FSA letter to Master of the Rolls?

**Nattie** · 21st November 2007, 17:54:PM

Re: FSA letter to Master of the Roles?

I think a bump on this one is required because the courts are at their own volition imposing stays when the FSA has not even asked that courts actions be stayed. In point of fact there is a case in Scotland in which the stay was not granted because the test case has not started proceedings. Very Very interesting information Exc

**EXC** · 28th November 2007, 07:16:AM

Re: FSA letter to Master of the Roles?

I've amended my request to the FSA to include any correspondence with
any area of the judiciary on the subject of stays. I understand that it was the Deputy Head of Civil Justice who ''invited'' all county court judges to
consider staying bank charge cases.

The Master of The Roles has responed to my request and has ''no recollection'' of recieving such such a letter.

Also enclosed is some correspondence between Bob Egerton & the Deputy
Head os Civil Justice on the subject of credit card stays.

**EXC** · 6th December 2007, 10:08:AM

Re: FSA letter to Master of the Roles?

----- Original Message ----- From: Freedom of Information FSA
To: EXC
Cc: Freedom of Information
Sent: Wednesday, December 05, 2007 11:47 AM
Subject: Freedom of Information: Right to know request

************************************************** ***************
Your attention is drawn to the warning notice at the end of this message.

Our ref: FOI0827

Dear EXC
Thank you for your request under the Freedom of Information Act 2000 (the Act), for the following information:

- "... all correspondence between the FSA and any area of the judiciary that contributed to the FSA's view that county courts were expected to stay cases."

Following a search of our paper and electronic records I am writing to tell you that we do not hold the information you are seeking. This is because the FSA has not corresponded directly with the judiciary or the Master of the Rolls in this respect.

The FSA Waiver Direction dated 27 July 2007 on unauthorised bank charges sets out in paragraph 7 that the FSA would review the continued satisfaction of the criteria for granting the waiver with particular regard to whether there was a stay of the relevant proceedings in the courts of England and Wales, Scotland and Northern Ireland, whether the FOS had stopped determination of these complaints, and whether the firms were complying with the conditions in the Direction.

Further, condition 12 (9) of the Waiver Direction sets out that the firms would keep the FSA updated regularly about their efforts and success (or otherwise) in obtaining (and maintaining) stays of relevant proceedings in the courts of England and Wales, Scotland and Northern Ireland.
A copy of the Waiver Direction can be found in the following link:
http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/direction_disp.pdf
As you note, the burden was on the firms to seek to obtain stays in the courts and in the FOS - not on the FSA. As required in condition 12(9) firms have kept the FSA informed, throughout the waiver, of their successes in obtaining these stays.

Yours sincerely
Roisin Traynor
Information Access Team

The Financial Services Authority (FSA)
25 The North Colonnade,
Canary Wharf,
London
E14 5HS
United Kingdom

----- Original Message -----
From: EXC
To: Freedom of Information FSA
Sent: Thursday, December 06, 2007 9:57 AM
Subject: Re: Freedom of Information: Right to know request

Dear Roisin Traynor

Thank you for your e-mail of 5 December.

I note that your response states that ''the FSA has not corresponded directly with the judiciary or the Master of the Rolls in this respect''. Although this may be the case it is inconceivable that the FSA, on the announcement of the complaints handling waiver, would have confidently stated that ''This action means that, until the test case is resolved, any bank or building society that applies for the waiver will not be required to handle complaints relating to unauthorised overdraft charges within the time limits set out in the FSA rules. The Financial Ombudsman Service (FOS) has adopted a similar approach and the county courts are expected to follow'', without having had some communication with the judiciary to reach this conclusion.

Indeed the Deputy Head of Civil Justice, Lord Justice Moore-Bick has confirmed in a letter that ''it is for the judge in each case to decide what course to take in the light of the issues in the case and the circumstances as a whole''.

Therefore I will amend my question to: On what evidence did the FSA base it's assertion that County Courts as a whole would be ''expected'' to stay cases?

Regards

EXC

**EXC** · 14th December 2007, 17:57:PM

Re: FSA letter to Master of the Roles?

My request has now been relegated to the lowly Consumer Contact Centre.

Thet are saying that ''part'' of the reason for the FSA's expectation that courts would
stay cases is on the strength that the banks told them that they would be applying
for them, which is a less than convincing tale for a regulator to pre-empt the actions
of individual judges.

It's a shame that the FSA couldn't find the space in their e-mail to explain what the
other ''part'' of their reason was.

----- Original Message ----- From:<Consumer.Queries@fsa.gov.uk>
To: EXC
Sent: Friday, December 14, 2007 5:00 PM
Subject: Re: Issue ISS00640047

> Dear EXC
> Thank you for your email of 5 December 2007.
>
> About your Enquiry
>
> I understand that you have contacted the FSA in relation to a press release issued on the 27 July - www.fsa.gov.uk/pages/Library/Communication/PR/2007/090.shtml. Your email has noted that the following statement appears as part of this press release:
>
> ''This action means that, until the test case is resolved, any bank or building society that applies for the waiver will not be required to handle complaints relating to unauthorised overdraft charges within the time limits set out in the FSA rules. The Financial Ombudsman Service (FOS) has adopted a similar approach and the county courts are expected to follow.''
>
> Your email has asked us to confirm what evidence was considered in relation to our statement that county courts were expected to adopt a similar approach to banks, building societies and the FOS. I note that we have previously confirmed that 'the FSA has not corresponded directly with the judiciary or the Master of the Rolls in this respect'.
>
> Information about press release
>
> The FSA made the assertion that country courts were "expected" to stay cases on the basis that the Test Case is dealing with the same issues discussed by individual claimants in county courts, and that the firms to whom the Waiver and Test Case are relevant had communicated to the FSA their intention to seek stays from the courts. This information formed part of the FSA expectation that county courts were highly likely to stay cases upon request of the interested parties.
>
> Further information
>
> As a matter of law, individual courts have a discretion in deciding whether or not to stay any particular case upon request of one of the parties or, in some cases, on its own initiative. In exercising that discretion, courts may, for example, take into account whether it would be expedient to await the outcome of another case which may decide a point relevant to deciding the case which is before the court.
>
> The FSA, of course, could not be sure that the county courts would actually do so given that this is matter for the court to decide. This is the reason why condition 12 (9) of the Waiver Direction requires firms to keep the FSA updated about their efforts and success (or otherwise) in obtaining and maintaining stays of relevant proceedings in the courts of England and Wales, Scotland and Northern Ireland.
>
> The FSA reviewed the position in the two-month review of the waiver and concluded that the providers were successful in obtaining stays in largely all county court proceedings. This subsequent review has confirmed that county courts have indeed adopted a similar approach to the FOS, as the FSA expected.
>
> I hope that you have found this information helpful.
>
> Yours sincerely
>
>
> A Franks (Mr)
> Consumer Contact Centre
> Financial Services Authority
> Consumer Helpline: 0845 602 2185 (call rates may vary)
> www.moneymadeclear.fsa.gov.uk
> Get clear, impartial information from the UK's financial watchdog.
> No selling. No jargon. Just the facts
>

**EXC** · 19th December 2007, 07:10:AM

Re: FSA letter to Master of the Roles?

----- Original Message ----- From: EXC
To: "IMFreturns" <IMFreturns@fsa.gov.uk>
Sent: Friday, December 14, 2007 5:25 PM
Subject: Re: Issue ISS00640047

Dear Mr Franks

Thank you for your e-mail of 14 December.

I am a little confused as to why my request, made under the Freedom of
Information Act 2000 and to the Information Access Team who are the
department responsible for handling such requests, has been responded to by
the Consumer Contact Centre.

I can only assume this is an error on your part and I would be grateful if
you could redirect my request to the relevant department.

EXC

----- Original Message ----- From: "Consumer Queries" <Consumer.Queries@fsa.gov.uk>
To: EXC
Sent: Tuesday, December 18, 2007 5:53 PM
Subject: RE: Issue ISS00640047, ISS00646184

Our Ref: .ISS00646184
In order that we can deal with this matter as quickly as possible please do not delete the Subject line of this email when you reply. You can add further wording to it but please do not Remove "ISS00646184".

Dear Mr EXC
Thank you for your email of 14 December 2007.

About your Enquiry

Your email has highlighted the fact that your enquiry of 5 December was originally sent to the Information Access Team of the Financial Services Authority (FSA) - however, you received a reply to the enquiry from the Consumer Contact Centre (CCC). Your email has stated that this has caused some confusion, and you have asked for your enquiry to passed to the relevant department.

Information about our response

As you are aware, your enquiry of the 5 December was received by the Information Access Team. During the course of business the FSA receives and responds to a number of requests for information which can dealt with promptly by the CCC and other local areas. If such requests are received by the Information Access Team these are passed to the local areas to handle, rather than under the centralised Freedom Of Information Access regime.

The Information Access Team therefore passed your enquiry to the CCC to provide a prompt response. I appreciate that this action was not clarified in our response, and I apologise for the confusion that has resulted.

Please be assured that the response to your enquiry was provided following referral to the relevant departments involved in the FSA press release of 27 July.

Yours sincerely

A Franks (Mr)
Consumer Contact Centre
Financial Services Authority
Consumer Helpline: 0845 602 2185 (call rates may vary)

----- Original Message ----- From: EXC
To: "Consumer Queries" <Consumer.Queries@fsa.gov.uk>
Sent: Tuesday, December 18, 2007 6:30 PM
Subject: Re: Issue ISS00640047, ISS00646184

Dear Mr Franks

Thank you for e-mail of 18 December.

Your clarification of the confusion with my FoIA request is noted.

However, you have only partially answered my question ''On what evidence did
the FSA base it's assertion that County Courts as a whole would be
''expected'' to stay cases?''.

In your response you state:

''The FSA made the assertion that country courts were "expected" to stay
cases on the basis that the Test Case is dealing with the same issues
discussed by individual claimants in county courts, and that the firms to
whom the Waiver and Test Case are relevant had communicated to the FSA their
intention to seek stays from the courts. This information formed part of the
FSA expectation that county courts were highly likely to stay cases upon
request of the interested parties.''

Therefore I would be grateful if you would confirm what information or
otherwise formed the other 'part' or 'parts' of the FSA's
'expectation'.

Yours

EXC

**EXC** · 7th January 2008, 20:14:PM

Re: FSA letter to Master of the Roles?

----- Original Message ----- From: "Consumer Queries" <Consumer.Queries@fsa.gov.uk>
To: EXC
Sent: Monday, January 07, 2008 4:34 PM
Subject: RE: Issue ISS00640047, ISS00646184, ISS00647648

Our Ref: .ISS00647648

Dear EXC

Thank you for your email of 18 December 2007.

About your Enquiry

You have noted that the Financial Services Authority's (FSA) previous reply to you, sent on the 18 December 2007 stated:

'The FSA made the assertion that county courts were "expected" to stay cases on the basis that the Test Case is dealing with the same issue discussed by individual claimants in county courts, and that the firms to whom the Waiver and Test Case are relevant had communicated to the FSA their intention to seek stays from the courts. This information formed part of the FSA expectation that county courts were highly likely to stay cases upon request of the interested parties.'

Your e-mail has since asked the FSA to confirm what further information was considered in forming the FSA's expectation that county courts were highly likely to stay cases upon request.

Information about your Enquiry

I can confirm that the information that the firms to whom the Waiver and Test Case are relevant had communicated to the FSA (i.e. that they intended to seek a stay of cases in court) was the main basis for the FSA's expectations in relation to the future actions of county courts. At the time of considering this information, the FSA also considered the likelihood that the courts (including the courts in Scotland and Northern Ireland) would actually grant the stay the firms were seeking.

Subsequent review has confirmed that the county courts have indeed adopted a similar approach to the Ombudsman.

I hope that you have found this further information helpful.

Yours sincerely

A Franks (Mr)
Consumer Contact Centre
Financial Services Authority

----- Original Message -----
From: EXC
To: Consumer Queries FSA
Sent: Monday, January 07, 2008 8:04 PM
Subject: Re: Issue ISS00640047, ISS00646184, ISS00647648

Dear Mr Franks

Thank you for your response of 7 January.

I will apologise in advance if I fail to retain my temper during this response but I will, with respect, reserve the right not to make any guarantees.

Needless to say I am seriously dissatisfied with your response and I simply cannot accept that you have failed understand what is, by any standards imaginable, a simple and straight forward question. Let me remind you of your answer to my previous question, the question that arose from it and your subsequent 'answer'. For clarity, your quotes in red, mine in blue.

''The FSA made the assertion that country courts were "expected" to stay cases on the basis that the Test Case is dealing with the same issues discussed by individual claimants in county courts, and that the firms to whom the Waiver and Test Case are relevant had communicated to the FSA their intention to seek stays from the courts. This information formed part of the FSA expectation that county courts were highly likely to stay cases upon request of the interested parties.''

''I would be grateful if you would confirm what information or otherwise formed the other 'part' or 'parts' of the FSA's 'expectation'.''

''I can confirm that the information that the firms to whom the Waiver and Test Case are relevant had communicated to the FSA (i.e. that they intended to seek a stay of cases in court) was the main basis for the FSA's expectations in relation to the future actions of county courts. At the time of considering this information, the FSA also considered the likelihood that the courts (including the courts in Scotland and Northern Ireland) would actually grant the stay the firms were seeking''

Far from answering, you have simply restated the subject of my question. Are you seriously telling me the FSA pre-empted the decisions of hundreds of independent County Court Judges in thousands of cases on the basis of ''considering the likelihood'' ? What did you do, toss a coin? Pull straws? What kind of jerk do you take me for?

I cannot stress just how important it is for the FSA to realise that the overwhelming view of bank charge claimants, the media, Members of Parliament and the public at large is that the introduction of the FSA's complaints handling waiver and the continuance of the levying of the charges in dispute is that the FSA, an already discredited organisation, engineered this as a concession to the banking industry for the privilege of them of taking them court.

I look forward to your considered and honest response.

EXC

**EXC** · 25th January 2008, 18:22:PM

Re: FSA letter to Master of the Roles?

Dear M rEXC
Thank you for your email of 7 January 2008.

About your Enquiry

I note that there has been an exchange of several emails in connection with a press release issued by the FSA on 27 July. You have asked for details of the considerations which led to a statement in that press release - namely that 'any bank or building society that applies for the waiver will not be required to handle complaints relating to unauthorised overdraft charges within the time limits set out in the FSA rules. The Financial Ombudsman Service (FOS) has adopted a similar approach and the county courts are expected to follow.'

We have subsequently confirmed that the points of consideration which led to this opinion stated in the press release were:

* that the firms to whom the Waiver and Test Case are relevant had communicated to the FSA their intention to seek stays from the courts, and
* the FSA considered it likely that the courts (including the courts in Scotland and Northern Ireland) would actually grant the stay the firms were seeking.

Your email has stated that you are dissatisfied with the information that the FSA has provided, and feel that we have given an honest or clear answer to your enquiry.

I feel that it may be helpful to further clarify that the FSA could not have simply guessed what the courts would do. However, given the connection between the issues under consideration in the test case and those under consideration in the county courts, it was reasonable for the FSA in the circumstances to 'expect' that the courts would use their discretion and stay proceedings upon the request of the banks (in accordance with Civil Procedure Rules). This actually proved to be the case.

Under the Civil Procedure Rules, a court can stay proceedings upon the request of the parties or at its own discretion. For example, the court may stay proceedings where the parties negotiate a settlement or where a question is referred to the European Court for a ruling. A court may also stay proceedings if a decision in another case may impact on the
case under its consideration. That is what happened with respect of claims regarding unauthorised overdraft charges. The county courts felt that a decision in the test case would be relevant and decided, upon request of the banks, to stay individual proceedings.

I have reviewed the information that we have previously provided, and would like to reassure you that this information is correct, and forms the full response to your enquiry. I appreciate that you feel dissatisfied with our response. However, I believe that there is nothing further that we can usefully add in addition to our previous responses. Therefore, any further communication on this matter may not be acknowledged or substantively replied to.

Yours sincerely

A Franks (Mr)
Consumer Contact Centre
Financial Services Authority
Consumer Helpline: 0845 602 2185 (call rates may vary)
www.moneymadeclear.fsa.gov.uk
Get clear, impartial information from the UK's financial watchdog.
No selling. No jargon. Just the facts

**agnes** · 28th January 2008, 18:58:PM

Re: FSA letter to Master of the Roles?

As much as I can understand the wording in all of this, may I point out that the cirmcumstances of the stay were very different in my case. First of all my case was started in Northampton CC, transfered to Newport C C 29 May, and suddenly was transferred to the Cardiff County Court on 18 JUNE 2007, for directions to be given by the designated Civil Judge, Judge G Hickenbottom. I soon learned that all over South and West Wales, other cases were also transferred to the Cardiff County Court, more than 600 of them for the same date (14 August at 10.30am) This was done PRIOR to the announcement, and not for the reason stated above. the Court stayed all claims, (regardless of assessing cases of hardship) The banks had not asked for the stays at the time, and as I understand, the official method is to ask individually involving a fee for each stay? It seems the Justice system organised this to gather all those cases together and apply a blanket stay. Doesn't this mean that the Judiciary had known about this from the FSA long before the announcement?

I don't know if this happened anywhere else in the country on such a grand scale?

**EXC** · 10th February 2008, 08:48:AM

Re: FSA letter to Master of the Roles?

-----Original Message-----
>> From: Nick Spooner EXC
>> To: Clive Briault
>> Sent: Sun Jan 20 12:26:35 2008
>> Subject: CC Stays & Waiver
>>
>> Dear Mr Briault
>>
>> During the second day of the OFT test case hearing Justice Andrew Smith
>> made clear his intention to make a recommendation to the County Courts
>> on the status of current stays on bank charge cases, once a judgement
>> had been made on the outcome of the hearing.
>>
>> He also made it clear that any recommendation would be made regardless
>> of any appeal to his judgement being made.
>>
>> If, in the event that the judgement is found in favour of the Office of
>> Fair Trading and a recommendation to the County Courts results in the
>> stays being lifted, is it the FSA's intention to revoke the complaints
>> handling waiver?
>>
>> I would be very grateful if you could take the trouble to reply in
>> person. There are a large number of poor and disadvantaged families who
>> feel their banks have ripped them off and then been afforded the luxury
>> of the cosy shelter your waiver provides them.
>>
>> I look forward to a prompt and concise reply
>>
>> Regards
>>
>> EXC

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

----- Original Message -----
> From: "Consumer Queries" <Consumer.Queries@fsa.gov.uk>
> To: <EXC>
> Sent: Friday, February 01, 2008 5:27 PM
> Subject: Ref ISS668672
>
>
>> ************************************************** ***************
>> Your attention is drawn to the warning notice at the end of this message.
>>
>> Our Ref: .ISS00668672
>>
>> In order that we can deal with this matter as quickly as possible please
>> do not delete the Subject line of this email when you reply. You can add
>> further wording to it but please do not Remove "ISS00668672".
>>
>> Dear Mr Spooner
>>
>> Thank you for your email of 20 January 2008 sent to Financial Services
>> Authority (FSA) Managing Director of Retail Markets Clive Briault. This
>> enquiry has been passed to the Consumer Contact Centre (CCC) which acts as
>> point of contact for general written enquiries from consumers and other
>> persons who are not firms regulated by the FSA.
>>
>> Your Enquiry
>>
>> I understand that you are interested in the current High Court test case
>> between the Office of Fair Trading and several banks and one building
>> society. Your email has asked:
>>
>> 'If, in the event that the judgement is found in favour of the Office of
>> Fair Trading and a recommendation to the County Courts results in the
>> stays being lifted, is it the FSA's intention to revoke the complaints
>> handling waiver?'
>>
>> FSA intentions
>>
>> The FSA initially granted the Waiver (which allows the banks to put on
>> hold their consideration of complaints about unauthorised overdraft
>> charges) for one year; it is due to expire on 26 July 2008. We will need
>> to consider the position of the waiver in the light of the circumstances
>> at the relevant time e.g. the outcome of the test case.
>>
>> I hope that this has clarified the FSA's position on this matter.
>>
>> Yours sincerely
>>
>>
>> A Franks (Mr)
>> Consumer Contact Centre
>> Financial Services Authority

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

----- Original Message ----- From: EXC
To: "Consumer Queries" <Consumer.Queries@fsa.gov.uk>
Sent: Sunday, February 10, 2008 8:39 AM
Subject: Re: Ref ISS668672

> Dear Mr Franks
>
> Thank you for your e-mail of 1 February.
>
> Your answer ends ''I hope that this has clarified the FSA's position on this
> matter'' but of course it has nothing of the sort. Your answer was
> predictably vague and uninformative. Please allow me to clarify my inquiry.
>
> 1) You say that the FSA will consider the position of the waiver on ''the
> outcome of the test case'' but are you referring to the judgement of the
> initial hearing that concluded last Friday (that deals with the preliminary
> issues) or on the outcome of the substantive issues yet to be heard?
>
> 2) If, on the outcome of the preliminary hearing, a significant number of
> stays are lifted, would the waiver be revoked?
>
> 3) Is it conditional that stays must remain in place for the waiver to
> remain in place?
>
>
> Regards
>
> EXC

**Nattie** · 10th February 2008, 09:28:AM

Re: FSA letter to Master of the Roles?

Exc, remember the bit he says about the waiver until July 2008? The likelyhood of an initial ruling could be worst case scenario, end of April(Why the anomaly?)

**righty** · 17th February 2008, 23:34:PM

Re: FSA letter to Master of the Roles?

It would appear to me that there is an implied threat to the courts that if the decision goes against the banks then the FSA will not consider claims thereby forcing consumers to seek recourse through the courts.

I'm sure this is meant to cause the court to consider the enormous burden that will be placed on the justice system & find accordingly

**oneunluckybloke** · 20th February 2008, 15:55:PM

Re: FSA letter to Master of the Roles?

Some very interesting points made here on the stay; I for one am very intriqued by the "fuzziness" of the stay and it's conditions.

I will gladly pay to attempt to have it lifted

I think forcing consumers to seek recourse through the courts, will force the banks not to drag there feet about addressing the issues at hand....

**agnes** · 3rd March 2008, 22:37:PM

Re: FSA letter to Master of the Roles?

Any reply to your last letter to Mr Franks EXC ?

**EXC** · 7th March 2008, 04:20:AM

Re: FSA letter to Master of the Roles?

Originally posted by agnes View Post

Any reply to your last letter to Mr Franks EXC ?

----- Original Message -----
From: "Consumer Queries" <Consumer.Queries@fsa.gov.uk>
To: EXC
Sent: Wednesday, February 27, 2008 4:47 PM
Subject: RE: Ref ISS668672, ISS00678806

Dear EXC

Thank you for your email of 10 February 2008.

About your enquiry

Following our previous response, you have contacted the Financial Services Authority (FSA) with several further questions relating to the FSA's bank charges waiver. I have detailed your questions, and our responses below.

Your enquiries

1) "You say that the FSA will consider the position of the waiver on ''the outcome of the test case'' but are you referring to the judgement of the initial hearing that concluded last Friday (that deals with the preliminary issues) or on the outcome of the substantive issues yet to be heard?"

- I can confirm that the FSA will need to consider the position of the waiver in the light of the circumstances at the relevant time e.g. both the outcome of the preliminary hearing and subsequent outcomes.

2) "If, on the outcome of the preliminary hearing, a significant number of stays are lifted, would the waiver be revoked?"

- The terms of the waiver included guidance that we intended to review the continued satisfaction of the criteria for giving the waiver two months after the date it was granted, and that in conducting this review we would have particular regard to several criteria including whether there was a stay of relevant proceedings in the courts of England and Wales, Scotland and Northern Ireland in materially all cases. The waiver guidance also states that if we were no longer satisfied as to the above criteria at any time while the waiver remained in force, we would expect to revoke the waiver.

3) "Is it conditional that stays must remain in place for the waiver to remain in place?"

- Please refer to the answer given in 2) above. For further information about the details of the waivers issued, you may wish to view this link - http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/direction_disp.pdf

Yours sincerely

A Franks (Mr)
Consumer Contact Centre
Financial Services Authority

FSA letter to Master of the Rolls?

FSA letter to Master of the Rolls?

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