Jan v A&L won 24/8/07 - in spite of stay!

adamc6671 · August 19, 2007

Hi Jan

Not sure if these thoughts are valid, but the way I have been thinking about my 2 allocation hearings (Lloyds 7th Sept and Abbey 21st Sept) if the bank asks for a stay is as follows -

In Lloyds case, to question under what leglisation the bank regards it as lawful to unilaterally take money from the a/c. The answer is likely to be 'under Contract Law' or 'by virtue of the contract between us'. They must have the customers permission to remove money from the a/c, and that can surely only be by virtue of the contract between customer and bank. That is, by definition, a 'Consumer Contract', and surely the UTCCR's 1999 must therefore apply to this claim, and it does not therefore require a test case in order to proove the validity of the UTCCR's. This case should therefore be allowed to continue.

In Abbey's case, they admit to a breach of contract in their defence, and therefore the same argument applies regarding the UTCCR's.

As I said, I'm not sure these arguments are valid, and I would be highly grateful for any comments from anyone 'in the know'

Hope that helps in some way, Jan, and hope I haven't confused the issue!

All the best - Adam.

p.s. Used to know Thame very well - was at Rycotewood College (which I believe is no longer there) more years ago than I care to think about!!!!!!

car2403 · August 19, 2007

Jansus - short of proving financial hardship, you'll be hard pushed to avoid the stay I'm afraid. Althought, I've seen threads where hardship has been shown and the Bank even agreed that the stay shouldn't be applied, but the stay was granted regardless anyway!

Most of this is under directions from more senior Judges.

The only practical way you can avoid the stay is if the Bank hasn't made a formal application to the Court to have a stay applied - sadly though, thats probably not the case in your claim.

Adam - those thoughts are valid, but probably won't be heard if you even get to see a Courtroom without having a stay applied beforehand - they are more relevant to the full hearing and probably won't effect the application of the stay. In fact, your statement of evidence probably already points towards these issues, so the Court has probably already seen them.

Sorry to be the bearer of bad news, but looks like you're both going to have to await the outcome of the TC. (Like so many in your situation - including me!)

jansus · August 19, 2007

Hi thanks for reply.

that may be very useful

I have just finished the bundle and will read through the relevant sections and the defence document again.

Each banks defence has varied so I will try and undertsand the A&L defences 23 points!

By the way Rycotewood college still has an association for old pupils. There is a link I can send you if you are interested.I think it is now part of Oxford and Cherwell college.

We are close to Rycote chapel and Tiddington and like living here a lot.

My daughter is at Lord Williams 6th form college and really enjoys it.

thanks again

Jan

jansus · August 19, 2007

Jansus - short of proving financial hardship, you'll be hard pushed to avoid the stay I'm afraid. Althought, I've seen threads where hardship has been shown and the Bank even agreed that the stay shouldn't be applied, but the stay was granted regardless anyway!

Most of this is under directions from more senior Judges.

The only practical way you can avoid the stay is if the Bank hasn't made a formal application to the Court to have a stay applied - sadly though, thats probably not the case in your claim.

Adam - those thoughts are valid, but probably won't be heard if you even get to see a Courtroom without having a stay applied beforehand - they are more relevant to the full hearing and probably won't effect the application of the stay. In fact, your statement of evidence probably already points towards these issues, so the Court has probably already seen them.

Sorry to be the bearer of bad news, but looks like you're both going to have to await the outcome of the TC. (Like so many in your situation - including me!)

thanks for your comments as well.

The stay was made on the courts own initiative so I am not sure if the bank made an official request for stay. In one case that did win the judge was annoyed that the banks have asked for blanket stays without paying the appropriate fee so came down on the side of the claimant.

I think it is pot luck - or in your case bad luck-as to which judge you get .

In all the cases regarding stays I dont think the claimants have done anything wrong - they have all given it their best shot. After all we have had to put a lot of work into this to get this far and it seems a shame that at the moment it is all down to one persons personal opinion.

It is stressful to appear in court anyway ,even more so if you dont know exactly how you are going to argue your case. I suppose my only glint of hope is that after vacating the case the judge has ow agreed to see me.

JAn

alice-rose · August 19, 2007

yes my daughter!!!!

AS levels were C English and C for Art - pleased with that.

But U Psychology and sociology

Not happy!!! at least she did not come up with a long list of excuses- said it was all her own fault for not working hard enough. As she wants to take sociology next year we have to in to find out about re-take or doing AS and A level together in one year. She is not going to Uni so not the end of the world but I just get frustrated as I know she can do better. But we have never put any pressure on the kids As I said to her "the only mistakes you make in life are those you dont learn from"

She wants to be a plumber or some other building trade! and I have a son who hates football and for his birthday tomorrow is having a cocktail and casino party- its a topsy turvy world!

Actually quite a special day tomorrow as my son was born 20 years ago as a premature baby of 2lb 7oz at 29 weeks and went through lots of traumas when he was in hospital for 3 months. His birthday should be 5th November! So always a time of reflectionon his birthday.

jan

Hi Jan,

I think your children are roughly the same age as ours.

my daughter just got her AS results through

and like you

we have Never put any pressure on either of them.

Always advised our two,

just choose the subjects that you like, and give them your best shot.

(no point choosing something you don't like/understand.)

and i have always said to ours - like you.

mistakes are made to learn from.

if you make a mistake, its not a bad one - if you learn from it,

(easier said than done)

life is just one big long learning curve. - even at OUR age !

I personally wanted to do lots of things,

but there were simply no opportunities for us,

(my mother was very poorly from me being a toddler.)

coupled with no money.

So I've had to 'cope' all my life the best way I can.

I was working at 16 to bring in a well-needed wage.

We've always strived to provide the 'raw materials' for ours -

because you want to give them the opportunities you never had -

but at the end of the day - it has to come from them.

I was very touched hearing that your son was born premature

20 years ago. I'm not surprised its a time for reflection for you.

2lb 7oz - not much more than a bag of sugar -

and I bet he's huge now -towering over you !!!

Hope he had a wonderful wonderful Birthday Party.

with love

alice xxx

at the end of the day

All we can do is LOVE and support them, in everything they do.

and it sounds like you do LOTS of that !

xxx

jansus · August 19, 2007

Thanks for your message Alice

The party went fine and I must admit I had a few quiet minutes thinking back to that time not knowing whether he would be brain damaged or survive the traumas he went through. I remember thinking I wish I could look forward just to his 5th Birthday to see if he was alright- now 20 years have gone by:eek:

Its not hard to tower above me - so he does:D

He went to work at 17 as college was not for him - and I have said to my daughter if she decides on a career which needs UNI then so be it. But otherwise shes out to work as well after next year.She is working part time now and likes to have the money so I think she will prefer to get out into the wide world anyway.

I think we all spoil our kids - and sometimes regret it- the more you give the more they take for granted. But I appreciate basically my two are good kids and they know if they seriously stepped out of line we would be down on them like a ton of bricks:mad:

Jan:) (still clearing up and eating birthday cake!)

P>S finished bundle today as well phew!

j.barton1 · August 19, 2007

Hiya Jan, Glad it went well, my youngest was very poorly when he was little, he had a rare cancer and hearing issues, i know what you mean, each birthday is a milestone for us as parents too. My littlest is 5 now and absolutley thriving....its so easy to remember how hard it was though. Glad you all had a good time and remembered his baby days...may there be many more xxx Jen xxx

adamc6671 · August 19, 2007

Hi Jan

I'd be very interested in the link to the Rycotewood College Association - had some very good times there and in & around Thame. Waterperry College, Wheatley TT College, Postcombe, Chinnor all places I remember with great pleasure!

Certainly the 'stays' thing does seem to be one huge lottery, with a great deal at stake - I'm sure British Justice should not be that way - things should be much more consistent, and the consumers rights should be very much to the fore. Still, will try with all I've got to avoid a stay, but unlikely to succeed!

All the best - Adam.

jansus · August 20, 2007

Thanks for all your kind messages.

Just labeling up my "bundle " in my lunch hour.

I am going to send one to Wragges today with a covering letter about the "stay " hearing.

Did email them - but guess what not even the courtesy of an acknowledgement. :rolleyes:

jan

granny50 · August 20, 2007

Thanks for all your kind messages.

Just labeling up my "bundle " in my lunch hour.

I am going to send one to Wragges today with a covering letter about the "stay " hearing.

Did email them - but guess what not even the courtesy of an acknowledgement.

jan

Hi Jan typical of Wragges, you have done the hard work so try and relax a bit now maybe another cocktail is in order. Good luck:)

bsia666 · August 21, 2007

Well done on the bundles Jan, another 2 steps forward

William.

MimiJane · August 21, 2007

Well done Jan ... such a relief when the bundle's out of the way:rolleyes: You'll get there in the end, you deserve a "win" so much with all the help you give to others.

Keep us informed.

BTW, if your daughter does qualify as a plumber, can you send her round here ... they're like gold!

Mimi x

squarebob · August 21, 2007

I was one of those that did the job for the pleasure not the money.

A Leak

jansus · August 21, 2007

I was one of those that did the job for the pleasure not the money.

A Leak

You are just spooky:o

see the bear garden.

B. Prepared

New Template - Use this for free money.

P>S read this - made me laugh!!!!

IMPORTANT INFO FOR LIFTING STAYS

FSA grants waiver to firms on complaints handling

Clive Briault

We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way.

FSA/PN/090/2007

27 July 2007

The Financial Services Authority (FSA) today (Friday 27 July) issued a 'waiver' from its complaints handling rules that apply to unauthorised overdraft charges complaints. This follows the decision by the Office of Fair Trading (OFT) and some firms to initiate a test case in the High Court to resolve legal uncertainties on the application of the law to these charges.

This action means that, until the test case is resolved, any bank or building society that applies for the waiver will not be required to handle complaints relating to unauthorised overdraft charges within the time limits set out in the FSA rules. The Financial Ombudsman Service (FOS) has adopted a similar approach and the county courts are expected to follow.

Clive Briault, Managing Director, Retail Markets, said:

"The FSA supports the test case on unauthorised overdraft charges as the current situation does not provide certainty or consistency for consumers or firms.

"We have granted the waiver to help facilitate this test case. We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way. Once there is certainty on these charges, complaints can be dealt with fairly and consistently. To ensure consumer protection we have imposed a number of conditions on the waiver that firms must adhere to."

The conditions in the waiver include dealing promptly with complaints once clarity is achieved and communicating clearly with consumers throughout the process. The FSA also expects firms to continue to help their customers avoid incurring unauthorised overdraft charges in the first instance and to continue to deal with hardship cases.

The FSA will review the waiver in two months time to ensure, among other things, that firms are complying with its conditions. The FSA can also revoke the waiver at any time if it considers that the waiver is no longer appropriate, for example if progress on the test case is not being made or if a delay in the resolution of the test case is likely to cause undue risk to consumers.

The FSA will publish later today the results of thematic work on how firms are currently handling complaints on unauthorised overdraft charges. Practices varied across the visited firms, but in some the FSA found significant deficiencies and important areas of weakness in their approach. These included:

a failure to respond to complaints fairly and consistently; to address adequately the subject matter of complaints; or to ensure complaints are resolved at the earliest possible opportunity;
unfair closure of accounts, or threats to do so; and
false or misleading statements made to complainants.

FAQs

1. What is a waiver?

A 'waiver' from a rule means a firm does not have to comply with the requirement being waived.

2. What is being waived?

In the main, we are waiving our rules that specify time limits for dealing with any complaint about the level, fairness or lawfulness of unauthorised overdraft charges. This means firms will not have to deal with these complaints within the normal time periods required by our rules.

A firm will still have to record the complaint and acknowledge it within 5 days of receipt, but the normal time limit for handling complaints will not apply. Time will be treated as not running in relation to complaints on charges for the duration of the waiver.

Normal time periods:

within 4 weeks of receiving the complaint, the firm must issue a written response or a holding reply; and
within 8 weeks of receiving the complaint, the firm must issue a written response or reply informing the complainant of the reason for delay, expected date of final response and right to go to FOS.

The waiver is initially being granted for one year, or until the resolution of the test case. We will review it after two months to ensure that there is a stay of proceedings in the courts of England, Wales, Scotland and Northern Ireland; the FOS is not proceeding with cases about unauthorised overdraft charges until resolution of the test case; that firms granted the waiver are complying with the conditions; and, more generally, the continuation of the waiver remains appropriate.

3. Why has the FSA granted a waiver?

We have granted the waiver to help facilitate this test case. We believe it is not in the interests of all consumers for complaints to continue to be dealt with in the current inconsistent way. Once there is certainty on these charges complaints can be dealt with fairly and consistently. To ensure consumer protection we have imposed a number of conditions on the waiver that firms must adhere to.

4. What does it mean for consumers and banks and building societies?

Consumers:

Consumers with complaints outstanding (currently with a bank/building society)
The complaint will remain with the bank/building society; normal time processing rules will not apply. Complaints will be dealt with as quickly as possible once the test case is concluded.
Consumers who have just been given an offer from the bank/building society
Consumers will have two months to decide whether to accept the bank or building society's offer or to wait for the outcome of the test case. If consumers choose to accept the offer, it is unlikely that they will be able to complain again later regardless of the outcome of the test case. If consumers choose to wait for the outcome of the test case, they will not be able to take up the firm's original offer and the firm will only deal with the complaint once the test case is concluded.
Consumers who may wish to complain from today
Consumers can still complain now or they can wait until the test case is complete - they will not be disadvantaged. The complaint will be recorded and stored by the firm and will be dealt with as quickly as possible once the test case is concluded.

We will still require any new complaints to be acknowledged within 5 days.

Consumers for whom Scotland is the most likely jurisdiction
Consumers may choose to take their complaint to the FOS or the courts in Scotland. The right to refer the complaint to the FOS will not be affected. However, if the customer wants to bring a claim to the courts in Scotland, the timing of when the claim is raised may be important. They are advised to seek independent advice on filing a claim now to protect their rights (although a court fee will be payable).
Consumers who have already had a settlement and think they may want it reviewed
A full and final settlement stands. In some exceptional circumstances the complaint can be reviewed, for example, if there is evidence of coercion or bullying.

Consumers can still complain about new charges incurred.

Consumers who have received a final response from the bank/building society which does not include an offer
Consumers still have the option of complaining to FOS. However, the banks and building societies have also requested that the FOS does not consider any complaints about unauthorised overdraft charges until resolution of the test case.
Consumers who are in very difficult financial circumstances - 'hardship cases'
Banks and building societies will have to conduct a filtering process to ensure that cases of genuine hardship are still dealt with during the waiver period. Cases of hardship would still be entitled to be referred to, and dealt with by, the FOS.

dewhit20 · August 21, 2007

That template for "free money" is hilarious Jan, thanks for pointing it out!

You are a gem for all the info and help you are giving out. Good luck with everything.

Love KayX

jansus · August 22, 2007

Gosh - begining to feel lonley down here?

Are there not any others appealing against the stays???

A&L solicitors are so ignorant - I emailed the person who has written letters to let them know what is happening in a very polite way and they wont even send a read receipt for my email. So rude!

I have been printing off all the last few BBC reports and anything else I can find - and making notes of anything else that comes to mind. I am going to ring A&L tomorrow as well just to tell them about the hearing in case the solicitors have not told them.

Not going to say in public what arguments I am going to use as there are "moles" about:D

At least I will be able to tell you all what the inside of a court looks like:roll:

Jan

adamc6671 · August 22, 2007

Hi Jan

Sorry you're feeling lonely!

Very much agree about not 'publising' your arguments - must try not to do that with my threads!

Would be very interested in A&L's response to being told about the hearing, or more importantly what they intend to do about it!

Very best regards to Thame!

Adam.

jansus · August 22, 2007

C. The Banks and the OFT believe that, consistently with CPR Part 1 (the

overriding objective), the relevant legal issues need to be determined

expeditiously and, in light of the complexity and importance of the issues, in a

fair and orderly way. The scale of the customer litigation causes increased

expense for all litigants as well as the Courts and presents significant

administrative problems for the Courts in handling such cases. Further, the

risk exists that the issues currently being investigated by the OFT will be

brought before the High Court (and/or the Court of Appeal) before the OFT is

in a position to adopt a considered position on the fairness of such terms, and

in circumstances where the Court will not have all the relevant materials

available to it to determine all relevant issues.

D. In the Investigation, the Banks have contended, as a preliminary point, that (1)

the Relevant Terms and Relevant Charges fall within Regulation 6(2) of the

1999 Regulations and do not fall to be assessed for fairness, (2) if the Relevant

Terms or Relevant Charges do fall to be assessed for fairness, then the Banks

must as a precondition be shown to have contravened the requirement of good

faith, and (3) the Relevant Charges are for services, rather than for breach of

contract, and are not capable of amounting to a penalty at common law.

See section C from the agreement between OFT and the banks.

Is that not a bit of an insult to the courts ??? I am sure that the banks have had every chance of providing all the relevant information if they had defended even one case!!!:-? They have had months to send in the big gun barristers with all the info The Mercantile courts especially I am sure would have had all the expertise to deal with it if they had had the chance.

What a blooming cheek

Jan

jansus · August 22, 2007