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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 Legal Beagles 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.
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