OFT v Bank Court Case updates

Edinburghlass_2

You can read our own MSE Wendy's view from the test case here...

http://blog.moneysavingexpert.com/2008/01/29/the-bank-charges-court-case%e2%80%a6-what%e2%80%99s-it-really-like/

a11waysindebt

Latest update.

http://news.bbc.co.uk/1/hi/business/7214814.stm

sparky0107

Morning all,
Here is a link to the latest update on the ongoing "Test Case", which Wendy from MSE has sat through

http://blog.moneysavingexpert.com/2008/01/29/the-bank-charges-court-case%e2%80%a6-what%e2%80%99s-it-really-like/

a11waysindebt

Thats martins blog.

http://news.bbc.co.uk/1/hi/business/7218582.stm

Mackem1053

Just read this.. great news if true

http://news.bbc.co.uk/1/hi/business/7229085.stm

Nathan_Spleen

The hearing wasn't sitting today but will finish tomorrow.

Full transcripts of the hearing will be available through Merril Legal Solutions in either hard copy or PDF format.

orc_2

This part of the case has now concluded.

The Judge will now consider his decision. There will be a heavy emphasis on historical termas and conditions of the contract. That sounds like good news!!

This link gives and update from the BBC posted by them at 13.41.

http://news.bbc.co.uk/1/hi/business/7234824.stm

The decision on historic terms is likely to be in about a months time, once his mind is made up. There is also concern about a possible leak as to what the decision is when it is released. The banks are concerned about this also. This is for two possible reasons-

• To alert the legal system to the decision, who would face a mass of enquiries re claims that are stayed/ sisted
• To inform the banks, most likely on a Friday, so that they can prepare for a deluge of claim enquiries.

Remember, it's not over, until the fat lady sings!
Although I thought I heard a thin lady humming outside the court!!!:rotfl:

orc_2

This article raises some interesting points. Based on his attendance at the Test Case.

Not straightforward??

http://news.bbc.co.uk/1/hi/business/7233581.stm

Nathan_Spleen

The author kindly requests that If you would like to re-post this account of the test case elsewhere, please ask me first.

Reproduced with the kind permission of Legalbeagles.info

The Scene

The Retirement room had 25 chairs in rows of 5 facing two large flat screen TV’s. It was difficult to say who the other attendees were or what interest they had in the case. Although it was apparent that one was from the Daily Mirror, a lady from A&L.s solicitors and a presenter from Channel 4 News. None of the others seemed to be either from the media or campaign groups.

A court attendant explained the basic procedure and hovered around reminding everyone, countless times, to switch off there mobiles. During the. half hour wait for the show to start there were scenes of lawyers settling into there places in the courtroom. Some were having animated discussions but unfortunately the sound was switched off until the proceedings began. Shame.

The left hand screen was focused on Judge Andrew Smith and the right on the banks legal teams. The courtroom was laid out in rows of tables almost like a school room and the walls were dominated by shelves from floor to ceiling neatly stacked with arch files containing the acres of court bundles. How on earth the judge read it all in two days I’ll never know. the hearing was located next door but one from our feed room.

The Cast

Judge Andrew Smith bore a fair resemblance to snooker player Dennis Taylor without the glasses. He, on occasion, had a mild stutter. The banks legal teams of which there were 6 per bank comprised of a fair amount of women. Most sat in front of laptops. The opening submission was made by the QC for RBS and next to him sat Nat West’s QC Ben Pilling, a man with rodent like features and a reputation to match. He represented Nat West against both Stephen Hone and Tom Brennan and was described by a certain barrister in the feed room as ‘’smarmy’’.

It's Showtime

At 10.30 sharp the court clerk said ‘’rise’ and everyone stood briefly, bowed, and sat down. The judge started with an apology to all present for the day’s delay to the start of the case, due to the jury still sitting on his criminal trial in Chester involving 3 ‘’youngsters’’. and went on to apologise in advance for having to return sometime in the next 10 days for sentencing.

The RBS QC then stood directly in front of the judge, behind two boxes to begin his submission

Queens Counsel for the Royal Bank of Scotland Laurence Rabinowitz began by setting out the background to the case. He talked of ‘’the torrent of claims’’ that banks had faced and ‘’the deluge’’ on the Financial Ombudsman Service.

He said that the issues of the relevance of UTTCR and Common Law need to be settled and it was appropriate for the Office of Fair Trading was involved. However he was less certain about the OFT’s views on their findings in the April 2006 investigation into credit card default charges that there was cross-over to current accounts. These he described as ‘’ill judged comments’’. The judge interrupted, ‘’this doesn’t affect the case’’. The QC paused briefly and continued. ‘’a hornet’s nest has been stirred’’.

Rabinowtz turned to his submission telling the judge that none of the witnesses who had given statements to the banks case would be cross examined. There was then an interruption from a distant bank’s QC, Milligan, who complained of ‘’the amplification not working’’ and not being able to hear the judge’s microphone. ‘’I believe Mr Milligan is having trouble with me’’ the judge said. ‘’perhaps the beginning of a stream?’’. Although said tongue in cheek it must have sent a little bit of a shudder down the QC’s back.

During the next part of his submission the QC recommended to the judge that the volume of historical terms & conditions was such that for the judge to consider all of them in detail would be impossible and asked him to focus on the key aspects of them. He said that the OFT would concentrate on current T&C’s and it was for the FSA to look at the historical ones. Rabinowitz out-lined the ‘’constructive issues’’ of the UTCCR, relating to 62b which the OFT believe do not form part of the contract.


The issue of the T&C’s being in ‘’plain intelligible language’’ was raised and became the most interesting exchange so far. After harping on about the balance that was needed to be struck between plain intelligible language and concise wording the judge intervened with the OFT’s view that far from being in plain intelligible language, they were ‘’in no language at all’’.Justice Smith went on to give an example: If aspects of T&C’s are subsequently defined in a leaflet then the T&C’s are in no language at all. Therefore ‘’the question needs to be asked, does a term need to be made clear that it is in fact a term?’’. It was clear he thought it does.This was significant in that the judge was clearly on the OFT’s side on this point and it prompted wry smiles and nods of approval from Stephen and Tom.


The QC went through 2 cases that supported the bank’s case - one involving First National Bank and the other Easy Car Hire. The rest of the session was taken up with quite tedious stuff about EU directives and there application.


The quality of the legal arguments of his case aside, there’s no doubt that the RBS QC gave a very polished performance. Throughout the 5 hours he was putting his case he rarely looked at his notes and never faltered in his delivery. Like him or loathe him, it was seriously slick stuff.

Tit bits

The attendant to our feed room wore a school teacher like black robe and came across as a headmaster. On occasion there was an interference to the sound of the feed and he would stroll around suspiciously in the hunt for someone’s switched on mobile. Matters weren’t helped when half way through the morning Tom Brennan’s phone rang and instantly realising the gravity of his fax pas he made a calculated judgement call not to risk fumbling around for his phone and he made an undignified sprint for the door Honestly, these bloody legal types eh?


In the gents which were located next to the hearing room I spotted 2 emptyminiture bottles of vodka stashed in a a paper towel holder. Interesting.


The judge was neither robed or wigged and wore a suit and tie.


The transcriber in the hearing halted the proceedings when her machine broke and the judge called for patience until it was dealt with, ‘’we must have a transcript’’.

During day one it emerged that the judge and the OFT did not have copies of a section of RBS’s court bundle. Naughty.

Nathan_Spleen

The author kindly requests that If you would like to re-post this account of the test case elsewhere, please ask me first.

Reproduced with the kind permission of Legalbeagles.info

Day 2

At close of play yesterday the judge had ordered an 11 o’clock start for today, half an hour later than yesterday. And this was confirmed again when I picked up a pass at 8.00 this morning. But on returning to the venue at 10.40 I was surprised to find the hearing was already well underway.


After a while it became apparent that the bank's had made an overnight representation to the judge about several issues they weren’t happy with and the entire morning session was devoted to discussing them. From what I could understand after missing the start, there were basically 2 issues. the first being the status and significance of historical T&C’s in the case which I’ll return to in a bit.


The second was a criticism of the way the judge was ‘’speaking his mind’’ when dealing with the bank's submission and this seems to relate to the format of the hearing in which the banks set their case out first. Like others I’d always assumed that as the defendants in the case the banks would go last but as Tom explained yesterday, as the OFT have long stated that UTTCR applies to the T&C’s, the onus is on the banks to effectively challenge the view of their regulator. And this appears to give the OFT 2 advantages: the first that they get to hear the banks case first and can respond accordingly but secondly the OFT can see in what areas the judge feels the banks case is week through his questioning and the OFT can then focus their attack on those issues. Hence Rabinowitz is keen for the judge not to reveal his views on the bank’s case.


The judge told him ‘I want you to object if you think the issues I’m raising are adversarial’’. but the RBS QC declined the invitation. Rabinowitz suggested that a solution would be for the OFT’s QC Brian doctor to give a summary of his submission before the other 7 banks set out their case. But Justice Smith is yet to make up his mind on this.


The judge then asked each bank’s lead QC to summarise their views on these issues and it was during this time that one QC raised the issue of the current County Court stays of which the judge said ‘’I need to decide at the end of this case what recommendation to make on the issue of stays to the County Court.'' The QC replied ‘’but after any appeal’’, to which the judge simply said ‘’no’’. The Nationwide QC responded ‘’ We would need clarification of your recommendation of stays’’


This is a clear indication that if the hearing goes the OFT’s way, the judge will recommend the County Court lift stays. Bingo!


This would follow Tom’s view that even if a subsequent appeal was lodged, a favourable judgement would be enough to get the stays lifted as ‘’a judgement is a judgement’’ until it is successfully appealed. Returning to the subject of historical T&C’s, this took up the rest of the morning.. I must confess I really don’t understand this issue and it’s significance for the banks and for this case so I’ll leave it to someone else to explain but this is what was what was discussed:


The judge said he wants to ‘’establish the principals of current T&C’s and apply those principals to historical terms and conditions‘’. The OFT’s QC who spoke for the first time in the hearing said that ''for the purposes of this hearing, the OFT’s main interest is current T&C’s''. And the bank’s seem to be keen to introduce as many historical T&C’s into the equation as the judge would allow. The judge eventually decided that the banks should choose one historical set per bank. after it seemed that neither party or the judge was keen to make the selection


If anyone can shed any light on all this, answers on a postcard please….


After a quick sandwich lunch with TUTTSI in the plush and well lit bunker, Rabinowitz resumed his setting out from yesterday and the contentious issue of plain intelligible language in T&Cs. After a while the judge again raised the subject of leaflets and their status in contractual terms. ’’Are leaflets enough to enjoy exemption? (from UTCCR)’’. The judge had earlier asked Brian Doctor for the OFT his stance on leaflets that appear to alter the contractual terms. ‘’Leaflets change nothing'' he said, ''They do not enable you to know why the charges are made’’.


The rest of the afternoon was really heavy going with the judge and Rabinowitz debating very complicated and fine points of what constitutes the core terms in contracts and therefore whether they apply to UTCCR.


Rabinowitz is still to complete his Bank’s submission. At the end of the hearing the judge commented that the case is now ‘’obviously behind schedule’’. And to make matters worse he said, (for reasons I don’t know,) that as things stand, the court won’t be sitting for the next two Friday’s and that the sentencing for his previous case will require him to miss another day ‘’probably during the week of the 28th’’. Needless to say it was the 28th that was scheduled to be the final day and there’s precious little chance of that.


The judge has scheduled an earlier start on Monday of 9.30.