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DAY 13

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  • DAY 13

    The author kindly requests that If you would like to re-post this account of the test case elsewhere, please ask me first.
    EXC




    Day 13



    Robin Dicker continued with the bank’s reply on Plain Intelligible Language and again Justice Smith raised the subject of small or feint text. ‘’Is this part of the language?’’ and Dicker said that ‘’if you can’t physically read it, it doesn’t mean it’s not in plain intelligible language’’. The judge asked the same of ‘’hands and boxes ‘’ but all Dicker would say is that they are ‘’incidental’’.

    Throughout the morning the HBOS QC who is the most unlikable of all the banks lawyers clearly tried the judge’s patience which made for some very entertaining exchanges and Justice Smith would sometimes exhale through his teeth and slam files closed in dissatisfaction.

    Dicker asked the judge to consider the Competition Commission’s views on PIL which were not in the court bundle. ‘’Are you presenting this as law or fact?’’ snapped the judge. ‘’I’m assisting my Lord in understanding authorities interpretations of PIL’’. ‘’But is this law or fact? We’ve got to have some discipline. We’ve got to talk like lawyers’’.

    Pushing his luck too far Dicker explained that the Competition Commission thought that if contracts were considered acceptable by a Plain English organisation or they passed market research criteria, it would follow that they’d be in PIL. ‘’That’s what HBOS do’’. The judge said despairingly ‘’This court is the independent authority on PIL. The Competition Commission were not interpreting PIL, they were just saying ‘that looks nice to us’ ‘’.

    And again Dicker came unstuck when he selectively quoted from OFT bulletins on PIL but the judge insisted on reading them in their entirety. ‘’ I can’t help thinking that there’s a certain amount of cherry picking going on here’’.

    The subject of the order in which payments are processed was raised and Dicker said it was the customer’s choice to present multiple payment instructions on the same day and that ‘’the customer implicitly expects the bank to use it’s discretion’’ because ‘’the customer hasn’t given any instructions as to the order they want them processed’’. But this service was news to the judge, ‘’I’ve never heard of this. Could these instructions be reasonably expected to be accepted? Is it the case that HBOS accept these instructions?’’ After a pause Dicker replied ‘’that is my understanding’’. The judge put the question to Barclay’s QC, Milligan, who said ‘’I don’t know my Lord’’.

    Having spent all morning on the ropes the ‘Dickster’ was visibly relieved when he finally finished his reply.

    Before Milligan started on penalties the judge addressed the question of his advice to the County Courts that Milligan had raised yesterday. ‘’It’s for the County Courts to decide on cases before them. All I can say is that many cases have been put on hold for this one and I haven’t discerned anything in this hearing that undermines that expectation. I can’t intervene in the county courts’’. In essence the judge was saying that any recommendation to the County Courts would have to wait until his judgement was handed down. Needless to say Milligan was delighted. ‘’That’s very helpful my Lord’’. I bet it is.

    I have little doubt that the banks knew the judge wouldn’t be able to commit himself to any County Court recommendation until his judgement is made but wanted this confirmed to protect any challenge to the FSA’s complaints handling waiver.

    The Barclays QC continued on penalties. At one point the judge asked if consideration itself was a ‘’service supplied’’. To isolate his point the judge asked ‘’if the bank manager dies after his consideration but before effecting his decision, has the consideration service been supplied?’’ . Milligan said it was ‘’a constituent part of supplying a service’’.

    Milligan poured scorn on the OFT for their view that the case is not about the level of charges and that the OFT were adopting the regulations to attack them. He said that if the charges were not £35 but 1p the OFT wouldn’t claim the charges were unfair and he described this as a ‘’vanishingly small point’’.

    Picking up Brian Doctor’s penalty analogy of the video rental being £1 a day but £50 for the eighth day Milligan said it could not be a penalty ‘’if the video store had the right to it on the eighth day.''

    The rest of the day was taken up with brief replies from Thanki, Malek, Salter and Taladano who was standing in for HSBC QC Snowden, all of which said nothing new. Only Vos and Doctor are left to speak and it looks like the hearing will conclude on Friday morning.

  • #2
    Re: DAY 13

    But that video contract would come under the UTCCR and the test of fairness.

    Comment


    • #3
      Re: DAY 13

      It does seem to prove that the banks' solicitors do not know the bank accounts of their clients or how their "service" is provided.

      Comment


      • #4
        Re: DAY 13

        Picking up Brian Doctor’s penalty analogy of the video rental being £1 a day but £50 for the eighth day Milligan said it could not be a penalty ‘’if the video store had the right to it on the eighth day.''
        ----------
        if it was due to be returned on the 8th day and wasn't, then any other fee outside of an additional daily fee, is a penalty for not returning it on the 8th day surely?

        Has Milligan just proved the case for us!?

        Comment


        • #5
          Re: DAY 13

          On the main page it says the chat feature is not working because this site suffered from a DDos attack..........its a bit suspicious that someone would attack this site......isn't it?
          "The issue which has swept down the centuries
          and which will have to be fought sooner or later
          is the people versus the banks."

          [John Emerich Edward Dalberg Acton] (1834-1902), First Baron Acton of Aldenham

          Comment


          • #6
            Re: DAY 13

            As I said before,......................... I am Joe Public with a bank account, and I dont understand what they print, as PIL. Its just not PIL. Its not.................. Fendy xxxx
            Natwest Round 1 - Won £16,080 after 6 month battle :roll:
            Abbey Round 1 - Won £5,580 after 5 month battle :okay:
            Capital 1 Credit Card - Won £1230 in 2 months
            Capital 1 Cred Card for Hubby - Won £1560 in 2 months :kiss:
            Abbey MBNA Credit Card - Won £2210 in 3 months
            Halifax Credit Card - Won £1680 in 2 months

            THE WAY FORWARD ON THESE CLAIMS, IS TO STAY POSITIVE, FOCUSED AND PATIENT, AND ALWAYS, ALWAYS BELIEVE ITS WORTH THE EFFORT, BECAUSE IT TRULY IS. WHY CHOOSE THE PATH OF LEAST RESISTANCE WHEN THERES NOTHING TO LEARN FROM THAT. THINK OF CLAIMING AS A PERSONAL CHALLENGE AND GIVE IT YOUR ALL.

            Now Gunning for
            Natwest round 2
            Abbey Round 2
            Yorkshire Bank round 1
            A further £6000 to come back from above 3 when I win.:roll:

            Comment


            • #7
              Re: DAY 13

              not at all, MSE was attacked by the same thing as well, chat room is working alecmac. There is a VIP shoutbox which is still offline

              Comment


              • #8
                Re: DAY 13

                Chat room works cos I am in it at the moment.

                Comment


                • #9
                  Re: DAY 13

                  PIL is plain and intelligible Language, Fendy, or the stuff I generally do not talk.

                  Comment


                  • #10
                    Re: DAY 13

                    if it was due to be returned on the 8th day and wasn't, then any other fee outside of an additional daily fee, is a penalty for not returning it on the 8th day surely?

                    Has Milligan just proved the case for us!?
                    My thoughts exactly ed. (in your bitchy mood tonight:roll

                    Comment


                    • #11
                      Re: DAY 13

                      Originally posted by ed. View Post
                      Picking up Brian Doctor’s penalty analogy of the video rental being £1 a day but £50 for the eighth day Milligan said it could not be a penalty ‘’if the video store had the right to it on the eighth day.''
                      ----------
                      if it was due to be returned on the 8th day and wasn't, then any other fee outside of an additional daily fee, is a penalty for not returning it on the 8th day surely?

                      Has Milligan just proved the case for us!?

                      Milligan's rebuttal of this analogy is a little weak. Even if this was stipulated in the contract I believe it would appear to the court to be an extravagant penalty clause and therefore would be unenforceable.

                      Comment


                      • #12
                        Re: DAY 13

                        Originally posted by ed. View Post
                        Picking up Brian Doctor’s penalty analogy of the video rental being £1 a day but £50 for the eighth day Milligan said it could not be a penalty ‘’if the video store had the right to it on the eighth day.''
                        ----------
                        if it was due to be returned on the 8th day and wasn't, then any other fee outside of an additional daily fee, is a penalty for not returning it on the 8th day surely?

                        Has Milligan just proved the case for us!?
                        Exactly Ed their pathetic attempts at pinning a service arguement to penalties just hasn't been proved IMO. They are making 'weak' arguements and the judge can see through this.

                        All I can see them doing is helping us to get a victory here.

                        Comment


                        • #13
                          Re: DAY 13

                          Originally posted by Fendyweather View Post
                          As I said before,......................... I am Joe Public with a bank account, and I dont understand what they print, as PIL. Its just not PIL. Its not.................. Fendy xxxx

                          Blimey Fendy, you have managed to claim all that back, are these business accounts? my claim pales into insignificance by comparison (£1,050 stayed August 14th!!

                          Comment


                          • #14
                            Re: DAY 13

                            Originally posted by alecmac18 View Post
                            On the main page it says the chat feature is not working because this site suffered from a DDos attack..........its a bit suspicious that someone would attack this site......isn't it?
                            A Denial of Service attack is always suspicious alecmac, unfortunately they are rarely traceable. As Nattie says, it is only the VIP chatbox that is not functional at the minute and not the
                            Chat Room

                            The Vip chatbox has been turned off manually by us as the area that is being attacked has some programming information attached to it that runs that feature.


                            Any opinions I give are my own. Any advice I give is without liability. If you are unsure, please seek qualified legal advice.

                            IF WE HAVE HELPED YOU PLEASE CONSIDER UPGRADING TO VIP - click here

                            Comment


                            • #15
                              Re: DAY 13

                              Link to BBC re stays/ sists to continue until judges decision as outlined in above comments/ posts

                              http://news.bbc.co.uk/1/hi/business/7230466.stm

                              Thanks Exc for your attendance, insight, time and keeping us all up to date.

                              Comment

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