DAY 10

[EXC]

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EXC


Day 10

Before going through each of the banks terms and conditions Brian Doctor started by clarifying some points from yesterday. He asked the judge to read a section of the court transcript from day 6 where Vos - unlike the rest of the banks - submitted that Nationwide’s contract changed when the customer went in to debit. Doctor began reading extracts from it. After some time the judge impatiently said ‘’we can’t go through pages and pages, what’s your point?

Doctor explained that as the contract ‘’changed fundamentally’’ it would ‘’make the regulations unworkable’’. And that a decision would have to be made by the judge as to which contract - credit or debit - would be considered in the Judge’s findings. After some discussion it was decided to use the credit contract and the judge made lots of notes.

The OFT QC then referred to Rabinowitz’s submission that described the ‘benefit’ to the consumer of having a payment refused as the ‘prospect’ of it being paid. Doctor argued that ‘’everyone has the ‘prospect’ of an overdraft by simply by walking in to a branch and asking’’. The judge reminded Doctor that he’d made that very point yesterday.

A discussion started, initiated by the judge. He asked Doctor that if, in the event of one or some types of charges were ruled not exempt from the regulations, how it would work with the regulations.as ’’We have to look forward’’. Doctor replied ‘’it depends on the nature of the findings’’.

Doctor said that before he went through the T&Cs, he wanted the judge to keep in mind that the regulations required that ‘’payments should be in exchange for something’’.

He started in alphabetical order with Abbey. ‘’These are an attempt to run the ‘services’ argument’’. He made references to the numerous times the word ‘service’ appeared throughout the terms and conditions. ‘’This is a self serving attempt to head off the penalties argument’’. He read from the T&Cs ‘’you may obtain an overdraft’’ and from another page ‘’you may deposit ‘’. He told the judge that Abbey have used the same word ‘may’ in two entirely different ways, May meaning ‘might’ and may meaning ‘can’.

He then quoted from a box in the contract that was marked ‘non-contractual’’. The judge asked him ‘’do you think it is contractual?’’ and Doctor said ‘’well if it says it isn’t I suppose it isn’t’’. The judge joked that he was making ‘’a major concession’’ but said he wanted to know his view. But Doctor said he just didn’t know and nor would the consumer.

He read out a section that said all payments are separate requests. He said standing orders require only the initial request and in the case of direct debit’s the request comes from the supplier. Another section referred to a charge if you ‘use’ an unarranged overdraft but Abbey’s submission is that the charge is for the ‘consideration’ of the overdraft..

He said that the T&Cs stated that if a payment is declined there would an unpaid item charge ‘’but what it doesn’t say is in that situation you would also incur another charge’’. Doctor produced a ready reckoner of how the charges were incurred in various situations that a declined payment ‘’could trigger charges indefinitely .’’ Also the monthly overdraft fee is not linked to any service’’.

On Barclays he read ‘’we expect you to keep your account in credit…..to avoid unnecessary charges’’ and said this was not consistent with the main part of the contract argument. Under the heading ‘Charges on unauthorised overdrafts’’ was the returned item fee. ‘’Why?’’

Again he went through the same points as he made with Abbey’s T&Cs but the judge said he didn’t need to make the same points several times on all 8 banks contracts.

Clydesdale’s, he said, tried to come closer to linking the charges to a service but still ‘’failed miserably’’. On a line that Clydesdales T&Cs referred to about returning a payment, Doctor said that this can only apply to a cheque. ‘’you can’t return a direct debit or standing order. It doesn’t go anywhere’’. On the daily unplanned borrowing fee he said it wasn’t a payment for anything but ‘’a state of affairs’’.

Unfortunately, today I could only make the morning session and missed out the rest of the banks terms and conditions.

Brian Doctor

Having just read what I’ve written on the mornings proceedings you’d be forgiven for thinking that the OFT QC had a relatively good day judging by the points he raised but it doesn’t tell the real story.

From the moment he started he clearly annoyed the judge by making him read vast extracts of the transcripts needlessly because Doctor had misquoted the page number.

There was no pre-defined order to his submission and the judge repeatedly asked him which of the five areas he was on that Doctor originally listed. He went from Abbeys terms and conditions to Barclays when the judge said ‘’Do you not want to cover Abbey’s price list?’’ Doctor replied ‘’Oh yes!’’.

He seems to have made no attempt to rehearse his submission and his support team would prompt him by plonking hastily written post-it notes in front of him on dozens of occasions. The contrast in the preparedness and delivery of the banks flawless legal teams was unbelievable.

A legal professional in the feed room who was watching the hearing for the first time today, turned round to me after five minutes and whispered ‘’is he like this all the time?’’

I lost count of the times my eyes met with a Which? lawyer who would stare at me unsure as to what expression she should wear. Although I found it quite distressing at times you couldn’t help but join in the frequent chuckles of the others watching. gaff after gaff. At one point I could clearly hear laughing from the banks legal teams.

What effect this could have on the outcome of the case is impossible to say. It may well not have any, as the judge has clearly got a firm grasp of the issues and is certainly bright enough to base his decision on the facts alone. But whatever happens the case will end up in the House of Lords on appeal and if the OFT don’t replace him, they should certainly be encouraged to.

[Vortex]

Re: DAY 10

That is the same as Tuesday when Doctor began his submission,
To the right was a male, 30's glasses, maybe a junior, and to the left were 2 women, one who could be considered like Kate Silverton from BBC, writing out post it notes and putting on the lectern for Doctor to quote to the judge, while the other woman, fussed with the mountain of folders of evidence. To get an image think the public library and the booklets of information. there must be 20 to 30+ of these folders, each tabulating points of Law. As you can see from the description, it is a massive undertaking to piece together each small piece of evident based on the very minutest of definitions.

[argentarius]

Re: DAY 10

Old Brian Doctor does sound devastatingly awful.

I can't believe that the OFT have put someone who can't present a decent argument up against the sort of quality QCs that the banks are using.

What on earth does BD mean when he says that "you can't return a DD ... it doesn't go anywhere"?

If you write a cheque, and it is banked by the recipient, the cheque is physically returned to the recipient's bank when the drawer's bank bounces it.

If you authorise a DD, and a payment is requested by the entity in whose favour it is authorised, the money is automatically credited to the recipient's account on the due date and debited to the payer's account. If it is then rejected by the authoriser's bank (due to lack of funds or whatever), then the authoriser's bank sends a rejected DD instruction to the payer's bank which is effectively returning the DD and recalling the funds.

BD's point isn't a point. It just makes him sound yet more like he is poorly briefed and doesn't understand what he's talking about.

As regards standing orders, though, he is right. What's sad is that he has the nugget of a point there, but c**cks it up by confusing DDs and standing orders - not an unfamiliar issue in the real world either, but there you go.

[TANZARELLI]

Re: DAY 10

I only hope the judge looks at the RTD's as they were actually quite well put together as a follow on from a poor POC.

The judge will look at all the evidence before making his decision, but you cant help feeling that Doctor has not been fully prepared.

[agnes]

Re: DAY 10

Forgive me for this, but why has the OFT chosen a QC, who may destroy their case, you don't think they have been pressurised by 'the higher archy' do you?. Wouldn't they have found the best QC money could buy? But as you say EXC it may not have an effect on the outcome, the Judge sounds like he's very thorough doesn't he.

[Budgie]

Re: DAY 10

Many thanks EXC for todays report.

I find it utterly amazing that the OFT have left their presentation to a second rate QC.
To be honest, I think we are just going to have to place our faith in the Judge to produce the judgement we all want and deserve and hope that he will base his judgement on the written particulars of claim, the banks defences and counterclaims and the OFT written responses to these defences and counterclaims ( the OFT's written response was absolutely excellent ) and I just do not understand why the OFT have placed their trust in someone who appears to be a bumbling fool.

We should all make our displeasure know to the OFT by email, fax and phone. Maybe there is still time to arrange for Mr Doctor to be gracefully retired prior to the all important sessions next week.

Budgie

[EXC]

Re: DAY 10

I think it's worth remembering that important as this case is, the OFT is just another poorly funded government department and as the case will certainly go through to the House of Lords on appeal just paying someone like Doctor and his team will be a massive burden on their budget.

The other thing is the OFT obviously had a good working relationship with him as he's done lots of advisory work for them in the past. It's quite possible they've never seen him in action in a court room and are as just as surprised as us.

Forgive me for this, but why has the OFT chosen a QC, who may destroy their case, you don't think they have been pressurised by 'the higher archy' do you?. Wouldn't they have found the best QC money could buy? But as you say EXC it may not have an effect on the outcome, the Judge sounds like he's very thorough doesn't he.

[Nattie]

Re: DAY 10

The good doctor looks like this
http://www.fountaincourt.co.uk/people/profile/25/

[smutley]

Re: DAY 10

my immediate feeling is to be depressed .. but I put my trust in the judge to be fair and probably already knows what points our bumbling Dr is attempting to put forward anyway.

[Tempty]

Re: DAY 10

my immediate feeling is to be depressed .. but I put my trust in the judge to be fair and probably already knows what points our bumbling Dr is attempting to put forward anyway.

my thoughts exactly ...... we live in hope eh

[TUTTSI]

Re: DAY 10

Having attended the hearing for a short while on the second day of this case with EXC, I noticed at first hand that this Judge had a clear understanding of this case and gave Rabinowitz the same as he is giving Doctors now. I thought for once in my life this Judge is completely switched on and had a better understanding of the case than the actual Banks dream team. My thoughts have not changed having read read EXC's daily reports.

The Judge is clearly not happy with the T&C's as they are not in plain intelligable language and this to me seems to be the crunch point. But the crux of this case is the UTCCR's whether the charges they are charging are lawfull. So far from what has been reported this actual point has been argued satisfactorily by either side, because both side keep drifting off the point and the Judge brings them to order.

I also believe that the banks have stretched the amount of time for strutting their cases making the Judge very edgy about hearing the same arguments from each bank. In my opinion the banks should have instructed only one QC and this case would not have been so strung out.

With the OFT, although I understand they are on a budget, I am sure they could have got a younger wipper snapper - like TB who has a better grip with these issues.

Thankyou EXC for your fantastic reporting of this case.

[Budgie]

Re: DAY 10

The good doctor looks like this
http://www.fountaincourt.co.uk/people/profile/25/

Maybe we need a good doctor that looks more like this !!!!!!!!!!!!

[Guest]

Re: DAY 10

I had a brief chat with EXC and of course it is important that he tells it as he sees it, but I fail to see the value in threads that constantly slam the OFT's Brief.

We got what we all wanted, the banks are in Court and fighting their corner - and by all accounts, not all that cleverly.

If we are going to carry out a post-case character assassination every day, then I'd prefer to see the other eight get their just deserts - they, after all are the ones sent in to protect the unlawful and greedy revenue stream that this site and others was set up to expose and put and end to.

It is clear the banks can outspend the OFT but this is not an issue of who has the most money and can hire the best performing monkey.

You have also no doubt noticed that not one of the banks has tried to pretend that it really does cost £39 when a DD is returned, not one. Every one of them has stated that the common law, accepted for over a century by the way and more recently, statutory consumer protection law, simply does not apply to them - that they are above the law and that they should be allowed to continue to charge whatever they like, just because they want too.

Personally, I find that what the banks' lawyers are doing and saying a great deal more objectionable than anything Brian Doctor QC could do or say.

How about we all get behind him and the OFT and if you want to pick on a QC, there are eight others in the room, who if they get their way, will pave the way for more bank charges at higher levels than before.

[enaid]

Re: DAY 10

Feel a bit better now, thanks Cet for that and of course you are right.
We should at least stick up for the ones whom are trying to help us, don't suppose many on here truly know how the law works, I know I don,t. So lets make the most of what we got and fight on.

[Budgie]

Re: DAY 10

I had a brief chat with EXC and of course it is important that he tells it as he sees it, but I fail to see the value in threads that constantly slam the OFT's Brief.

EXC is doing a wonderful job. I have been very impressed with his unbiased reporting. However, people have a right to express their opinions and feeling seems to be running high that the OFT's QC is somewhat ill suited to presenting a case of this nature.

We got what we all wanted, the banks are in Court and fighting their corner - and by all accounts, not all that cleverly.

This action by the Banks and the OFT wasnt instigated, requested or accepted by US. We, as the Consumer have played no part in this Test Case. People's claims were being settled via the County Court route prior to the announcement of Test Case. We didn't need a test case to tell us that Bank Charges are UNFAIR. The Banks are not fighting their corner that cleverly because they are in the wrong and no matter how much legal bull**** they put to the Court via their various QC's the Banks know they are wrong. It appears that we have a strong Judge who, (edited) is likely to become a National Hero. Brian Doctor could easily have put himself in the same postion but seems to be wasting the opportunity.

If we are going to carry out a post-case character assassination every day, then I'd prefer to see the other eight get their just deserts - they, after all are the ones sent in to protect the unlawful and greedy revenue stream that this site and others was set up to expose and put and end to.

Plenty of opportunity to do that next week when the Banks respond to the OFT's presentation !!!

It is clear the banks can outspend the OFT but this is not an issue of who has the most money and can hire the best performing monkey.

I just hope that statement is correct. Sadly I suspect it may not be!

You have also no doubt noticed that not one of the banks has tried to pretend that it really does cost £39 when a DD is returned, not one. Every one of them has stated that the common law, accepted for over a century by the way and more recently, statutory consumer protection law, simply does not apply to them - that they are above the law and that they should be allowed to continue to charge whatever they like, just because they want too.

I totally agree but it was never intended to cover this matter in the test case. It's purely about whether the Banks terms and conditions MAY be assessed for fairness against the UTCCR. If the Court upholds the view of the OFT, after the inevitable appeal, then we will move onto the next stage which will determine whether the charges are actually unfair or not.

Personally, I find that what the banks' lawyers are doing and saying a great deal more objectionable than anything Brian Doctor QC could do or say.

Yes it's objectionable but the Bank's QC's are doing their job and appear to be doing it very well. On the contrary Mr Doctor appears to be the opposite. Just think how happy we would have been if he had been representing one of the Banks.

How about we all get behind him and the OFT and if you want to pick on a QC, there are eight others in the room, who if they get their way, will pave the way for more bank charges at higher levels than before.

Whatever we do will have no effect, this case will be decided by the Court and more particularly the Judge. It there is anyone we should be supporting it is him. Let us hope that our faith is justified.