Transcripts from Appeals Hearing

[EXC]

Re: Transcripts from Appeals Hearing

I am working my way through and will post up bits and pieces to refer to at later date.

Am currently reading Crow's response and find this bit fascinating.

THE MASTER OF THE ROLLS: Which regulation is it that says
you have regard to the price or whatever it is?

LORD JUSTICE LLOYD: I think it's more a question of which
doesn't, or which says you mustn't, isn't it?

MR CROW: I'm sorry, it's the nineteenth recital,
I apologise, it's not in Regulation 6. The nineteenth
recital in the directive:
"Whereas for the purposes of this directive,
assessment of unfair character shall not be made of
terms which describe the main subject matter of the
contract, nor the quality/price ratio of goods or
services supplied, whereas the main subject matter of
the contract and the price/quality ratio may
nevertheless be taken into account in assessing the
fairness of other terms."

LORD JUSTICE WALLER: Other terms?

MR CROW: Yes. We entirely accept, my Lord, that if the
banks win, then the assessment of adequacy of the
relevant charges is not something that we can conduct,
but we will say that the level of charges is something
that can be taken into account.

THE MASTER OF THE ROLLS: Is that recital reflected either
in the substance of the directive or indeed of the --

MR CROW: I don't think it's in Article 4(2) at all. My
Lord, no, we've got effectively a copy-out. So
Article 4(2) is now very much what we find in
Regulation 6(2), and it isn't reflected in the
legislation in the regulations. But the regulations, as
you know, have to be interpreted in the light of the
directive which they implement.

I think this is basically saying that irrespective of the result of the appeal the OFT would still have the authority to assess the "level" of the charges anyway with regards to their fairness or unfairness.

If this is the case the why the f*ck are we all sitting here waiting at the whim of the Banks to play out this theatre in the High Court. I suppose the OFT feel that protocol must be observed. But if the OFT feel that they have a qulaified right to assess the actual "level" of charges then in my view, one way or another we are definitely going to achieve a victory.

Budgie

I put this one to Tom:


I've been mulling this one over the weekend, and I still don't know the answer.

It's an interesting point that the wording of the nineteenth recital has not made it into the Regulations themselves, and I'm not entirely sure what weight is to be given to the wording of any recital that is not reflected in the Regulations. However, Mr Crow is right when he says that "the regulations, as you know, have to be interpreted in the light of the directive which they implement."
The real question is what is Mr Crow referring to when he says "level of charges" as opposed to the adequacy. He can't simply be talking about the price, i.e. £38 or whatever, as that is surely the adequacy of the relevant charges. Perhaps he is referring to the number of times such charges are imposed, i.e. the initial charge, the monthly charge and the higher level of interest. It could be that only one of these three different charges relates to the price/quality ratio, and that the amount of that charge can be taken into account when considering the fairness of the other two charges.

I'll be honest: it's hard to be sure what Mr Crow is referring to without having been party to any conversations or pleadings that he has drafted. But it appears that even if unsuccessful on the central issue, the OFT may still be pursuing ancilliary matters relating to the number of times and frequency of such charges. We will have to wait and see.

Sorry I can't be more helpful than that!

[Budgie]

Re: Transcripts from Appeals Hearing

Thanks Exc and TB.

I think this is a very very interesting exchange.

I haven't reading through the transcripts yet but this is certainly the most interesting thing I have seen so far.

Basically irrespective of what happens in the test case it means that there is a door left open for Consumers to raise an alternative "course of action" and definitely something that should / could be explored with any future group litigation.

Budgie

[stax68]

Re: Transcripts from Appeals Hearing

A pesky little cavil about the transcription: at day 3, p158, l20, Crow is recorded as saying 'unacceptable' when I think he must have said (or at least meant to say) 'unexceptionable'.

Not a particularly auspicious first post on my part I'm afraid (I am a CAGer lured by you Beagles' irresistable offer of transcripts). Still I thought I may as well point it out to anyone else reading them as it had me puzzled at first and I had to reread it a couple of times to be shure.

Anyway, while I am posting, hello all from a short-haired Jack Russell owner (excuse ambiguity) whose T&Cs, unbeknownst as yet to HSBC, haven't changed since the account opened in 1996, since the variation clause they contain was clearly unfair under the 94 UTCCRs (1 month's notice in branches OR national press OR by letter as they see fit; no reasons, no nothing.)

[natweststaffmember]

Re: Transcripts from Appeals Hearing

A warm Welcome stax to Legal beagles. I think we are all former CAGGERS. The aliases I have are Nattie and Yourbank. A good spot on your part. You do know that we must have that allure of sexy manuscripts to paraphrase the Martin Lewis MSE bank charges song Welcome

[EXC]

Re: Transcripts from Appeals Hearing

A pesky little cavil about the transcription: at day 3, p158, l20, Crow is recorded as saying 'unacceptable' when I think he must have said (or at least meant to say) 'unexceptionable'..)

I don't think these mistakes are too infrequent, particularly when whoever is speaking talks as quickly Jonathon Crow does.

There is enormous pressure on the stenographer as her machine is hooked up to the laptops of every participant in the courtroom and the text appears on their screens seconds after it's spoken.

The proceedings are recorded and used to settle objections to inaccuracies in the written transcripts. I supposed this one slipped through the net.

[stax68]

Re: Transcripts from Appeals Hearing

Ta for the welcome

EXC: the mistakes in the appeal transcripts are on the contrary very rare I found. There were a couple of others which didn't cause any misunderstanding, both occuring shortly after the one I flagged up. I haven't checked but perhaps the poor old stenogs didn't get their short break that day, or maybe Crow is a bit of a mumbler (relative to the mellifluous enunciation of yer average senior counsel of course).

I'm on day 4 and for what it's worth I get the impression that [LJ Waller] is broadly in sympathy with us, while the [Master of the Rolls] is inclined to side with the hard-nosedly commercial black-letter approach of the banks - except for the baffling stuff about subsidiary contracts that - I think - the Nationwide went into

In my humble opinion I think the OFT missed a few tricks - firstly in addressing the very recently overhauled current terms first rather than starting from those which are the subject of the vast majority of charges at issue. More substantively, they should have concentrated a bit more on the default aspect of unauthorised ODs - I haven;t read teh 1st instance transcripts yet but they appear from the judgement to have conceded rather readily that 'going over the OD limit' can't be a breach because it requires the cooperation of the banks (though not always a free choice, e.g. guaranteed cheques and offline Switch transactions). If necessary I'll certainly be arguing that.

Thirdly they could still have pressed the default point more since in the context of the UTCCRs the payment doesn't need to be quite so closely coupled with default - i.e. if it were accepted that attempting to go over the limit is a breach, then that would set up the circs in which charges arise as being atypical, non-standard and far closer to the FNB case.

In my case, HSBC terms in 96 stated on their face that the charges were 'to cover the admin involved' so that opens a whole different can of worms - which might involve not just restitution but also misrepresentation (civil fraud), breach of contract, breach of fid duty...

While waffling, I'd add that Crow didn't seem to do too well in dispelling the memorable effects of Rabinowitz's colourful but flawed analogies about 'buy one get one free' etc. I also reckon C should have taken the chance to do some meaty conceptual stuff about R's very confused points in relation to the whole bargain argument about the price consisting of a (conditional) promise to pay. Surely, Crow should have said, we must distinguish between a price and the purported obligation to pay a price. Rab got into a bit of trouble there and had to correct himself soemwhat, which if I remember right Waller latched onto a bit. Crow should I think have gone into that becuase I'm not sure he will succeed if he lets the banks frame the issue as a contest between a hard-headed English application of logic and semantics on the one hand, and a Continental-style exercise in hand-waving on the other.

On another point for anyone still reading, can anyone explain the legal interest the OFT invokes in bringing this suit (locus standi)? I assume that since there is no customer involved, it must relate to their power to seek injunctions, but it's none too clear to me, esp since the thing is presented as a test case relating to the stayed claims. I should probably put this in another thread I suppose.

[EXC]

Re: Transcripts from Appeals Hearing

I'm on day 4 and for what it's worth I get the impression that 'Fats' Waller is broadly in sympathy with us, while the Cheese 'n' Pickle-Meister is inclined to side with the hard-nosedly commercial black-letter approach of the banks - except for the baffling stuff about subsidiary contracts that - I think - the Nationwide went into

.

You'll find that on this forum we treat senior High Court judges, and in fact anyone who is infinately more worthy than ourselves, with a little more respect.

[stax68]

Re: Transcripts from Appeals Hearing

Sorry, in a bit of a jocular mood. I'm sure they don't mind what is written by the likes of me. No offence meant.