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Disabled pensioner loses bank charges challenge
15 April 2009
A disabled pensioner from Sussex, threatened with eviction by his mortgage company, has lost a High Court claim against HSBC to try and recover more than £6,000 in bank charges.
Howard Rutherford’s claim is one of thousands brought against the major high street banks in the county courts, the vast majority of which have been stayed pending the hearing of test cases by the House of Lords later this year.
Sir Anthony Clarke, Master of the Rolls, advised county courts last month to keep cases on hold in the meantime.
Giving judgment in Rutherford v HSBC [2009] EWHC 733 (QB), Mr Justice Blair said the law lords had accepted the banks’ petition for leave to appeal and would hear the test cases in July, at the earliest.
He said Mr Rutherford, who is retired and registered for disability benefit, was due to be evicted the day after the High Court hearing.
Blair J said Mr Rutherford’s bank charges had increased from £27.50 in March 2001 to £3,226 by August 2007. He said the pensioner’s claim was for £3,226 plus interest, which came to £6,110.
At Brighton county court, Judge Simpkiss refused to lift the stay on Mr Rutherford’s claim but insisted that HSBC agree to cease pressing for repayment of his overdraft.
HBSC argued that it offered to settle the claim for £2,378, without admission of liability, in September 2007, but the offer was rejected.
“There is now clear evidence that Mr Rutherford imminently risks losing his home,” Mr Justice Blair said.
“I would certainly accept that this is a case of financial hardship and would expect that this fact will from now on condition HSBC’s response to his claim, including full compliance with the FSA Direction in that regard.”
Blair J accepted the defendant’s argument that this was a case management decision and as a result should not be overturned unless the judge had made a serious error.
He relied on Lord Justice Potter’s comments in Powell v Pallisers of Hereford [2002] EWCA Civ 959 that case management decisions should not be interfered with unless “it can be clearly demonstrated that the overriding objective will not be observed or maintained if the decision is permitted to stand.”
Mr Justice Blair said that the Master of the Rolls had given guidance to the county courts to stay the bank charges cases “so that many thousands of cases (including Mr Rutherford’s) can be dealt with in an orderly manner.”
He went on: “The judge’s decision was a discretionary one, and in my view he fairly balanced the various factors in the scale, including the hardship being experienced by Mr Rutherford, and it is not open to this court to substitute its own decision.”
He dismissed Mr Rutherford’s appeal.
A spokesman for HSBC commented afterwards: “The judge said he believes Mr Rutherford is in financial hardship.
“We are getting back in touch with him to assess his situation, which will involve a review of his financial circumstances, looking at his income and outgoings and agreeing whether he can meet his essential expenses.
“If he cannot and is in financial hardship, we will most likely refund part or all of the overdraft charges.”
The Bar Pro Bono Unit represented Mr Rutherford but a spokeswoman said she could not comment on individual cases.
Disabled pensioner loses bank charges challenge
15 April 2009
A disabled pensioner from Sussex, threatened with eviction by his mortgage company, has lost a High Court claim against HSBC to try and recover more than £6,000 in bank charges.
Howard Rutherford’s claim is one of thousands brought against the major high street banks in the county courts, the vast majority of which have been stayed pending the hearing of test cases by the House of Lords later this year.
Sir Anthony Clarke, Master of the Rolls, advised county courts last month to keep cases on hold in the meantime.
Giving judgment in Rutherford v HSBC [2009] EWHC 733 (QB), Mr Justice Blair said the law lords had accepted the banks’ petition for leave to appeal and would hear the test cases in July, at the earliest.
He said Mr Rutherford, who is retired and registered for disability benefit, was due to be evicted the day after the High Court hearing.
Blair J said Mr Rutherford’s bank charges had increased from £27.50 in March 2001 to £3,226 by August 2007. He said the pensioner’s claim was for £3,226 plus interest, which came to £6,110.
At Brighton county court, Judge Simpkiss refused to lift the stay on Mr Rutherford’s claim but insisted that HSBC agree to cease pressing for repayment of his overdraft.
HBSC argued that it offered to settle the claim for £2,378, without admission of liability, in September 2007, but the offer was rejected.
“There is now clear evidence that Mr Rutherford imminently risks losing his home,” Mr Justice Blair said.
“I would certainly accept that this is a case of financial hardship and would expect that this fact will from now on condition HSBC’s response to his claim, including full compliance with the FSA Direction in that regard.”
Blair J accepted the defendant’s argument that this was a case management decision and as a result should not be overturned unless the judge had made a serious error.
He relied on Lord Justice Potter’s comments in Powell v Pallisers of Hereford [2002] EWCA Civ 959 that case management decisions should not be interfered with unless “it can be clearly demonstrated that the overriding objective will not be observed or maintained if the decision is permitted to stand.”
Mr Justice Blair said that the Master of the Rolls had given guidance to the county courts to stay the bank charges cases “so that many thousands of cases (including Mr Rutherford’s) can be dealt with in an orderly manner.”
He went on: “The judge’s decision was a discretionary one, and in my view he fairly balanced the various factors in the scale, including the hardship being experienced by Mr Rutherford, and it is not open to this court to substitute its own decision.”
He dismissed Mr Rutherford’s appeal.
A spokesman for HSBC commented afterwards: “The judge said he believes Mr Rutherford is in financial hardship.
“We are getting back in touch with him to assess his situation, which will involve a review of his financial circumstances, looking at his income and outgoings and agreeing whether he can meet his essential expenses.
“If he cannot and is in financial hardship, we will most likely refund part or all of the overdraft charges.”
The Bar Pro Bono Unit represented Mr Rutherford but a spokeswoman said she could not comment on individual cases.
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