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  #1  
Old 22-01-2008, 11:41 PM
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Default EXC's Test Case Day 4 Diary

http://www.legalbeagles.info/forums/...ead.php?t=4454

EXC'S Day 4 diary
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  #2  
Old 22-01-2008, 11:46 PM
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just had a glance at todays report

it is a well known fact that the actual signature on a cheque below £100 is not checked FOR THE "CORRECT SIGNATURE" a few times FC has put a squiggle when the cheque has been unsigned it works every time.
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Old 22-01-2008, 11:50 PM
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I was told that to FC but they advised me it was £50 in Lloyd's. there reason was... could you imagine how time consuming it would be if we had to check every one, and with the amounts being so low its a risk we can afford?

no question of concern for agro caused to the person who's cheques may be being used fraudulently.

Thanks for teh update Tanz, nice to see they are not thinking they will sail through this.

I hope this whole issue/case is released as a paperback.
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Old 23-01-2008, 12:18 AM
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Quote:
Originally Posted by TANZARELLI View Post
Thanks for that Tanz but unfortunately I could only read the first instalment as I am not a member of that site.

Were there any other significant points in the rest of the report?
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Old 23-01-2008, 12:27 AM
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Thanks for that Tanz but unfortunately I could only read the first instalment as I am not a member of that site.

Were there any other significant points in the rest of the report?
This is the only update so far today:

Quote:
Originally Posted by EXC on Beagles
Day 4


Before continuing to set out Barclays case from yesterday QC Milligan raised several procedural issues regarding the schedule of the rest of the hearing and the unsolved matter of addressing the OFT’s stance on Plain Intelligible Language.

He suggested that the IDRC should be booked for beyond the week of the 28th. ‘’That’s fine but you’ll need a judge’’ said Justice Smith who went on to explain that he had ‘’commitments beyond that week’’. But then conceded he’ll have to reschedule them.

Between them they thrashed out a likely timescale. After Barclays finish hopefully by the end of the day the remaining 6 banks would need half a day each taking them to Monday. The OFT would then need a week to set out it’s case, then the PIL issued clarified and then both parties summing up. OFT’s Brian Doctor then announced he would not be available on the 7th and 8th so the judge suggested ‘’maybe the week of the 11th as well.

Brian Doctor was then asked to respond to the 12 questions the banks had submitted yesterday about the OFTs stance on Plain Intelligible language. He said the questions were in the main not relevant to the case and any answers ‘’wouldn’t be much help to the County Courts’’.

Milligan suggested the judge read some County Court Claims to help form his view. The judge finally decided to address the issue ‘’once we’ve got a few more submissions out the way’’.

Milligan returned to his setting out. During this he listed Barclays 4 or 5 ‘services’ for a payment or non-payment:

1. Provide a system of payment request i.e. cheque or direct debit.

2 Determine the validity of the payment request i.e. is the cheque signed? Is their a direct debit mandate?

3. All the payment requests are checked against funds available.

4. If insufficient funds are available the granting of an unauthorised overdraft is considered. This consideration is a contractual obligation.

5. If granted, a letter of notice of an unauthorised overdraft stating the terms is provided.

Justice Smith cleverly put the question ‘’In the event a cheque is presented with more than enough cleared funds available, would not the cheque be an instruction to pay and not a request? Is a direct debit in the same circumstances a mandate and not a request?

Milligan replied ‘’well that’s partly right’’.

When seeking clarification or questioning Milligan the judge often stopped in mid sentence to consider his words. It seemed to me that on occasion when Milligan was uncomfortable with the judges probing he would ‘interoperate’ Justice Smiths’ pauses as the end of his questioning and would quickly jump on to his next point. But not for long. The next time it happened the judge said quire firmly ’’Can I finish my question without you talking over me? The startled Milligan gave a grovelling apology. Marvellous.

At one point the judge went through Barclays T&Cs with Milligan from 2002 onwards. ‘’The ‘buffer’ is what?’’, and Milligan replied ‘’the threshold - £5 - you need to cross before a charge is triggered’’. ’’But ‘buffer' is not clear. Am I right that to understand the charges, you have to cotton on to what ‘buffer’ is?’’

To be continued in a couple of hours.
However the day do day diary so far is here, bar one day (yesterday-Mon), due to him not being able to make it: http://www.legalbeagles.info/forums/...ead.php?t=4242
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Old 23-01-2008, 12:54 AM
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This is the rest of the Day 4 review:

The judge asked for his view on whether the layout, font and colours of T&C’s are relevant to Plain Intelligible language. ‘’No’’ said Milligan.

The judge then asked ‘’If Barclays produced a 500 page booklet of T&Cs and the charges are somewhere on page 497, would this be in PIL?’’. ‘’Yes’’.

Another odd argument from the Barclays QC was that in T&Cs, if a term was ‘implied’ as opposed to being an ‘express term‘, it could not fall into the OFT’s unfairness category as the OFT have not questioned any ‘implied’ terms, only express terms.

He then spoke about the OFT’s 7 main gripes with the T&Cs and the way charges are administered. Milligan said ‘’they have been labelled ‘the seven deadly sins’ within our camp’’ (all the banks). And these included the order in which payments are processed.

After lunch the OFT QC gave out a document clarifying the PIL points they considered relevant to the case and put the PIL ball back in the banks’ court.

The judge took Milligan back to Barclays T&Cs. ‘’Where are the charges?’’. Milligan helpfully pointed out ‘’by the dagger on the bottom of the last page’’. The judge, admittedly looking at a court bundle photocopy, said ‘’that’s a dagger? It’s completely illegible’’.

The judge found other key terms in the T&Cs under the heading ‘important information’. ‘’Is the ‘important information' in the leaflet clear that they are terms?’’ Milligan confidently replied ‘’everything in the leaflet is contractual’’. The judge took another look. ‘’Is ‘Barclays is a responsible lender’ a contractual term?’’. ‘’Err no. Well yes’’.

There’s no question that the judge is finding holes in the banks defence. But it has to be said that in the short time the OFTs QC has spoken the judge has been, in my view, sometimes a bit critical of the consistency of the OFT’s case.

Milligan told the judge his submission is almost complete and will need just 15 minutes in the morning to finish. Tomorrow kicks off at 10.30.
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Old 23-01-2008, 01:06 AM
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Thanks both of you for sharing this update with us and thanks also to LB and EXC for following the developments. It's much appreciated.
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Old 23-01-2008, 11:04 AM
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Thanks for the ending Ian, I thought I couldn't access the next page on LB
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Old 23-01-2008, 05:36 PM
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That's good reading - thank you. I hope OFT can present a solid, professional case.
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