Letter from HSBC Solicitors

[Amethyst]

[EXC]

Re: Letter from HSBC Solicitors

I saw this on CAG and the solicitors included the SC press release to back it up - except the bit at the end:

NOTE
This summary is provided to assist in understanding the Court’s decision. It does not form
part of the reasons for the decision. The full judgment of the Court is the only authoritative
document.

[Smasher]

Re: Letter from HSBC Solicitors

Grrr! My claim wasn't for "informal overdraft charges", it was for the ones that were supposed to cover administration and management costs!

[Amethyst]

Re: Letter from HSBC Solicitors

I thought the directions requested were pretty neat

[EXC]

Re: Letter from HSBC Solicitors

Absolutely.

[Amethyst]

Re: Letter from HSBC Solicitors

Another letter from DG - to the court (copied from CAG) possible they've gone of the three months draft directions idea ?



Dear Sir/Madam

we act for HSBC Bank plc(HSBC).

We refer to the order in respect of the above claim, dated ####, which requires HSBC to provide a case summary of the final decision in the bank charges test case, Office of Fair Trading v Abbey National plc & Others ([2009] UKSC 6, [2009] 3 WLR 1215), within 28 days of the judgement being handed down.

You will no doubt be aware that judgement in this matter was handed down by the Supreme Court on 25 November 2009. Accordingly, we enclose a copy of the press summary, prepared by the Supreme Court, together with a copy of the order made by the Supreme Court.

We note that the Claimant has challenged informal overdraft charges, presumably, on two grounds, namely that: (a) they constitute penalties at common law; and (b) they are unfair under Regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 ("UTCCRs") on the basis that they are too high. As has now been definitively determinded, neither of these two challenges is open to the Claimant:

(1) In two earlier judgements, Mr Justice Andrew Smith held that none of HSBC's informal overdraft charges amount to penalties at common law: see [2008] EWHC 875 (Comm), [2008] 2 All ER (Comm) 625; and [2008] EWHC 2325 (Comm), [2009] 1 All ER (Comm) 717. Neither decision was appealed by the OFT.

(2) On 25 November 2009, the Supreme Court ruled that it was not permissible to challenge the fairness of bank charges under Regulation 5(1) of the UTCCRs on the basis that they are too high because that form of challenge is precluded by Regulation 6(2)(b). Regulation 6(2)(b) provides that the assessment (under Regulation 5(1)) of the fairness of a term in a contract "shall not relate ... to the adequacy of the price or renumeration, as against the goods or services supplied in exchange". In other words, the 'value for money' equation is excluded. The argued, and the Supreme Court agreed, that the informal overdraft charges are part of the price for personal current account services and that, therefore, the Regulation 6(2)(b) exception applies with the consequence that the charges cannot be found to be unfair on the bais that they are too high.

Further, on 22 December 2009, having spoken to and considered the views of a number of interested parties (including various consumer groups, the Financial Services Authority, the Financial Ombudsman and the Government), the OFT announced that in the light of the Supreme Court's judgement it would not be continuing its investigation under the UTCCRs into the fairness of unarranged overdraft charges. The OFT's decision was based on a careful consideration of the matter (including various alternative grounds of challenge under the UTCCRs suggested by consumer groups), which led the OFT to conclude that following the Supreme Court's judgement there were no other potential bases of challenge under Regulation 5(1) that stood a realistic prospect of success.

We respectfully content that, as the only grounds for challenge that the Claimant has put forward have been dismissed by the higher courts, and given that there are no other viable grounds of challenge under the UTCCRs (as the OFT has recognised), the claim must fail in the County Court. We would therefore invite the Court to dismiss the claim.

We should be grateful if you would place a copy of this letter before the Judge responsible for this matter.

Yours faithfully

DG Solicitors
Encs.

[Smasher]

Re: Letter from HSBC Solicitors

Another letter from DG - to the court (copied from CAG) possible they've gone of the three months draft directions idea ?

Why doesn't that surprise me?

I guess I'll be waiting for mine too now. Most are not challenging 'informal overdrafts' anyway, they're challenging default charges.
Looks like we got some fast work to kick off 2010 with..

[Amethyst]

Re: Letter from HSBC Solicitors

Yep indeed, and why do I feel like we're out on our own (our = PAG,BC and LB)?

Its going to be an amendment of the POC and they will have to respond to the court to oppose the strike out request. He hasnt mentioned if the letter was JUST a letter or attached to a formal application. I know where consumers have applied for strikes or stay lifts over the last few weeks the courts have responded asking for N244 application and the fee. So will the courts be fair ?

So will work on responses to these today - I presume the court will have to ask the claimant if they agree or if they wish to oppose the applications before claims are unilaterally struck out ?

It seems to be another postcode lottery - with some staying cases until Nov 2010, some till Feb 2010, and some holding bulk directions hearings.... think the court service need to sort themsleves out and instruction/guidance from Moore-Bick is well overdue.

[Smasher]

Re: Letter from HSBC Solicitors

Yep indeed, and why do I feel like we're out on our own (our = PAG,BC and LB)?

Um, I don't get you. Surely PC, MSE & CAG are going to have to tackle it too no?

Its going to be an amendment of the POC and they will have to respond to the court to oppose the strike out request. He hasnt mentioned if the letter was JUST a letter or attached to a formal application. I know where consumers have applied for strikes or stay lifts over the last few weeks the courts have responded asking for N244 application and the fee. So will the courts be fair ?

So will work on responses to these today - I presume the court will have to ask the claimant if they agree or if they wish to oppose the applications before claims are unilaterally struck out ?

It seems to be another postcode lottery - with some staying cases until Nov 2010, some till Feb 2010, and some holding bulk directions hearings.... think the court service need to sort themsleves out and instruction/guidance from Moore-Bick is well overdue.

I would have thought that they would all have to bee looked at on an individual basis now, the wording of this letter doesn't apply at all to anyone who has any historic charges in their claim.

I'd be quite happy to be guinea pig for a claim against them. I think with the correspondence and original documentation I still have, its going to be worth a shot. Fortunately, I am debt free these days (although I don't have any money either lol), so I'd happily risk it.

One thing that is starting to irk me is how much revenue HMCS will now be milking from claimants to pour into the 'save a banker' pool? Ever the cash cow eh?

[Amethyst]

Re: Letter from HSBC Solicitors

I don't know, theres nothing for claimants on MSE or CAG and deadlines are coming up fast, a number of people have 7th Jan deadlines for FOS and theres only 'wait for MSE's templates' advice. Seeing as they won't be available till third week of Jan (if ever) where does that leave them ? I don't about PC.

This part

We respectfully content that, as the only grounds for challenge that the Claimant has put forward have been dismissed by the higher courts,

and the difference between the other letter from DG to the Court - I assume they are reading the POC's and only applying to strike those which solely refer to Penaltys, 6(2) and 5(1) in a price adequacy context. So those people will need to oppose and apply to amend POC's in entirety.

If they do the same to people who have additional issues other than those litigated by the OFT and Banks then they can oppose on the basis their POC has other arguments and apply to amend POCs on that basis.

[EXC]

Re: Letter from HSBC Solicitors

Um, I don't get you. Surely PC, MSE & CAG are going to have to tackle it too no?

[Smasher]

Re: Letter from HSBC Solicitors

Oh, well um, dunno what to say to that!

I think it might be worth appealing for pepole to send new SAR's to their banks, you know. If only to at least to try to persuade the court to keep a stay on the claim until you have the data so that you can do your new POC & court bundle. I just drafted this message to make an appeal for claimants to send new SAR. Worth a shot?

Between these sites, we're doing quite well collecting old charges notification letters and previous terms & conditions.
Recently, I sent another SAR to my bank. Last time I did that was a few years ago, they just sent me copy statements. I was happy with that because all I wanted to know was how many charges I had paid, I'm sure its the same for most people.

However, an SAR requires full disclosure of correspondence, whatever they have on file. So I am going to push for everything they got and see what turns up. At the very least, the original T&Cs and the overdraft renewal letters should provide each claimant with some strong evidence to support their case.

But, if an SAR can also produce copies of these notification letters, details of information shared with credit reference agencies e.t.c. then this data could be just what we need. It may also be useful to help you get a longer stay on your claim. You might be able to persuade the court that you are waiting for this data in order to compile your new POC and court bundle.

Also, if you were ever defaulted for bank charges, a copy of the default notice would be absolutely dynamite to support yours and other people's cases.
Also an SAR to your Credit Reference Agency would be helpful if your credit file has been marked in respect of bank charges.

It is a bit of a big ask as the SAR costs £10, but if you have a claim in the system, it could just provide you with the data you need to win it!

[Amethyst]

Re: Letter from HSBC Solicitors

yep good idea I have put a request in to the OFT for all their test case documentation (worth a shot isnt it I know its unlikely we'll get anything provided by the banks)

Thing with t&c's i dont know if they are actually covered by the DPA - credit agreements and indivudal unique stuff would be, stuff relating to each person, so I assume that the terms when the account was first opened should be a part of that, but i'm not SURE, maybe we should ask the ICO before getting peeps to part with another £10. (most people who sent SARS from here asked for everything anyway tbh and i dont think many got original t&c's)

[Smasher]

Re: Letter from HSBC Solicitors

Most SARs ask for everything, but I'm pretty sure in most cases, people just got a sack full of 6 years worth of copy statements and were happy with that.
The DPA definitely covers correspondence tho, but yeh I guess like with anything we're trying these days, it should carry a notice that unfortunately there are no guarantees..

Good idea to contact the ICO tho, I'll do that. It'll have to be Monday, cos I gotta go out shortly & start setting up to make a big noise in some poor git's pub tonight!

[EXC]

Re: Letter from HSBC Solicitors

Nice one Smasher - I'm sure SARs work a bit like FoIA requests - you ask for something, don't get it but get something more valuable instead.