Important - full Legal Opinion and update on LB's position on bank charge reclaims

[EXC]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

No, the original instruction to Scrivener.

AFAIA Govan isn't Glasgow but provincial to it. I wouldn't pin too much hope on his case next month.

[natweststaffmember]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

I appear to have posted further information that is not already published on LB in error, but the instructions quoted is something I have which clearly states that he was asked for the above opinion on. LB have published the Opinion and notes and on other forums I have published the bit beforehand so, can we clarify what exactly Anthony Scrivener QC was asked since the preamble to the opinion did ask about CCA argument which would only cover charges post 2006 but if it wasn't asked then can we have the reasoning behind it

EDIT: please see post 42

EDIT 2: this is what I have posted on MSE which included the preamble:
Legal Opinion in full on post Supreme Court reclaiming given to Legal beagles - MoneySavingExpert.com Forums
Please see point 22 of that preamble.

[orc]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

I take it, we don't know if Mike Daily at GLC has had access to any of this information.

[Tools]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Mike has been sent a copy. His case rests mainly on the CCA aspects as far as I am aware.

[orc]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Thank you Tools.

Just so folk that are not up to speed on this are aware, here is a copy of a post by GLC, Mike Dailey, posted on CAG. This case might be the last throw of the dice, particularly on historic charges.

Whilst completely accepting that hopes should not be built up, we should be aware that there is the possibility, however slight, of something positive coming from this.




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

[ed.]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

But that's S140 which doesn't apply to charges pre enaction so it won't sort historics as by what we've seen of their argument so far, the only argument applicable to pre 2007 charges still falls under UTCCR.

I still think there's recourse under the CCA for historics (not S140) but there are two clear camps on that.

It's also a misnomber because until we knew of Oceano et al we didn't know the burden of proof was on the creditor to prove fairness either, that's not unique to the CCA.

[Amethyst]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

burden of proof is to prove its not unfair rather than prove its fair (small difference I know lol)

[ed.]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

That'll teach me to proof read! Quite correct, I'm off to punish myself lol

I do think a fair bit might hinge on how technical a point 'prove it's not unfair' 'prove it's fair' actually. Define fair is the route I can see it going, but that does bring us back to the point it's individual circs and can't be generalised across a customer base anymore.

[orc]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

That'll teach me to proof read! Quite correct, I'm off to punish myself lol

No need for that, slip ups are something we all do!

I do think a fair bit might hinge on how technical a point 'prove it's not unfair' 'prove it's fair' actually. Define fair is the route I can see it going, but that does bring us back to the point it's individual circs and can't be generalised across a customer base anymore.

Lets see what happens on 11 June in Glasgow. Its not that far away now.

[Amethyst]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

think he's glad of the excuse

[orc]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

think he's glad of the excuse

Well, I don't need an excuse as its really sunny here and hopefully summer has started at long last.

So enjoy the day folks and have one on me!!

[ed.]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Ame you promised you'd never tell! lol

I'm not convinced it'll be the breakthrough we all want Orc BUT I'm pretty confident they'll be plenty we can learn from it that will help us in the long run. I'll certainly be paying attention!

Hmmmmmm ice cream!

[orc]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Ame you promised you'd never tell! lol

I'm not convinced it'll be the breakthrough we all want Orc BUT I'm pretty confident they'll be plenty we can learn from it that will help us in the long run. I'll certainly be paying attention!

Hmmmmmm ice cream!

Hi ED

I have not said it is a breakthrough, but, I admit the campaign needs it to be successful and I would clearly wish it to be so, as do we all.

Part of me still remains an optimist, tempered with realism through lives various experiences. There will be things to be learnt which may help in an indirect way.

Glad you enjoyed the ice cream!

[Amethyst]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Test

[strangewayofsavin]

Re: Important - full Legal Opinion and update on LB's position on bank charge reclaim

Did putting our eggs in one basket i.e the oft, almost streamline the arguement.
Before we had the either it was common law, or it was so say illegal profits, by putting it in the hands of the toothless tiger, they only had one course of action to make it so say stick?
Should one continued the clogging of the judicial system, or should one look for a final arguement, when most of us took the arguement for beyond ones understanding.
should we looked more into Eu cartel laws?
should we have stuck to one part of the arguement, and when they denied it, said they was guilty of the second part?
The choice is never made by us meer mortals (the pawns), but them who knows best, the bishops, knights, queens etc, those who think they now best, rather than those who know best.
the choice used to be ours