DISCUSSION regarding Transcripts

[Amethyst]

Please use this thread for discussion.

[Amethyst]

Re: DISCUSSION regarding Transcripts

Legal Beagles

[EXC]

Re: DISCUSSION regarding Transcripts

Great work sorting the formating out, it must have been quite a job - well done you lot.

The most interesting part for me is the last few pages of the final day (8 Feb) where they discuss the relevence of the judgement to County Court stays.

[Tools]

Re: DISCUSSION regarding Transcripts

All the transcripts are now up and in day/date order with the Beagles watermark to them.

If you wish to display them anywhere else, please be so kind as to ask the prior permission of EXC who has kindly supplied them to Beagles,

Thank you

[Nattie]

Re: DISCUSSION regarding Transcripts

I think the transcripts give you the opportunity to go into the courtroom of the OFT test case and almost hear what Justice Smith has said during the case and how his thinking is. It is a fascinating insight for those of us that were unable to make the OFT test case in person. It seems to give an indication of the complexity of the arguments. I am still working through day 1 and it is not a simple this is the argument and the judge saying nothing. He appears to be thinking about the argument and the point of law being given and then asking for clarifications.
To anyone who has suggested that the judge is biased, in favour of the banks or that the Test Case is fixed then the simple reading of the test case transcripts will alter that opinion.

[Amethyst]

Re: DISCUSSION regarding Transcripts

Regarding the order of cheque processing - I wonder if this will come back up later on. At the moment there doesn't seem to be any order, and I think a lot of us feel that they make payments out of accounts in such a way as to get the highest number of transactions as possible into charge incurring payments. I do think its more to do with PIL than fairness tho so probably not highly relevant to this specific hearing. Anyways can anyone explain regulation 6(2) to me ?



Day 1 .

''The bank must do something

14 to eliminate that uncertainty if it is to claim the

15 gateway of regulation 6(2).''

[EXC]

Re: DISCUSSION regarding Transcripts

These are the 2 relevant extracts from the test case that deal with the current stayed cases: (please note that these transcripts are copyrighted and not to be re-published elsewhere)





MR THANKI: Our primary position is what your Lordship should be looking to do is see whether your Lordship is willing to make declarations or not on the basis of the pleaded issues.

MR JUSTICE ANDREW SMITH: But, you see, how then do I deal with -- at the end of this case, this first instance case, a question will arise as to whether I or anyone else should say anything to the designated civil judges and others as to whether the proceedings which are by and large on hold, if not formally stayed, should proceed or not.

MR THANKI: That may, of course, be subject to any appeals.

MR JUSTICE ANDREW SMITH: No, no, no. That's why I say at the end of this case, the first instance, there will be -- at the moment, as I understand it, the DCJs have been encouraged to hold back the county court cases pending the first instance decision. Now, of course, it may be, indeed in all probability it might well be that's to be extended, but if my decision in a sense because of the adversarial process ducks a significant point in the county courts, then it may be that at the very least the designated civil judges must be made aware of that and then when the individual decisions in the individual cases are considered, they will bear that in mind and say this test case or OFT case is not going to deal with this point. Let them go ahead. That's the concern.

MR THANKI: Yes.

MR JUSTICE ANDREW SMITH: That's why, taking on board Mr Rabinowitz's concern in the autumn that the tail should not wag the dog, one cannot avoid the test case aspect of it.

MR THANKI: Yes. Of course, the pleadings in the county courts which your Lordship has probably seen

MR JUSTICE ANDREW SMITH: No, I have not.

MR THANKI: They do not raise any of these points. They are very narrowly focused in relation to penalties and UTCCR questions of unfairness rather than plain and intelligible language and so on.

MR JUSTICE ANDREW SMITH: I see.

MR THANKI: Obviously your Lordship will take your own course. I think what I am saying is that the primary focus should be on the adversarial process here, and if your Lordship makes points which Mr Doctor is willing to pursue and we have time to deal with them, then fine.

MR JUSTICE ANDREW SMITH: I think the difference between the position you are adopting and what I have heard from other banks so far is that you go on to say, "And as far as the declarations are concerned, you should confine yourself to the adversarial issues rather than ask the banks to refine the declarations they seek". Thus far others have recognised that the declarations must be refined so as to reflect the argued issues.

MR THANKI: Yes.

MR JUSTICE ANDREW SMITH: Do you differ on that?

MR THANKI: I don't differ on that, no.

MR JUSTICE ANDREW SMITH: Right.

MR THANKI: Our very real concern finally, my Lord, is not just the stays in the county court but also the FSA waiver. We would have a very big concern about booting off historic terms into the distance. Our concern is to have as much dealt with as possible while we are all here.

MR JUSTICE ANDREW SMITH: I understand that as a principle, yes.




************************************************** ************************************************** **********************



MR THANKI: Also in relation to guidance to the county courts, now that your Lordship has had the paper from the banks as to the outstanding issues, I would as your Lordship to consider whether any further guidance can be given in relation to the county courts on the active case management that your Lordship envisages will be likely after the handing down of the judgment. As your Lordship was told, some of the stays are expiring, and I think there are also applications in the pipeline to lift stays, so that is something the banks will be having to with daily on a pretty active basis from now on.

MR JUSTICE ANDREW SMITH: What are you inviting me to say additional to what I said when Mr Milligan raised the time matter at the start of his reply submissions?

MR THANKI: Really that your Lordship has in mind active case management in relation to the historic position, no more than that. That would be of very great assistance to the banks in dealing with the county court situation.

MR JUSTICE ANDREW SMITH: I have already said that the reason I felt it appropriate to deal with the current terms at this stage, and not deal with the historic terms, is because there is every indication that to some extent my findings will translate readily to a significant proportion of the historic terms, and that, while nothing is certain, might well lead to decisions on the historic terms being made in very short order, within a month one would certainly hope. I can't go so far as to say that necessarily they will translate to all the historic terms, and one will have to take stock as to what the residue is, how significant they are, and the residue is in terms of number of accounts and customers involved, and the management of the residue can only be considered at that stage.

MR THANKI: Absolutely.

MR JUSTICE ANDREW SMITH: It might even be that if the residue is very small, or a particularly unusual account, one would say that that would best be dealt with in the county court in light of the guidance. But even in cases I would hope that my judgment will, subject to appeal, provide the guidance.

MR THANKI: I am very much obliged.

MR JUSTICE ANDREW SMITH: Thank you very much.