Can the bank ‘UNCLEAR’ cleared funds?

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

To be fair the barrister wasn't the only one who thought for some reason there had been no loss and therefore no claim !!

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

yes, hats off to judge Taylor,

[nemesis45]

Re: Can the bank ‘UNCLEAR’ cleared funds?

During the trial the bank did say that there was no loss, but it seems that as there was no witness statement this does not count as evidence.
In his judgement the judge said that the bank had taken the money wrongly as the funds were mine. He said the bank had given no oral evidence. He said that the Certainty of fate principle applies. He said the CoF is a device adopted by banks to ensure cheques placed move quickly through accounts. He said it seems clear to him that 'paid in' means paid in at the post office, so for sums paid in at the post office on the 5th, the time runs from the 6th, so time well passed before the 17th when funds were withdrawn. He said it could have been a claim for £35,000 and I limited it to the £9,027. The bank failed to comply with T&Cs and also gave strong and persistant advice to me that the funds were cleared. The lawyer asked what the loss was and the judge said the loss was of the funds.

A well reasoned and just judgement!

nem

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

During the trial the bank did say that there was no loss, but it seems that as there was no witness statement this does not count as evidence.
In his judgement the judge said that the bank had taken the money wrongly as the funds were mine. He said the bank had given no oral evidence. He said that the Certainty of fate principle applies. He said the CoF is a device adopted by banks to ensure cheques placed move quickly through accounts. He said it seems clear to him that 'paid in' means paid in at the post office, so for sums paid in at the post office on the 5th, the time runs from the 6th, so time well passed before the 17th when funds were withdrawn. He said it could have been a claim for £35,000 and I limited it to the £9,027. The bank failed to comply with T&Cs and also gave strong and persistant advice to me that the funds were cleared. The lawyer asked what the loss was and the judge said the loss was of the funds.

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,
that's good, let's hope you continue being right mashappy:.

As they relied only on written evidence then it might depend on whether the 'no loss' issue was mentioned in any of the paperwork and I'm not sure that it was, (but can't bring myself to re-open the papers at the moment)

It won't matter if they mentioned it or not.
This would be a new argument (not evidence) if they were to bring it up now, but it was available at the time of the trial so should make no difference.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

thanks, appreciate that

[enaid]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Well done on this so far and I truly hope it is the end. Not very often Judges take the 'ump with the banks even if they didn't follow the rules.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,
that's good, let's hope you continue being right mashappy:.

As they relied only on written evidence then it might depend on whether the 'no loss' issue was mentioned in any of the paperwork and I'm not sure that it was, (but can't bring myself to re-open the papers at the moment)

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Obviously pleased with the result..... it's good to see the little man (or lady!) win.
Congratulations.
Regarding the possibility of an appeal, before being given leave to appeal , the appellant has to convince the higher court
i) the appeal must have a real prospect of success
ii) there is some other compelling reason why the appeal should be heard

Point ii) generally means there has been a substantial procedural irregularity, or the original judge has got it wrong on a point of law or grossly misunderstood the evidence.

Obviously the trial judge was unimpressed with the defendant, but the trial took substantially longer than estimated which indicates he examined all the evidence.
The fact the defendant's barrister, and presumably the defendant, are aggrieved at the outcome is not sufficient reason for a retrial. The defendant cannot introduce new evidence (unless it has just come to light and wasn't previously available) so although I cautioned about the possibility of an appeal, realistically I doubt they would obtain permission even if they apply

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I believe it is calendar days ( as the CPR doesn't state otherwise)

Appellant’s notice

52.4

(1) Where the appellant seeks permission from the appeal court it must be requested in the appellant’s notice.

(2) The appellant must file the appellant’s notice at the appeal court within –

(a) such period as may be directed by the lower court (which may be longer or shorter than the period referred to in sub-paragraph (b)); or

(b) where the court makes no such direction, 21 days after the date of the decision of the lower court that the appellant wishes to appeal.

(3) Subject to paragraph (4) and unless the appeal court orders otherwise, an appellant’s notice must be served on each respondent –

(a) as soon as practicable; and

(b) in any event not later than 7 days,

after it is filed.

(4) Where an appellant seeks permission to appeal against a decision to refuse to grant an interim injunction under section 41 of the Policing and Crime Act 20092 the appellant is not required to serve the appellant’s notice on the respondent.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

p.s. hmmm, does anyone know if 21 days means 21 calendar days or 21 working days?

Also, will the court automatically tell me if an appeal is requested?

Finally, how long is it likely that it would take to get a decision on whether the appeal was allowed or refused and how soon might there be an appeal hearing if one was granted?

best wishes,

NB

[nemesis45]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hello again,

I'm very pleased to be able to say that Des8 was right in his views in this case. (Well, so far at least).

On Wednesday I had the small claim hearing and after a 'trial' lasting 2 and a half hours the judge decided in my favour and ordered the bank, within 21 days, to pay me £9027 and the court costs to date that amounted to £750. The judge found that the T&Cs on the account and the advice I was given by the bank meant that the funds became mine once the stated timescale was passed and I then had the right to do what I wished with them. Result!

The barrister representing the bank immediately requested permission to appeal on the basis that I had not suffered a 'loss' but the judge refused. I have already told both Des8 and Amethyst this result privately (and thanked them both). They have advised caution at this stage as their view is that the bank may make a further appeal within 21 days. We will have to wait and see.

Anyway thanks to everyone who has made contributions on the issue to date, it has all helped me see the bigger picture,

best wishes,

Nicola

Good result!!

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hello again,

I'm very pleased to be able to say that Des8 was right in his views in this case. (Well, so far at least).

On Wednesday I had the small claim hearing and after a 'trial' lasting 2 and a half hours the judge decided in my favour and ordered the bank, within 21 days, to pay me £9027 and the court costs to date that amounted to £750. The judge found that the T&Cs on the account and the advice I was given by the bank meant that the funds became mine once the stated timescale was passed and I then had the right to do what I wished with them. Result!

The barrister representing the bank immediately requested permission to appeal on the basis that I had not suffered a 'loss' but the judge refused. I have already told both Des8 and Amethyst this result privately (and thanked them both). They have advised caution at this stage as their view is that the bank may make a further appeal within 21 days. We will have to wait and see.

Anyway thanks to everyone who has made contributions on the issue to date, it has all helped me see the bigger picture,

best wishes,

Nicola

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Yes you might think that an 'ethical' bank would ask politely but I didn't quite get the opportunity to say 'no'......

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Yep, it's the legal position we need....ie. if you said NO to the bank taking the money bank, if they would be able to take other action to recover the funds, legally.