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Day 5
Before continuing Barclays submission, QC Milligan wanted to give a correction to the judge on the ‘’muddled response’’ he gave yesterday as to how he believes ‘’the common law kills penalties’’.
Although his correction was difficult to understand through the legal jargon he seemed to be saying that the consumer was the only side to benefit from any protection against penalties in common law and the benefit was not reciprocal, regulation was a better test.
He gave his reasons that ‘’the law was inconsistent with penalties’’. The circumstances of penalties and unfairness were different. A high penalty charge was not necessarily more than a pre-estimate of cost. A penalty depends on a pre-estimate of cost - not actual loss and he quoted from Johnson & Johnson in the Court of Appeal.
The subject then turned again to current and historical T&Cs. Milligan restated the banks requirement for a declaration on both that they are ‘’struck down under common law’’. He said they needed both ‘’for the purposes of County Court litigation’’.
The judge voiced some displeasure at continually being asked to address an issue not in the agreement on the case and the extra time needed for it. ‘’This hearing has stretched from 2 to 5 weeks.’’ and criticised the banks for not accounting for this in their original 2 week estimation. He said that although he is yet to make a decision, ‘’it’s not likely I’ll make a declaration on historical T&Cs at this hearing.
Milligan ended his submission by referring to a comment made by the judge yesterday on the ‘seven deadly sins’ that the judge joked ‘’and no doubt the first one is greed’’. Milligan thought this ‘’unhelpful’’ and could imply that ‘’our charges are too high’’. The judge didn't seem that bothered.
Next up was young QC Snowden for HSBC. He started with the analogy of a new car one orders and chooses extras such as air conditioning. But as you can’t have the air conditioning without the car, the air conditioning is therefore a core part of the contract.
Snowden took the judge through the HSBC terms and conditions and the judge asked about under 18s not being charged for unauthorised overdrafts. ‘’Do you consider and not charge him for not granting it? What about a joint account if only one of them is under 18?’’ Snowdon was stumped and asked the judge if he could consult his clients and respond tomorrow.
Like Milligan Snowden stated that everything in the T&C’s are contractual. The judge quoted from HSBC’s terms and conditions, ‘’what is this ‘fair fees policy? Is it fluff and spin or is it contractual?’’ ‘’It’s a policy statement’’ the QC replied.
The judge pointed out the use of ‘overdraft’ and ‘item charge’ which appeared to refer to the same thing. ‘’Your terms and conditions refer to overdraft but your price list refers to item charge. If your current balance is £25 and you make a payment for £30 you could say that your overdraft requirement is £5 bringing you under your £10 threshold but as an item charge the overdraft is more than you need. Is this unambiguous?’’ Snowdon simply said ‘’no, the price list makes this clear.
Other than that the submission was a repetition of both Barclays and RBS.
At the end of day 5 Justice Smith is now very concerned by the overruns to the schedule. He is now insisting that Snowdon has 15 minutes to finish his submission in the morning and that Nationwide complete theirs by lunchtime followed by Abbey in the afternoon.
It’s almost certain the hearing won’t sit for this and next Friday. Kick off tomorrow is at 10.30.
Feed rooms
Although access to the 50 seat feed room at the Royal Courts of Justice is now a reality - I checked - It hasn’t made too much difference to the attendance figures which reached the dizzy heights of one today albeit for 20 minutes. As the IDRC room only attracted 6 they are considering closing the IDRC room and keeping the RCoJ.
Unlike IDRC no pass is required, the trade off being you have to use the main entrance and wade through the media scrum for the Diana inquest and go through airport like security.
Transcripts
Transcripts of the hearing will be made available through Merril Legal Solutions 15 days after the last day of the hearing. I have ordered up a set in PDF and will post them up.
Bleeding Lawyers
In the middle of QC Snowdon’s submission this afternoon the HSBC lawyer began bleeding from his neck and asked the judge for a 5 minute adjournment while he left the room to apply a band aid, explaining that due to a recent operation he was on blood thinning medication causing him to bleed spontaneously.
No sooner was he back and a junior Clydesdale QC passed out and hit the deck. This caused a further half hour delay even though the sparko lawyer took no part in the rest of the proceedings.
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