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LLoyds TSB are defending my credit card charges claim...
Comments
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Is this likely to happen? Could I end up having to pay huge legal costs if I lose?
You would only be liable for costs in a small claims court should the judge deem your claim unreasonable. In fact I know of a credit card case where the claimant was awarded his costs as the court deemed the credit card provider unreasonable in attempting to defend the claim. This is because in any contested proceedings under UTCCR the burden of proof lays with the defendant to prove that their charges are fair - an utterly hopeless task.
I see that Lloyds are presenting the charges in their defence as ''for credit card services'' and that '' consequently there is no requirement that the charge be a pre-estimate of the Bank's loss''. This is utter garbage as the OFT - the authority on the matter - deemed the charges ''default'' charges in a document obtained under the Freedom of Information Act. And as such default charges must reflect the default cost to Lloyds and no more.
If you'd like the document to use in response to their defence pm me your e-mail address.0 -
With all due respects, costs can be awarded in small claims but are very rarely awarded UNLESS you have no case of success. OFT842 which is the OFT report on default charges clearly stated in 1.14 which I have quoted above that ONLY a court can decide what a fair charge is. Therefore, there is likelihood of success and when the OP DOES win, then what will you say as to why they settled?With respect, that is easy for you to say. Its not your good self who could possibly be sued for defence costs into the tens of thousands.
It was better for them to wimp out of a fight?
Too costly to fight?0 -
natweststaffmember wrote: »I am assuming you mean HE wins?
No, I meant exactly what I said, I hope Lloyds win !0 -
HouseHuntr wrote: »No, I meant exactly what I said, I hope Lloyds win !
Have you ever incurred credit card charges?
Have you ever read the report into credit card default charges?
For your reference the report is OFT842.
If he had been charged £30.00 for overlimit charges then do YOU think that he should get back the difference between the £30.00 and the £12 or the whole amount or nothing?0 -
I would say it is unlikely but not impossible. Just thought you should know there is a risk which most of those geeing you on do not seem to have mentioned.
It's a fair point as there is always a theoretical risk but natweststaffmember did answer with his opinion (which I agree with) based on his knowledge of the subject and other's experiences.
People aren't ''sued'' for costs - they are awarded at the discretion of the court. And to pluck a figure of ''Tens of thousands'' out of the air is, in my view, scaremongering.0 -
Rick
Below is a 'note' on the Burden of Proof which was used to good effect in the credit card case I mentioned ealier - feel free to use it should it get that far.
Burden of Proof in Consumer cases that raise the issue of fairness under the UTCCR
1.In any claim in which the unfairness of contractual terms in a consumer contract are raised as an issue, the evidential burden rests with the seller or supplier to prove that the relevant terms are not unfair.
2.This point has been firmly established by the European Court of Justice in a number of cases, starting with the joined cases of Oc!ano Grupo Editorial SA v Roci! Murciano Quintero (C-240/98), Salvat Editores SA v Jos! M. S!nchez Alc!n Prades (C-241/98), Jos! Luis Copano Badillo (C-242/98), Mohammed Berroane (C-243/98) and Emilio Viñas Feli! (C-244/98) (hereafter referred to as “Oc!ano”), where it was ruled that there is a duty on the Court to raise of its own motion the question of “unfairness” in respect of such terms:
“26 The aim of Article 6 of the Directive, which requires Member States to lay down that unfair terms are not binding on the consumer, would not be achieved if the consumer were himself obliged to raise the unfair nature of such terms. In disputes where the amounts involved are often limited, the lawyers' fees may be higher than the amount at stake, which may deter the consumer from contesting the application of an unfair term. While it is the case that, in a number of Member States, procedural rules enable individuals to defend themselves in such proceedings, there is a real risk that the consumer, particularly because of ignorance of the law, will not challenge the term pleaded against him on the grounds that it is unfair. It follows that effective protection of the consumer may be attained only if the national court acknowledges that it has power to evaluate terms of this kind of its own motion.
28…the court's power to determine of its own motion whether a term is unfair must be regarded as constituting a proper means both of achieving the result sought by Article 6 of the Directive, namely, preventing an individual consumer from being bound by an unfair term, and of contributing to achieving the aim of Article 7, since if the court undertakes such an examination, that may act as a deterrent and contribute to preventing unfair terms in contracts concluded between consumers and sellers or suppliers.
29 It follows from the above that the protection provided for consumers by the Directive entails the national court being able to determine of its own motion whether a term of a contract before it is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts.”
3.This judgment of the full court was followed in Cofidis SA v Jean-Louis Fredout (C-473/00), Elisa Mar!a Mostaza Claro v Centro M!vil Milenium SL (C-168/05), and more recently Pannon GSM Zrt. v Erzs!bet Sustikn! Győrfi (C-243/08).
4.In Pannon the ECJ reiterated the point thus:
“23…the aim of Article 6 of the Directive would not be achieved if the consumer were himself obliged to raise the unfairness of contractual terms, and that effective protection of the consumer may be attained only if the national court acknowledges that it has power to evaluate terms of this kind of its own motion.
24. It must be pointed out, in that regard, that, if that power is to be granted to the national court, Article 6(1) of the Directive cannot be interpreted as meaning that it is only in the event that the consumer has brought a specific application in relation to it, that an unfair contract term is not binding on that consumer. Such an interpretation would rule out the possibility of the national court assessing, of its own motion, in the context of examining the admissibility of the action which is before it, and without a specific application from the consumer to that effect, the unfairness of a contractual term.
…
28…Article 6(1) of the Directive must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand...
…
32. The court seised of the action is therefore required to ensure the effectiveness of the protection intended to be given by the provisions of the Directive. Consequently, the role thus attributed to the national court by Community law in this area is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion.”
5.All the above cases must be considered in the context of the jurisdictions from which they arise, namely legal systems that use an inquisitorial (i.e. judicial-lead) investigation of the facts and issues. In the UK we have an adversarial legal system, but the principles set out by the ECJ still apply. Indeed, as a result of section 3 of the European Communities Act 1972
“any question as to the meaning or effect of any…Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).”
6.The above judgments of the ECJ establish a core legal principle, namely that a consumer does not have to successfully contest the validity of a contract term before it can be struck down by the court for “unfairness”. Indeed, the Court has a duty to raise of its own motion the issue of whether a term is “unfair”. It inevitably follows from these judgments that in the context of legal proceedings within the UK, the burden for establishing that a term is “unfair” cannot rest with the consumer, for the explicit reasons set out by the ECJ in those judgments. The duty for proving that such a term is not “unfair” therefore rests on the seller or supplier whenever the issue is raised, either by the Court of its own motion or by the consumer themselves.0 -
Is this likely to happen? Could I end up having to pay huge legal costs if I lose?
The real problem with most cases of this type is that once the Banks decide to defend they have at their disposal some of the best legal brains in the country and very deep pockets.
I have a case that I could have persued myself using the free templates but opted to use a law firm on a no-win no-fee arrangement.
They are dealing with the "tactics" used by my lender and I am insured against all fees if I lose.
As this is still such a minefield, and the consequences of losing are enormous and life changing (just ask the Cartel customers who are having to find £30,000each in legal fees because they lost their cases) I have taken the safer option!0 -
The real problem with most cases of this type is that once the Banks decide to defend they have at their disposal some of the best legal brains in the country and very deep pockets.
I have a case that I could have persued myself using the free templates but opted to use a law firm on a no-win no-fee arrangement.
They are dealing with the "tactics" used by my lender and I am insured against all fees if I lose.
As this is still such a minefield, and the consequences of losing are enormous and life changing (just ask the Cartel customers who are having to find £30,000each in legal fees because they lost their cases) I have taken the safer option!
My understanding was that by filing in a small claims court these massive costs would not be awarded. I guess I may have been wrong.
Who are the Cartel customers?0
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