Proposed Judicial Review Proceedings

[Casiemcdw]

I filled in a complaint against the Nationwide Building Society on the FSA website and got a waffle response from them.

 

The link is:

 

http://www.consumeractiongroup.co.uk/forum/general/114177-fsa-waiver-preventing-claims.html

 

I am not very conversant with the law - but isn't there something called a "Class Action" where a group of people get together and take a company to court? Or is that in the States?

[alecmac18]

I have no idea whether a class action could be undertaken in the UK. But someone here will. CRFX250?

 

But in other news I have heard from Abbey and Barclays. Both have hardship cases of mine that they are looking at.

 

Barclays said it would be issuing a response on or before OCT 10th. Abbey said they were currently in discussions with the FSA.

 

Make of that what you will - but I think something is going on. Me guesses that some kind of change is coming.

 

Oh - and Halifax keeps saying - it is "awaiting instructions from head office"

[woodentop]

CRFX - excellent work - we're all behind you. You're a star.

 

Regards

Woody

[alecmac18]

So the situation is thus:

 

1. The OFT did not specifically request the waiver from the FSA.

 

2. The FSA only issues waivers on request - so it must have been requested by one the banks.

 

3. It follows then that the OFT would not care if the FSA removed the waiver. As they did not request it.

 

4. The waiver seems to be in the best interests of banks rather than consumers.

 

5. The FSA waiver has no legal bearing. The courts are saying that they are staying cases pending the UTCCR decision.

 

I really can't see the FSA winning this one in a judicial review.

 

I suppose my question is: Are there any other arguments that can be used in court that do not involve FSA regs or UTCCR's.

[alecmac18]

From the FSA website:

 

We will consider granting a waiver or modification if you are able to demonstrate that:

1. Compliance with the rule would be unduly burdensome OR would not achieve the rule's purpose; AND
   
2. Anyone whose interests are protected by the rule would not be put at undue risk.

[crfx250]

I've now received an e-mail from the FSA complaints department which relates to a complaint I made regarding my initial enquiries about the

waiver decision. I did post this somewhere but due to FSA fatigue, I can't

remember what thread it went up on.

 

The complaint essentially was an accusation that 2 FSA staffers had lied

to me and misrepresented the reasons given to me for the introduction

of the waiver. The complaints department has previously confirmed that

they will look at recordings of telephone conversations on which my complaints are based.

 

The e-mail (below) makes it clear that the FSA are now in breach of their complaints procedures and now want an extra 3 months to conclude their

investigation.

 

It appears that the complaints handling waiver granted to the banking

industry now applies to the FSA themselves.

 

 

 

Financial Services Aurhority

 

Direct line 0207 066 9870

Local fax 0207 066 1015

Email complaints@fsa.gov.uk

Private & Confidential

Date: 19 September

Our Ref 27492

Dear crfx

Your complaint against the FSA

Further to our emailed letter of 29 August 2007 and subsequent email exchanges,

this is to confirm we are still investigating your complaint under the FSA complaints scheme.

It is now four weeks since we entered your complaint into our Scheme and, unfortunately, we are yet to complete our investigation. We hope to complete our investigation and give you a substantive response to your complaint within the next four to12 weeks. If we are unable to issue our substantive response to your complaint within the next four weeks, we will provide you with a progress update at that time.

We initially outlined our understanding of your complaint and our proposals for the structure of our investigation in our letter of the 29 August: this was clarified in the subsequent email exchanges.

We will now proceed with our investigation on the basis of this understanding.

Yours sincerely

Craig Drury

Complaints Handler

Company Secretariat

Financial Services Authority

[alecmac18]

well -looks like its all happening at the end of the month.

[alecmac18]

What happened with the Tom Brennan Vs Natwest case in the end? Is he still appealing? I haven't seen anything in the papers or on the news at all.

[crfx250]

He filed his grounds for appeal at the high court on 4 September and expected a decision within a few weeks so we should know any day now.

 

Here's the GFA if you havn't seen them

Grounds of Appeal final.doc

[alecmac18]

Cheers CRFX,

 

Have just read the grounds to appeal.

 

If it's denied then I think I'll lose all faith in the legal system.

[crfx250]

Amidst more ducking and diving from the FSA on the question of how the

complaints handling waiver ''facilitates'' the test case, it appears that the

waiver will still be in place long after the January court date.

 

The FSA seem to be saying that if the OFT are sucessful in court, they would then have to go through the subsequent and no doubt lengthy process of determining the fairness and genuine pre-estimate of costs/penalties before the waiver can be revoked. Dragging the real cost of penalties out of 8 banks is not going to be a quick process by any stretch.

 

 

 

Dear crfx

 

Complaints Handling Waiver: Proposed Judicial Review Proceedings

 

Thank you for your further e-mail about you proposed judicial review proceedings.

In your e-mail you repeat the two questions you have asked in your earlier correspondence and set out two further questions.

 

Dealing first with the points you make in relation to our letter of the 17 September:

 

On facilitating the test case you make the point that the test case seeks only to establish a very narrow issue and will not deal with the lawfulness or fairness of the charges. You say that the case is not certain to proceed at all.

 

On the issue of whether the waiver is in the interests of all consumers, you dispute our point that similar complaints were resulting in different inconsistant outcomes. You have referred to the success rate of complaints to the Financial Ombudsman Service.You also express concern about the efficacy of the consumer safeguards built in to the waiver given the results of the FSA's thematic work on complaints handling and the evidence you have gathered or are gathering which you say conditions are being routinely flouted.

 

The test case

 

As you may be aware, in order to determine the relevant legal issues in an expeditious, fair and orderly way; the OFT and banks have agreed to have the test casedetermined in two stages. In summary, stage one of the case will focus on the determination of whether the relevant terms and charges can be assessed for fairness under the UTCCR 1999, and whether they are a charge for a service or a penalty in respect of breach of contract at common law. These are known as

'preliminary issues'. However, once the OFT has concluded it's investigation, and in the event that the arguments it has put forward in stage one are successful, then issues of fairness and genuine pre-estimate of costs/penalty will be determined subsequently at stage two of the proceedings. These are referred to in the test case as the 'substantive issues'.

 

The agreement between the parties on the scope of the case is a public document (agreement of 25 July 2007 between the OFT, the FSA and the litigant banks and building society). It also contains the parties' agreed proposed timetable for the progress of the test case. The paragraphs of the agreement which identify the preliminary issues and the substantive issues are paragraghs 1.4 and 3.1.

 

If the legal issues in the test case are resolved, then at that point it will be much clearer, in legal terms, whether a particular customers complaint about unauthorised overdraft charges should succeed or fail. If it is determined that the fairness test does apply. and the substantive issues are resolved, banks will be able to determine complaints by reference to a framework of what is fair and what is unfair. Where a customer refers a complaint to the FOS, the FOS will have a

clearer legal basis for finding whether the customer's complaint should be upheld.

 

Equally, if the preliminary issues are resolved in favour of the banks, that will also bring legal clarity. In that case banks and the FOS would be able to reject any complaints which were based on the allegation of unfairness under the 1999 Rgulations.

 

We believe that that resolution of the issues in the test case will create greater legal certainty which will benifit consumers who have outstanding complaints or who make complaints in the future. The outcome of the test case can be used to help all parties make consistent judgements about how those complaints should be determined.

 

We are following closely the OFT test case and will take that progress into account as part of the two month review. We have set out in some detail how the progress of the test case is likely to affect our decision about the continuation of the waiver in paragraph 7(2) of the waiver direction.

 

The two month review

 

We take the two month review of the waiververy seriously. We are gathering data from the banks for the purpose of the review and are liasingwith other bodies including the Banking Code Standards Board, the OFT, the FOS and a number of consumer groups. We are also considering information received from consumers about the banks' compliance with the conditions of the waiver. Where we consider it approriate, we are contacting banks to clarify information we have received about alleged breaches.

 

You say you have evidence that the conditionsof the waiver are being flouted. If you wish to send that evidence, we will be pleased to see it and will act on it accordingly.

 

Inconsistant outcomes

 

We remain of the view that firms' handling of complaints was leading to inconsistant outcomes for consumers. Our Dear CEO letter set out the results of our thematic work in this area. With regard to complaints to the FOS, we note that the FOS has also suspended work on all cases referred to it until the test case is resolved, and that the courts have granted stays pending the resolution of the test case in a significant number of claims.

 

Additional questions

 

You asked two additional questions in your e-mail. Regarding your question 1) which relates to whether the waiver can remain in place if the OFT test case is not certain to take place: as we have said, we are following the progress of the test case closely and we will take into account it's progress, or any lack of progress as we monitor continuation of the waiver. We have said publicly that we would expect to revoke the waiver in certain circumstances, including if no material progress was made in the case for no good reason.

 

Your question 2) asked what mechanisms the FSA had in place to monitor whether the waiver conditions were being met, for the purposes of the two month review. We have set out above what we are doing to gather evidence of compliance, with waiver conditions.

 

It remains a matter for you whether you wish to challenge the FSA's decision by way of judicial review. We reserve the FSA's position as to those proceedings and to any costs.

 

Yours sincerely

 

Natalie Baylis

Legal Adviser

General Council's Division

Financial Services Authority

[smutley]

will they publish the results of the two month review.... ever, by my calculation its aleady overdue

[crfx250]

will they publish the results of the two month review.... ever, by my calculation its aleady overdue

 

Yes but not till November

[Dougal16T]

To all of us.....

 

It really is about time that we all got some sound legal advice on the question of a 'class action' in view of the complete disregard that the OFT, FSO, Banks, Building Societies, and Financial Institutions have for the law. I do not doubt the strong quality of the Legal minds on this Consumer Action Group, I just feel some positive action needs to be at least commenced.

The waiver was due to be reviewed at the end of September - not November - the end of September!

All that is required is a simple announcement (a) The waiver continues and is for Bank charges only (thereby stopping the farce in relation to credit card claims being stayed) or (b) The waiver is removed - putting us all back on a level (?) playing field.

It requires the Master of the Rolls (2 ham,1 cheese! )

to make clear the directions he has already issued and to ensure that his staff , (which is what the District and Circit Judges are - remember they are just ordinary human beings), carry out the instructions they have recieved correctly.

My own claim as you will know has veered from good to bad to good, and so on. Due to have a hearing at Brighton County Court next Friday 12th with 20 others against HSBC!! - HSBC (DG) asking for leave to appeal my having had the stay lifted....my case is hardship - having my home repossessed as HSBC won't refund my charges...I know this is hardship...I'll be homeless!!! ( the charges I am claiming would pay the arrears of mortgage)!!

Back to my first point - PLEASE LET'S GET THIS SORTED OUT - WE CAN DO IT, BUT WE HAVE TO BE TOGETHER TO ACT AS A GROUP.

You know it makes sense!

My best wishes to everyone

Dougal (aka Howard)

[olden]

CRFX I think you are brilliant doing an excellent job, thanks

[Casiemcdw]

I agree with Dougal16T about the class action and asked about this in another thread some time ago (sorry can't remember which one ).

 

In the letter to crfx250 from the FSA they mention "a public document (agreement of 25 July 2007 between the OFT, the FSA and the litigant banks and building society)" where can one see this document? It is the first time that I have heard that the FSA were involved in the agreement between the banks/building society and the OFT.

 

Why do they get to "agree" between them without consulting consumers?

[jansus]

You say you have evidence that the conditionsof the waiver are being flouted. If you wish to send that evidence, we will be pleased to see it and will act on it accordingly.

 

 

 

I would think there are quite a few genuine hardship cases on here that have failed to have the stays lifted- so that is surely flouting the agreement - but of course they will wriggle out of that one - by the definition of "hardship" Howver I am sure there will be a few willing to give thier names and court numbers.

 

One good bit of news today is that one hardship case has succeeded with some help from FOS - even though the court case was ongoing- by persevering with A&L - outside court - and has won the charges back less interest - So maybe the FOS are getting some messages through.

 

Jan

[crfx250]

You say you have evidence that the conditionsof the waiver are being flouted. If you wish to send that evidence, we will be pleased to see it and will act on it accordingly.

 

 

 

I would think there are quite a few genuine hardship cases on here that have failed to have the stays lifted- so that is surely flouting the agreement - but of course they will wriggle out of that one - by the definition of "hardship" Howver I am sure there will be a few willing to give thier names and court numbers.

 

Jan

 

 

Well I did suggest to several of the numerous moderators on this site that CAG put together and submit a dossier of evidence to the FSA for the waiver review but didn't even get the courtesy of a reply. No doubt they've got far more important things to do like tidying up threads and hanging out in the Bear Garden

[jansus]

hmm - no comment

 

If you do want some cases - i dont mind doing a scout around for you to find some case numbers? As I can see YOU have been really busy.

 

Dont want to tread on any toes but if you have asked the question and have not get a reply then I would be willing to help. Just want to see some action of some sort.

 

just let me know

 

Jan

[jansus]

"In the letter to crfx250 from the FSA they mention "a public document (agreement of 25 July 2007 between the OFT, the FSA and the litigant banks and building society)" where can one see this document? It is the first time that I have heard that the FSA were involved in the agreement between the banks/building society and the OFT."

 

 

 

 

You can see an extract on my thread -post 164 - in A&L successes or it is on the FSA website.

 

Jan

[olden]

Hi crfx, I understand that they have got what Martin Lewis calls a 'fighting fund' are you able to use that?

[crfx250]

Hi crfx, I understand that they have got what Martin Lewis calls a 'fighting fund' are you able to use that?

 

Well a large chunk of that's mine anyway but the FF is really to fight banks directly. I should have a clearer idea of costs in the next week

or so. I have to make up my mind whether to proceed in the next 2

weeks as there is a 3 month limit on challenging decisions by judicial review. Iv'e got a barrister who specializes in financial regulatory law

looking at it.

[alecmac18]

I'll help if you want CRFX - just tell me what to do. The OFT are dragging their feet in releasing the banks defence. I thought it was meant to be public.

[crfx250]

Thanks for the offer of help though I'm not quite sure what you're refering to.

 

I'm fairly convinced the OFT want to publish the banks defences but I suspect the banks are putting pressure on the OFT not to.

[jansus]

"You say you have evidence that the conditionsof the waiver are being flouted. If you wish to send that evidence, we will be pleased to see it and will act on it accordingly"

What do we need for this?

 

A list of cases where claimants have appealed against stays on the basis of hardship ? And how would we present that? A case number and why the claimant thought they were a genuine case that should have been "filtered through" - would that be in the form of asking a question on each forum and asking for a pm to be sent?

 

Or also any cases where claimants have written to the banks asking for the claim to be considered on a hardship basis without going to court - but had been refused?

 

I would of thought if we posted the extract of the FSA agreement on a thread in each forum and then ask people if they think it applies to them - or can remember any relevant cases it might work?

 

although a lot of people seem to have disappeared?

 

Jan