the banks out via the tax payer are keen to have the monies paid back. If all was fair billions of pounds would be paid back to the consumer. The government therefore doesn't give a t..s about the poor consumer. It is the government and its associated bodies that set the law of the land. Now realistically can you see a government that has a country deep in debt and penniless passing legislation that will allow billions of pounds being paid out. They cant afford to bail banks out anymore.

 

Now dear old Barclays were not bailed out but raised their own money for the prime reason that they do not want to be controlled by anyone other themselves. Look at their profits last year (in excess of 10 billion). They inturn pay out millions in bonuses to supposedly top end staff. The government is corrupt and so are the banks they privatised.

 

I do however feel sure that they must at some time fall foul of unfair trading terms and conditions. How on earth can it be fair that those who have accrued financially extortionate penalty charges are being used to subsidise those who benefit from free banking. Penalty charges have been £35 plus on some accounts. They have now reduced them to less than the £12 and mostly £8.

Does that mean that they are now loosing £20 plus on a charge?I think not. They are still making a huge profit on an £8 charge reflected in the fact that they can and will debit your account with these charges whenever they can. If they cannot put the charges on fairly then they will make up ways they can apply these charges to your account. It takes time and money to get these charges back. I have a running battle with Barclays they are a nightmare. They are also confounded liars. Dont get mad just get even. I await further news in these forums so as I can work out the way to progress forward. These claims I believe will have to be made on an individual basis and we must never ever lose hope. They are after all goverment legalised loan shark banks.

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Good development.

Will be watching with interest.

Well done GLC

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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