Legal Opinion in full on post Supreme Court reclaiming given to Legal beagles

orc_2

Just so that everyone who is not up to speed on this is aware, here is a copy of a post by GLC, Mike Dailey, posted on CAG on the subject.

(please don't think this means the start of reclaiming. Lets wait and see, there's a long road ahead and the banks will fight this every inch)

http://www.consumeractiongroup.co.uk...ml#post2781582

20th February 2010, 17:13 #2 (permalink) GLC
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Re: Sheriff puts Bank of Scotland to proof on bank charges
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

davidgmmafan

This part resonated the most with me:-

"11. The Relevant Terms are particularly onerous as they give the banks priority over the consumer’s other debtors with regards to the application and payment of the Relevant Charges to the account, and as such give rise to a serious imbalance due to a complete lack of control by the consumer. The consumer has no control as to when or how the charges are paid, as they are automatically taken from the account. The consumer has no means to “opt-out” of the charges. The consumer has no means of prioritising their essential bills over the charges."

If the law says there is nothing wrong with THAT then there is something very badly wrong with the law.

Personally I would still like to see a question styled debate the see people like Angela Knight can be made to answer questions properly instead of being allow to peddle thier rose tinted view of the world...

orc_2

natweststaffmember wrote: »

have removed instruction given to counsel but have left the opinion in full below. Removal was asked and I have done so.

Can I ask why the instruction was removed please.

The instructions are important. The instructions help to validate the opinion.

You will recollect discussion on this, here or elsewhere- perhaps on LB, re consumer credit act etc. You will also recollect that the opinion did not exactly follow instruction and that opinion did not answer fully certain parts of the instruction. Is that why its been deleted?

Alpine_Star

It was posted in error and was not the final instruction but the first of several drafts. It was written by junior counsel and therefore is not for publication by any third party and does not form part of the opinion.

natweststaffmember

orc wrote: »

Can I ask why the instruction was removed please.
Because I was asked to and as permission was granted, those who gave it have the right to ask for bits to be removed which Alpine Star does explain below.
The instructions are important. The instructions help to validate the opinion.

You will recollect discussion on this, here or elsewhere- perhaps on LB, re consumer credit act etc. You will also recollect that the opinion did not exactly follow instruction and that opinion did not answer fully certain parts of the instruction. Is that why its been deleted?

Let me put it this way Orc, there are certain aspects to the Legal opinion given to Legal beagles that I would love to know but Orc, you know how to email site admin there and so I would suggest you do so and they can respond to you on that aspect which I believe was not asked of legal counsel but it would only have covered post 2006/07 charges and therefore may not have been of relevance to those claims already stayed in the court system which would, in all likelihood, have not furthered their specific claims.

orc_2

Alpine- thanks for your reply, I understand your decision.

Nattie, thanks also.