Taylors v Nationwide 3rd Time

[taylormandy]

Thank you Bill.

[Glenn UK]

hi there im so sorry they took this view, was this a final hearing mandy?

 

It sounds like you did very well

 

GLenn

[Guest bong]

sorry to hear this Mandy, I think you did extremely well - in fact I might even have to borrow you for my hearing!

 

I can't work this out. How can they say they're not there to discuss the charges when it is linked in with the reasons for the s.32 argument? Is it because the whole claim was over 6 years and if you had recent charges in the claim as well they would have to discuss it then? why are the courts agreeing with the barristers not to hear the whole claim? Is it that the county courts don't have the necessary powers and we should be bringing these claims in a higher court? Sorry for all the questions but this just seems insurmountable to me.

 

I think you deserve huge congratulations just for having faced them in court and having argued your case so well. I'm ok with written arguments but I think when it comes to a face to face confrontation in court I will lose my concentration and make a complete mess of it. I hope you feel proud of yourself despite the outcome.

[taylormandy]

Hi Glenn, Bong.

 

Yes, it was a final hearing.

 

What I found that whenever I tried to present the case that the charges were unlawful, the judge and the barrister came back with "ah, yes, but no court of law has actually said they are unlawful, have they?"

 

So whatever I then put to them the issue about concealment, they said "concealement of what? - It has not been decided in a court of law that the charges are unlawful, so therefore there was nothing to conceal"

 

The same argument went for mistake - either of fact or of law. The charges are not deemed to be unlawful in case law, therefore there was nothing to be mistaken about.

 

I pointed out that there was no judicial decision because the banks always settled charges cases before court. The judge appeared to be sympathetic to this and mentioned the fact that so far, attempts to have a test case to settle the matter have not materialised.

 

The whole argument kept coming back to the fact that the charges are not unlawful in case law!

 

I brought in Dunlop v New Garage and was told that this still didn't provide a judgement that bank charges are unlawful. The OFT statement is merely their opinion that such penalty charges are likely to be unlawful - again not a judicial decision.

 

I brought in Graham Beales statement about deliquent account holders paying for the running of branches etc through high penalty charges. His statement that current account fees would be 'fairer'- I was told this was merely a reported version of what he may have said. It certainly didn't confirm the charges were unfair or unlawful.

 

 

The barrister didn't want to move away from the limitation issue, because once he had established I couldn't show the charges were proven to be unlawful in a court of law, there could be no mistake or concealement (because they charges are lawful until proved otherwise). Therefore no postponement of limitation period.

Maybe if some of the charges were within the 6 years I would have had more chance to explore the lawfullness issue. However, the judge would not budge from the "lack of judicial decision" issue.

 

Anyway, Glenn, you still deserve a kiss!!! You have been brilliant.

 

Bong, I can't believe you won't be as competent in person as you are on paper. The work you have produced is fantastic and extremely professional. I have relied heavily on yours and Glenns work.

 

Redsue - if you can move, you may now uncross everything!

 

As I said, I came away feeling I had earned respect from the judge and I held my own.

[Guest bong]

so it all boils down to the fact that unless we get evidence of actual costs we cannot win claims for unlawful charges in court. all the courts have to do is order disclosure of costs to resolve this, and I can't see why they aren't using their powers to do it if the judges are as frustrated by this as they make out. rant over:) have a good evening!

[taylormandy]

This was only the view of my judge, other may see it completely differently.

 

When I asked as a layperson how on earth I could get evidence of the actual costs, he agreed that this was the problem, but unfortunately not one he could address today!

 

Anyway, I'm going to have the last of several glasses of red wine now and go to bed!

[Glenn UK]

seems to me this is a bit like default removal, if the claim had had charges less than six years old the case wouldnt have been before the court, hence the banks need to try to seperaste the per from post six year charges. Another less for us to learn, although a tough one for anyone to have to learn on our behalf.

 

I have the greatest respect for you mandy, i know you were nervous and yet you went in and gave a very good account of yourself.

 

enjoy the rest of the wine.

 

Glenn

[newbody]

first off my sympathies to you taylormandy on the outcome of today

 

so it all boils down to the fact that unless we get evidence of actual costs we cannot win claims for unlawful charges in court.

 

then if arguing statue of limitations wouldnt another angle then to be

 

Make our prima facia case be the charges then the secondry issue being the SOL

 

to this end from ourside to pull in an expert in financial accounting to give a report on the costing to these charges to thus prove they are in fact in breech of the contract thus illegal

 

so if in front of a judge on a hearing such as this if the other side (banks)try arguing statue of limitations you argue that Statue of limitations is not what the case is about but the legality of the charges and statue of limitations is what the defence are hiding behind to avoid having the leagality of the charges being challenged.

 

so a stay would be in order for the banks to allow a financial expert access to their proceedures to give an acurate costing of thisto the judge. So the judge can deem weather they are in fact punative and illegal or are indeed a true estimate of their liquidated damages.

 

And then to have the hearing in regards the SOL as you cannot say SOL sec32 concealment is not valid if they wont disclose the true costing to an independant financial consultant for the judge to form the legality of these charges on it for then surley they would in fact be concealing the legality of the charges from the courts themselves

 

And as you are arguing legality of the charges themselves then until the bank defends the legality of the charges (true cost of what they actual cost the bank) then SOL is not what the case is about and that the banks by not granting even the courts this information shouldnt be allowed to use this as its defence

and as such the case should be allowed to proceed

[Glenn UK]

The key issue in this case was as i understand it was that All the charges were pre six years and whilst i agree with the concept outlined by newbody unfortunately the judge appears not have accpeted the premise you are putting forward.

 

Sad but true in this case.

 

JMHO

 

GLenn

[natwesttookmymoney]

Hi, Mandy

 

First, many commiserations. You went through a lot to get to this day and then to be stuck out was a shame.

 

And rather odd grounds to be struck out, IMHO. So, the charges have not been proven to be unlawful, they argue: but there's plenty of statute and case law around that is entirely relevant, all of which was in your bundle. Did you get disclosure of costs, or ask for it (prior to the hearing)?

 

Their argument was something that I have expected they'll try for a while: peel the actual charges issue away, put it to one side and concentrate on an issue they think they can win.

 

But, although they've argued the toss about Limitations Act before, they haven't gone the whole way and taken it to court.

 

It may be your particular circumstances, that this was your third claim against them and it was entirely to do with plus-6 years charges (that's not pejorative, just statement of fact). It's noteworthy that their first approach was 'vexatious litigant': that was thrown out by the judge but it, too is noteworthy. It should be highlighted, I think.

 

While I expected them to try the peeling-off approach, I must confess that I thought it would be on the subject of interest. I think you've been rather unlucky, you poor thing. It wasn't what I expected.

 

I think Newbody makes a very good point: our case is about the charges. Focus on the charges, the charges, the charges. Ask for disclosure of the charges. Present the claim about the charges and seek to have SOL put to one side until the charges are considered. What are the banks costs in relation to its charges, and how can they have validity in the light of the precedents and statute Law? If they are invalid - once the costs have been revealed - then they can bring in their SOL arguments.

 

The way to test their lawfulness or otherwise tested in a court of law is to have the costs revealed.

 

Your experience is very valuable for others but it's a shame you had to have it in this way.

 

Best wishes

[joneshousehold]

Well I finally got to reading the result here and wanted to say well done taylormandy. You did a good job. The result may not be what you hoped for but as you say, it must have cost Nationwide a small fortune. I have found Nationwide to be particularly poor in dealing with their customers (who are for the large part members and not just customers!).

 

You are a ground breaker now, the future approach to the 6 year claims will be shaped by your claim. You can't spend that I know but it can make you walk taller.

 

Hope you haven't got a hangover this morning!

[redsue]

taylormandy - I salute you!

You certainly held your own in court and I really admire your patience and resiliance. And whilst you didn't get the result you hoped for - you can take comfort in the fact that you're £9K better off - all thanks to Nationwide.

Wishing you all the best for the future xx

[taylormandy]

Thank you all for your kind words.

 

It really does make the disappointment easier to bear, and I think it is what makes this site so special - the people.

 

I really hope that my experience does help others present their cases in such a way to avoid this possible pitfall and then all that effort will not have been for nothing.

 

I will keep an eye on the forum and will be cheering you all on!

[photoman]

Thank you all for your kind words.

 

It really does make the disappointment easier to bear, and I think it is what makes this site so special - the people.

 

I really hope that my experience does help others present their cases in such a way to avoid this possible pitfall and then all that effort will not have been for nothing.

 

I will keep an eye on the forum and will be cheering you all on!

 

Taylormandy

You have done us all proud. Although you may have not won in this instance, you have opened all our eyes to yet another tactic they may try....and provided us with the means to disarm them. You have closed another option for them in their increasing desperation to find ways to defend the indefensible !!

Best Regards

[progenic7]

Hi taylormandy,

 

i have just been linked to this thread and so i had to come along to see what has happened, im sorry i didnt make it here weeks before.

The law is perverse...period

i find it hard to believe that a former barristor or solicitor of a district judge could not see past what was clearly going on here.

I have seen similar things to this (paul waltens case for one) not that im into conspiricy theory but im sure somethings not quite right here.

Maybe its the "good ole boys" on the golf course and ten grand on the tee type scenario, (edit allegedly)

Seems like you made a good account of things and the judge certainly should have overlooked the limitation issue until he had looked into the other parts of the case, (the important bits really ) like the charges.

 

many congrats anyways you have given alot of people some very usefull info if nothing else.

 

all the best

 

Johnny

[TANZARELLI]

Well done Mandy,

 

I think you have definately proved that you can hold your own in front of a court and you gave a fight worthy of respect.

 

Thanks for the PM by the way.

 

Yes my judge will be the same as yours (if I choose to file at this court now).

 

I have already had 6 years of charges refunded by Barclays and they also included in that settlement 7 charges outside the 6 year rule.

 

My next claim will be for 96-99 and they have however recently charged me again £30 for being £8 odd overdrawn. I may now add this to my claim as a way of now arguing the lawfullness of the charges, but refuse any attempt by them to refund this charge prior to court. That way they will have to discuss the issue.

Any thoughts.

Tanz

[taylormandy]

Hi Tanz,

 

I think it's good to keep current charges in there, as you say, and try and keep the claim intact for court.

 

As in so many situations, hindsight is a wonderful thing and I have been kicking myself with what I could have/should have said.

 

I had so much in my bundle I could have used.

 

I got wrong footed as soon as I went in, because I was expecting to state my own case first, as I was the claimant. When the judge allowed the barrister to go first, I was immediately having to counter his own argument, before I could even get mine over.

 

It's so easy to think of the perfect thing to say after the event.

 

Anyway, the purpose of pointing you here was because I knew you may well get the same judge for the same issues and wanted you to be prepared for this argument. If you know what's coming, you've a better chance of preparing a decent counter argument.

 

Best of luck!!

 

Mandy

[TANZARELLI]

Thanks mandy,

 

His name has appeared on all my court stuff so far with different claims so I think the likelyhood of him being the one is high.

 

Thanks again, and again well done for giving it your best.

 

Tanz

[gerryb2]

A big pat on the back for Taylormandy for taking them on and doing so well.

 

I believe you have done us all a bigger favour than you know. Nationwide have inadvertently disclosed how petrified they are that if a claim were to succeed (under 6 years that is) and a precedent set, they could end up not just repaying the last 6 years unlawful charges to customers, but ALL unlawful charges (and they have microfiched archives going back 30 years+) due to concealment.

 

Perhaps one of the mods might know but would asking for Part 18 disclosure prior to hearing help in similar cases? I think there was something in a recent Citi thread about Judge dismissing case but apologising to claimant that had he had separate request (not in AQ) then he could have ordered full disclosure. I'll look for link.

 

Once again, well done

[Guest bong]

gerryb2 I think that is really interesting. In my case against HSBC for 13 years charges, which they paid up 2 days ago, I had made a written request to the judge to order standard disclosure at today's application hearing. I can only guess as to why they settled the claim, but it could have been this threat that made the difference.

[Glenn UK]

Gerry

 

what particualr 'further information and clarification' under part 18 would you be wanting in relation to their defence?

 

There is nothing wrong with submitting a cpr18 request after receipt of their defence but before allocation, however if the claim is likley to be listed for SCC then they probalby wonty reply and its probable the court wont enforce it.

 

they may however order disculsoure as has happened i think in oe or two scc claims.

 

If the claim is fast track or above then the party making the cpr 18 request can seek an order from the court forcing complaince if they recipeient fails to respond, however, to be succesful you would need to make sure what was bieng asked was legitimate and not just something you fancied knowing as it were.

 

Glenn