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Old 06-02-2008, 10:56 PM
ian1969uk ian1969uk is offline
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Default EXC's Test Case Day 13 diary

Day 13

Robin Dicker continued with the bank’s reply on Plain Intelligible Language and again Justice Smith raised the subject of small or feint text. ‘’Is this part of the language?’’ and Dicker said that ‘’if you can’t physically read it, it doesn’t mean it’s not in plain intelligible language’’. The judge asked the same of ‘’hands and boxes ‘’ but all Dicker would say is that they are ‘’incidental’’.

Throughout the morning the HBOS QC who is the most unlikable of all the banks lawyers clearly tried the judge’s patience which made for some very entertaining exchanges and Justice Smith would sometimes exhale through his teeth and slam files closed in dissatisfaction.

Dicker asked the judge to consider the Competition Commission’s views on PIL which were not in the court bundle. ‘’Are you presenting this as law or fact?’’ snapped the judge. ‘’I’m assisting my Lord in understanding authorities interpretations of PIL’’. ‘’But is this law or fact? We’ve got to have some discipline. We’ve got to talk like lawyers’’.

Pushing his luck too far Dicker explained that the Competition Commission thought that if contracts were considered acceptable by a Plain English organisation or they passed market research criteria, it would follow that they’d be in PIL. ‘’That’s what HBOS do’’. The judge said despairingly ‘’This court is the independent authority on PIL. The Competition Commission were not interpreting PIL, they were just saying ‘that looks nice to us’ ‘’.

And again Dicker came unstuck when he selectively quoted from OFT bulletins on PIL but the judge insisted on reading them in their entirety. ‘’ I can’t help thinking that there’s a certain amount of cherry picking going on here’’.

The subject of the order in which payments are processed was raised and Dicker said it was the customer’s choice to present multiple payment instructions on the same day and that ‘’the customer implicitly expects the bank to use it’s discretion’’ because ‘’the customer hasn’t given any instructions as to the order they want them processed’’. But this service was news to the judge, ‘’I’ve never heard of this. Could these instructions be reasonably expected to be accepted? Is it the case that HBOS accept these instructions?’’ After a pause Dicker replied ‘’that is my understanding’’. The judge put the question to Barclay’s QC, Milligan, who said ‘’I don’t know my Lord’’.

Having spent all morning on the ropes the ‘Dickster’ was visibly relieved when he finally finished his reply.

Before Milligan started on penalties the judge addressed the question of his advice to the County Courts that Milligan had raised yesterday. ‘’It’s for the County Courts to decide on cases before them. All I can say is that many cases have been put on hold for this one and I haven’t discerned anything in this hearing that undermines that expectation. I can’t intervene in the county courts’’. In essence the judge was saying that any recommendation to the County Courts would have to wait until his judgement was handed down. Needless to say Milligan was delighted. ‘’That’s very helpful my Lord’’. I bet it is.

I have little doubt that the banks knew the judge wouldn’t be able to commit himself to any County Court recommendation until his judgement is made but wanted this confirmed to protect any challenge to the FSA’s complaints handling waiver.

The Barclays QC continued on penalties. At one point the judge asked if consideration itself was a ‘’service supplied’’. To isolate his point the judge asked ‘’if the bank manager dies after his consideration but before effecting his decision, has the consideration service been supplied?’’ . Milligan said it was ‘’a constituent part of supplying a service’’.

Milligan poured scorn on the OFT for their view that the case is not about the level of charges and that the OFT were adopting the regulations to attack them. He said that if the charges were not £35 but 1p the OFT wouldn’t claim the charges were unfair and he described this as a ‘’vanishingly small point’’.

Picking up Brian Doctor’s penalty analogy of the video rental being £1 a day but £50 for the eighth day Milligan said it could not be a penalty ‘’if the video store had the right to it on the eighth day.''

The rest of the day was taken up with brief replies from Thanki, Malek, Salter and Taladano who was standing in for HSBC QC Snowden, all of which said nothing new. Only Vos and Doctor are left to speak and it looks like the hearing will conclude on Friday morning.
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