I would suggest the opinion does two key things - (1) it makes it clear that the DWP's approach is completely wrong in law - the DWP said "If a social landlord says it is a two-bedroomed house, regardless what happens to it subsequently, it is a two-bedroomed house and that is what housing benefit will be judged on" - senior counsel advises that how rooms are used in fact by occupiers is critical to whether a room is in fact a bedroom or not, and (2) makes it clear that local authorities are the ultimate decision maker, and therefore they can issue helpful guidance if they choose to do so. There are a lot of local authorities across the UK who will want to do all that they can within the law to help tenants affected by the bedroom tax.

The full Opinion from the Queens Counsel we instructed on behalf of the Glasgow Advice Agency is now online here: http://govanlc.blogspot.co.uk/2013/02/glasgow-advice-agency-calls-for-local.html The principles apply across the UK, as this is of course UK wide law. Mike

In the case we mentioned the refund of mortgage arrears charges resulted in the balance of mortgage arrears being cleared, so that the repossession action can now be dismissed. A repossession action can only be defended if there is a reasonable plan to meet the ongoing financial liabilities. The point is of courhat is that many people in mortgage arrears have their financial difficulties compounded and exacerbated by unfair charges - and many are tipped over the edge.

Caro, settlement was secured after the action was raised and had called several times - and to answer Furian's question, the lender was represented by a firm of solicitors (we had previously challenged them in a SPPL repossession action as to whether they had proper instructions but they were able to show they were instructed, and we could not take that any further at that time). They ran a competency defence on the basis that we had sued for payment yet the consumer was a net debtor (due to arrears of the first charge mortgage) and we had no right to seek payment per se; that was correct, and so the way round this was to amend, and seek 'implement' instead of 'payment' (an order ad factum praestandum or specific implement in Scotland - there is a similar concept in English law) for the charges as applied to be off-set against the loan account - which then left a case on the merits. Clearly, the safest and easiest option is of course to use the FOS. However, as noted, we are pursuing a wider strategy with a view to rolling this out if successful. Mike Govan Law Centre

It was SPPL.

Tis the season to be optimistic - http://govanlc.blogspot.com/2011/12/glc-progresses-challenge-to-mortgage.html

Absolutely, but we're really positive that the Legal Aid Board will get this right and grant legal aid here; if not we can judicially review them urgently, and the legal aid application for such a JR challenge can ultimately be decided by the court (given the conflict of interest), so we are optimistic. But we want to get a move on as the delay has been unacceptable, and it's time to move up a few gears. Mike

Friday, 10 December 2010 GLC response to Scottish Legal Aid Board statement re bank charges On Wednedsay 8 December 2010 the Scottish Legal Aid Board (SLAB) issued a formal statement in relation to GLC's case of Sharp v. Bank of Scotland and the generally availablity of civil legal aid for Scottish consumers to pursue claims for unfair bank charges. SLAB alleged that "Following receipt, the application was considered but refused as it did not meet the reasonableness test for civil legal aid. No mention was made of wider public interest by Govan Law Centre at this time". That assertion was false. The statutory statement at page 19 of the application expressly stated the strong public interest in this case, on the following basis: "Page 19: Para 5. On the motion of the opponents these proceedings were remitted to the ordinary cause roll due to exceptional complexity. The applicant also seeks an order under the 1974 Act to prohibit any further charges being levied to her account in the future. Approximately 100,000 people in Scotland lodged complaints with their bank seeking a refund of overdraft charges, and therefore, there is a very strong public interest element to this case". Before SLAB issued its original refusal of legal aid in this case on 12 October 2010, Dundas + Wilson, solicitors for the Bank of Scotland, lodged a 6 page letter of objections to SLAB on 27 August raising exceptionally complex and novel points of consumer credit law, issues around the UK Supreme Court's decision in OFT v. Abbey Nationals and others, and contentious issues around the Unfair Terms in Consumer Contract Regulations 1999, as well as complex issues of fact, in objection to the granting of civil legal aid in this case. GLC responded to these points on 14 September 2010 with an equally complex and detailed letter. The fact such novel points of law were at stake - from a Scottish and UK perspective - with such a massive public interest to at least 100,000 Scottish consumers (and by implication 900,000 consumers in England, Wales, and Northern Ireland), renders it extremely worrying that SLAB has chosen to falsely claim none of these issues were mentioned to them. Separately, SLAB had claimed "GLC’s press release suggests that legal aid is unlikely to be obtained for certain cases. This is not accurate". We have just received another refusal of civil legal aid, this time in the case of Reid v. Clydesdale Bank plc, where SLAB once again rely on the 'cost/benefit test'. GLC believes the that ridgid reliance on this test is unreasonable, irrational and unlawful for the reasons set out in our most recent letter to SLAB. GLC's Principal Solicitor, Mike Dailly, said: "The Scottish Legal Aid Board's statement is fundamentally flawed and represents a failure to accept responsibility. It claims that GLC made 'no mention' of the wider public interest of the case when we lodged our client's application for legal aid. We believe, the Board's CEO should apologise for that false and unfair statement, and take responsibility for the self-evident failure to correctly apply the statutory tests in this case".

Dear Caggers Just to explain the reason we sought a civil legal aid certificate in the case of Sharp v. BOS (and we have other legal aid applications and other bank charge cases before the courts too) is not for Govan Law Centre to be paid a fee (we have always undertaken our bank charges work for free in the UK public interest) but rather because these cases have been remitted to the ordinary court (at the instance of the banks, where there is no protection against expenses) and therefore it would have been professionally irresponsible for me to run a case and expose my client to an award of expenses if we were to lose. As you may know the banks have employed advocates (barristers) instructed by solicitors to act on their behalf in these cases, and if the Sharp case ended up with a QC and junior counsel, and Dundas + Wilson LLP instructing them, you could be looking at many tens of thousands of pounds if we lost. I don't think we will lose, we have good prospects, but as a solicitor I cannot expose a client to that level of risk. A legal aid certificate in Scotland provides an insurance policy against costs in the event of contra expenses or failure - section 18 of the Legal Aid (Scotland) Act 1986 entitles a legally aided client to ask the court to modify expenses to nil. That is why legal aid is so important in any contentious case, where the opponent has very deep pockets. I can assure you that the new bank charges arguments will be argued before the courts by GLC, and the reason why we are making such a fuss here, is for tactical reasons. Mike Govan Law Centre

Many thanks Bookworm, Caro and Bankfodder. GLC is a big fan of CAG, and we have done a lot of good partnership work over the years. The law that we are attempting to found upon (CCA and UTCCR) applies on a UK-wide basis, and the way the English and Scottish courts operate is of course to consider the decision of Scottish and English courts, respectively, as 'persuasive' only on UK law issues (or 'highly persuasive' if it's a senior court such as the Inner House or Court of Appeal). However, that's not really the point, because if we are able to have any UK court reject the banks relevancy and competency defences, then that will be helpful, and the arguments on how to do this can be disseminated via CAG and MSE to help other people to do likewise. If we can get passed the technical defences we are then left with the substantive issue (which would require a trial/proof) of whether charges are fair or unfair in relation to the CCA and/or the UTTCR (except of course in relation to the 'level' of charges for UTCCR, standing the UK Supreme Court's decision - but we can argue on the level of charges under CCA). I believe that's an argument we can win; there is a considerable amount of evidence in our favour, including the significant detriment and distress to the individual consumer in a particular case. Mike

Quick note to say we haven't advised any of our clients to give up! We've enrolled a motion to sist (stay) in Walls v. Santander UK plc pending an application to the European Court of Human Rights (ECtHR) in Walls v. United Kingdom. The ECtHR has to first determine whether the application is admissible (having regard to its new, revised criteria). Admittedly, the ECtHR process is slow, but that does not cause any difficulty. Essentially, this approach is designed to preserve our client's rights, prompt law reform, and also to potentially protect the rights of other consumers who have to drop the cases for fear of costs i.e. because if the ECtHR case was successful (in principle) certain consumers might be entitled to sue the state for damages. Not ideal, as it should be the banks, but at least it could preserve a right to recompense for disenfranchised citizens. The key target is of course the banks and their unfair charges. In that regard, we have a number of cases proceeding (including Sharp v. Bank of Scotland plc, and Reid v. Clydesdale Bank plc, among others). The banks have put forward highly technical and complex legal defences which will require to be 'debated'. It won't be easy, they are throwing a lot of money at defending these cases, and we do not underestimate the challenge, however, I anticipate having a decision on the banks relevancy and competency defences later this year. So, at present there is no reason to give up hope. Mike Govan Law Centre

We secured a bit more than permission to amend Michael; it might be helpful to give a more detailed explanation. Yesterday's hearing took place with the fully amended Statement of Claim (amended POC) and amended crave before the court, and previously intimated to the bank's solicitors. Which may explain why counsel for the bank objected so strongly to the orders we sought, and hoped to get the case dismissed. The court was taken through the new ss.140A-B CCA case, and the substantially revised reg.5 case, and full legal argument took place in light of same. The bank was ordained to lodge defences in light of the new and revised grounds of claim, and a full evidential hearing was fixed. The reason we have said 'Sheriff puts Bank of Scotland to proof on bank charges' is twofold. (1) Now that the court has accepted the new legal grounds, and appointed an evidential hearing on those grounds, the effect of this evidentially and tactically is very significant. Section 140B(9) of the Consumer Credit Act 1974 provides as follows: (9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary. What this means is that the Bank of Scotland now has to prove its charges are fair in relation to price (under s.140A of the CCA). If you go back to pre-July 2007, that never happened. It always for claimants to prove charges were unfair, which historically was never easy given the banks failure to disclose their true business model etc., Tactically, to place the bank under more pressure, we can enroll an application to ordain the bank 'to lead' at the evidential hearing i.e. we create a prima facie presumption that the charges are unlawful, which the bank can rebut, but the onus is on them, evidentially, to do so, and we can insist that they lead their witnesses and evidence first. We are entitled to do this, given the court has accepted the new grounds of claim. Now, you wouldn't expect us to go into any more details - as our duty is to our client - but we believe we can show on the balance of probabilities that the charges were excessive, and if so, unfair under the CCA. We also have a pending claim to effectively ban the imposition of future charges - so this is considerably more powerful than a simple payment action (which is all we had pre-July 2007). (2) The second reason for our description of this development, is that we believe it is important to counter the fact the banks have convinced most people it's now impossible to challenge their charges as unfair and unlawful. But more on that if we can secure a number of victories - which I believe we have reasonably good prospects to do so. Mike

You may now be able to seek a time to pay order from the changes introduced to the Debtors (Scotland) Act 1987 from the Bankruptcy & Diligence etc., (Scotland) Act 2007. Govan Law Centre has posted free information on how to do this for summary warrant debts - in Scotland - at counciltaxdebt.info

The Sheriff Principal confirmed there was no Practice Note - so this is good news. I suspect the reason the sheriff (a part-time sheriff) mistakenly thought there was one, was perhaps related to the confusion created by the banks lawyers who took it upon themselves to contact the Scottish Courts Department with the suggestion of stays; the Department in turn circulated this correspondence. We can now be clear there are no blanket stays (sists) in Scotland. Mike

There is no Sheriff Depute is Scotland - there used to be years ago. Perhaps Robertxc reference is to a Sheriff Principal? Scotland is divided into six sheriffdoms and all of the sheriff courts and sheriffs within each Sheriffdom is administered by a Sheriff Principal. The Sheriff Principal also hears appeals from decisions of sheriffs in civil actions. Apparently the banks (in their usual arrogance)wrote to the Scottish Courts Administration Department (the civil servant wing of the courts system) to say in light of the OFT case in London they would be seeking to sist (stay) all cases in Scotland. I haven't seen this letter but anyone could ask for it under the Freedom of Information (Scotland) Act 2002 - the request should go to the Scottish Administration Dept. And this is the source of the confusion. For example, I appeared in a bank charges case at Glasgow Sheriff Court recently where the bank was represented by counsel. After waiting almost 2 hours we got started and the sheriff said there was a Sheriff Principal 'Practice Note' saying all bank charges cases should be sisted. So that was that. However, when I went back to the office and called for a copy of the Note, it transpired there was no Practice Note. Govan Law Centre has since written to the Sheriff Principal at Glasgow who has very kindly confirmed there is no Practice Note. Sheriff Principal Taylor advises that every bank charges case needs to be individually considered by the sheriff with regard to the particular facts and circumstances of the case. So there can be no 'blanket' stays in Scotland. Our case will call again in 3 weeks. Sheriff Baird at Glasgow has already permitted a bank charges case to proceed. In addition, cases have been allowed to proceed at the following sheriff courts: Elgin, Inverness, Greenock, Edinburgh and the borders. Apparently a proof (trial) was fixed in Elgin last week and the bank settled. We have a proof next week in Inverness and there is a proof at Edinburgh in early November. The Consumer Action Group and MSE are of course supporting various other case strategies in the UK - and GLC is very grateful for the expertise and support of colleagues at CAG & MSE. Its true to say that things have got tough for us all following the OFT case, but I think we have some good chances to make a break through (notwithstanding the OFT case). Mike Govan Law Centre