Dyfrigj v Santander (bank charges) - dismissed in court - no costs Jan 2011

[Amethyst]

Re: Allocation Questionaire for Santander

Yup, and they will probably succeed, and yup you should be scared of costs lol. Sorry, but its the truth.

You remember the barristers name?

[dyfrigj]

Re: Allocation Questionaire for Santander

I won't be able to afford to contest it outside the Small Claims track, so that's a victory for them. Don't know who the barriser was, but the firm is Ashurst, a massive global corporate law firm.

[Amethyst]

Re: Allocation Questionaire for Santander

Ahhh Abbey are stll with them, lovely. Yep they are good (though thats not good from your end). Hope it wasnt Ali Malek QC lol. Else the bill would be humungous.

how much allocation fee have you got to pay ? (I know the rules changed but a while since I've dealt with an AQ)

I was nosing at your other threads - you have a £460 debt with the bank ? I might be inclined to get some without prejudice negotiation underway to wipe that off and you'll ditch the claim.

[dyfrigj]

Re: Allocation Questionaire for Santander

I indicated to the man from Ashurst that I would happily settle the claim as long as they wiped clear any outstanding debts I had, and he agreed to pass on the message. I've also ticked the box on the AQ which asks that this be taken to the Mediation service. Do you think it's worth me sending Ashurst a letter, making them the offer formally?

[dyfrigj]

Re: Allocation Questionaire for Santander

The claim has now been allocated to the Small Claims Track, and Ashurst have filed a defence. I'm in the process of finishing off my response to their defence, and I'm stuck on one point. They say

"It is denied that the Claimant's current account was overdrawn for the whole of the period from XXXXX to XXXXX. It is denied that the Standard Terms constituted a single credit agreement between the Claimant and the Defendent within the meaning of section 140C of the Consumer Credit Act"

They are therefore arguing that the case shouldn't rest on the CCA, and that I therefore cannot make reference to the Unfair Terms clauses in the act. Does anyone know how I can refute this? I'm not a lawyer, and I'm struggling to make the argument that they're wrong.

[dyfrigj]

Dyfrigj v Santander (bank charges) - dismissed in court - no costs Jan 2011

I have a claim against Santander which is in the Small Claims Track of my local County Court this coming Thursday. Today they sent me a document outlining their skeleton arguments. I've attached it here, in case it's of interest to anyone currently pursuing their case.

I'm working on my response tomorrow. I don't expect any detailed replies, but if anyone has any general comments feel free to pitch in.

[TUTTSI]

Re: Santander Legal Arguments

I understood that that since the outcome of the test case and as the Banks won in the Supreme Court there is no case at present to claim for bank charges.

In fact Santander have just written to my court requesting that this case be dismissed as it was stayed when the OFT started their claim against all Abbey + others and have used the result of test case judgement as their leverage for this.

Your initial claim to the courts can you post this up omitting youir personal details.

Do you believe that you can produce a skeleton argument in time for Thursday 's hearing?
Thanks
Tuttsi

[Amethyst]

Re: Santander Legal Arguments

Thanks for posting that up, very very interesting.

I do like their cheek in para 23.4.

Assuming their arguments come in direct response to your pleadings I do have concerns you have not bought anything directly related to the handling of your specific account to the table. eg. where they mention that your statement showed the charges and a phone number - if you had telephoned and requested an overdraft and they had refused and continued to apply charges, then that would be in your favour for an unfair relationship (as it shows they hold all the power and are willing to lend to you on massive charges basis only creating further hardship) Do you see what I mean ?

Towards the end they refer to their tiered pricing structure, it is a pity your claim does not include earlier charges which were under the fixed charge regardless of the amount of the informally requested overdraft - if you do get to trial with this then it would be exceedingly useful to others and the campaign if this point could be laboured somewhat, and an indication from the judge if fixed charges (as most were pre 2008) would be considered differently.

I don't think you have a hope in hell but admire your balls for trying xxx and I presume at this late stage you are well aware of the risk of substantial costs. You need to get more personal with it and get away from the legalese.

Also, tho may be a little late, the South Africa Competition Commission report (search it on here) may add some more backbone to the rather flimsy argument about the Yorkshire Bank £2 from the Whistleblower programme. That gives costs for directly comparable services of pennies (and shows it costs banks more to return DDs than to pay them over the overdraft)....may be worth having in your mind if not in skels.

[Amethyst]

Re: Santander Legal Arguments

Just read back on your other thread, in small claims at the moment, and they havent requested fast track in their AQ ? If not good, but be prepared for it to be bumped up if you get through this next bit, and be prepared for them to apply for costs anyway if you lose in small claims and its halted going any further - you will need to argue against that and fingers crossed for a lovely judge who has just had a mass of bank charges x

[dyfrigj]

Re: Santander Legal Arguments

They decided not to request allocation outside the Small Claims track, for whatever reason. My understanding is that Santander would have to argue that I had behaved unreasonably in bringing the case, in order to claim costs above 10% of the claim amount. Do you have any experience of this? How often do arguments of unreasonable behaviour succeed?

[The Debt Star]

Re: Santander Legal Arguments

I don't think you have a hope in hell but admire your balls for trying xxx

yep, gutsy.

i hope you grind santander down into the dirt they come from.

[Judge mental]

Re: Santander Legal Arguments

I made a few notes whilst reading through their arguments which may or may not be of use.

Their defence is largely based on the Supreme court decision (no surprises there), however that decision and the courts considerations were in respect of the very narrow issue of section 6(2)(b) of UTCCR, it could be argued therefore that as your claim makes no reference to UTCCR 6(2)(b) Santander are using the comments from the SC out of context and should be disregarded.

There is also a lot of imaginative interpretation -

Paragraph 5 for example, there is only one reported decision because the banks never allowed cases to go to court, those who were determined enough to overlook their attempts to convince the claimant they had no case were taken into a room before the hearing and the case was settled, therefore no other cases actually got into the courts.

The OFT did not rule out any future challenge under 'unfair relationships' only that there were not good grounds for a collective challenge. Neither the OFT or FOS say anything to suggest you do not have a case as implied in paragraph 14

Ame has got it right by suggesting you make it more 'personal' and how you paying for another persons free banking on any month through what can be either a mistake or your financial hardship creates an unfair relationship.

Another point is the enforced 'instant overdraft', 'instant overdraft request fee', and 'instant overdraft monthly fee as opposed to the bank simply not paying an amount which would exceed any limits, therefore not accumulating any additional charges or interest,
and the automatic taking of their fees can themselves trigger additional 'instant overdraft fees'

maybe include a table showing what fees are imposed when a transaction triggers their fees, e.g.
Transaction overdraft request fee overdraft monthly fee total
£1 £5 £25 £30
£2 £5 £25 £30
£10 £15 £25 £40
£11 £15 £25 £40
£20 £25 £25 £50
£30 £35 £25 £60
therefore a transaction of £20 which may only exceed any limit by 1 or 2 pounds would trigger fees of £50, further, if their £50 charges exceeded the limit by just a few pounds it would trigger £60 charges next month,
The full effects of the fees are not clearly explained or shown therefore the way they exercise or enforce their rights under an agreement creates an unfair relationship CCA 140 (1)(b)
their example given in paragraph 18 of a transaction of £10 only incurring a fee of £5 is wrong and misleading.

Additionally, highlighting other 'less suitable' methods of charging for current accounts is no excuse or justification for imposing an unfair relationship.

Stuart

[The Debt Star]

Re: Santander Legal Arguments

also Scrivener's summary in the attached Opinion may help?
http://www.legalbeagles.info/forums/...ad.php?t=22685

[dyfrigj]

Re: Santander Legal Arguments

Thanks everyone for their help. Working on this tonight, up in court tomorrow at 10. I'll let you know how it works out.

[Amethyst]

Re: Santander Legal Arguments

Please do, you can rest assured there will be many people thinking of you and willing you on, and waiting to hear about it afterwards. xx The very very best of luck from me xx