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Day 8
QC for the OFT Brian Doctor, a big man with a strong voice began setting out his case. He started out by saying the OFT’s uncompleted investigation into overdraft charges and the whole retail banking market was it’s duty in response to the ‘’numerous complaints it had received’’ and that the test case would provide them with the power to exercise an injunction.
‘’What the OFT is not doing’’ he said ‘’is gratuitously interfering with the banks’’. He gave an example of a typical OFT investigation they would undertake such as the one in to care homes where contracts were signed and later amended by customers who by their very nature would be vulnerable to unfair terms and that agreement with the industry was ‘’reached by negotiation’’. ‘’But this case is different’’ because of the current litigation, banks ‘’brought the case to deliver a knockout blow by an exemption to regulation 62 and stop county court litigation‘’ which was ‘’a tall order. ‘’Banks blame the flurry of activity in the county courts on the OFT’s credit card statement that implied a read-over to current accounts but the claims started before that’’.
Half the banks, he said, have introduced new contracts since the investigation began for regulatory reasons and Ali Malek for Abbey has conceded that. But the judge remarked that ‘’history doesn’t bare on my decision’’.
Doctor then said that the ‘’flood of claims’’ was a result of the banks refunding charges ‘’in enormous amounts’’. He cited the BBC’s table of total refunds made by each bank and the vast majority were not a result of a judgement. ‘’If you are looking for a reason….’ the judge stopped him. ‘’This is not relevant to the case. What can I do?’’
The QC spoke of the ‘’colourful array of analogies’’ the banks used to support their case. ‘’They are not analogies. No one has come up with an example that resembles this one’’. And that their ‘’charging structure is highly unusual’’.
He set out the principal areas his case will cover:
Banking law background.
The facts.
Applying the law to the facts.
Good faith.
Penalties.
(PIL is, at present ‘’parked’’)
On banking law he referred to the ‘’Banking Law Encyclopaedia’’ which defined the customer and the bank as ‘’principal and agent’’ and that the agency relationship was important to recognise and must not be overlooked. ‘’All services except debit services are agency functions but have been dressed up as services by the banks’’.
On the bank’s ‘consideration’ to identify if enough funds are available to meet a payment, the judge asked him ‘’are you saying banks are obliged to consider if enough funds are available?’’. Doctors reply was that ‘’it is in the banks interest to consider this and that they must do as they are obliged to return unpaid cheques’’.
He went on to say that essentially the case was about the interpretation of European Law and how the regulations constructed from it are principally for consumer protection.
At one point Doctor was dealing with the difference between a standard non negotiable contract and a negotiable one. He used the odd example of shopping at Marks & Spencer as a negotiable contract which the judge dealt with rather amusingly.
During the lunch break over a pie with Tom and Vortex we all shared a little unease with Brian Doctor’s delivery which was notably less polished and more untidy than the smooth flowing performances of the bank’s Qcs . Tom’s view was that performance would only come into play if the legal arguments were close fought but in the main it was the strength of your legal case. I asked him if Doctor was, in ranking, on par with the banks legal ‘dream team’. Somewhat unnervingly he said that ‘’In legal terms, he’s a budget QC’’.
I remember on the announcement of the test case in July, Bob Egerton saying ‘’I hope the OFT are serious about this and don’t put up their trainee solicitor’’. These words have always haunted me and judging by what was to follow in the afternoon you could be forgiven for thinking he was right. Things started to go seriously pear shaped.
Continuing his submission with the case histories of First National Bank and Barstow Eves Doctor began to lose what was already an unsteady rhythm. Their were lots of ums an ahhs punctuated with silent pauses. On referring the judge to particular sections of the bundle he repeatedly misquoted the reference numbers, which clearly distracted the judge.
On at least 2 occasions he’d be half way through reading a case judgement before informing the judge he was looking at the wrong extract.. His sequencing fell apart making it difficult for the judge to understand his points.
Things weren’t helped by the Qcs legal team who unlike the banks teams who made sure the right file was in front of their QC at the right time,. but in Doctors case his team seemed to wait until he went to a particular subject before they would begin looking for the right file causing cringing gaps in his delivery while they rummaged around in piles of files and handing him hurriedly written post it notes. The judge told him to ‘’focus’’.
At one point an ashen faced Tom whispered ‘’I don’t think I can sit through any more of this’’. And within 15 minutes he’d left. I'm not going to lie to you. It was truly awful. At one point I looked at the woman sitting next to me and her head was in her hands.
I never got the chance to get Tom’s post mortem on this unexpected episode of Mr Bean but Vortex put it down to lunch. I’m inclined to think it was simply bad preparation and nerves.
To his credit, after the 10 minute afternoon break he made a marked improvement and regained his composure. He ended well by again making reference to the ‘’array of irrelevant analogies’’ by the banks including the shoe shop and rare book shop. He gave his analogy that he said was far more applicable: An budget airline charges £25 for a ticket to Paris and has a luggage limit of 15 kilos. You then place your baggage on the scales but are charged for the ‘consideration’ of the weight and either charged again for excess baggage or not. ‘’This is a service that the supplier is not obliged to supply and therefore cannot be included in the main part of the contract.
I sincerely hope that Doctor’s early afternoon lapse was just a blip and that he gets a better night’s kip than I will.
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